Jammu & Kashmir High Court
Oriental Insurance Co. Ltd. vs Ishwar Lal And Ors. on 14 August, 2007
Equivalent citations: 2008(1)JKJ339
Author: Nirmal Singh
Bench: Nirmal Singh
JUDGMENT Y.P. Nargotra, J.
1. Whether the requirement of accompanying a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against in terms of third proviso to Sub-section (1) of Section 30 of Workmen's Compensation Act is applicable to the insurer, who seeks to file the appeal against an order passed by the Commissioner appointed under the Workmen's Compensation Act allowing a claim in favour of claimants; is the question involved in this appeal.
2. The appellant filed a civil first miscellaneous appeal against the award/judgment dated 23.2.2007 passed by the learned Commissioner Workmen's Compensation Act (Assistant Labour Commissioner), Doda, in File No. 40-D, titled, Ishwar Lal v. Divisional Manager. The appeal of appellant has been dismissed by the first appellate court vide order dated 16.7.2007 on account of the omission of appellant to annex the certificate of Commissioner that the awarded amount stood deposited with him. The contention of learned Counsel for appellant is that the provisions contained in third proviso to Sub-section (1) of Section 30 applies to the employer and not to the insured, who has undertaken to indemnify for the liability of the employer. Third proviso to Sub-section (1) of Section 30 reads as follows:
Provided further that no appeal by an employer under Clause (a) shall be unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.
(2) The period of limitation for an appeal under this section shall be sixty days.
From the bare reading of the above proviso it is manifest that no appeal can be maintained by an employer under Clause 'a' unless the memorandum of appeal is accompanied by a certificate issued by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.
3. Whether the expression "employer" used in the above proviso would include the insurer as well, the contention of Mr. Chouhan, learned Counsel for appellant is that the insurer only under the policy of the insurance becomes liable to indemnify the liability of the employer and, therefore, does not fall within the expression of 'employer.
4. In support of his contention he relies upon the following cases.
5. National Insurance Co. Ltd. v. Saifuddin , in which the high Court of Madhya Pradesh while considering the question on the applicability of the restriction contained in the proviso to Section 30 for depositing the amount by the insurer, has held as follows:
10. The learned Counsel for the claimant-respondent Nos. 1 and 2 has, however, raised a preliminary objection to the maintainability of this appeal under Section 30 of the Act, on the ground that such an appeal cannot be unless the memorandum of appeal is accompanied by a certificate of the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against and that in the instant case the appellant has not deposited the amount awarded by the impugned order. Learned Counsel has cited a few decisions in support of his submission including a single Bench decision of this Court in New India Assurance Co. Ltd. v. Mohinder Singh 1986 ACJ 1101 (MP). In reply a Division Bench decision of this Court taking a contrary view has also been cited, i.e., Northern India Insurance Co. Ltd. v. Commissioner for Workmen's Compensation 1973 ACJ 428 (MP), wherein it has been held that in an appeal by the insurance company which is not the employer, the condition as to deposit in an appeal under Section 30 of the Act does not apply. The restriction contained in the proviso to Section 30 of the Act for depositing the amount is expressly limited to an appeal filed by the employer and since the insurance company is not the employer, that restriction is not applicable to the insurance company.
11. In view of the aforesaid Division Bench decision of this Court which does not appear to have been overrules, the preliminary objection of the learned Counsel for the claimant-respondent Nos. 1 and 2 is rejected.
6. Oriental Insurance Co. Ltd. v. Umesh Nath" , wherein their "Lordships of Gauhati High Court held as f [1OX"47 There is, if I may emphasise, no ambiguity in the wording of the third proviso and/or in the definition of 'employer; and it is only the 'employer', if he prefers an appeal under Clause (a), who has to deposit the amount awarded, otherwise no appeal would lie. The proviso admits of no entities other than the 'employer'.
47 There is, if I may emphasise, no ambiguity in the wording of the third proviso and/or in the definition of 'employer; and it is only the 'employer', if he prefers an appeal under Clause (a), who has to deposit the amount awarded, otherwise no appeal would lie. The proviso admits of no entities other than the 'employer'.
48. Because of what have been discussed and pointed out above, I have no hesitation in holding that the word 'employer' occurring in the third proviso to Section 30, does not include the 'insurer' and the 'insurer' does not step into the shoes of the 'insured' (i.e., 'employer') in all cases.
7. In "Oriental Insurance Co. Ltd. v. Lalita Bai" 1998 AC 119, the High Court of Madhya Pradesh has held:
The objection cannot be sustained in view of Division Bench decision of this Court in Northern India Insurance Co. v. Commissioner for Workmen's Compensation 1973 ACJ 428 (MP), wherein it has been held that the restriction contained in the proviso for depositing the amount is expressly limited to an appeal filed by the employer. The instant appeal has been preferred by the insurance company. Therefore, the third proviso to Section 30 of the Workmen's Compensation Act is not applicable and the appellant is not required to deposit any compensation amount with the Commissioner for Workmen's Compensation before filing an appeal.
8. I we go by the above view, there would be merit in the contention of learned Counsel for appellant. But, we do not feel persuaded to accept the view expressed in the above authorities.
9. This Court in the case, entitled, "United India Insurance Co. Ltd. Ghulam Qadir Dar" , while considering the question of applicability of third proviso to the insurer observed as follows:
3. It is true that Section 30 provides for an appeal by the employer and that it is he who is required to satisfy the requirement laid down therein. But since the insurer steps into the shoes of the employer, files an appeal for and on behalf of him and takes all available defences for him to avert its liability, therefore, it should be held liable to satisfy all requirements attached to the filing of appeal. In other words, if the insurer's right of appeal flows via the employer, it brings with it all liabilities and requirements. The insurer cannot be allowed to have the cake and eat it too. Being a substitute of the employer, the insurer is by all standards required to do all that the employer is obliged to do. Therefore, what the employer cannot do by himself cannot be done by the insurer on his behalf. On this parity of reasoning, since an employer is obliged to satisfy requirements of third proviso to Section 30, the insurer is equally bound and if an employer's appeal is rendered incompetent for falling short of prescribed requirement, insurer's appeal suffers the same fate. Any other view would run counter to the reasoning, logic and basis on which the insurer's appeal proceeds.
10. For holding as above, reliance was placed upon the cases New India Assurance Co. Ltd. v. M. Jayarama Naik 1982 ACJ 3 (Kerala) and New India Assurance Co. Ltd. v. Mohinder Singh 1986 AC 101 (MP). The view expressed in National Insurance Co. Ltd. v. Saifuddin (supra) was not accepted. The view expressed by this Court has also been the view of soma other High Courts as well.
11. In United India Insurance Co. Ltd. v. Chandra Kali , it has been held:
28. In this connection, the decision in the case of United India Insurance Co. Ltd. v. Gangawiva 1997 AJC 825 (Karnatka), is relevant, in which, reliance has been placed on the decision of the Division Bench in the case of United India Insurance Co. Ltd. v. Kashimsab , "that as the insurer steps into the shoes of the employer or owner of the vehicle, insurer must deposit the compensation before filing the appeal.
12. "Oriental Insurance Co. Ltd. v. Renu Devi" 1997 AC 808, after considering the case law on the subject, the Patna High Court has held as follows:
13. Thus, having regard to different decisions, as noticed above, I answer the preliminary objection as to the maintainability of the appeal under Section 30(1)(a) proviso 3 of the Act against the insurer.
13. A learned Division Bench of Allahabad High Court in case "New India Assurance Co. Ltd. v. ]ogendra Kaur , has held:
4. There is no specific provision in the Act permitting the insurance company to prefer an appeal. It is only an employer who can file an appeal under Section 30 of the Act and the insurance company gets the right to file an appeal only because it steps into the shoes of the insured are employer. It cannot, therefore, have better rights than that of an employer. If the employer is precluded from filing an appeal without filing the certificate of deposit of the amount, there is absolutely no reason why such a condition should not be applicable to an insurance company which gets a right to file an appeal only on account of the fact that it has stepped into the shoes of the employer.
14. In Gangireddy Venkateswara Rao v. D.M. New India Assurance Co. Ltd. , the High Court of Andhra Pradesh has held:
It is, therefore, obvious that the insurer steps into the place of the employer when he prefers an appeal against the order of the Commissioner directing him to pay the compensation. He would be preferring it as employer because he steps into the shoes of the employer and consequently the insurer is attracted by the 3rd proviso to Section 30(1) of the Act.
15. We have carefully gone through the judgments referred above. In our considered opinion, the view expressed by this Court in United India Insurance Co. Ltd. v. Ghulam Qadir Dar , does not require any reconsideration, as the same is based upon sound principle of law. We are also of the view that the insurer when seeks to maintain the appeal in terms of Section 30 of the Workmen's Compensation Act under Clause (a), he steps into the shoes of the employer, as after all the insurer has only to indemnify for the liability of the employer in terms of the insurance policy. The insurer cannot have any better right than the employer in maintaining the appeal. If the employer cannot maintain the appeal without satisfying the requirement of third proviso, the insurer also cannot have the right to maintain the appeal without satisfying that requirement. While disagreeing with the view expressed in the authorities relied upon by the learned Counsel for appellant, we hold that the insurer cannot maintain the appeal under Section 30 of Workmen's Compensation Act under. its Clause (a) of Sub-Section (1) of Section 30 without satisfying he requirement of third proviso.
16. This being the position, we do not find any infirmity or illegality in the order impugned. The appeal is, therefore, without any merit. It is as such dismissed along with the connected CMP.