Himachal Pradesh High Court
Randhir Verma vs National Insurance Co. Ltd. And Ors. on 4 September, 2003
Equivalent citations: I(2004)ACC255, 2004ACJ411
Author: Kuldip Chand Sood
Bench: Kuldip Chand Sood
JUDGMENT V.K. Gupta, CJ.
1. This is a very very unfortunate case where statutory authority, namely, the Commissioner, under the Workmen's Compensation Act, at Shimla, while deciding and disposing of a petition filed before him for compensation under Section 22 of the Act did not decide a vital and an important issue relating to the liability of the insurance company with which the vehicle in question was admittedly insured at the time of accident. His omission to decide the question of the liability of the insurance company to pay the award amount has led the petitioner, owner of the vehicle, to this avoidable litigation. This in the face of a clear averment in the claim application filed by claimants that the vehicle was insured with the insurance company, (respondent No. 1 herein) and also in the face of clear, categorical and specific averment in reply filed by the petitioner hereinbefore the Commissioner that the vehicle was not only insured with respondent No. 1 but also it was furnishing in its reply all the particulars of the insurance policy. It is by now commonly and too well-known that every motor vehicle in this country is compulsorily required to be insured against third party risks and whenever the particulars of the insurance are furnished, the court, Tribunal or a forum, such as the Commissioner under the Workmen's Compensation Act is enjoined upon to decide whether, in the facts and circumstances of the case before it, the insurance company is or is not liable to indemnify the owner-insured and thus to pay the award amount to the claimants. With a view to arrive at such a decision, the only material consideration always is the factum of insurance and when in a given case, claimants plead that the vehicle was insured, the insurance company is made a party-respondent in the claim petition and the insured-owner also pleads and avers about the factum of the insurance and furnishes the particulars of the insurance policy, the Commissioner should have no difficulty in deciding the issue about the liability of the insurance company. In the present case, despite the existence of all the aforesaid facts and the required information, Commissioner because of total non-application of mind and owing to his own carelessness and callousness, omitted to decide this vital issue and notwithstanding the factum of the vehicle being insured, went on to fasten the liability of paying the award amount, as also the interest thereupon, upon the insured-owner of the vehicle. We were amazed to go through the contents of the reply-affidavit filed by the Commissioner (who has been impleaded as the respondent No. 4 in this writ petition) because we found from a careful reading of this lengthy reply-affidavit that not one word by way of an explanation has been offered therein as to why did the Commissioner not decide the question of the liability of the insurance company, despite the fact that the insurance company was a party-respondent before him and despite the relevant information being available on record.
2. We have two options before us; either to remit this matter for decision on the aforesaid issue to the Commissioner or to decide this question ourselves. We have opted in favour of the latter course of action because before us is the material which establishes the undisputed fact that as on the relevant date and time the vehicle was in fact insured with respondent No. 1 and that the respondent No. 1 has also not pleaded any fact whereby it claims that its liability is in any manner absolved. Under law the liability to pay the award amount squarely rests with the respondent No. 1. Therefore, fastening this liability upon the petitioner would be a patent violation of not only the law, but also the contract of insurance between the petitioner and the respondent No. 1.
3. In para 3 of the writ petition there is a clear and categorical averment about the insurance of the vehicle in question with respondent No. 1. Respondent No. 1 in its reply filed in answer to the writ petition has not denied this clear and categorical factual averment. It has not disputed the factum of the insurance. The only defence put forth by respondent No. 1 is about the factum of the accident as also the cause of the accident, proximate or otherwise. We quote hereinbelow the following averment of respondent No. 1 in its reply to the writ petition:
"That the contents of sub-para (ii) of the grounds stated in the petition are also denied being wrong and incorrect. It is submitted that on account of mere fact that the vehicle of the petitioner was insured by replying respondent, it cannot be claimed that the insurer is liable to bear the amount of compensation payable to the claimants in each and every eventuality because in this case, it was amply proved on record that death of deceased workman had not taken place during the course of his employment and the same was not in result of the accident caused by the insured vehicle nor it could be said that the death had occurred on account of a risk which was an incident of the employment and the death had resulted from some risk incidental to the duties of service. As a matter of fact, there is no proximate nexus between the death and the employment in which the deceased was engaged. In such circumstances, the impugned order passed by learned Commissioner exonerating the respondent No. I/insurance company of the liability of payment of compensation amount to claimants is absolutely correct and totally justified."
4. Insofar as the issue relating to the factum of the accident is concerned there is a clear-cut finding by the Commissioner that the accident in question occurred and that the deceased driver died in the course of discharge of his duties as a workman, an employee of the petitioner. Undoubtedly, it is a settled proposition of law that it is not open to an insurance company to dispute the factum of the accident, its cause or other related aspects especially when the employer owner is a party-respondent and is defending the claim application.
5. Mr. Pritam Singh, learned advocate appearing for respondent No. 1 has also questioned the maintainability of this petition filed under Article 226 of the Constitution of India. Because, according to him the petitioner had an alternative remedy of filing an appeal under Section 30 of the Workmen's Compensation Act, 1923 in that court. We do not agree with him because the scope of an appeal under Section 30 of the Act is limited only insofar as it challenges an order awarding compensation or an order awarding interest or penalty, etc. In this case the petitioner is not at all challenging that part of the order passed by respondent No. 4 whereby either the compensation has been awarded or interest liability has been fastened. What has been challenged by the petitioner is only that part of the order whereby, instead of fastening the liability upon the respondent No. 1, liability has been fastened upon the petitioner. This is apparently beyond the scope of an appeal under Section 30 of the Act. Therefore, only remedy available to petitioner was to invoke the extraordinary jurisdiction of this court by challenging the aforesaid part of the award under Article 226 of the Constitution.
6. For the foregoing reasons, therefore, this petition is allowed. The award passed by the respondent No. 4 is modified to the extent that the liability to pay the award amount as well as interest therefor shall squarely rest upon respondent No. 1. Respondent No. 1 accordingly is directed to pay the award amount along with interest as awarded by respondent No. 4 to respondent Nos. 2 and 3 within a period of one month from today. If this is not done, at the expiry of one month from today, we direct that the rate of interest shall stand increased from 9 per cent to 18 per cent, right from the date of the filing of the claim application till the time the entire amount is paid by respondent No. 1.
7. Half of the total amount payable shall be paid to respondent No. 2 and the remaining half shall be deposited by respondent No. 1 in the fixed deposit carrying maximum interest. The fixed deposit shall be made in the name of respondent No. 3 through his mother, respondent No. 2 as his natural guardian, and it shall be on a long term, automatically renewable basis until respondent No. 3 attains majority.
8. A copy of this judgment shall be sent to the Chief Secretary, Government of Himachal Pradesh with the directions that the observations contained in the judgment relating to respondent No. 4 shall be communicated to him and adverse observations against him are entered in his service record. It is further directed that the Chief Secretary shall circulate this judgment to all concerned Commissioner(s) under Workmen's Compensation Act, in Himachal Pradesh with a view to informing them about the disposal of claim applications under the Act, in future in the light of the observations herein made.
9. The writ petition is allowed. Copy dasti.
C.M.P. No. 1358 of 2003:
In view of order passed in the writ petition, this application stands disposed of.