Jammu & Kashmir High Court
United India Insurance Co. Ltd. vs Ghulam Qadir Dar And Ors. on 21 May, 1992
Equivalent citations: 1993ACJ288, (1993)IILLJ9J&K
JUDGMENT
1. This appeal raises an interesting question, i.e., whether an insurance company in appeal under Section 30 of Workmen's Compensation Act is bound to satisfy the requirement laid down in third proviso of that section? In other words, is company's memo of appeal required to be accompanied by a certificate from the Commissioner certifying that appellant had deposited the awarded amount with him?
Learned Counsel for respondent, Mr. R. Koul, submits that the appeal is incompetent as it falls short of the requirement.
Mr. Jamwal, on the other hand, contends that third proviso to Section 30 is not attracted when appellant is the insurance company. According to him, it is applicable when appellant is the employer.
2. In the face of these rival contentions, it requires to be examined whether or not the appellant insurance company was obliged to satisfy the statutory requirement and whether its failure to do so renders the appeal incompetent?
The relevant provision reads as under:
"Provided further that no appeal by an employer under Clause (a) shall lie 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."
The provision has come in for interpretation in a number of decisions and it is by now well settled that requirement prescribed therein is mandatory and an appeal by an employer is not competent if the memo is not accompanied by the requisite certificate from the Commissioner. This, however, holds good in case of an appeal by an employer. The difficulty arises where an appeal is filed by the insurance company. This is so because the provision aforesaid does not recognise an insurer. Therefore, if it can be held that an insurer's appeal is not covered by the provision, it would not be obliged to satisfy the requirement and the appeal would be competent despite the absence of requisite certificate.
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 defenses 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. I an fortified in my view by the reasoning adopted by the Kerala and Madhya Pradesh High Courts in New India Assurance Co. Ltd. v. M. Jayaama Naik, 1984-I-LLJ-171 (Kerala) and New India Assurance Co. Ltd v. Mohinder Singh, 1986 ACJ 1101 (MP), which is reproduced hereunder:
"The insurer is only stepping into the shoes of the insured, the employer, and the defence is not qua insurer but in the name of the insured and in his place. An appeal preferred on such grounds, if successful, will jeopardise the employee's right to recover the compensation from the employer also. What the insurer seeks in such an appeal is that the insured may be found to be not liable to pay the compensation, and consequently, the insurer also may be held to be not liable. The primary relief sought for is the first mentioned relief and the other relief is consequent to the grant of that relief. Hence such an appeal is preferred by the insurer for and on behalf of the employer and in his stead, though the aim of the insurer is to exonerate its own liability. What the insured cannot do by himself, viz., filing of an appeal without complying with the requirements of the third proviso to Section 30 of the Act, cannot be done by another on his behalf. So the third proviso to Section 30 of the Act governs such appeals."
Mr. Jamwal has relied upon National Insurance Co. Ltd. v. Saifuddin, 1992 ACJ 736 (MP), to canvass that third proviso to Section 30 of the Act is not attracted in case of an appeal by insurance company. I am in respectful disagreement with the view taken, which, in my opinion, proceeds on a narrow interpretation of terms of Section 30.
4. In the present case, it is the admitted position that memo of appeal filed by the insurance company is not accompanied by the requisite certificate from the Commissioner, as envisaged by third proviso to Section 30 of the Act, even till date. Therefore, it is abundantly clear that terms of the provision have not been complied with. That being so, I hold this appeal incompetent and dismiss it for the reasons stated. Record be returned.