Himachal Pradesh High Court
National Insurance Company Limited vs Kuldeep Kumar & Another on 27 July, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
FAO No. 658 of 2008
Date of Decision: 27.07.2016.
.
National Insurance Company Limited ...Appellant.
Versus
Kuldeep Kumar & another ..Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? 1No.
of
For the Appellant: Ms. Devyani Sharma, Advocate, for
the appellant.
rt
For the Respondents: Mr. Karan Singh Kanwar, Advocate, for
respondent No.1.
Mr. Rahul Mahajan, Advocate, for
respondent No.2.
Sanjay Karol, J (oral)
In this appeal filed under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act), appellant has assailed the impugned order dated 30.01.2008, passed by Workmen's Compensation Commissioner (SDM) Solan, District Solan, H.P., in Case No.2/WC of 2004, titled as Kuldeep Kumar Versus M/s Sundeam Steels Ltd. & another.
2. Appeal stands admitted on the following substantial questions of law:-
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1. Whether the learned Commissioner could hold the appellant company liable to pay the compensation and interest in absence of any contract of insurance to this effect?
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2. Whether the impugned award is the result of complete mis-reading of Exhibit R-1 which was Group Personal Accident Policy and not policy under the Workmen's Compensation?
3. Whether the appellant company could be of held liable for payment of compensation and interest for injuries sustained by a rt workmen during the course employment in the absence of policy under of his the Workmen's compensation Act and that too from date of accident?
3. In effect, only question which arises for consideration is as to whether the Group Personal Accident Policy (Ex.R-1) purchased by respondent No.2 from the appellant herein, would cover the case of respon dent No.1 workman, who during the course of his employment met with an accident on 21.07.2003, resulting into permanent disability to the extent of 65%, or not.
4. Mr. Rahul Mahajan, learned counsel, invites attention of this Court to the decision rendered by this Court in Smt. Dev Dassi Versus United India Insurance Company and another, 2008(2) Shim. LC 484, and to similar effect are ::: Downloaded on - 15/04/2017 20:54:02 :::HCHP 3 decisions rendered by the Madras High Court in The Oriental Insurance Company Ltd. Versus D. Sivasankar & another, in C.M.A. No.2690 of 2011 and M.P. No. 1 of 2011, on .
31.01.2014 and in National Insurance Co., Ltd. Versus Sivaraman, rendered in C.M.A. No. 773 of 2008 and M.P. No.1 of 2008, on 28.01.2010.
5. Whereas, on the other hand, Ms. Devyani of Sharma, learned counsel, seeks relian ce on the decision rendered by Kerala High Court, in National Insurance Co.
rt Ltd. and another Versus Laila and others, 2013 ACJ 649.
6. Policy (Ex.R-1) is issued by the Department;
Personal Accident, of the National Insurance Company Limited, appellant herein. The nature and purpose of policy being Group Personal Accident. It does not categorically state that the policy is restricted to persons other than the workman, who sustain injuries in their work places. No doubt, workman is excluded from the purview of the Public Liability Insurance Act, 1991 (hereinafter referred to as the PLI Act), but then it cannot be said that the Policy stands issued under the provisions of this Statute.
7. The Court in Dev Dassi (supra) has held as under:-
::: Downloaded on - 15/04/2017 20:54:02 :::HCHP 4"16. Natural meaning is to be given to the intention of the parties and the contents of agreement. If there is any ambiguity or a term is capable of two possible interpretations, one beneficial to the insured should be accepted as it would be consistent with the purpose for which the policy is taken, .
namely, to cover the risk on the happening of certain event.
[United India Insurance Company Ltd. v. Harchand Rai Chandan Lal, (2004) 8 SCC 644; United India Insurance Company Ltd. v. Pushpalaya Printers, (2004) 3 SCC 694].
17. The Apex Court has reiterated this principle in Peacock Plywood (P) Ltd. v. Oriental Insurance Company Ltd., (2006) 12 of SCC 673, and has held that the insurer being a State within the meaning of Article 12 of the Constitution of India is expected to act fairly and reasonably and cannot be permitted to inequitably deny the claim of insured by raising a false plea. The purport rt and object must be given full effect and in a case of ambiguity the construction of an insurance policy should be made in favour of the insured and not the insurer. While construing a contract of insurance, the reason for entering thereinto and the risks sought to be covered must be considered on its own terms.
18. A Constitutional Bench of the Apex Court in General Assurance Society Ltd. v. Chandmull Jain, AIR 1966 SC 1644, has held as under:-
"in a contract of insurance there is requirement of uberrima fides i.e. good faith on the part of the assured and the contract is likely to be construed contra proferentem, that is, against the company in case of ambiguity or doubt."
19. Further in United India Insurance Company Ltd. v. Great Eastern Shipping Company Ltd., (2007) 7 SCC 101, the Apex Court has held that in case of interpretation of policy if two views are possible, then the one which favours the policy holder should be accepted as the same serves the purpose for which the policy is taken and would be in consonance with the object to be achieved for the lives assured and also the Courts, while interpreting the policy should keep in view the intention of the parties as well as the words used in the policy. If the intention ::: Downloaded on - 15/04/2017 20:54:02 :::HCHP 5 of the parties subserves the expression used therein then the expression used in that context should be given its full and extended meaning. The Court took into consideration its earlier view reported in LIC of India v. Raj Kumar Rajgarhia, (1999) 3 SCC 465, reiterating that while construing the meaning of a .
particular word found in an agreement between the parties the intention of the parties to the document in question will have to be given necessary weightage and it is not possible to give a wider and liberal meaning merely because one of the parties to the said agreement is a public authority.
20. Clause 5 is to be read in totality and Condition 5(b) by of itself cannot be read in isolation as is sought to be read by the learned Counsel for the Insurance Company. The exception clause is applicable if death, injury of disablement arises.
(a) from intentional self -injury suicide or attempted suicide, rt
(b) whilst under the influence of intoxicating liquor or drugs,
(c) whilst engaging in aviation or whilst mounting into, dismounting from or travelling in any aircraft other than as a passenger (fare paying or otherwise) in any duly licenced standard type of aircraft anywhere in the world.
(d) directly or indirectly caused by veneral disease or insanity,
(e) arising or resulting from the Insured committing any breach of the law with criminal intent.
21. It is noticeable that actions in exceptions in clauses (a) (c) and (e) are directly attributable to the insured. Clause (d) in fact clarifies that no compensation is to be paid if the death, injury or disablement of the insured occurs due to his direct or indirect cause of veneral disease or insanity. The policy framers are conscious and in juxtaposition clause (b) is absolutely silent about direct or indirect cause of liquor resulting in the death of the insured. "Whilst under the influence of intoxicating liquor"
has to be construed so as to mean that the death has resulted as a direct consequence of intoxicating liquor taken by the employee. The conditions laid down in Clause 5 have to be read ::: Downloaded on - 15/04/2017 20:54:02 :::HCHP 6 ejusdem generis and it is evident that the actions of the employee must be related to the cause of his death.
22. In our view, there is no conflict between the scheme and the exception clause of the policy. Both have to be harmoniously construed and in any event keeping in view the .
ratio of law laid down by the Apex Court, it would be safe to conclude that intention of the parties to the agreement was that Annexure 'A' of the Scheme issued by the Insurance Company itself, specifying the scope of cover, is applicable and thus the claimant was entitled to a compensation on the death of insured employee. In terms of Annexure 'A', "accidental injury" is "sole of and direct cause of death of the insured person" and, therefore, the employee was entitled to "the capital sum insured of Rs. 2 lacs".
23. The interpretation as sought to be given by the learned rt Counsel for the Insurance Company would result into absolute absurdity, hardship and rendering the object, purpose and terms of the policy to be redundant being contrary to the intention of the contract between the parties. The condition of exception as is sought to be interpreted by the Insurance Company does not have any nexus to the object of the Scheme. Had the employee died as a result of influence of liquor, the stand taken by the Insurance Company was perhaps acceptable but in the present case the facts are not so. That the employee had consumed liquor is not at all relevant because it is not related to the cause of his death."
8. Further the High Court of Madras while answering identical question of law and construing the provisions of the Workmen's Compensation Act, also held such like Policies to cover the cases of workmen, who sustain injuries, during the course of employment, at their work places.
::: Downloaded on - 15/04/2017 20:54:02 :::HCHP 79. In the instant case, Kuldeep Kumar (respondent No.1) was employed as a workman, who sustained injuries during the course of his employment, while working as a .
Machine Operator, stands evidently proved on record. The authority below, based on the material produced on record by the parties and the evidence led, rightly decided the issue in his favour.
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10. The fact that the policy came to be purchased by the employer is not in dispute. That the policy was valid for rt the period in question is also not in dispute. As a result of the accident, workman caused permanent disability also stands established on record.
11. Under these circumstances, authority below correctly determined the compensation due and payable to the workman and also rightly held the insurer liable to pay the same.
12. Hence in the given facts and circumstances, no interference is warranted. It cannot be said that the findings returned by the Court below are perverse, illegal or erroneous. As such, present appeal stands dismissed, so also pending application(s), if any.
(Sanjay Karol),
July 27, 2016 Judge.
(Purohit)
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