Gauhati High Court
Oriental Insurance Co. Ltd. vs Umesh Nath And Anr. on 15 May, 2004
Equivalent citations: 2006ACJ2348, (2005)1GLR677
Author: I.A. Ansari
Bench: I.A. Ansari
ORDER I.A. Ansari, J.
1. Heard learned counsel for the parties.
2. These appeals have been resisted, at the very threshold, by challenging their maintainability on a question, which is, though short, a question of considerable importance. The moot question raised is this : Whether the Insurance Company (for convenience, hereinafter referred to as 'insurer'), which prefers an appeal under Section 30 of the Workmen's Compensation Act (for short, the WC Act), is required to deposit the amount awarded as contemplated under the third proviso to Section 30 of the WC Act ?
3. For the sake of brevity, Sub-section (1) of Section 30 is reproduced, in its entirety, hereinbelow : -
"30 Appeals - (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely -
(a) an order as awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
(aa) an order awarding interest or penalty under Section 4A;
(c) an order providing for the distribution of compensation among the dependants of a deceased workmen, or disallowing any claim of a person alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of Sub-section (2) of Section 12; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions :
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees.
Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties.
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.
4. A perusal of Section 30 indicates that an appeal shall lie to the High Court against various types of orders as described under Sections 30(1)(a), (aa), (b), (c), (d) and (e) of the Act. It is significant to note that Section 30 does not indicate as to who can prefer an appeal; but the third proviso is directly relatable to the point at issue. The proviso is very specific to the effect that no appeal by an 'employer' against an order 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.
5. The real question, therefore, raised is this : Whether the word 'employer', appearing in the third proviso to Section 30, shall include 'insurer' meaning thereby that for an appeal preferred by an 'insurer' to be maintainable, whether the 'insurer' too shall, same as the 'employer', deposit with the Commissioner, before the appeal is preferred, the amount payable under the order appealed against and the memorandum of appeal preferred before the High Court has to be accompanied by a certificate issued by the Commissioner under the WC Act to the effect that appellant-'insurer' has deposited with him the amount payable under the order appealed against.
6. On the questions raised above, divergent views have been expressed by various High Courts. No decision of the Supreme Court, on the questions, which have so arisen for determination, could be brought to the notice of this Court. The decisions, which have adopted the view that word 'employer', appearing in the third proviso to Section 30 of the WC Act, shall be interpreted to include the 'insurer' are Koili Bewa and Ors. v. Akshaya K. Mishra and Anr., reported in 1994 ACJ, 215 (Orissa), New India Assurance Company Ltd. v. Kartar Singh, reported in 2002 (1) TAC 126 (P&H), New India Assurance Company Ltd. v. M. Jayarama Naik, reported in 1982 ACJ 3 (DB), and G.V. Rao v. DM, New India Assurance Company Ltd., reported in 1998 (1) ACJ 398 (DB). The decision in the case of Koili Bewa and Ors. (supra), has, in fact, overruled the decision in New India Assurance Co. v. Manorama Sahu, 1993 ACJ 930 (Orissa), whereby the learned Single Judge has held that the word 'employer', appearing in the third proviso to Section 30, does not include the 'insurer'.
7. While dealing with the question as to whether the word 'employer', appearing in the third proviso to Section 30, shall include 'insurer', the Division Bench, in Koili Bewa and Ors. (supra) observed as follows : -
"......... it is clear that the 'insurer' is really making a grievance on behalf of the insured ('employer') because it is the latter who is principally liable under the Act and the former has only to indemnify him ........"
8. The decision in the case of Koili Bewa ors. (supra), while, as already indicated hereinabove, overruling the decision in Manorama Sahu (supra), proceeded further to hold as follows : -
"..... right to appeal has really been conferred on the person aggrieved and the person aggrieved is really the 'employer' who has been required by the proviso to make the deposit and so, there is no question of any impediment being placed on the right of appeal as conferred by Section 30 of the Act. To repeat, the appeal, though filed by the 'insurer', has to be taken in reality as on behalf of the insured, i.e. the 'employer'. The intention behind the proviso being not to put the right of the claimant following the order of the Commissioner in jeopardy. We are of the view that 'insurer' has also to deposit the amount while preferring the appeal. We are of the view that the 'insurer' has also to deposit the amount while preferring the appeal. We have also taken this view, because on deposit being made, in appropriate cases, the court may order for withdrawal of the deposited amounts by the claimant(s) to take care of hardship, which would not be possible if the appellant were not to deposit the amount."
9. In New India Assurance Co Ltd v. Kartar Singh, reported in 2002 (1) TAC 126 (P&H), High Court held to the effect that an 'insurer' cannot have better rights than those of the 'employer', when there is no statutory provision for the same. The 'insurer' merely steps into the shoes of the 'employer', and, hence, the bar imposed by the third proviso to Section 30 shall be applicable to the 'insurer' as well. The Court further held that it was not proper, on the part of the 'insurer', to make distinction, which is not provided for under the Act expressly or impliedly, and held the appeals as not maintainable on account of the failure of the 'insurer' to comply with the requirements of Section 30 and dismissed the appeals accordingly.
10. Similarly, "in New India Assurance Co. Ltd. v. M. Jayarama Naik reported in 1982 ACJ 3 (DB), the Kerala High Court has taken the view that what the insured, (i.e., the 'employer') cannot do himself i.e. filing an appeal without complying with the requirements of the Act cannot be done by another on his behalf and, therefore, the appeal filed by 'insurer' without depositing the amount cannot be maintainable.
11. I may also refer to G.V. Rao v. D.M. New Delhi Assurance Co Ltd., reported in 1998 (1) ACJ 398 (DB), wherein a Division Bench of Andhra High Court held, in effect, thus : It is well settled that liability of the 'insurer' is co-extensive and co-terminus with that of the insured i.e. the 'employer' and the 'insurer' can not question the order awarding compensation by raising grounds, which are not open to the 'employer'. The 'insurer' cannot be placed in a different position than that of the insured i.e. the 'employer'. Even when 'insurer' prefers an appeal under Section 30(1)(a) of the Act, memorandum of appeal has to be accompanied by a certificate of the Commissioner to the effect that appellant has deposited with him the amount payable under the order appealed against. In the absence of such a certificate, the appeal under Clause (a) preferred by the 'insurer' does not lie and is liable to be rejected on that ground.
12. What emerges from the decisions, which have taken the view that the 'insurer' shall be treated to have been included within the meaning of the word 'employer' in the third proviso to Section 30, is that the 'insurer' does not have rights better than those of the 'employer' (insured), that the rights and interest of the 'insurer' are co-extensive and co-terminus with the rights and interest of the 'employer', that when the 'insurer' prefers appeal under Section 30, it merely steps into the shoes of the 'employer', for, the 'insurer's role is that the indemnifier and no more; what the insured cannot do can also not be done on his behalf by any other person, i.e., 'insurer'; for all intents and purposes, 'employer' is the aggrieved person and 'insurer' comes into picture, because of the contract of insurance, whereby 'insurer' agrees to keep the insured indemnified. Hence, 'insurer' steps into the shoes of the 'employer' and the liability to make pre-deposit imposed on 'employer' also binds the 'insurer' and the same liability continues even in appeals, which the 'insurer' prefers. The right accruing in favour of claimant(s) from order of the Commissioner cannot be kept in jeopardy by allowing the 'insurer' not to make the pre-deposit. The provision of prior deposit is made for the benefit of the employees or their dependants. When this benefit is available against 'employer', the same should not be enforced against the 'insurer' as well.
13. Before answering the questions, which have been raised and framed above, one has to really determine if the 'insurer', in the context of the provisions of the WC Act, will never have a right better than those of the 'employer' (insured) or is it invariably true that what the insured cannot do, can also not be done by the 'insurer' in the WC Act ? Is it always necessary that under the WC Act, the rights and interest of the 'insurer' would be co-extensive and co-terminus with the rights and interest of the 'employer' (insured)? Can there be any conflict in the statutory rights and liabilities of the 'insurer' vis-a-vis the insured (i.e., employer) in the WC Act ? Is it possible to fasten an insurer with such a liability of the 'employer', which the 'insurer' may not be liable to indemnify under the contract of insurance or even by the provisions of the WC Act ? Is it possible that though the insured (i.e. employer) may not ask his liability to be imposed on the 'insurer', yet the award given under the WC Act imposes a liability on the 'insurer', which is neither statutory nor arising out of the contract entered into between the parties concerned ?
14. Before answering the question raised, as indicated above, it is necessary to bring on record the definition of the word 'employer' used in the WC Act. It is Section 2(1) of this Act, which defines the word 'employer' as follows :
"employer" includes any body of person, whether incorporated or not, and any managing agent of an 'employer' and the legal representative of a deceased 'employer', and, when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him.
15. The above definition of the word 'employer' is clear and unambiguous.
16. It may also be noted that the relevant portion of Section 2(1)(n) of the WC Act defines the word 'workman' to mean any person, who is -
(i) ***************** (ia) *****************
(a) *****************
(b) *****************
(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle.
17. On the other hand, the word 'insurer' has not been defined in the WC Act. What needs to be carefully noted is that unlike the Motor Vehicles Act (hereinafter refereed to as 'the MV Act'), the WC Act does not, as such, make it mandatory for the 'employer' to insure the workman for indemnification of his legal liability under the WC Act. In fact, it is because of the fact that certain classes of persons employed in motor vehicles have been brought under the definition of the word 'workman' subsequently by way of amendment of the WC Act and also because of the fact that Chapter X of the MV Act has been expressly made applicable to the Workmen's Compensation Act that some provisions of the MV Act become, as and when necessary, applicable to the WC Act by implication, which are, otherwise, not expressly provided under the WC Act. This is, however, an aspect of the matter, which I shall revert to shortly. Suffice it to mention here that in the realm of mandatory insurance of some classes of workmen governed by the provisions of the WC Act, the insurance policies are issued under the MV Act and as such, the definition the word 'insurer' is to be ascertained from the MV Act. Section 145 of the MV Act defines the 'authorised 'insurer' as follows :-
"Authorised 'insurer' means an 'insurer' for the time being carrying on general insurance business in India under the General Insurance Business (Nationalisation Act, 1972) (57 of 1972), and any Government insurance fund authorised to do general insurance business under that Act."
18. The above definition of the word 'insurer', appearing in Section 145 of the MV Act, is exhaustive by nature and it does not include any other person or persons except as defined in the MV Act.
19. From the definitions of the words, as quoted hereinabove, there is clear distinction between the definitions of the word 'employer' and the word 'insurer' inasmuch as they are different entities having different objects, performing different roles, discharging different duties, and carrying on different responsibilities.
20. The respondents have agitated that the word 'employer', as used in the third proviso, shall also take into its sweep the word 'insurer' inasmuch as the defences of the 'insurer' in an appeal are qua 'insurer' (i.e., employer) and in appeals, under the WC Act, the 'insurer' steps into the shoes of the 'employer' and as such, the said proviso will also govern the appeals filed by the 'insurer'.
21. Let us, now, test the correctness of reasonings that the 'insurer' always and invariably steps into the shoes of the 'employer', when it prefers appeal under the WC Act.
22. As already indicated hereinabove, the 'insurer' figures, in the realm of the WC Act, by virtue of the statutory mandate of Section 147(1) of the MV Act, for, Section 147 of the MV Act requires the owner of every vehicle to compulsorily insure the vehicle against certain risks. Under the said provisions of the MV Act, the owner of every vehicle is required to insure his vehicle against the risk of death or bodily injury caused to his driver, conductor or ticket checker and if it is a good vehicle, then, any employee, who is being carried in the vehicle.
23. A claim for compensation by the above classes of persons, namely, driver, conductor, ticket checker and the employee, who is carried in the goods vehicle may, on account of death or bodily injury, arise under the provisions of either the MV Act or WC Act. In terms of Section 167 of the MV Act, the forum for such compensation is either Motor Accident Claims Tribunal or the Commissioner, Workmen's Compensation Act. Though in the light of Section 167 of the MV Act, the option for selection of the forum is of the employee/workman, but the relief cannot be sought from both the fora. The MV Act and the WC Act are self-contained coded having different procedures and methods for working out the amount of compensation payable under the respective Acts.
24. Moreover, the WC Act does not, if I may reiterate, require an 'employer' to have insurance against the risks that he may incur as a liability towards every workman. It is only by virtue of statutory requirements of Section 147 of the MV Act that the owner of a vehicle must have an insurance, which covers the risks against a certain class of his employees, namely, driver, conductor, ticket checker and employee carried in a goods vehicle and it is in this context that the 'insurer' figures in the realm of the WC Act. A workman becomes entitled to compensation under the WC Act, when the death or bodily injury arises out of, and in the course of, his employment. Therefore, in a given case, while it can be the defence of the 'insurer' that a particular class of employee was outside the coverage of the policy of insurance, the 'employer' can defend the cause on the ground that the claimant was not his employee or the death or bodily injury did not arise out of, and in the course of, his employment. Thus, the defences available to the two, namely, the 'insurer' and the 'employer' may be quite different and statutorily permissible. Consequently, the grounds for preferring an appeal by 'insurer' can be quite different from those of the 'employer'.
25. At this point, it may be noted that under the provisions of the WC Act, as the definition of the term 'workman' given in Section 2(1)(n)(c) thereof conveys, the 'employer' is liable to pay compensation to a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle, but such an 'employer', as an insured, can be, generally, indemnified by an 'insurer', under a policy of insurance, only in respect of his liabilities towards that particular class of employees, who are mentioned in Section 147 of the MV Act, namely, driver, conductor, ticket checker and if it is a goods vehicle, any employee, who is being carried in such a goods vehicle inasmuch as the liability of the 'insurer' to indemnify the 'employer' is (unless the policy, otherwise, indicates) restricted only to such class of persons as mentioned in Section 147 of the MV Act. It is, therefore, clear that the liabilities of an 'employer' and an 'insurer' under the WC Act vary and, have, in certain cases, the 'insurer' may not be liable to indemnify the insured (i.e. employer) in respect of his liability for compensation to his employees out of the use of his motor vehicle, notwithstanding the fact that the vehicle was covered under a policy of insurance. Thus, the defences of the 'insurer' may not always be qua insured and there may be a clash of interest between them.
26. What logically follows from the above discussion is that the liabilities of the 'employer' and the 'insurer' under the WC Act are different and not common. The liabilities of the 'employer' is, under the WC Act, far greater than the liabilities of the 'insurer' and, therefore, one cannot stand synonymous to the other. At this juncture, a reference to the provisions of Section 4A of the WC Act may be apposite. This Section provides for payment of interest and penalty to a workman by the 'employer' in the event of non-payment of compensation, when the same falls due. The provisions of Section 4A has been interpreted by the Apex Court in the case of Ved Prakash Garg v. Premi Devi and Ors., reported in (1997 (2) SCC 1). Holding the 'employer' different from the 'insurer', the Apex Court has held that the penalty, as envisaged under the said provisions of the Act, is not a liability of the 'insurer'. A clash of interest between the 'employer' and the 'insurer' in respect of the liabilities is also discernible from the decision of the Apex Court in the case of Ramashray Singh v. New India Assurance Co. Ltd., reported in 2003 (10) SCC (664), wherein the W.C., Commissioner, had held the 'insurer' liable to pay compensation for the death of the employee, but on a writ petition filed by the 'insurer', Patna High Court had reversed the finding by holding that the 'insurer' was not liable to pay the compensation; the appeal brought by the 'employer'-insured was dismissed by the Apex Court, in effect, holding that if the employee concerned is not a driver, conductor or examiner of tickets (as envisaged in Section 147 of the MV Act), the insured, (i.e., 'employer') cannot claim that the employee would come under the description of "any person" or "passenger" in terms of Clauses (i) and (ii) of Clause (b) of Section 147(1) of MV Act.
27. From what have been pointed out above, it becomes transparent that it is not always necessary that the 'insurer' steps into the shoes of the insured, (i.e., 'employer') in all cases. The Apex Court in Ved Prakash Garg's case reported in 1997 (8) SCC 1 (supra) has, as already mentioned hereinabove, held that the insurance Company would be liable to pay only the principal amount of compensation and the interest imposed thereon, but will not be liable to reimburse the additional amount of compensation awarded by way of penalty imposed by the Commissioner on the insured, (i.e., 'employer') under Section 4A(3)(b) of the WC Act Apex Court. Later on, in yet to be reported case of P.J. Narayana v. Union of India, decided on 8.8.03, the Apex Court has exonerated the 'insurer' even if the liability to pay interest over the principal compensation amount and the said liability is, now, left to be borne by the 'employer'-insured. Hence, the argument that the 'insurer' always steps into the shoes of the 'employer', and becomes liable to deposit the amount first and produce the certificate of such deposit in order to become entitled to maintain the appeal does not hold water.
28. Therefore, if the argument of 'stepping into the shoes' is accepted, then, no demarcation of liabilities of the 'insured', (i.e., 'employer'), on the one hand, and the 'insurer', on the other, can exist nor any clash or conflict of interest between them would have been visible. But from the above decisions of the Apex Court rendered in Ved Prakash Garg (supra) and Ramashray (supra), a distinction between the two entities, namely, the 'employer' and the 'insurer', figuring in the realm of the WC Act, is very much discernible. Thus, the word 'employer', as used in the third proviso, cannot be construed to include into its sweep the 'insurer'. For the reason that there may be a clash of interest between the two and differences in their defences as well as liabilities, the 'insurer' cannot be understood to fit into the shoes of the 'insured' (i.e., 'employer') as a general rule of law and, therefore, the argument that the 'insurer' always and invariably steps into the shoes of the 'insured', (i.e., 'employer') does not appear to be correct. Logically, therefore, the 'employer' shall not include the term 'insurer' in the third proviso to Section 30 of the WC Act. I, therefore, respectfully beg to differ from the views expressed, in this regard, in Koili Bewa and Ors. v. Akshaya K. Mishra and Anr., reported in 1994 ACJ, 215 (Orissa), New India Assurance Company Ltd v. Kartar Singh, reported in 2002 (1) TAC 126 (P&H), New India Assurance Company Ltd v. M. Jayarama Naik, reported in 1982 ACJ 3 (DB), and G. V. Rao v. DM, New India Assurance Company Ltd., reported in 1998 (1) ACJ 398 (DB).
29. There is yet another way of looking into the present controversy. An appeal may be preferred, under Section 30 of the WC Act, only if it involves a substantial question of law. A substantial question of law may not always be limited, and stand equal, to a defence available to the 'employer'. For instance, in a case, where the Commissioner exercises jurisdiction in disregard of the mandatory provisions of the Act, it shall involve a substantial question of law. Can an appeal raise a substantial question of law, which affects the insurer alone and not the employer ?
30. The answer to the momentous question, so posed, is not very far to seek. Let us, for a moment, assume that an 'insurer' has been imposed, under the WC Act, the liability of payment of penalty for the delayed payment of compensation by the employer to the workman. In such a situation, in the light of the Apex Court's decision in Ved Prakash Garg (supra), the liability to pay penalty will not be of the insurer, but the employer alone. However, if one construes that the word 'employer', occurring in the third proviso, invariably includes the term 'insurer', then, in such an event, the insurer would have to deposit the amount of penalty with the Commissioner before preferring the appeal under Section 30, though, the insurer will not, at all, be liable for payment of penalty in such a case. The conclusion, therefore, which is not difficult to reach, is that the word 'employer', in the context of the third proviso, will not always include 'insurer'.
31. The matter can also be viewed from another angle. To govern the appeals by an 'employer', that too, under Clause (a) of Section 30, the specific provision for deposit of the compensation awarded has been made. If the legislative intent was to include within its sweep all persons preferring an appeal, the said provision could have been suitably worded, which has not been done. The WC Act has undergone several amendments since its inception, but without any change in the language of the third proviso to Section 30. It is, therefore, but natural to infer and conclude that the word 'employer' has specific meaning and needs to be construed specifically. It is, therefore, naturally follow that the 'insurer' cannot be held synonymous to, and included within the meaning of, the word 'employer'.
32. Prior to the decision of the Supreme Court in Ved Prakash Garg (supra), most of the decisions of the High Courts carried the view that the 'insurer' is liable to indemnify the 'employer' even for penalty awarded under Section 4A(3)(b) of the WC Act. This happened, perhaps, on the presumption that the 'insurer' steps into the shoes of the 'employer', which has been, eventually, negated by the Apex Court. Moreover, under Section 149(2) of the MV Act, the defence of the 'insurer' is made limited only to the grounds mentioned in the said subsection and the 'insurer' is not permitted to file appeal beyond those grounds, although the 'insurer' is statutorily liable to indemnify the insured almost in all the cases, where the insured-owner of the vehicle is held liable. Even in such circumstances, the 'insurer' is not permitted to file appeal by stepping into the shoes of the insured-owner of the vehicle except on the grounds mentioned in Section 149(2). But under the WC Act, the liability of the 'insurer' is conceptually different from the one under the MV Act. Under the WC Act, the liability of the 'insurer' cannot always be avoided on the grounds mentioned under Section 149(2) of the MV Act. For example, the insurance polices are issued under Section 147 of the MV Act to cover certain liabilities of the insured-owner of the vehicle as mentioned in the Section. But such policies are not required to cover the liabilities of all the employees of the insured-owner of the vehicle under the WC Act; rather, insurance cover is essential in respect of only those employees, who are expressly mentioned in the proviso to Sub-section (1) of Section 147. Similarly, the 'insurer' can avoid liability under MV Act on the grounds mentioned in Sub-section (2) of Section 149 of the MV Act, but cannot always avoid liability on all those grounds under the WC Act. The only condition required for making claim under the WG Act is that the employee concerned sustained injury or died out of and during the course of employment whether in any public place, or private place and has not done anything leading to sustaining of injury or death, which was expressly prohibited by the 'employer'. It will he further clarified by giving another example, for instance, carrying of passenger by goods vehicle is a breach of permit condition as well as policy condition as mentioned in Clause (c) of subsection (2) of Section 149 of the MV Act and the fact that the 'insurer' is not liable to indemnify the insured-owner of the vehicle for any liability to such passenger sustaining injuries or dying is no longer res integra. But the 'insurer' will still be liable under the WC Act to indemnify the insured-owner of the vehicle for the liability towards the employee of such goods carrying vehicle. Thus, it is clear that the grounds on which the 'insurer' can defend the action and avoid liability under the MV Act is always not a ground to avoid liability under the WC Act.
33. The liability of the 'insurer' is governed by the contract of insurance policy and subject to the terms, conditions and the limitations thereof and not beyond that. It is not that in all the cases, the 'insurer' becomes liable to indemnify the 'employer'. In certain cases, the Insurer' may not be liable to indemnify the 'employer' even though the motor vehicle is covered by a policy of insurance. It always depends upon the terms, conditions and the limitations contained in the contract of policy and not beyond that. That is the reason why the Supreme Court, while determining the liability of penalty under the Workmen's Compensation Act, in the case of Ved Prakash Garg v. Premi Devi and Ors., reported in (1997) 8 SCC 1 (supra) elaborately discussed and explained the relevant provisions of the WC Act and the MV Act and held that the 'insurer' cannot be made liable to reimburse that part of the penalty amount imposed on the 'employer' as provided under Section 4A(3)(b) of the WC Act. Once the 'insurer' is presumed to step into the shoes of the 'employer', the 'insurer' will become liable to indemnify all liabilities imposed on the 'employer' including the penalty, which, in the light of the law laid down in Ved Prakash Garg (supra), is not the liability of the 'insurer'. It is important to note that the word 'employer' is also used in Section 4A(3)(b) of the Act. But, then, the fact that there is a distinction between the two, namely, the 'employer' and 'insurer' is apparent as explained by the Apex Court in Ved Prakash Garg (supra). On the other hand, it is repeatedly held by the Apex Court in its various decisions that while interpreting any word in any statute or different provisions of any section of the same statute, possible conflict between different provisions of the section or between different sections of the same statute must be avoided. Once it is held that the 'insurer' steps into shoes of the 'employer', it is bound to create conflicts amongst different provisions of Section 40 of the Act as well as different provisions of the Act itself.
34. The liability of the 'insurer' is to indemnify the insured 'employer' in certain cases, when the insured becomes liable, but not in all cases, unlike the liability under the MV Act. It is pertinent to note herein that when an appeal is filed under Clause (d) of Section 30, which is, primarily, the indemnity clause, the requirement of deposit of the awarded amount is not there. Had the intention of the legislature been to cover the 'insurer' with liability to indemnify the 'employer', then, Clause (d) would have, at least, been included in the third proviso to Section 30.
35. Thus, it is clear from the above that although the liability of the 'insurer' under the WC Act, primarily, flows from the MV Act, yet, on account of the fact that the damages under the two Acts are conceptually different and distinct and the grounds on which the 'insurer' can avoid liability under the MV Act are not always valid grounds for avoiding liability under the WC Act, the restrictions contained in Section 149(2) of the MV Act, for the purpose of defence of any claim under the MV Act, is not always applicable to the claims under the WC Act.
36. What is also worth noticing is that the expression 'Employer' is reiterated by the legislature in Section 30A of the Act, which runs as follows :-
"30A. Where an 'employer' makes an appeal under Clause (a) of Sub-section (1) of Section 30, the Commissioner may, and if so directed by the High Court shall, pending the decision of the appeal, withhold payment of any sum in deposit with him."
37. The provisions of Section 30A makes it further clear that the mandatory requirement of deposit by the 'employer' as provided in the third proviso to Section 30 is only to ensure payment of compensation to the workman concerned in the event the appeal falls and not for the purpose of disbursement of any amount pending appeal. It is only to prevent any mischief that may be played by different types of 'employers' during pendency of appeal and in order to ensure that the workman may not, ultimately, be deprived of getting his legitimate compensation in the event the appeal preferred by the employer fails. But such apprehension is not at all there in the case of insurance companies filing appeal and hence, it will not be unreasonable to infer that the word 'employer' is consciously used by the legislature to mean only an 'employer'.
38. What follows from the above discussion is that there may be cases, wherein the 'insurer' is not always liable to pay the compensation awarded against the 'employer' ('insurer'). There may also be cases, where the 'employer' may not be liable to pay interest, which is imposed, as a measure of penalty, on the 'employer'. It is, thus, clear that conflict of interest between the 'employer' and 'insurer' is possible. It is also clear that the Commissioner under the WC Act may impose such liabilities on the 'employer', which the 'insurer' is not liable to indemnify and/or take care of unless the terms of contract so permits. It cannot, therefore, be held that invariably and always, the rights and interest of the 'insurer' will be co-extensive and co-terminus with the rights and interest of the 'employer'. When the possibility exists that an 'insurer' may not always be liable to indemnify an 'employer', it cannot be held that the 'insurer' will always and invariably step into the shoes of the 'employer', for, the foundation for such conclusion rests on the erroneous presumption that the 'insurer's right is appeal is, basically, against the liability imposed on the 'employer' and the 'insurer', under the WC Act, is merely an indemnifies In other words, when the 'insurer' need not indemnify always the 'employer', the question of the 'insurer' invariably steping into the shoes of the 'employer', when the 'insurer' prefers an appeal, does not arise at all.
39. Same as I have concluded hereinabove, Oriental Insurance Co. Ltd. v. Lalita Bai, (1998 ACJ 199)(MP), takes the view that the restriction contained in the proviso to Section 30 is expressly limited to an appeal filed by an 'employer' and, therefore, is not applicable to the appeal filed by insurance company. Similarly, Oriental Insurance Co. Ltd v. V. Pitamber (1998 ACJ (179) (Karnataka) takes the view that it is only when the 'employer' files an appeal that the requirement of Section 30 is to be followed and not otherwise. Even National Insurance Co. Ltd. v. Saifuddin, 1992 ACJ 736 (MP), United India Insurance Co. Ltd. v. Chabu Quadir Das, 1993 ACJ 288 (J&K), and Gokak Mills v. Comm. 1994 ACJ 1099 (Karnataka) are some of the cases, wherein more or less, the same view has been taken, namely, that the restriction imposed by the third proviso to Section 30 is only of the 'employer' and not of the 'insurer'.
40. It is also worth noticing that Section 30 of the WC Act does not clearly state as to who can prefer an appeal, but a careful reading of the Clauses (a), (aa), (b), (c), (d) and (e) of Sub-section (1) of Section 30 shows that the person aggrieved and preferring appeal may not only be the workman and the 'employer', but also the 'insurer'. The legislature has, while making deposit of the awarded amount mandatory under the third proviso, decided, in their wisdom, to make only the 'employer' liable to mandatorily deposit the compensation awarded for preferring appeal. Nothing had prevented the legislature to include the 'insurer' within the third proviso to Section 30 by expressly stating so or by implication,
41. In contrast, Section 173 of the MV Act too makes provisions for appeal under the MV Act. For the sake of convenience, Section 173 of the MV Act is quoted hereinbelow :
"173. Appeals. - (1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court.
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty percent of the amount so awarded, whichever is less, in the manner directed by the High Court;
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant as prevented by sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees."
42. Section 173 of the MV Act too, same as Section 30 of the WC Act, does not clearly specify as to who can prefer an appeal except that the person aggrieved by an award of a Claims Tribunal may prefer an appeal. However, the proviso to Section 173(1) shows that if an appeal is preferred by the person, who is required to deposit the amount awarded in terms of such an award, the High Court shall not entertain the appeal unless he has deposited with the High Court in the manner directed by the High Court an amount of Rs. 25,000 or 50% of the amount awarded, whichever is less. The proviso to Sub-section (1) of Section 173, thus, makes no distinction between the owner of the vehicle and the 'insurer'; whoever, between the two, considers himself/itself aggrieved and prefers an appeal, has to make the deposit in terms of the proviso. Unlike the provisions contained in third proviso to Section 30 of the Act, the first proviso to Section 173 of the MV Act clearly mandates that no appeal by the "person", who is required to pay an amount in terms of such award, Shall be entertained unless he has deposited twenty-five thousand rupees or 50% of the amount awarded, whichever is less, in the manner as directed by the High Court.
43. Thus, the liability to deposit the amount so specified under the MV Act is fastened on every "person" liable to pay the amount under award. However, it is not so in the case of the WC Act, where such liability to deposit the amount awarded has been, without any ambiguity, restricted only to 'employer' and not imposed on any other "person", who feels aggrieved by the award to pay compensation. It is also worth noticing that the Act has been amended from time to time since the same was brought into force on 1.7.1924. The third proviso was introduced by the Act 15 of 1933 and since then, the said proviso has not been, if I may reiterate, amended. The legislature has, thus, in Section 30 of the WC Act continued to maintain, in the third proviso aforementioned, the word 'employer' and has not superseded the same by the word 'person'. It is trite that while interpreting a piece of legislation, the intention of the legislature has to keep in mind by the interpreter.
44. A strenuous argument is made to the effect that these appeals are not maintainable on account of the omission of the 'insurer' to furnish the certificate from the Commissioner, Workman's Compensation, in terms of the third proviso to Section 30. Mr. Saikia, learned counsel, appearing for the respondents, places reliance on a decision of this Court rendered in Oriental Insurance Co. v. Anil Ch Das and Ors., reported in 1996 LLJ 1123. I have carefully considered the decision so relied upon; but what I notice is that this Court, while dealing with the contention raised, on behalf of the workman, that the appeal is to maintainable on the ground that the compensation has not been deposited by the appellant i.e. Insurance Company as provided under Section 30 of the WC Act, observed that it find definite force in the submission. A Court may find force in the submission made on behalf of a party. Having of force in the submission made by the learned counsel cannot be stretched to mean that the Court has expressed its definite decision that the point raised is correct. The decision is binding for what it decides and not what can be deduced from it. No clear decision has been given in Anil Chandra Das (supra) that an appeal under Section 30 will not be maintainable by an 'insurer' without the 'insurer' having deposited the amount of compensation in terms of the third proviso to Section 30. Thus, neither this decision lays down nor any other decision of this Court has been brought to the notice of this Court to show that this Court has held that the third proviso to Section 30 is mandatory for preferring an appeal even by the 'insurer'.
45. Every word used in a statue has to be given the meaning, which is general and universal in nature. If the word 'employer', occurring in the proviso, in question, is interpreted to mean and include "insurer', then, this interpretation has to remain applicable in all eventualities meaning thereby that all appeals preferred by "insurer' have to be treated as appeals arising out of the grievances of the 'employer' and not of the 'insurer'. When we have already settled that there may be cases, wherein the liability of the 'employer' to pay compensation awarded under the WC Act may not be statutorily and/or, under the terms of the contract of the parties concerned, a liability of the 'insurer', it will be unfair to impose, contrary to the legislative intent, a liability on the 'insurer' to deposit the compensation amount, though it may not be statutorily and/or contractually liable at all to do so. There may be, of course, cases, when an appeal preferred by the 'insurer' is, basically, as an indemnifier of the liabilities of the 'insured'. If the meaning of the word 'employer' is determined to include 'insurer', then, even in those cases, wherein the 'insurer' may not be liable, it will still become liable to deposit the amount.
46. The intention of the legislature has to be gathered from the language used in a statute, paying attention to what has been said as also to what has not been said. When the words used are not ambiguous, literal meaning has to be applied, which is the golden rule of interpretation. The WC Act has not remained static, but has been improving with time as would be demonstrated by the fact it has been amended from time to time. Therefore, what is not included by the legislature cannot be put into the proviso by adopting the principle of purposive interpretation. When the language is plain and simple, assumed gaps cannot be filled up by the Court by way of removing deficiency. The wilful omission made by the legislature has to be respected by the Court and when the language calls for only one construction, then, that construction has to be adopted, whatever be its effect. Even in interpreting a beneficial legislation like the WC Act under consideration, nothing should be read in the provisions of the Act, which the legislature has not provided either expressly or by necessary implication. When the legislature specifically uses an expression, which is clear and unambiguous, that has to be given effect to without giving undue importance to the object of the Act. (See (2001) 8 SCC 51, (2001) 8 SCC 257, (2001) 8 SCC 501, (2001) 8 SCC 676 and (2003) 1 SCC 433.)
47. There is, if I may emphasise, no ambiguity in the wordings 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 as, 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 word 'insurer' and the 'insurer' does not step into the shoes of the 'insured' (i.e., 'employer') in all cases.
49. In the result and for the foregoing reasons, the question raised above is answered in the negative and the appeals are held to be maintainable.
50. In view of the above, these appeals stand admitted and shall be listed for hearing in the month of June 2004.