Rajasthan High Court - Jaipur
National Insurance Co. Ltd. vs Magna Ram And Anr. on 9 December, 1997
Equivalent citations: 1998ACJ771
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. The present appeal has been filed against the award of Workmen's Compensation Commissioner, Jodhpur dated 30.11.1992 passed in WC Case No. 34 of 1989, decreeing the claim and making an award of Rs. 78,087.60, with 50 per cent penalty thereon amounting to Rs. 39,043.80 together with 6 per cent interest on the compensation amounting to Rs. 23,567.47; holding that the appellant, National Insurance Co. Ltd. along with owner of the vehicle, respondent No. 2, are jointly and severally liable to pay the aforesaid compensation to the claimant Magna Ram, present respondent No. 1.
2. It is pertinent to mention that the owner of the vehicle, respondent No. 2, has also filed a cross-appeal before this Court against the aforesaid award dated 30.11.1992. The question of law and facts involved in appeal and cross-appeal are inter-linked, therefore, I propose to decide the appeal as well as the cross-appeal by a common judgment.
3. Before I proceed to decide appeal and the cross-appeal on merits, it would be profitable to note few facts leading to these appeals.
4. It is alleged in the claim petition that on 18.11.1987, son of claimant-respondent No. 1, namely, the deceased Deva Ram, during the course of his employment, was going on truck No. RNM 7112 from Sursagar to Jodhpur. While on his way, due to rash and negligent driving of the driver, the aforesaid truck met with an accident at the turning point of Kaylana crossing.
5. The claim petition came to be filed by heir and legal representative of the deceased Deva Ram under the Workmen's Compensation Act before the Commissioner for Workmen's Compensation, District Jodhpur. The said application was moved presumably by exercising option available under Section 167 of the Motor Vehicles Act, which clearly provides that notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death of, or bodily injury to, any person gives rise to a claim for compensation under the Act and also, under the Workmen's Compensation Act, 1923, the person entitled to compensation may, without prejudice to the provisions of Chapter X, claim such compensation under either of these Acts but not under both. The expression 'may claim' used under Section 167 of the Motor Vehicles Act, 1988 gives an option to the person entitled to compensation to choose either of these two remedies.
6. Thus, the claim petition was moved by respondent No. 1 in substitution of otherwise legally permissible claim before Motor Accidents Claims Tribunal functioning under the Motor Vehicles Act.
7. The Workmen's Commissioner after hearing the parties, computed the compensation, interest and penalty, as stated in preceding para of this judgment, against which the present appeal is preferred by insurance company and a cross-appeal by employer of the deceased.
8. I have heard the learned Counsel for the parties and perused the materials available on the record.
9. It is urged by learned Counsel for the appellant Mr. N.P. Gupta that the insurance company will be liable to meet only the compensation under award along with interest as imposed upon the insured employer by the Workmen's Compensation Commissioner under the Workmen's Compensation Act, 1923, on the conjoint operation of Section 3 and 4A of the said Act. It is further urged by Mr. Gupta that the insurance company is not liable to pay additional amount of compensation by way of penalty, imposed on the insured employer by the Workmen's Compensation Commissioner in the present case. In support of his contention, he placed reliance on a decision of the Apex Court in the case of Ved Prakash Garg v. Premi Devi 1998 ACJ 1 (SC).
10. Learned counsel Mr. Chaudhary, appearing on behalf of the claimant-respondent No. 1, refuted the aforesaid argument advanced by learned Counsel for the appellant. It is urged by him that the Commissioner has rightly made the appellant insurance company liable to pay the amount of compensation, penalty and interest thereon, jointly and severally. In support of his contention, he. placed reliance on a decision rendered by a learned single Judge of this Court in the case of United India Insurance Co. Ltd. v. Roop Kanwar 1991 ACJ 74 (Rajasthan).
11. Suffice it to say in this regard that submission made by Mr. N.P. Gupta, learned Counsel for the appellant, to this effect that appellant insurance company is not liable to pay additional amount of compensation by way of penalty imposed on the insured employer, is squarely covered by the ratio of the decision rendered by Supreme Court in the case of Ved Prakash Garg 1998 ACJ 1 (SC), after taking note of the decision rendered by the learned single Judge of this Court in the case of United India Insurance Co. Ltd. 1991 ACJ 74 (Rajasthan). Hence, the argument advanced by the learned Counsel appearing on behalf of respondent No. 1 in this respect is repelled and hereby rejected.
12. It is to be noticed that prior to the decision of the Apex Court in the case of Ved Prakash Garg 1998 ACJ 1 (SC), there was no consensus of opinion amongst the various High Courts on the point of payment of penalty by insurance company, which has been resolved by the Apex Court after taking note of conflicting decisions of High Courts.
13. From the aforesaid discussion it is held that the appellant National Insurance Co. Ltd. is liable to pay only the compensation adjudicated by the Workmen's Compensation Commissioner amounting to Rs. 78,087.60 and the interest thereon at the rate of 6 per cent amounting to Rs. 23,567.47. It is made clear that in view of decision rendered by the Apex Court in the Ved Prakash Garg's case (supra) the appellant is not liable to pay 50 per cent penalty on the aforesaid compensation assessed by the Workmen's Compensation Commissioner amounting to Rs. 39,043.80.
14. Now time is ripe to examine the contentions raised by the learned Counsel Mr. S.R. Bhandari, in the cross-appeal filed by the owner, against the award dated 30.11.1992 passed by the Workmen's Compensation Commissioner. It is urged by Mr. Bhandari that the Workmen's Compensation Commissioner, Jodhpur, has committed a serious error of law in imposing a penalty on the owner appellant under Sub-section (3) of Section 4A of the Workmen's Compensation Act, 1923. According to Mr. Bhandari the compensation had not fallen due until it was adjudicated by the Workmen's Compensation Commissioner under Section 19 of the aforesaid Act by the impugned award on 30.11.1992.
15. It is pertinent to observe that the Workmen's Compensation Commissioner has recorded a positive finding while giving the award under appeal after analytical discussion of the material on the record to the effect that although the owner, respondent No. 2, has filed an objection alleging therein before him that the deceased was not his employee but he did not adduce any evidence in support thereof irrespective of sufficient opportunities afforded to him.
16. I am of the view that the dispute raised by the owner in the present case to the effect that the deceased was not employed under him on the vehicle which met with an accident was not a bona fide dispute, therefore he was liable to pay the compensation within one month from the date of death of the deceased, i.e., 19.11.87 and not from the date of adjudication of the award on 29.11.1992.
17. My aforesaid view is buttressed by a decision rendered by the Apex Court in Pratap Narain Singh Deo v. Shrinivas Sabata 1976 ACJ 141 (SC), wherein while interpreting Section 4A(3) of the Act, the Supreme Court authoritatively ruled that it is not correct to say that compensation had not fallen due until it was adjudicated upon by the Commissioner under Section 19 of the Act. According to the Apex Court in Pratap Narain Singh Deo's case (supra) the employer becomes liable to pay the compensation as soon as the injury or death is caused to the workman by an accident which arises out of and in the course of his employment. A similar contention, as before me, was overruled by their Lordships in the case of Pratap Narain Singh Deo (supra), hence on the same ground the contention of Mr. S.R. Bhandari is also liable to be repelled and it is hereby rejected.
18. In abundant caution, I would like to observe that the observation on which Mr. S.R. Bhandari, learned Counsel for owner appellant, is relying upon was made by the Supreme Court in Ved Prakash Garg's case 1998 ACJ 1 (SC), by two hon'ble Judges of the Apex Court whereas decision in the case of Pratap Narain Singh Deo 1976 ACJ 141 (SC), was rendered by hon'ble four Judges Bench of the Apex Court.
19. In view of aforesaid facts and circumstances, it is held that in the present case the plea taken by the owner appellant, respondent No. 2, to the effect that deceased was not working under his employment when the accident took place, was not a bona fide defence taken by him, no evidence was produced in support of his aforesaid objection before the Workmen's Compensation Commissioner irrespective of several opportunities to adduce evidence were afforded to him, hence, he would be liable to pay the compensation within the meaning of Sub-section (3) of Section 4A of the Act, within one month from the date of his death, i.e., 19.11.1987 and not within one month from the date of adjudication by the Workmen's Compensation Commissioner on 30.11.1992. The award of 50 per cent penalty on the owner, respondent No. 2, would be exclusively payable by him.
In view of what has been discussed above, the appeal is partly allowed, directing the appellant to pay the compensation under award amounting to Rs. 78,087.60 together with 6 per cent interest amounting to Rs. 23,567.47. It is stated by learned Counsel for the appellant insurance company that Rs. 1,00,000/- has already been deposited by appellant insurance company with the Workmen's Compensation Commissioner, Jodhpur, which has been paid to the claimant. If any balance amount is payable by the appellant, the same shall be paid within two months from today to the claimant.
As regards the cross-objection filed by the owner, respondent No. 2, Gani Khan is concerned, it is hereby dismissed, holding that the award of 50 per cent penalty amounting to Rs. 39,043.80 would be exclusively payable by him. The learned Counsel Mr. Bhandari appearing on behalf of owner, respondent No. 2, prays for and is granted three months time to pay the aforesaid amount of penalty to the claimant. Costs are made easy.