Gujarat High Court
Iffco Tokio General Insurance Company ... vs Jyotiben Rajeshbhai Kanjiya W/O ... on 8 January, 2019
Author: S.G. Shah
Bench: S.G. Shah
C/FA/2309/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2309 of 2018
With
CIVIL APPLICATION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD
Versus
JYOTIBEN RAJESHBHAI KANJIYA W/O DECEASED RAJESHBHAI
HARAKHJIBHAI @ HARKHABHAI KANJIYA
==========================================================
Appearance:
MR NILESH A PANDYA(549) for the PETITIONER(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3
==========================================================
CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 08/01/2019
ORAL JUDGMENT
1. Heard learned advocate Mr.NIlesh Pandya for the applicant. Perused the record.
Page 1 of 6
C/FA/2309/2018 JUDGMENT
2. The appellant herein is insurance company which has insured respondent no.2 for his liability under the Workman Compensation Act. Respondent no.1 is original claimant being widow of the deceased workman and respondent no.2 is original opponent no.1. She has filed Workman Compensation (Fatal) Application No.18 of 2009 before the Workmen's Compensation Commissioner, Rajkot. By impugned judgment and award dated 18.05.2017 the Commissioner has awarded an amount of Rs.3,97,570/- to be recovered from both the opponents jointly and severally. The Commissioner has also awarded interest at the rate of 12% and 30% amount of compensation as penalty to be recovered only from the respondent no.1 - employer - insured of the appellant.
3. Being aggrieved by such judgment and award insurance company has preferred this appeal contending that as per the policy condition, they are not liable to indemnify the insured, if insured has not engaged workman on his own but enter into any sub contract for work for which insurance is taken. For the purpose, Exception (b) of the Workman Compensation policy has been referred so as to read that the company shall not be liable under the Page 2 of 6 C/FA/2309/2018 JUDGMENT policy in respect of the insured's liability to employees of of contractors to the insured. It is further contended by the appellant that at the time when deceased was doing the work on site, pulley of the lift broke down and deceased fell down from the trolley and died during the treatment and therefore, there is a negligence on the part of the contractor and therefore, insurance company cannot be made liable to pay compensation. It is also contended that deceased was employee of sub contractor namely Naranbhai Karkhabhai Kanjiya and that opponent no.1 is not principal employer of the deceased.
4. However, I do not find any substance in any such contention for several reasons.
5. So far as negligence of contractor is concerned, the appellant has failed to realize that basic concept of the Act that victims are entitled to compensation irrespective of negligence of either side. Therefore, on the contrary when any machine has broken down and thereby, when it is mechanical fault the employer of the victim is absolutely liable to pay compensation to the victim or his legal heirs.
Page 3 of 6
C/FA/2309/2018 JUDGMENT
6. So far as liability with reference to person employed by such contractor is concerned, on one hand there is no such clear evidence on record that the deceased workman was not employed by the opponent no.1 - principal employer and employed by any contractor and on other hand even if it is so proved pursuant to provision of Section 12 of the Workmen's Compensation Act,1923 when principal employer is liable to pay compensation to the victim and when he has insured his liability with the insurance company, condition in the policy is against basic statutory provision in form of Section 12 of the Workmen's Compensation Act and to that extent such condition is ab-initio illegal and cannot be enforced only because insurance company has incorporated such condition in its pre-printed documents, more particularly without disclosing such fact to the insured because such policy documents are practically signed by one party only on receiving the premium for accepting particular liability. In other words it can be said that when premium is accepted for liability under the Workmen's Compensation Act, there cannot be any condition which negativities provision of Act.
Page 4 of 6
C/FA/2309/2018 JUDGMENT
7. Whereas scrutiny of record, it becomes clear that though there is pleadings regarding sub contract given by opponent no.1 to someone for doing particular work, it is not properly proved on record and therefore, when incident has taken place in the premises of opponent no.1, it is to be believed that deceased was working for and on behalf of opponent no.1 only and when opponent no.1 is insured by the appellant, appellant has to indemnify the opponent no.1 by making payment of compensation to the victim.
8. Otherwise also as discussed hereinabove, pursuant to provision of Section 12 of the Act, when opponent no.1 is liable to pay compensation, even if victim was not employed by him and therefore, when policy in his favour, insurance company cannot be exonerated from its liability to pay compensation. It is undisputed fact that neither of the opponent has came forward to join show called contractor as a party opponent before the Commissioner and to prove that deceased was engaged by such contractor and not by the opponent no.1.
9. In view of above facts and circumstances, there is no substance in the appeal and therefore, there is no reason Page 5 of 6 C/FA/2309/2018 JUDGMENT to admit this appeal and keep it pending for couple of years for dismissal as per above discussions. Therefore, appeal is summarily dismissed. Since, appeal is dismissed, this Civil Application does not survive. Hence, this civil application is disposed of.
(S.G. SHAH, J) VARSHA DESAI Page 6 of 6