Allahabad High Court
United India Insurance Co. Ltd. vs Workmen'S Compensation Commissioner ... on 17 January, 1996
Equivalent citations: 1997ACJ1028, [1996(73)FLR1541], (1996)IILLJ448ALL
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
1. These two writ petitions arise out of two proceedings initiated under Section 17 of the Workmen's Compensation Act, 1923 arising out of the same accident, in which one Safdar Miyan and Insar Ahmed had died. The case as made out in Writ Petition No. 37551 of 1992 is as follows:
2. The respondents No. 3, 4 and 5 as claimants have made an application under Section 17 of the Workmen's Compensation Act which was registered as Case No. 21/W.C.A./91 against Kafeel Ahmad and others claiming compensation of Rs. 85,428 together with interest for the death of Safdar Miyan on March 1, 1991 while employed under the said Kafeel Ahmad, owner of Mini Bus No. U.P. 25-5058.
3. While the case made out in Writ Petition No. 37550/92 was that the respondents No. 3 and 4 had lodged a claim under Section 17 of the Workmen's Compensation Act, which was registered as case No. 22/W.C.A./91 against Kafeel Ahmad, claiming compensation of Rs. 1,06,257 on account of death of Nihal Beg on March 7, 1991 while employed by the said Kafeel Ahmad, owner of Mini Bus No. U.P.- 25-5058.
4. The said two cases were allowed by an order dated May 3, 1992 awarding Rs. 85,428 as compensation in each case, fixing the liability on the owner. On July 28, 1992 the claimants in both the cases filed an application for review that though the Insurance Company was a party, in spite of Section 147 of the Motor Vehicles Act, the authority under the Workmen's Compensation Act has not fixed the liability of the Insurer who is liable to pay the compensation. The Insurance company had filed its objection on Au-
gust 19, 1992 in both the cases. By an order dated September 21, 1992 the authority under the Workmen'3 Compensation Act had allowed both the application in both the cases holding that the authority had jurisdiction to review and that the liability of the Insurer was not taken into account though copy of the insurance policy was on record and that prior to the application dated July 28, 1992 similar application was filed on June 30, 1992, on which no action having been taken, second application was filed and, therefore the application was treated as within time. It is these orders which have been challenged by means of these two writ petitions.
5. Learned counsel for the petitioner Insurance Company contends that the Code of Civil Procedure is applicable in a proceeding under the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act) only to the extent as provided under Section 23 of the Act namely for the purpose of taking evidence enforcing attendance of witnesses and compelling production of documents and material object. By reason of Section 23 of the Act jurisdiction to review has been clearly excluded inasmuch as though certain specified provision of the Code of Civil Procedure was made applicable but the provision for review was never intended to be included.
6. The second contention of the learned counsel for the petitioner, inter alia, was that the Motor Vehicles Act and the Workmen's Compensation Act are two different enactments. Section 167 of the Motor Vehicles Act, 1988 makes it clear that if a person is entitled to claim compensation under the Motor Vehicles Act as well as the Workmen's Compensation Act, in that event only one of the proceedings is to be resorted to. Both cannot be pursued. Therefore, one excludes the other. The Workmen's Compensation Act does not provide for any liability of the Insurance Company except as provided under Section 14 of the said Act namely that if there is a contract of Insurance in respect of any liability under the Compensation Act, then after the insured became insolvent the right of the insured against the insurer would vest in the workman. Therefore the provisions of the Motor Vehicles Act cannot be borrowed while deciding the case under the Workmen's Compensation Act.
7. The third contention of the learned counsel for the petitioner was that the application for review has not disclosed any ground for review. Apart from the fact the policy of insurance was neither proved nor any evidence was led fixing the liability of the insurer.
On the other hand learned counsel for the respondents contends that when the Statute is silent about the power of review by an authority exercising quasi judicial jurisdiction it is inherent within such authority, particularly when such authority has all trappings of our court. He further contends that the provisions of the Motor Vehicles Act and the Workmen's Compensation Act are not mutually exclusive. Section 167 of the Act bars the remedy from the two authorities but not application of the provision of one of the other to other or the one. The authority under the Workmen's Compensation Act while deciding the issue may also look into the liability of the insurer under the provisions of Motor Vehicles Act and fix the liability upon the insurer.
8. These questions as to whether in a proceeding under the Workmen's Compensation Act the liability of the insurer can be fixed arose in many cases before different High Courts. There are contrary views of different High Courts. One view precludes the authority from fixing the liability of the insurer while the other view is just opposite. In the case of United India Fire and General Insurance Company v. Joseph Marium, 1979 ACJ 349 Division Bench of Kerala High Court had held that the liability of insurer is only confined to those specified in Sub-section(1) of Section 14 of the Act and except those cases the Commissioner had no jurisdiction to issue any direction to the insurer for payment. Whereas in the case of United India Insurance Company Limited v. Roop Kamvar, 1991 ACJ 74 the Rajasthan High Court had held that it is correct that Section 14 of the Compensation Act specified the liability of the Insurance company but that does not mean that the insurance company is liable to pay compensation only in case the employer becomes insolvent. The insurer is also liable, by reason of the provisions contained in the Motor Vehicles Act and if the person chooses his remedy under the Workmen's Compensation Act the insurer cannot avoid his liability and the authority under the Workmen's Compensation Act may fix the liability of the insurer. Similar view was taken by Orissa High Court in the case of Bhajan Lal Podia v. Baijnath, (1986) 62 Cuttak Law Time, 13. In the case of New India Insurance Company Limited v. Darshani Devi, 1984 Lab I.C. 489 while dissenting from the decision in the case of Oriental Fire and General Insurance Company v. Garim Singh 1973 Lab. I.C. 1066 this Court has held that the liability arising under the Workmen's Compensation Act is necessarily included in the statutory liability which is required by Section 95(1) of the Motor Vehicles Act, 1939 to be covered under the policy of Insurance. Hence the insurer cannot shirk such liability by contending that its liability under the policy was merely a liability under the Motor Vehicles Act and cannot be extended to the liability incurred under the provision of Workmen's Compensation Act. The same view has been expressed in the case of Oriental Fire and General Insurance Company v. Matisburla 1986 ACJ 732 by the Orissa High Court. The Madhya Pradesh High Court has also expressed that Section 14 of the Act is not the only provision imposing the liability on the insurer in the case of New India Insurance Company v. Dujia Bai 1983 ACJ 601 MP; United India Insurance Company Ltd. v. Alphonso, 1988 I LLN 1023; Oriental Fire and General Insurance Company v. Nonibala Devi, 1987 2 TCT 107; National Insurance Company v. Narainan Nair. 58 FIR 1973 Kerala supported the same view. In the case of United India Insurance Company v. Gangadharan Narain, 1986 53 FLR 606 it was held that Section 14 purports to mention the circumstances that the right of the workman shall not be defeated even when employer becomes insolvent and in such event the insurer can be substituted in the place of employer. It does not operate as prohibition against proceeding before the Commissioner involving the insurer, who is liable under the Insurance to discharge the liability of employer to compensate the workman, according to the provisions of the Act. Karnataka High Court in the case of United Fire and General Insurance Company v. Machinery Manufacturer Corporation, 1987 (I) LLN 321 had held that Section 14 of the Act does not enable the Insurance company to avoid its liability under the Policy issued specially, for covering the liability of the workman under the Act on the ground that the insured employer has not become insolvent or has made composition or scheme of arrangement or being a company winding up proceeding has not commenced. However in the case of National Insurance Company v. Jadumbi, (1985-I-LLJ-102) Mad-hya Pradesh High Court has expressed the contrary view.
9. It appears that the Motor Vehicles Act Clearly lays down that the person entitled to compensation on account of accident arising out of the use of Motor Vehicle may pursue his claim either under the provisions of Motor Vehicles Act or under the Workmen's Compensation Act, but not entitled to have it from the authorities under both the Acts. Therefore the person claiming compensation out of an accident for use of Motor vehicles under the Compensation Act cannot be said to be precluded from claiming the benefit which is available before the other authority. This mutual exclusion clearly implies that the Legislature had never intended that when the claimant in respect of an accident for the use of Motor Vehicles lodges his claim before the authority under the Compensation Act negatives the liability of the insurer under Section 147 of the Motor Vehicles Act, the insurer cannot be concerned under which provision the claim is lodged. The insurance policy does not specify that it will pay compensation only when it is claimed under the provision of Motor Vehicles Act. The liability of the insurance arises out of a contract of insurance be-
tween the insurer and the insured. The liability is the general liability. The same can be invoked even in a Civil suit without the aid of any of the authorities under the said two Acts if it can be invoked without aid of any of these authorities then it cannot be conceived that the insurer will be liable only when a particular procedure is adopted. The liability of the insurer continues to indemnify the insured on account of liability arising out of the contract for insurance. The Insurance company cannot defeat the claim of the claimant simply because the claimant has preferred to espouse his cause under the Compensation Act. The Workmen's compensation Act also does not preclude in specific terms that the insurance company cannot be liable even if the insured is liable under the Motor Vehicles Act. In case compensation is asked for from an employer who might be insolvent and take advantage of insolvency, Section 14 of the Act has been provided to protect the interest of the claimant namely that on account of insolvency of the employer the claimant's claim may not be defeated. This very provision indicates that the Act was concerned with protection of the claim of the claimant. The Act was never concerned as to who would make payment. The Act was always concerned for securing payment of compensation to the claimant if the employer is insured in that event insurer becomes also equally liable to indemnify the employer to the extent of contract of the insurance which can be taken note of. The authority deciding the claim has the jurisdiction to apportion payment or direct as to what amount is to be paid by the insurance and insurer respectively.
10. Furthermore the Motor Vehicles Act 1988 in Section 143 provides that the provisions of Chapter X of the said Act which deals with "no fault liability" shall apply to a claim under the Workmen's Compensation Act resulting from an accident of the nature referred to in Section 140 to the said Act. The provisions of Chapter X aforesaid has overriding effect on any other law by reason of Section 144 of the said Act. The right to claim compensation under Section 140 is a right in addition to any other right under the provision of the said Act or under any other law. Now chapter X deals with the liability on the principle of fault. Incorporation of Section 167 in the said chapter indicates the intention of the legislature that the claim arising out of the Motor Vehicles Act can also be claimed under the Compensation Act. It is very difficult to conceive that the liability under an insurance policy would be defeated if the claim is lodged under the Compensation Act. Inasmuch as if such a proposition is accepted then it would be very difficult to reconcile the savings provided in Section 141(1) of the Motor Vehicles Act, 1988. It is an established principle of interpretation that a statute has to be given a harmonious construction which leads to a consistent effect. It cannot be conceived that when the benefit is made available under Chapter X of the Motor Vehicles Act even in a claim under the Compensation Act with over-riding effect as provided in Sections 143 and 144 of the said Act the benefit under Chapter XI which is saved under Section 141(1) of the said Chapter would not be available in a claim under the Compensation Act when Section 167 of the said Act provided in Chapter XI leaves the choice or option to the claimant to make such claim in either of the two forums.
11. In order to appreciate the situation we may refer to Section 167 of the Motor Vehicles Act which runs as follows:
"Notwithstanding anything contained in the Workmen's Compensation Act 1923(8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this 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 those Acts but not under both".
The Section begins with a non-obstante clause which indicates that a claim which arises under the Motor Vehicles Act and also under the Compensation Act, be espoused under either of the Acts meaning thereby an overriding effect. Without prejudice to the provisions of Chapter X a person entitled to compensation under the Motor Vehicles Act and also under the Compensation Act may claim such compensation under either of the Acts. This clearly presupposes that even despite absence of any provision in the Compensation Act the liability of the insurer as provided in the Motor Vehicles Act can equally be enforced under the Compensation Act.
12. Over and above the compensation is payable on account of a liability arising out of use of a vehicle at a public place. Such liability is covered under the insurance policy by the Insurer. The provision under the Motor Vehicles Act makes it mandatory for owners of vechicles to cover his vehicle under such insurance policy. The compensation is payble for the liability arising out of the use of the vehicle on behalf of the insured who is so indemnified by the insurer by reason of the contract or the policy. It covers the class of person specified in the policy. It makes little difference if the person affected is an employee of the insured if such class of person is covered by the policy. Therefore the insured does not stand on any different footing when the compensation is claimed under the Compensation Act.
13. Therefore the interpretation of the said provision which ensures to the benefit of the claimant who stands on the receiving end, a weaker side, who should not be allowed to suffer in the trap between the insurer and insured, should be preferred than any other interpretation. Insurance is made compulsory only to facilitate realisation of the claim by the claimant through the insurer. In my view therefore the interpretation given in the preceding paragraph apposite.
14. Now on the Question whether the Workmen's Compensation authority had jurisdiction to review, it appears that the Workmen's Compensation Commissioner exercises quasi judicial jurisdiction having all the trapping of the Court procedure whereof has not been elaborately laid down either under the Act or under the Rules. The absence of specific provision does not debar such authority from dispensation of justice. The authority who is passing the order which is enforceable otherwise cannot be said to ' lack jurisdiction to recall or review its order if occasion so demands in order to do justice. While dispensing justice or exercising quasi judicial jurisdiction unless it has specifically prohibited or barred the power to review its own order inheres in the Tribunal or the authority concerned.
15. Similar view has been expressed in the judgment in the case of Oriental Insurance Company and Fida Ali and Ors., 1995 (25) ALR 532 in which Hon'ble S.R. Singh J. referring to the judgment in the case of P.L. Kakkar Singh v. Praduna Singh, AIR 1970 SC 1273 and S. Nagaraja v. State of Karnaiaka, (1994-I-LLJ-851)(SC) and various other decisions of different High Courts had held that the Tribunal having trappings of the court is empowered to review its own order.
16. In the result it appears that the Commissioner while passing the impugned order cannot be said to have exceeded his jurisdiction in allowing the review application and ordering fresh consideration for ascertaining the liability of the insurer, whether there are material or not for deciding the question namely that the policy was not proved is to be gone into by the Commissioner in terms of the order which directed re-
ceptance of materials for the purpose.
17. In that view of the matter I am not inclined to interfere with the order. The Commissioner shall be at liberty to proceed afresh on the basis of material on record and on the basis of such material as may be produced by either of the parties and to decide the question with regard to the liability of the insurer. The Commissioner's jurisdiction is limited to that extent only namely how far insurer is liable and what amount should be paid by it if it finds the insurer liable on the basis of material already on record or on the material that might be produced before the Commissioner. The said decision should be decided as early as possible preferably within a period of six months from the date a certified copy of this order is produced before the Commissioner after giving appropriate opportunity to either of the parties.
18. The writ petitions therefore stand disposed of to the above extent. There will be however, no order as to costs.