State Consumer Disputes Redressal Commission
M/S.Patel Engineering Ltd., Hyderabad vs The New India Assurance Co.Ltd., And ... on 19 June, 2009
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD. F.A.No.179/2006 against C.D.No.109/04, Dist.Forum, Ranga Reddy District. Between: M/s.Patel Engineering Ltd., Rep. by its Manager, Administration Mr.K.Divakaran Nai r, S/o.K.K.Pillai, Aged 54 years, Office at 6-3-635 & 637, IVth floor, Akashganga, Kahairatabad, Hyderabad. Appellant/ Complainant And 1.The Branch Manager, The New India Assurance Co.Ltd., 3/51/3, Raghavendra Mansion, Opp:HAL Gate, Balanagar, Hyderabad-42. 2. The Divisional Manager, The New India Assurance Co. Ltd., 5-33-2A, 1st Floor, Kukatpally X Road, Hyderabad. 3.The New India Assurance Co.Ltd., Rep. by its Regional Manager, Vth floor, Surya Tower, R.P.Road, Secunderabad. 4. The Chairman, The New India Assurance Co.Ltd., New Indi a Assurance Building, 87, MG.Road, Fort, Mumbai 400 001. Respondent/ Opp.parties Counsel for the appellant : M/s.B.Rajasekhara Reddy Counsel for the respondents : M/s. C.Sunil Kumar Reddy CORAM:SMT.M.SHREESHA, HONBLE MEMBER
AND SRI K.SATYANAND,HONBLE MEMBER FRIDAY, THE NINTEENTH DAY JUNE, TWO THOUSAND NINE.
Oral Order : (Per Smt. M.Shreesha , Honble Member. ) *** Aggrieved by the dismissal order in C.D.No.109/2004 on the file of District Forum, Ranga Reddy Dist. the complainant preferred this appeal .
The brief facts of the case as set out in the complaint are as follows:
The complainant company was registered under Companies Act and it has taken contract work of A.P.GENCO for execution of field work at Srisailam Left Bank Hydro Electric Project , Mahaboobnagar in the year 1991 and has appointed several skilled and semi skilled workers for execution of the contract work. The complainant had obtained insurance policy from opposite party at Hyderabad under Workmens Compensation Policy covering Workmen such as skilled workers, semi skilled workers and unskilled workers against accidents vide policy no.4161170200102 on 22.9.1996 which was valid upto 21st September,1997. The complainant company had paid the policy amount of Rs.5,28,750/-
and 5% service tax for taking the said policy and the opposite parties have assured that the policy would cover all the accidents that occur and cover all the workers of the company while on duty. During the course of execution of works fatal and non fatal accidents occurred at the work site. As per the policy and the procedure, the concerned site incharge immediately informs about the accident that occurred at site to the Project Manager of the Company in writing and the Project Manager will in turn inform the Executive Engineer , A.P. GENCO, the opposite parties in case of non fatal accidents. In case of fatal accidents the Project Manager informs Assistant Commissioner of Labor, Mahaboobnagar also in addition to the Executive Engineer of A.P.GENCO and the opposite parties. As per the decision of the Asst. Commissioner of Labour, Mahaboobnagar District in case of fatal accidents the complainant company deposited the amount with the Asst. Commissioner Labour for disbursement to Legal Heirs of the deceased. Thereafter the Assistant Commissioner disbursed the amounts to the Legal Heirs of the deceased. In case of non fatal accidents amount of compensation was paid by the complainant company to the injured workmen in the presence of the officials of AP GENCO based on the final medical report issued by the Deputy Civil Surgeon, Srisailam, in compliance with the terms of Memorandum of Agreement arrived at and registered with the Commissioner for Workmens Compensation, Mahaboobnagar.
During the year 1996-97, number of accidents took place and the compensation amounts had been deposited with the Assistant Commissioner of Labour as per the decision of Asst. Commissioner of Labour in case of fatal accidents for disbursement to legal heirs of the deceased and based on final medical reports compensation payments were made to the victims in respect of non fatal accidents. As per the conditions of the policy, opposite parties shall have to reimburse the compensation amounts to the complainant company. Though the complainant company had already paid the amounts as per the direction of Assistant Commissioner of Labour, Mahaboobnagar in case of fatal accidents and as per the terms of Memorandum of Agreement signed with the Assistant Commissioner of Labour in case of non fatal accidents, Opposite parties not returned the compensation amounts to the Complainant Company as per the list given below:
Sl.No Name of injured/deceased workman Date of Accident Amount of compensation paid and yet to be reimbursed by the opposite party Date of payment made FATAL ACCIDENTS
1.
K.Nagaraju 21.11.96 Rs.1,15,809/-
16-01-97
2. C.Shivadu 11222 21.11.96 Rs.1,12,569/-
16-01-97
3. S.K.Ali 21.11.96 Rs.1,04,532/-
16-01-97
4. R.Arjun 21.11.96 Rs.97,421/-
16-01-97
5. Basha Khan 21-11-96 Rs.1,01,473/-
16-01-97
6. Patani Basha 21-11-96 Rs.1,32,088/-
16-01-97
7. P.Raju 21-11-96 Rs.1,33,839/-
16-01-97
8. S.Manikanth 12-01-97 Rs.2,19,470/-
19-09-98 NON-FATAL ACCIDENTS
1. Mr. Shaik Shawali 24-07-97 Rs.17,943/-
13-04-98
2. B.Chennaiah 28-6-97 Rs.25,887/-
13-04-98
3. B.Srinivas 06-06-97 Rs.26,564/-
14-04-98
4. N.Harish Naik 23-01-97 Rs.72,055/-
14-04-98
5. Narayan Naik 25-01-97 Rs.9,540/-
06-03-2000
6. M.Ravindra Reddy 10-9-97 Rs.34,690/-
14-6-2001 Total Rs.12,03,880/-
The complainant company had paid the above said amount of Rs.12,03,880/- as compensation to the victims and legal heirs of the deceased and opposite parties are bound to reimburse the said amount as per the insurance policy covered during the year 1996-97. Inspite of several requests and representations, the opposite parties failed to reimburse the said amount. Opposite parties issued a letter bearingno.610000/RM/2004 dated 31st March 2004 stating that they have passed necessary instructions to its Branch Office to process the claims and reimburse the amounts due to the complainant company. But even after a lapse of five months the opposite parties failed to take any action to reimburse the said amount, due to the complainant company. Alleging deficiency in service, complainant approached District Forum to direct the opposite parties to reimburse an amount of Rs.12,03,880/- along with interest @ 12% p.a. from the date of payment and also to pay compensation of Rs.5 lakhs with costs.
Opposite parties 1 to 4 though appeared did not file their counters.
The District Forum based on the evidence adduced i.e. The District Forum based on the evidence adduced i.e. Exs. A1 to A18 documents, dismissed the complaint as time barred.
The facts not in dispute are that the complainant company had taken an I nsurance policy under Workmens Compensation Policy covering the workmen of the complainant company against accidents, the policy being valid from 22.9.1996 to 21.9.1997 . The complainant company paid the policy amount of Rs.5,28,750/- and 5% S ervice T ax for taking the said policy. It is the complainants case that while executing the work, both fatal and non fatal accidents occurred at the work site in which some of the workers had died and t he concerned site Engineer immediate ly reported this to the Project Manager of the Company who in turn informed A.P.GENCO. The complainant submits that as in case of non fatal and fatal accidents ,they informed the Commissioner for Workmen compensatio n and Asst. Commissioner of Labour and the complainant company paid the compensation amount as decided by the Commissioner, Workmen compensatio n. T he opposite parpties reimbursed Rs.14,82,846/- to the complainant company but failed to reimburse the amounts in 8 fatal accident cases and in 6 non fatal accident cases amounting to Rs.12,03,880/-. It is the co mplainants case that inspite of several reminders, respondents/opp.parties neither settled the claim nor repudiated the claim till date.
The respondents/opp.parties though received notice, did not choose to appear before this C ommission. We find force in the contention of the learned counsel for the appellant/complainant that this complaint is not time barred as I nsurance C ompany neither settled nor repudiated the claim and this can be construed as continuous cause of action. We also do not agree with the finding of the District Forum that the co mplai nant is not a C onsumer. District Forum has based their observation on the ground that the complainant company is a profit earning company which has engaged workers and is not for self employment. It is an admitted fact that the C omplainant C ompany has engaged several workers who works under the contract of A.P.Genco . We rely on the decision of Apex Court reported in 2009 CTJ 233 SC (CP) between KARNATAKA POWER TRANSMISSION CORPORATION AND ANOTHER vs. ASHOK IRON WORKS PVT. LTD. in which the Apex Court held that undoubtedly a company is a Person within the meaning of Section 2(1)(d) read with Sec.2(1)(m) of the Consumer Protection Act,1986 and when a Company hires service like Electricity, it falls within the ambit of the C.P. Act,1986. In view of the said J udgement even if the complainant c o mpany is a profit earning company if it has taken the S ervices of the opposite parties herein it can be termed as C onsumer. We observe from the record that admittedly the accident took place in the year 1996-97 and there was a series of correspondence between the complainant company and opposite party vide Exs. A3 to A12 dt. 10.1.2002, 9.2.2004, 22.3.2004, 28.1.2003,14.2.2003 16.4.2003, 30.12.2003 6.2.2004,14.8.2004 24.5.2004. Ex.A10 which is dt. 6.2.2004 is also acknowledged by the opposite party. Ex.A14 is a letter addressed by the opposite party on 31.3.2004 wh ich reads as follows:
This is with reference to your letter HYD/181/2588, dated 24.03.2004. We have already passed instructions to our branch office to process the claims and inform you accordingly A detailed letter giving the status will be sent to you shortly.
Ex.A15 is a letter addressed by the opposite party dt. 26.8.2004 which reads as follows:
We acknowledge the receipt of your letter dated 14.08.2004 on the captioned subject .
We are taking up the matter with the concerned office and shall revert to you on getting information from our office.
In the meanwhile, kindly bear with us.
In this letter opposite parties referred to delay in settlement of claim, therefore the question of limitation cannot be a ground for dismissal of the complaint since the opposite party has neither repudiated nor settled the claim e ven till the year 2004 and has communicated with the party on 26.8.2004. The contention of the opposite parties is that as per the terms and conditions of the policy, an essential requirement is that the injury or death of the workmen must arise out of and in the course of his employment. The driver of the lorry at the time of alleged accident did not possess effective driving licens e and sin c e the accident did no t occur during the course of employment, the claim of the complainant is rejected and that the complainant has suppressed the factual aspects of Mr.S.K.Ali, who is a helper on the Tipper. Others are all workers of the complainant company and the person listed in Sl. no.8 of the fatal accidents list i.e. Manikanth, the date of accident is shown as 12.1.1997 which was not during the course of his employment and the claim was rejected, t herefore as per the terms and conditions of the said policy, opposite party need not indemnify the said accident. Apart from these allegations opposite pa rties did not file any documentary evidence to state that the workers did not die during the course of employment even in the list of fatal accidents and non fatal accidents. It is also the contentio n of the opposite parties that the incident in which listed names of 1 to 7, driver Nagaraju drove the tipper with high speed and it fell down in a river and a police case was registered and the final report stated that the accident was on account of rash and negligent driving and the said driver Nagaraju died on the spot and s ince this accident did not occur out of and in the course of their employment, their repudiation is justified. The Opposite P arties have failed to file any documentary evidence in support of their contentio n and did not even file the repudiation letter or their affidavit by way of evidence. Moreover, the order of the Commissioner of Workmen Compensation has become final and it is not the case of t he respondent/opposi te parties that they have chosen to prefer any appeal. In the light of the fact that the order of the Commissioner is final and no appeal has been preferred, these grounds raised by the respondents for the first time in their written arguments cannot be sustained. It is also pertinent to note that they neither filed their affidavit by way of evidence nor any documents in support of their co n tention. Hence we are of the considered view that the c o mpla i nt can be allowed directing the opposite parties to reimburse the amounts paid by the complainant on submission of receipts of the same by the complainant, to the opposite parties together with compensation of 10,000/- and costs of Rs.5000/- .
In the result this appeal is allowed and the O rder of the District Forum is se t aside. The Respondent/opposite parties are directed to reimburse the amounts paid by the Complainant Company on submission of receipts of the same by the complainant, together with compensation of Rs. 10,000/- and costs of Rs.5000/- .
MEMBER MEMBER 19.6.2009