Madras High Court
Royal Sundaram Alliance Insurance Co vs Anand ... 1St on 25 August, 2015
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.08.2015
CORAM
THE HONOURABLE MR.JUSTICE P.DEVADASS
C.M.A.(MD) No.1108 of 2014
and M.P.(MD) Nos.1 of 2014 and 1 of 2015
Royal Sundaram Alliance Insurance Co., Ltd.,
46, Whites Road,
Chennai ? 600 014. ... Appellant/Respondent -2
Vs
1.Anand ... 1st Respondent/Claimant
2.B.Mohammed Mustafa ... 2nd Respondents/1st Respondent
Prayer
Civil Miscellaneous Appeal filed under Section 30 of the Workmen's
Compensation Act, 1923 against the order dated 06.01.2014, made in E.C. No.25
of 2010 (received on 25.06.2014) on the file of the Hon'ble Commissioner for
Employee's Compensation (Deputy Commissioner of Labour), Trichy.
!For Appellants : Mr.M.E.Ilango
^For 1st Respondent : Mr.N.Sudhagar Nagaraj
:JUDGMENT
1. This is an insurer's appeal.
2.The first respondent is driver of a Maxi Cab. On 10.12.2009, he was driving the car on the Trichy ? Musiri Main Road. When the vehicle came near Kiliyanallur, a road accident took place. Complaint has been filed against the first respondent by a scooterist. 1st respondent preferred W.C. Claim in No.25 of 2010 before the Commissioner under Workmen Compensation, Tiruchirappalli for compensation for permanent injuries sustained by him in the said accident. The appellant herein and the 2nd respondent were made as R2 and R1 respectively on the said W.C. Case. Appreciating the evidence adduced the Commissioner ordered the respondents therein to pay him Rs.1,72,032/- within a stipulated time, in default, the amount will carry 12% simple interest from the date of accident.
3. In this appeal, the insurer raised, the following substantial questions of law:
?a. Whether the claim of the 1st respondent can be determined without necessary parties?
b. Whether the alleged injury suffered was in the course of employment or not could be ascertained in the absence of the virtual owner of the vehicle?
c. Whether it is necessary to prove the injury has occurred in the course of employment?
d. Whether compensation could be awarded in the event of violation of policy conditions?
e. Whether in the absence of any contract of insurance between the appellant and the real owner of the vehicle at the time of accident, compensation could be awarded?
f) Whether the Lower Authority was justified in determining the salary of the respondent notionally without any materials to substantiate the same?
4.The learned counsel for the insurance company mainly contended that the fact that the 1st respondent was the employee of second respondent has not been established by adducing evidence and also at the time of accident 2nd respondent ceased to be the owner of the vehicle as he had sold the vehicle to one Mohammed Rafiq. Further, there was no endorsement in the driving licence of 1st respondent, thus, there is violation of policy, so company cannot be made liable.
5.The learned counsel for 1st respondent submitted that the appellant is arguing in air as it is without evidence. Further, the alleged policy violation will not enable the appellant to shift its liability under the Contract of Insurance. In this connection, the learned counsel for 1st respondent cited Iyyappan v. United India Insurance Co., (2013 (2) TNMAC 262 (SC). Further, in view of Mallamma etc. v. National Insurance Co., (2014 (2) TNMAC 729 (SC) and New India Assurance Co. Ltd. v. V.Periyaiah (2015 (1) TNMAC 176, such an argument will not arise.
6.I have anxiously considered the rival submissions, perused the materials on record, the impugned order and the decision cited by the learned counsel for the 1st respondent.
7.The principle relating to claiming compensation under the Workmen's Compensation Act, 1923 is different from claiming compensation under Motor Vehicles Act. Only upon the vehicle owner being held liable, calling upon the insurer to indemnify the compensation payable will arise. But in Workmen Compensation Act the issue is different because injury/fatal accident arising out of and in the course of employment is very important. Once it is established, then the owner is liable, consequently, the Insurer is bound to indemnify the owner.
8.First respondent met with the accident, while driving the Maxi Cab. It was contended that it is not Mohammed Mustafa, but one Mohammed Rafiq is the owner of the vehicle. This is the plea of Mohammed Mustafa in his counter affidavit.
9.In this case, Mohammed Mustafa perhaps not wriggled out of the situation arise. He might have put the blame on one Mohamed Rafiq but he did not depose before the Workmen Compensation Commissioner. The witness examined from R.D.O. Office also did not speak about the alleged sale. Except the ipse dixit of a witness from the Insurance Company there is nothing to exclude Mohammed Mustafa as the owner of the vehicle. However, even for an argument sake, the sale of a movable like the vehicle stands registered. The propriety of a movable like vehicle will transfer not upon mere sale but it will take effect on proper registration with the RDO. Further there is deemed transfer also. In all cases, the insurance coverage will goes along with the vehicle. Otherwise every owner will try to cheat the claimant.
10.The evidence adduced shows that when 1st respondent was not having badge with endorsement. Under such circumstances, there is violation of terms and conditions of the policy. Thus, it is a fit case to invoke 'pay and recovery' (see NANJAPPAN V ORIENTAL INSURANCE CO. LTD. AND OTHERS (2003(1)L.W. 77).
11.In the circumstances, there shall be modification in the order of the Commissioner for Workmen Compensation, Tiruchirappalli to the effect that the appellant is bound to pay the compensation to the claimant, but it can seek return of money from its insured. But that will be a matter of fight between between the vehicle owner and Insurance Company. In the circumstances, the substantial questions of law are answered against the appellant.
12.In the order of the Commissioner for Workmen Compensation, Tiruchirappalli, there shall be a modification to the effect that the appellant is entitled to proceed in execution as against the vehicle owner, without filing a separate suit. The company will have all the remedies available under Order 21 C.P.C. It can seek remedy as against the offending vehicle. On the request of the Company, the concerned Regional Transport Officer shall render necessary assistance. On proper application being filed, the deposited amount shall be paid to the claimants less amount, if any already received. Accordingly, the C.M.A. is disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.
sj To The Commissioner of Workmen's Compensation, (The Deputy Commissioner of Labour), Tiruchirappalli..