Jammu & Kashmir High Court
Oriental Insurance Company ... vs Mohd Haroon (Minor) S/O Mohd Ismail ... on 13 September, 2024
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
MA No. 62/2007
Reserved on: 29.08.2024
Pronounced on: 13.09.2024
Oriental Insurance Company incorporated under
Companies Act, having its Registered Office at Oriental
House, A-25/27, Asaf Ali Road, New Delhi and Divisional
Office-I at Town Hall, Jammu through its Divisional
Manager, Mr. R K Dhuppar, Divisional Office,
DO-I, Town Hall, Jammu, age 48 years. .....Appellant(s)
Through :- Mr. Dinesh Singh Chouhan, Advocate with
Ms. Damini Chouhan, Advocate
v/s
1. Mohd Haroon (Minor) S/O Mohd Ismail Bakerwal R/O
Darmund Batote, Tehsil Ramban, District Doda
through his mother Mst. Nazira Begum.
2. M/S Jay Parkash Associates, Beglihar Hydro Electric
Project Chanderkote, Ramban.
3. Mohd Yaqoob Contractor R/O Rakhjaroog Dharmund
C/O Manager, Baglihar Project, Chanderkote,Ramban.
4. Assistant Labour Commissioner, Doda with powers of
Commissioner Workmen's Compensation Act. .....Respondent(s)
Through :- Mr. R K S Thakur, Advocate for R-1
Mr. Meharban Singh, Advocate for R-2
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. Appellant-Insurance Company, through the medium of this Civil First Miscellaneous Appeal, has challenged the Award dated November 30, 2006 passed in File No. 26/I titled "Mohd Haroon vs M/S Jay Parkash Associates & Ors", whereby the Assistant Labour Commissioner, Doda as Commissioner under the Workmen‟s Compensation Act (for short „Commissioner‟) granted compensation to the tune of ₹3,94,910/- inclusive 2 MA No. 62/2007 of interest @ 12% per annum in favour of respondent No.1-Mohd Haroon for his disablement, as a result of the injuries received in an accident while working as a worker with the respondent-Contractors M/S Jay Parkash Associates and Mohd Yaqoob.
2. The Award has been challenged on many grounds, raising following substantial questions of law:-
i. Whether the "Workmen" as defined under Section 2(I)(b) of the Workmen‟s Compensation Act, 1923 includes the minor?
ii. Whether employer is competent to enter into Contract of the employment which is sine-qua-non for invoking the provisions of the Workmen‟s Compensation Act, 1923 with the minor?
iii. Whether company is liable to indemnify the insured in respect of a minor engaged as a labourer in violation of terms and conditions of the policy and the provisions of law applicable for the engagement of Workmen?
iv. Whether the respondent No.4 was not under obligation to return findings on all the issues raised by the appellant company before the trial Court in respect of existence of relationship of Master and Servant vis-à-vis the Contract of Insurance?
v. Whether the Award impugned dated 30th November, 2006 passed by respondent No.4 is perverse and not sustainable in the eyes of law?
vi. Whether in view of the admission made by the respondent No.1 claimant regarding his age at the time of occurrence, the respondent No.4 was within its jurisdiction to entertain the claim and pass the award as per the provisions of the Workmen‟s Compensation Act, 1923?
vii. Whether under the Workmen‟s Compensation Act, 1923, liability can be fastened on the appellant Insurance Company solely on the ground that policy has been issued in favour of respondent No.2, irrespective of lack of jurisdiction of respondent No.4 to entertain the claim? viii. Whether the respondent No.4 is competent and empowered to pass lump-sum award along with interest at the rate of 12% per annum in favour of the respondent No.1?3 MA No. 62/2007
3. Respondent No.1-Mohd Haroon being minor through his mother filed a Claim before the Commissioner at Doda on 08.06.2005 claiming compensation for the injuries suffered by him resulting into permanent disability in an unfortunate accident on 24.03.2005 during the course of his employment with the respondents-contractors; that the cause of injury was that the claimant was carrying cement bags and suddenly the Patta of Roller Crusher fell upon the head of the appellant, as a result of which he was shifted to the company hospital and due to his serious condition was forthwith referred to Government Medical College Hospital, Jammu where he was admitted on 24.03.2005 and was discharged on 06.04.2005; that the claimant had sustained head injury; that he was being paid monthly wages of ₹ 2400/- i.e @ ₹ 80/- per day at the time of accident by the contractor; that the Commissioner after entertaining the Claim issued process to the respondent Nos. 1 and 2 who were principal contractor and sub-contractor respectively.
4. Respondent No.1-principal contractor responded to the notice, whereas respondent No.2 sub-contractor did not respond and was proceeded ex- parte. The respondent No.1-principal contractor filed written reply stating that the claimant had received injury by his personal negligence during and in the course of his employment. It was also contended that huge sum of amount had been spent on his treatment. It was also submitted by the principal contractor that it had insured all the workers under Group Insurance Scheme with Oriental Insurance Company-appellant herein and the same be arrayed as necessary party. A copy of the policy schedule valid 4 MA No. 62/2007 for the period from 04.06.2004 to 03.06.2005 issued by the said Insurance Company was also submitted. The Commissioner impleaded and summoned the Oriental Insurance Company, who filed its reply denying the claim of the claimant.
5. The claimant led evidence and examined his mother Nazira Begum and Mohd Farooq as his witnesses and the Commissioner also examined Dr. Avtar Krishan Bhan-Chief Medical Officer in Jai Parkash Associates Baglihar Project Hospital, whereas the principal contractor examined Naval Kishore as a witness on its behalf. However, record reveals that the respondent-Insurance Company appellant herein, had not led any evidence in support of its contention. The Commissioner after hearing both the parties and on the basis of evidence led, passed the impugned award in the amount of ₹3,29,098/- under Section 4 read with Schedule-IV of the Workmen‟s Compensation Act, 1923 along with simple interest @ 12% per annum from the date of accident till date, under Section 4-A(3-a) of the Workmen‟s Compensation Act, 1923 amounting to ₹65,812/- from the date of accident in favour of the claimant and against the principal contractor. Since the labour was insured by the principal contractor with the respondent-Insurance Company appellant herein, it was commanded to indemnify the principal contractor and as such, the insurer-Oriental Insurance Company appellant herein, was directed to deposit the awarded amount.
6. Mr. Dinesh Singh Chouhan, learned counsel for the appellant argued that the Policy on the basis of which the appellant-Insurance Company had been 5 MA No. 62/2007 saddled with the liability was not under the Workmen‟s Compensation Act, as such, no such claim could be maintainable before the Commissioner under the Workmen‟s Compensation Act, 1923. He further argued that the Policy in question covered personal accident as group of employees had been covered under the Policy and that a maximum of ₹2,00,000/- could be paid for one accident, whereas vide impugned Award, an amount of more than that was ordered to be paid which was not permissible. He further argued that the claimant was a minor of the age of 16 years at the time of alleged accident, as has been pleaded by him in his claim, as such, he could not have been employed by the contractor as the employment of minor children is prohibited under Labour Laws. It was finally submitted that the impugned Award having been passed arbitrarily and illegally by the Commissioner be set aside.
7. M/S R.K.S.Thakur and Meharban Singh, Advocates, learned counsel for the respondents argued that the contentions raised by the learned counsel for the appellant before this Court were not raised before the learned Commissioner who had passed the Award, as such, such contentions particularly with regard to maintainability which are factual issues can‟t be raised for the first time in the appeal; that in absence of any foundation of challenge before the Court below, it is the settled law, that no such challenge can be agitated at the appellate stage. They have further argued that admittedly the claimant was a minor, however, under the Workmen‟s Compensation Act and the Rules, this plea cannot be raised that there was a prohibition of employment as labour of a child as the Act and the Rules 6 MA No. 62/2007 with regard to payment of compensation have not to be interpreted, in such a manner, which are detrimental to the rights of the minor children employed and who may have suffered disability. They have particularly mentioned Schedule-IV of the Act and Forms under the Rules, particularly Form AA which provide with regard to the formula/manner in which the children of more or less than the age of 15 are to be compensated. They also highlighted that the appropriate factor to be applied for determination of the compensation under the Schedule was 228.54 in case of persons employed if they are not more than 16 years of age, which suggest that the minors, if employed, suffer some disability during their employment with the employer, they are entitled to be compensated and on a technical plea of prohibition of labour of the minor children shall not be applicable to the plea for the compensation. Mr. Thakur further argued that the Commissioner while granting the interest had wrongly ordered that the statutory interest @ 12% per annum shall be applicable on the amount of compensation from the date of accident to the date of passing of the order as Section 4-A of the Act clearly provides that this interest shall be leviable from the date of accident till realization of the awarded amount and prayed that the award besides being maintained be modified to this extent. It was finally prayed that appeal being without any merit be dismissed.
8. So far as the contention of the minor not being entitled to the compensation for his legal disability of working as labour at the age of 16 years is concerned, the matter fell for consideration before Hon‟ble High Court of Bombay in a case titled "Mohammed Ali Abdul Samad Khan & Ors vs 7 MA No. 62/2007 Dawood Mohd. Khati & Ors", reported as 2021 SCC OnLine Bom 6670. Para 26, 30 and 31 are relevant on the subject and are extracted as under:
"26. Assuming for a moment that deceased was a minor, the question which ought to have been determined by the Commissioner was whether he could have been kept out of the purview of the Workmen's Compensation Act, 1923, which is a special enactment which provide for compensation from the employer in case of certain contingencies and is a beneficial piece of legislation which ought to have accorded an interpretation which would achieve the intention of the legislature.
27-29 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
30. This clearly indicate that the Workmen's Compensation Act, 1923 do not prohibit payment of compensation to a minor. There is no age limit for a person to be employed as an employee under the Workmen's Compensation Act, though Article of the Constitution of India, employment of child labour before 14 years in any factory or mine or any hazardous employment, there are enactments in the form of Child & Adolescent Labour (Prohibition & Regulation Act), 1986 where engaging services of children below 14, in any hazardous avocation is an offence. However, considering the fact that the Workmen's Compensation is a beneficial piece of legislation and if a person engaged by an employer, as an employee is a minor and his appointment, though is prohibited by any law in existence, meet with an accident and sustain a disability which can be a total or partial disability, the moot question is whether he should be denied the compensation merely on the ground that the employer had engaged him by contravening the law and he shall be 8 MA No. 62/2007 kept out of the benefits which would have been otherwise available to him on account of an accident which he has suffered which occurred in his work place and out of the course of his employment or whether his family can be denied compensation on his death.
31. The impugned judgment unfortunately takes a harsh stand and refuse to fasten the liability of compensation on the Insurance Company by recording that the deceased was minor and the insurance company is not liable to pay compensation on that count. There is no clause in the insurance policy taken by the employer, which do not permit third party claim if a person is a minor. The insurance policy clearly covered two persons and the liability covered a person employed by the insured for operation and maintenance or loading/unloading which covered a cleaner. The fact that the policy covered two persons is admitted by the insurer and the validity and the cover of the policy is not disputed."
9. Hon‟ble Gujarat High Court in a case titled "Taluka Panchayat Mendarda & Anr vs Maliben Rukhadbhai & Ors", reported as 2019 Legal Eagle (GUJ) 315 also considered the matter with regard to the entitlement of a minor under the Workmen‟s Compensation Act and held in Para 22 as under:
"On perusal of the aforesaid provision, it is crystal clear that no age limit is prescribed so far as definition of the workman is concerned for employment. A plain reading of the aforesaid provision defining workman, clearly shows that intention of the legislature is to include persons below age of 15 also under the category of workman. This fact is further fortified from the Schedule-IV which prescribes the 9 MA No. 62/2007 factors where minimum factor is for age of not more than 16 years. Thus when the provisions of the Act do not expressly or impliedly exclude that no compensation is payable to a person who is below age of 16 years and section 3 of the Act does not make liability of the employer to be dependent on the age of the workman, therefore, there is no need to allow the civil application filed for producing additional evidence in the form of birth certificate of deceased Rameshbhai Rukhadbhai as it would not alter in any manner the liability for payment of compensation to the workman under the provisions of the Act. Civil Application is therefore, required to be rejected and is hereby rejected."
10. The obiter dicta of the aforestated judgments passed by the Hon‟ble High Courts of Bombay and Gujarat on the subject is respectfully agreed, holding that a minor who suffers any kind of disability during the course of his employment, is entitled to seek compensation disregard of the fact that such employment may be statutorily barred under the Labour Laws, as such, the claim in this behalf is held to be maintainable.
11. The contention of learned counsel for the appellant that the Insurance Policy was not under the Workmen‟s Compensation Act is not tenable for the simple reason that the Policy under which a Group Insurance was contracted by the appellant with the principal contractor respondent-M/S Jai Parkash Associates, covered personal accidents of the work-force employed by it.
12. The second contention that the insurance claim could be granted to a limit of ₹2,00,000/- only as has been provided under the Insurance Scheme for one accident is also misplaced in view of the fact that in terms of Group 10 MA No. 62/2007 Personal Accident Policy executed by the appellant-Insurance Company with the respondent-principal contractor M/S Jay Parkash Associates, the liability has been shown as „liability for any one accident shall not exceed ₹2,00,00,000/- (Two hundred lacs rupees) as per the Policy Schedule‟, therefore, the contention that the claim could be limited upto ₹2,00,000/- being misconceived is rejected.
13. The claimant, as per the statements of his mother and Mohd Farooq witnesses examined in the case, had suffered disability in the accident while loading the cement bags during the employment with the contractor insured with the appellant Company. The witness namely Naval Kishore examined by the principal contractor had admitted that the claimant was working and was registered as a labourer with the principal contractor and that any risk to the workers was covered under the Insurance Policy No.23/2005 which had been executed with the appellant Insurance Company. Dr. Avtar Krishan Bhan, Chief Medical Officer in the hospital of the principal contractor was also examined by the learned Commissioner who stated that the claimant sustained injuries to his brain and skull was given first aid treatment at the company hospital at Chanderkote and later referred to the Government Emergency Hospital, Ramban and at present the claimant was totally incapable to execute any manual work as he had suffered total permanent disablement having been rendered permanently handicapped from doing any manual labour work. The disability on the basis of the statement of the doctor was assessed 100% by the Commissioner, as such, a compensation in the amount of ₹ 3,29,098/- was 11 MA No. 62/2007 granted to the claimant under Section 4 read with Schedule-IV of the Workmen Compensation Act, 1923 along with simple interest @ 12% per annum from the date of accident till date amounting to ₹ 65,812/- and having regard to the Policy No.23/2005 valid w.e.f 04.06.2004 to 03.06.2005, the appellant Insurance Company was directed to pay compensation while indemnifying the insured under the terms and conditions of the contract. The appellant Company has not urged any point with regard to quantum of compensation assessed and granted.
14. Since the Workmen‟s Compensation Act provides that the statutory interest has to be given from the date of accident till realization of the amount, however, the learned Commissioner has granted interest @ 12% per annum from the date of accident till „date‟ meaning thereby till date of Award. The Commissioner has, thus, committed an error while granting interest up to the date of award only which should have been upto the date of realization of the compensation, besides penalty in terms of clauses (a) and ( b) of sub Section ( 3 ) of Section 4A of the Act of 1923.
15. Having regard to the aforestated reasons and the observations made hereinabove, this Court is of the considered opinion that the impugned award does not suffer from any illegality, so as to warrant any interference by this Court on the pleas raised by the appellant. The impugned award is, thus, ordered to be maintained with slight modification with regard to the interest payable from the date of accident to the date of realization of the compensation and penalty for delay in payment, instead of from the date of accident till passing of the award.
12 MA No. 62/2007
16. Viewed thus, the appeal fails having no merit and substance and is accordingly, dismissed. Copy of this judgment shall be communicated to ALC, Doda for information and compliance.
17. Record of the case received from the Commissioner (ALC) Doda, be sent back forthwith.
(M A Chowdhary) Judge JAMMU 13 09.2024 Vijay Whether the order is speaking: Yes Whether the order is reportable: Yes Vijay Kumar 2024.09.17 16:36 I attest to the accuracy and integrity of this document