Madras High Court
S.A.Liyakath Ali : Review vs Icic Lombard General Insurance on 17 November, 2021
Author: G.Ilangovan
Bench: G.Ilangovan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.11.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Review Petition (MD)No.39 of 2021
and
Cross Objection(MD)No.21 of 2010
&
CMP(MD)No.39 of 2021
S.A.Liyakath Ali : Review Petitioner/
Cross Objector/
3rd Respondent/
1st Respondent
Vs.
1.ICIC Lombard General Insurance
Company Limited,
Madurai. : 1st Respondent/
1st Respondent/
Appellant/R2
2.R.Mani
3.Tmt.Rama Amirtham : R2 and R3/R2 and R3/
R1 and R2/Petitioners
Prayer: Review Petition is filed under Order 47 Rules 1 and 2
read with Section 114 of the Civil Procedure Code, to review the
order, dated 29.01.2021 made in CMA(MD)No.276 of 2010 on the
file of this court, confirming the fair and decreetal order, dated
21.10.2009 made in WC No.3 of 2007 on the file of the learned
Commissioner for Workmen Compensation, Madurai.
For Petitioners : M/s.M.Suri
For 1st Respondent : Mr.S.Srinivasaraghavan
For R2 and R3 : Mr.C.Godwin
https://www.mhc.tn.gov.in/judis
2
ORDER
CMA(MD)No.276 of 2010 has been preferred against the award that has been passed by the Commissioner for Workmen Compensation, Madurai, in WC No.3 of 2007, dated 05.11.2009. Along with Civil Miscellaneous Appeal, Cross Objection has also been filed by S.A.Liyakath Ali, the review applicant herein stating he is the owner of the JCB (Excavator) bearing Registration No.PY-01-T-7787, in which the deceased Jeyakanth was stated to be employed as Driver.
2.It is seen that the said CMA was disposed of on merits on 29.01.2021.
3.The learned counsel appearing for the Cross Objector has made a mention to the effect that the cross objection filed along the main CMA has not disposed of and it is pending in the bundle without disposal. So the Registry was directed to list the matter under the caption “For Clarification” along with the Review Petition.
https://www.mhc.tn.gov.in/judis 3
4.The previous facts as set out in the petition that has been filed before the Commissioner of Workmen Compensation is that the deceased Jeyakanth was working as driver in the JCB bearing registration No.No.PY-01-T-7787. When the said JCB vehicle about to cross the unmanned level crossing, a passenger train came there and dashed against the vehicle. So because of the accident, the driver Jeyakanth died on the spot. He was about the age of 23 at the time of accident and he was earning Rs.4,000/- per month and Rs.50/- per day as batta. The claimants were the parents of the deceased and filed a claim petition seeking compensation of Rs. 4,39,000/- before the Commissioner of Workmen Compensation, Madurai. The learned Commissioner passed an order directing the insurer to pay the compensation amount of Rs.4,42,400/- along with interest and also directed the Insurance Company to recover the same from the owner of the vehicle, who is the review applicant herein. So challenging the above said order, both the claimants and the Insurance Company filed the above CMA(MD)No.276 of 2016 and this review applicant also filed Cross Objection in Cross Objection (MD)No. 21 of 2010. So in the cross objection, he has challenged the order that has been passed by the Commissioner directing the Insurance Company to deposit the amount and https://www.mhc.tn.gov.in/judis 4 recover the same from the owner of the vehicle. Since it has been brought to the notice of this court that the cross objection was not disposed of along with CMA, the entire matter has been reheard.
5.The stand that has been taken by the Insurance Company before the Commissioner, during the proceedings is that the deceased was not owned proper driving licence at the time of accident. So according to the Insurance Company, it is a violation of policy condition and as such, they are not liable to pay and satisfy the compensation amount. But however, the interest of the Insurance Company has been protected by the Commissioner by directing the Insurance Company to deposit the amount that has been awarded and recover the same from the insured pointing out the violation of policy condition.
6.When the matter is taken up for hearing, the learned counsel appearing for the Insurance Company would submit that in pursuance of the above said order, they deposited the award amount before the Workmen Compensation Tribunal and now, they are taking steps to recover the same from the petitioner/owner of the vehicle. So the learned counsel appearing for the review https://www.mhc.tn.gov.in/judis 5 applicant would submit that there is no provision in the Workmen Compensation Act to pass such a direction before the Commissioner of Workmen Compensation. Since the vehicle has been duly insured with the Insurance Company, it is the duty of the Insurance Company to pay the amount and the question of recovering the award amount from him does not arise at all.
7.Now the short point, which arises for consideration is whether the Commissioner of Workmen Compensation was well within his power to pass an order of such pay and recovery as popularly known in the compensation proceedings before the Motor Accidents Claims Tribunal. Now we will straightaway go to the liability of the Insurance Company under the Workmen Compensation Act to satisfy the award. Except section 14 of the Act, no other provision is available in the Workmen Compensation Act 1923 making the Insurance Company liable to pay the award amount on behalf of the Insured.
8.Section 14 of Workmen's Compensation Act, 1923 reads as under:-
https://www.mhc.tn.gov.in/judis 6 “Section 14. Insolvency of employer (1) Where any employer has entered into a contract with any insurers in respect of any liability under this Act to any 1[employee], then in the event of the employer becoming insolvent or making a composition or scheme of arrangement with his creditors or, if the employer is a company, in the event of the company having commenced to be wound up, the rights of the employer against the insurers as respects that liability shall, notwithstanding anything in any law for the time being in force relating to insolvency or the winding up of companies, be transferred to and vest in the 1[employee], and upon any such transfer the insurers shall have the same rights and remedies and be subject to the same liabilities as if they were the employer, so, however, that the insurers-shall not be under any greater liability to the 2[employee] than they would have been under to the employer.
(2) If the liability of the insurers to the 2[employee] is less than the liability of the employer to the 2[employee], the 2[employee] may prove for the balance in the insolvency proceedings or liquidation.
(3) Where in any case such as is referred to in sub-section (1) the contract of the employer with the insurers is void or voidable by reason of non-compliance on the part of the employer with any terms or conditions of the contract (other than a stipulation for the payment of premia), the provisions of that sub-section shall apply as if the contract were not void or voidable, and the insurers shall be entitled to prove in the insolvency proceedings or liquidation for the amount paid to the 2[employee]:
https://www.mhc.tn.gov.in/judis 7 Provided that the provisions of this sub- section shall not apply in any case in which the 2[employee] fails to give notice to the insurers of the happening of the accident and of any resulting disablement as soon as practicable after he becomes aware of the institution of the insolvency or liquidation proceedings.
(4) There shall be deemed to be included among the debts which under section 49 of the Presidency towns Insolvency Act, 1909 (3 of 1909), or under section 61 of the Provincial Insolvency Act, 1920 (5 of 1920), or under 3[section 530 of the Companies Act, 1956 (1 of 1956)] arc in the distribution of the property of an insolvent or in the distribution of the assets of a company being wound up to be paid in priority to all other debts, the amount due in respect of any compensation the liability where for accrued before the date of the order of adjudication of the insolvent or the date of the commencement of the winding up, as the ease may be, and those Acts shall have effect accordingly.
(5) Where the compensation is a half-
monthly payment, the amount due in respect thereof shall, for the purposes of this section, be taken to be the amount of the lump sum for which the half-monthly payment could, if redeemable, be redeemed if application were made for that purpose under section 7, and a certificate of the Commissioner as to the amount of such sum shall be conclusive proof thereof.
(6) The provisions of sub-section (4) shall apply in the ease of any amount for which an insurer is entitled to prove under sub-section (3), https://www.mhc.tn.gov.in/judis 8 but otherwise those provisions shall not apply where the insolvent or the company being wound up has entered into such a contract with insurers as is referred to in sub-section (1).
(7) This section shall not apply where a company is wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company.
9.Even though the said provision has been captioned as Insolvency of Employer, now it is more number of laws. When the vehicles has been insured by the employer with the Insurance Company, it is the duty of the Insurance Company to satisfy the award amount, notwithstanding the fact that whether he has become insolvent or not. Now the Insurance Company can avoid the liability, until it is able to prove that the conduct of the insured with the employer or has become void or voidable by reasons of non compliance on the part of the employer with any terms and conditions with the contract.
10.At the risk of repetition, section 14(2) can be re-extracted for the purpose of better appreciation:-
https://www.mhc.tn.gov.in/judis 9 (2) If the liability of the insurers to the 2[employee] is less than the liability of the employer to the 2[employee], the 2[employee] may prove for the balance in the insolvency proceedings or liquidation.
11.Now the question arises for consideration is whether the Insurance Company has been discharged from its liability on the ground that the contract of the Insurer has become void, because of the non compliance of the condition of the insurance.
12.The Commissioner has extracted the evidence of RW1, who was the Officer from the Insurance Company and has also perused the contract of Insurance. On appreciation of the evidence, the Commissioner has come to the conclusion that the deceased was not having proper driving licence at the time of operating JCB vehicle. No contra evidence was let in before the trial court or even before this court. There is no documentary evidence on the side of the review petitioner to show that there was no violation in the terms of contract of the Insurance. So every contract of insurance, consisting a vehicle, it is obligatory on the part of either the employer or insurer to satisfy the requirement that it has been operated by a duly licensed person. If such https://www.mhc.tn.gov.in/judis 10 condition has been violated, the insurer can plea that he can be discharged. But however finding that it is the beneficial legislation, the Commissioner directed the Insurance Company to deposit the amount and recover the same from the insured i.e., the review petitioner herein. So I find that the order passed by the Commissioner of Workmen Tribunal on merits does not suffer from any illegality. So the review that has been sought for by the review applicant will not lie.
13.Accordingly, the review application stands dismissed and the Cross Objection that has been filed by the review applicant also stands dismissed. No costs. Consequently connected Miscellaneous Petition is closed.
17.11.2021 Index:Yes/No Internet:Yes/No er https://www.mhc.tn.gov.in/judis 11 Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis 12 G.ILANGOVAN, J er To, The Commissioner of Workmen Compensation, Madurai.
Review Petition (MD)No.39 of 2021 and Cross Objection(MD)No.21 of 2010 17.11.2021 https://www.mhc.tn.gov.in/judis