Allahabad High Court
The Oriental Insurance Co. Ltd. vs Shri Rafiq Ali And 3 Others on 9 December, 2022
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 5 Case :- FIRST APPEAL FROM ORDER No. - 667 of 2022 Appellant :- The Oriental Insurance Co. Ltd. Respondent :- Shri Rafiq Ali And 3 Others Counsel for Appellant :- Arun Kumar Shukla Counsel for Respondent :- Abhinav Kumar Pandey Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the appellant and learned counsel for the respondents.
2. The present appeal has been preferred by the appellant-Insurance Company challenging the award dated 05.03.2021 passed by Employers Compensation Commissioner and Additional Labour Commissioner, Mirzapur Region, Pipri, Sonbhadra whereby the Commissioner has awarded Rs.3,07,983/- along with 10% interest as compensation to the claimant-respondent for the injuries suffered by the claimant-respondent no.1 in an accident alleged to have taken place on 27.01.2010.
3. Challenging the award, learned counsel for the appellant has contended that the claimant-respondent was an employee of respondent nos.2 to 4 and was working as helper and during the course of employment, he suffered injuries on 27.01.2010. He preferred a claim petition before the Court of Employers Compensation Commissioner and Additional Labour Commissioner after about seven years and in such view of fact, it is contended that the Commissioner has erred in awarding the interest for the period of delay in filing the claim petition. In support of the said submission, learned counsel for the appellant has placed reliance upon the judgement of the Apex Court in the case of Lakkamma and Ors. Vs The Regional Manager M/s United India Insurance Co. Ltd. and Anr in Civil Appeal No.808 of 2021 (arising out of SLP No.28794 of 2016).
4. It is further contended that under the insurance policy, the appellant-insurance company was not liable to pay medical expenses, and therefore, the Commissioner has erred in law in fastening the liability upon the insurance company to pay the medical expenses to the tune of Rs.1,01,675/- incurred by respondent no.1 in his treatment and thus the impugned award is liable to be set aside. It is further submitted that the claimant-respondent was working in Unit 8 whereas the insurance policy covered the risk of the employees of Unit 9, and thus, Commissioner has erred in law in fastening the liability upon the appellant to pay compensation despite the fact that the employees of Unit 8 were not covered under the insurance policy.
5. Per contra, learned counsel for the respondents would contend that in the instant case, the delay in filing the claim petition has been properly explained and the Commissioner on being satisfied that the delay in filing the claim petition was bonafide and genuine, condoned the delay in filing the claim petition. Consequently, the claim petition is treated to have been filed within the period of limitation, and therefore, the Commissioner has rightly awarded the interest from the date of accident.
6. It is further submitted that there is no pleading in the written statement that the insurance policy did not cover the medical expenses incurred in the treatment of the respondent no.1, and therefore, such plea cannot be raised for the first time in appeal under Section 30 of the Employee's Compensation Act, 1923.
7. It is further stated that the plea of not coverage of employees of Unit 8 has also not been stated in the written statement, however, during the course of argument, the said plea was raised and the Commissioner has recorded a finding that the perusal of the insurance policy indicates that it does not refer to any particular unit and it is general in nature and covers the risk of employees of UNIT OF OBRA BTPS U.P. Accordingly, it is submitted that as no question of law is involved in the present appeal, therefore, the appeal deserves to be dismissed.
8. I have heard learned counsel for the appellant and respondent and perused the record.
9. In the instant case, the accident was alleged to have taken place on 27.01.2010. The claim petition was instituted in the year 2017. It appears that the Commissioner after having been satisfied with regard to the fact that the delay in filing the claim petition was genuine and bonafide, condoned the delay in filing the claim petition. The order of condoning the delay has not been assailed by learned counsel for the appellant to demonstrate that the said order is illegal or perverse or erroneous. Thus, the appellant-insurance company has acquiesced to the order of the Commissioner condoning the delay in filing the claim petition. Once, the delay in filing the claim petition has been condoned, the claim petition would be treated to have been filed within the period of limitation, and therefore, in such view of the fact, this Court does not find substance in the submission of learned counsel for the appellant.
10. So far as the judgment of the Apex Court in the case of Lakkamma and Ors. Vs The Regional Manager M/s United India Insurance Co. Ltd. and Anr. (supra) is concerned, the said judgment is not applicable in the facts of the present case, inasmuch as, in the said judgment, the Apex Court while condoning the delay in filing the special leave petition has put a condition that the claimant-appellant would be disentitled to interest for the period of delay for any enhancement. In the instant case, learned counsel for the appellant has failed to demonstrate that the Commissioner while condoning the delay has put such condition which has been put by the Apex Court in the case of Lakkamma and Ors. Vs The Regional Manager M/s United India Insurance Co. Ltd. and Anr. (supra).
11. So far as the judgment of this Court in the case of General Manager, Bharat Pumps and Compressors Ltd. Vs Madhu Rani 2008 (3) T.A.C. 818 (All.), is concerned, this Court may note that in paragraph 7 of the judgment, the court found that the Commissioner while condoning the delay in filing the claim petition has taken up the issue very lightly and, in such factual backdrop, this Court found that the interest can be directed to be paid only on the point of the fault of the appellant but not as a grace unnecessarily, when admittedly the claim was made about two years from the date of death. In the instant case, the insurance company has not assailed the order of the Commissioner condoning the delay nor could demonstrate from the record that the Commissioner has condoned the delay on irrelevant considerations. In such view of the fact, this Court knew that the judgment of this Court in General Manager, Bharat Pumps and Compressors Ltd. Vs Madhu Rani (supra) is not of help to the applicants.
12. Now coming to the second contention raised by learned counsel for the appellant that the insurance policy did not cover the medical expenses, it is pertinent to note that the perusal of the written statement filed by the appellant-insurance company does not disclose that any such plea was taken by the appellant in the written statement. As this plea was not raised by the appellant-insurance company before the Commissioner, it is not open to the insurance company to raise the same for the first time in appeal.
13. So far as the third contention with regard to coverage of reply of unit 9 is concerned, it is apt to mention that the Commissioner has held that perusal of the insurance policy discloses that it covers the employees of UNIT OF OBRA BTPS U.P. and does not specify any particular unit.
14. At this point, it would be appropriate to reproduce the contract details mentioned in the policy appearing at page 40 of the paper book :
"Contract Details Principal Name :
Site of Work : UNIT OF OBRA BTPS U.P. Trade description : DISMATUING, DUCTS, DEMPER & STRICTURES & THEIR TESTING COMMISSIONING UNIT NO.09 (200MW UNIT OF OBRA BTPS U.P.) Address : UNIT OF OBRA BTPS U.P. State : UTTAR PRADESH City : MAHOBA Pincode : 210427"
15. Perusal of the contract details indicates that under the heading Site of Work, it is mentioned "UNIT OF OBRA BTPS U.P."; under the heading Trade Description it is mentioned "DISMATUING, DUCTS, DEMPER & STRICTURES & THEIR TESTING COMMISSIONING UNIT NO.09 (200MW UNIT OF OBRA BTPS U.P.)". The insurance policy discloses that the site of work for which the policy has been issued is "UNIT OF OBRA BTPS U.P.". This means that the policy is issued with respect to the employees of entire "UNIT OF OBRA BTPS U.P.".
16. The written statement filed by the insurance company discloses that no specific plea that the insurance policy covered the risk of employees of Unit 9 and not Unit 8 has been taken by the insurance company nor any evidence was led by the insurance company to prove that the policy covered only risk of employees of Unit 9. The onus was upon the insurance company to prove that only the employees of Unit 9 are covered under the insurance policy and not the employees of Unit 8. Once the insurance company discharge its onus, only then the burden would have shifted upon the claimant-respondent to establish that the employees of Unit 8 are also covered under the insurance policy. Since, the insurance company has neither set up the specific plea in the written statement with respect to the fact that policy covered employees of Unit 9 and not Unit 8 nor any evidence was led by the insurance company to establish or demonstrate that only the employees of Unit 9 are covered under the insurance policy and not the employees of Unit 8, this Court does not find any illegality in the order passed by the Commissioner holding that the policy has been issued with respect to employees of UNIT OF OBRA BTPS U.P. and is not limited to the employees of Unit 9.
17. For the reasons given above, this Court find that no substantial question of law is involved in the said appeal which needs to be answered by this Court. The appeal lacks merit and is accordingly dismissed.
Order Date :- 9.12.2022 S.Chaurasia