Orissa High Court
Koili Bewa And Ors. vs Akshaya Kr. Mishra And Anr. on 18 June, 1993
Equivalent citations: I(1994)ACC142, 1994ACJ215, (1994)IILLJ71ORI, 1993(II)OLR260
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT B.L. Hansaria, C.J.
1. The appellants were applicants before the Commissioner for Workmen's Compensation. They claimed compensation of rupees one lakh on account of the death of one Natabar Jena as his heirs, who was an employee of respondent No. 1 having been engaged by him as a coolie. At the material time the deceased was unloading gunny bags from the truck O.R.U. 9101 when some gunny bags fell over him as a result of which he received injuries and succumbed to the same. The Commissioner awarded compensation of Rs. 55, 176.80 and directed respondent No. 2. New India Assurance Company Ltd, to pay the amount. The insurer did not pay the compensation and approached this Court in M.A. No. 46/91 without having complied with the requirement mentioned in the third proviso to Section 30(1) of the Workmen's Compensation Act, 1923 (for short, "the Act"), 'which reads as below:-
"Provided further that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against."
(Emphasis ours)
2. The appellants filed a petition, which was registered as Misc. Case No. 699/92, to dismiss the appeal because the non-compliance with the requirement of the aforesaid proviso. That case was, however, dismissed on October 30, 1992 because of the decision of this Court in New India Assurance Company Ltd. v. Shankar Behera: (1988) 1 A.C.J. 337, in which it had been held by a learned Single Judge of this Court that in an appeal by the insurer, the requirement of the aforesaid proviso is not required to be complied with. Feeling aggrieved at the dismissal of the Misc. Case on the aforesaid ground, this appeal has been preferred.
3. A perusal of the aforesaid decision of the learned Single Judge shows that this aspect has been dealt in paragraph 9 of the judgment by stating that the proviso requires the 'employer' to deposit the amount and not the 'insurer'. As, however, in that case the insurer had deposited the amount, further discussion was stated to be academic.
4. Shri Sinha has, however, referred to another decision by the same learned single Judge in New India Assurance Company v. Manorama Sahu (1993-II-LLJ-332) in which this aspect of the matter has been dealt in paragraphs 6 and 7. A perusal of the same shows that the learned single Judge has taken the aforesaid view by pointing out that in the Act, the terms 'employer', 'principal employer' and "insurer' have been used, and each term has a separate meaning. It was, therefore, stated that an insurer is not employer and it covers the risk of the employer under a contract because of the mandatory provision under the Motor Vehicles Act. It was then observed that the matter could be viewed from another angle, the same being that the right of appeal is a vested right and where impediment is intended to be created in respect of such a right, the legislature is required to state the same expressly; and unless there is express language or clear intendment of the legislature, Courts should not favour impediment being created to arrest exercise of vested substantive right, though procedural change may be considered in a different light. It was finally held that if the third proviso were to be interpreted that the insurer would also be covered by it, the same would defeat its vested right to prefer appeal and would create impediment, which, being not permissible, has to be avoided.
5. Shri Sinha has also brought to our notice a decision of the Madhya Pradesh High Court in National Insurance Company Ltd, v. Saifuddin (1991) 2 A. C.C. 222, in which the learned single Judge referred to a Bench decision of that Court in Northern India Insurance Company v. Commissioner for Workmen's Compensation: 1973 M.P.L.J. 548, in which it was held that in an appeal by an insurance company, which is not the employer, the condition regarding deposit does not apply. The Bench thus over-ruled the earlier view taken by a learned Single Judge of that Court in New India Assurance Company v. Mohinder Singh: 1986 A.C.J. 110.
6. Shri Mohanty, on the other hand, has placed reliance on a decision by another learned Single Judge of this Court in National Insurance Company Ltd. v. Narendra Samal (1993) 1 T.A.C. 368, in which, after referring to a Bench decision of the Kerala High Court in New India Assurance Company v. M. Jayaram Naik 1982 A.C.J. 3, it was held that the third proviso would apply to an insurer also. This view was taken because the insurer really steps into the shoes of the insured while filing appeal against the order of the Commissioner, because the insurer is to indemnify the employer who is saddled with the liability for payment of compensation ordered by the Commissioner, by further stating that it is the person aggrieved who can file the appeal.
7. The learned Single Judge then observed in paragraph 7 that the principle behind the require ment of deposit is that if the workman's right to the compensation awarded to him is placed in jeopardy, security for the workman must be provided, which is ensured by the requirement of deposit. May it be stated that the same view had been expressed earlier by a learned Single Judge of this Court in Managing Director, Orissa State Transport Corporation v. Surendra Kumar 1987 A.C.J. 480.
8. A perusal of the aforesaid decision of the Kerala High Court shows that the Bench had also stated that if appeal preferred even by the insurer succeeds, the same will jeopardise the employee's right to recover compensation from the employer also. Really, what the insurer seeks in the appeal is that the insured may not be found to be liable to pay the compensation, because of which the insurer would also not be liable. It was, therefore, stated that an appeal by the insurer is really for and on behalf of the employer and in his stead and so, what the employer cannot do by himself, viz., filing of an appeal without complying with the requirement of the proviso, cannot be done by another on his behalf.
9. In this connection it would be relevant to refer to a Bench decision of this Court in Khirod Nayak v. Commissioner of Workmen's Compensation: 72 (1991) C.L.T. 643, in which the question for examination was whether the insurer is also liable to pay the penalty visualised by Section 4-A(3) of the Act. That question had come up for consideration, because that section states that where an employer is in default, interest can be awarded, which shall be recovered from the employer by way of penalty. The Bench stated that mere mention about the liability being of the employer is not enough to exonerate the insurer to indemnify the employer in this regard because of the provisions of the Motor Vehicles Act, 1939 - that case having dealt with this aspect of the matter arising out of a motor accident involving an employee. It was stated in this connection thattheprimary liability of paying compensation is fastened on the employer, and if the insurer is liable to indemnify the employer for the latter's liability to pay compensation, there exists no cogent reason to exonerate the insurer in paying the penalty fastened on the employer by Section 4-A(3) of the Act. So, it was held that the mere fact that Section 4-A(3) has spoken about 'employer' is not enough to exonerate the insurer. It would be appropriate to state in this connection that a contrary view in this regard had been taken by a learned single Judge of this Court hi S.O. Sharma v. Ramesh Mahakul : I.L.R. (1991) 1 Cutt, 707, which, however, cannot, in view of the Bench decision, hold the field.
10. We may also refer in this context to a Bench decision of Mysore High Court in M.R. Mishrikoti v. M.N. Asoti 1971 A.CJ. 105, in which the appeal under the Act was filed by a person who took the stand that he was not the employer and so was not required to comply with the requirement of the aforesaid proviso. The Bench stated that if in such a case the proviso were held to be not attracted, the intention of the legislature, which appears to be that the injured workman or a dependent of a deceased workman who has been awarded compensation by the Commissioner should not be put to any difficulty in realising such amount of compensation on account of recalcitrance of the employer or on account of the vicissitudes of the employer's financial position, would be defeated if it were to be held that the proviso is applicable only to an appellant who admits that he was such employer and not to an appellant who disputes findings by the Commissioner that he was such employer.
11. From what has been stated above, it is clear that the insurer is really making a grievance on behalf of the insured (the employer), because it is the latter who is principally liable under the Act and the former has only to indemnify him, what was stated by the Kerala High Court in this regard that the insurer steps into the shoes of the insured, has much to commend. Appeal being available to an aggrieved person, and the employer being the real aggrieved person, we are inclined to think that the proviso has used the word 'employer' for this reason.
12. We say with respect that what the learned single Judge of this Court stated in Manorama Sahu's case about the right of appeal being impeded by requiring the insurer to deposit the amount, which impediment, according to the learned Single Judge, is not permitted to be placed by Section 30 of the Act, is not fully correct inasmuch as the right has really been conferred on the person aggrieved and the person aggrieved is really the employer who has been required by the proviso to make the deposit, and so, there is no question of any impediment being placed on the right of appeal as conferred by Section 30 of the Act. To repeat, the appeal, though filed by the insurer, has to be taken in reality as on behalf of the insured, i.e., the employer. The intention behind the proviso being not to put the right of the claimant following the order of the Commissioner in jeopardy, we are of the view that the insurer has also to deposit the amount while preferring the appeal. We have taken this view also because, on deposit being made, hi appropriate cases the Court may order for withdrawal of the deposited amount by the claimant (s) to take care of hardship, which would not be possible if the appellant were not to deposit the amount.
13. We, therefore, hold that the view taken by the learned Single Judge in Manorama Sahu 's case as well as in Shankar Behera 's case cannot be preferred to the one taken by another learned single Judge in Narendra Samal's case. It is the latter view which has our concurrence.
14. The appeal is allowed and we hold that the insurer also, while preferring appeal under Section 30 of the Act, has to comply with the requirement of the aforesaid proviso.
15. The delay in delivery of the judgment is because of the fact that after the appeal was finally heard on May 12, the Court functioned till May 14th only and has reopened yesterday following Summer Vacation.
D.M. Patnaik, J.
16. I agree.