Kerala High Court
United India Insurance Co. Ltd. vs Alphonsa on 23 March, 1988
Equivalent citations: II(1988)ACC333, [1989]65COMPCAS638(KER)
JUDGMENT Shamsuddin, J.
1. The second respondent in W. C. C. No. 29 of 1982 on the file of the Commissioner for Workmen's Compensation, Kottayam, is the appellant in this appeal. The first respondent herein filed an application under Section 22 of the Workmen's Compensation Act alleging that her husband, a workman employed by the second respondent herein received personal injury by an accident arising out of and in the course of employment which resulted in his death. While he was driving the bus, bearing registration No. KRE 8715, he had a chest pain and was admitted in the Government Hospital, Munnar, but he died at the hospital. In the application, his monthly salary was shown as Rs. 693. The applicant-widow claimed a lump sum amount of Rs. 24,000 as compensation. The second respondent herein who is the owner of the vehicle contended that the vehicle was covered by a valid insurance policy with the appellant on the date of death and that, therefore, the appellant alone was liable under Section 96 of the Motor Vehicles Act, and that it is necessary to implead the insurer as a party to the proceedings. Accordingly, the appellant was impleaded as a party. The appellant contended that the deceased had not received any personal injury as a result of any accident and the death on September 27, 1981, was as a result of a sudden heart attack. It was also contended that he was only a casual labourer.
2. The Commissioner for Workmen's Compensation found that death was due to chest pain while the deceased workman was driving the vehicle and, therefore, the death was during the course of employment. The compensation was fixed at Rs. 23,100 and the appellant was directed to pay this amount.
3. It was fairly conceded by learned counsel for the appellant that though the death was not due to any injury sustained in an accident, since the chest pain which resulted in death developed while he was driving the vehicle and in the course of his employment, the employer was liable to pay compensation. He, however, vehemently contended that in view of Section 14 of the Workmen's Compensation Act, the insurer was liable to pay compensation only 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, and since in the instant case, these circumstances were not present, no liability could be fastened on the part of the insurer to pay the compensation under the Workmen's Compensation Act though the policy had covered the risk. Learned counsel for the appellant invited our attention to the decision in New India Assurance Co. Ltd. v. Parameswari Amma, ILR 1976 Ker 237, and United India Fire and General Insurance Co. Ltd. v. Joseph Mariam [1979] ACJ 349 (Ker). In both these decisions, this court took the view that it was only 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 provisions contained in Section 14 of the Workmen's Compensation Act are attracted and in this view of the matter, in both the cases, it was held that the Workmen's Compensation Commissioner had no jurisdiction to issue any direction to the insurer to pay the amount of compensation due from the employer to the employee under the Workmen's Compensation Act. A different view has been taken by a Division Bench of this court in United India Insurance Co. Ltd. v. Gangadharan [1986] KLT 1034, to which one of us (Sivaraman Nair J.) is a party. In that decision, this court held (headnote):
" The purport of the provision appears to be only that in such circumstances the right of the workmen shall not be defeated and the insurer can then be substituted in the place of the insolvent-employer. It does not appear to operate as a prohibition against any proceedings before the Workmen's Compensation Act involving the insurer who is liable under a contract of insurance to discharge the liability of the employer to compensate the workmen according to the provisions of the Workmen's Compensation Act.''
4. In holding so, this court also drew support from a ruling of a Division Bench of this court in Untied India Fire and General Insurance Co. Ltd v. P. M. Ishammal [1979] ACJ 448 (Ker), where it was held :
"It is a settled Rule of law that where there is no lack of inherent jurisdiction in a court or Tribunal and jurisdiction is conditional on the existence of certain facts, lack of jurisdiction on account of non-existence of jurisdictional facts ought in the first instance to be raised before the Tribunal or the court, as the case may be".
5. In the instant case also, the lack of jurisdiction on account of non-existence of the jurisdictional facts mentioned in Section 14 of the Workmen's Compensation Act had not been raised. The decision in the latter case rested on the fact that such plea was not raised before the Tribunal and, in the circumstances, the court could presume that the Tribunal was competent to pass an award as contemplated under Section 14 of the Act making the insurer liable.
6. In other decisions also, this question has arisen. In National Insurance Co. Ltd. v. Prembai [1987] ACJ 278, a single judge of the Madhya Pradesh High Court followed a Full Bench decision of the same High Court and held that the Workmen's Compensation Commissioner has jurisdiction to direct the insurer to discharge the liability of the employer even in the absence of facts mentioned in sectjon 14 of the Workmen's Compensation Act. The court said (at page 279):
"A Full Bench of this court by order dated March 31, 1985, decided the questions...in favour of the claimants and against the appellant by giving its opinion that the Commissioner for Workmen's Compensation has jurisdiction under the Act, in a proceeding for compensation for personal injury or death of an employee occurring in a motor accident, to award compensation against the insurance company; and that the insurance company can be fastened with the liability of making payment of compensation to the successful applicant in a proceeding, before the Commissioner for Workmen's Compensation under the Act, even in the absence of the employer being adjudged an insolvent as required under Dub-section (1) of Section 14 of the Act".
7. In New India Assurance Company Ltd. v. Dujiya Bai [1983] ACJ 601 ; [1986] 60 Comp Cas 940 also, the Madhya Pradesh High Court has taken the same view and held that Section 14 of the Workmen's Compensation Act does not negative the liability of the insurance company in cases where Section 14 is not attracted and that, therefore, the Commissioner has jurisdiction. Learned counsel for the appellant brought to our notice the ruling in National Insurance Company Ltd. v. Jabunbi [1984] ACJ 741 (MP), where the learned single judge of the Madhya Pradesh High Court took a different view, but in view of the decision of the Full Bench of the High Court referred to in National Insurance Co. Ltd. v. Prembai [1987] ACJ 278 (MP), this view has not been treated as good law by the Madhya Pradesh High Court. It may be also noticed that it is the same learned single judge who decided New India Insurance Co. Ltd. v. Dujiya Bai [1986] 60 Comp Cas 940 (MP), who held in Prembai's case [I987] ACJ 278 (MP), that Section 14 of the Workmen's Compensation Act does not negative the liability of the insurance company in cases where the said Section is not attracted. In United India Fire and General Insurance Co. Ltd. v. Machinery Manufacturers Corporation Ltd. [1986] ACJ 1079; [1989] 65 Comp Cas 596, the Karnataka High Court also has taken the view that the Workmen's Compensation Commissioner has jurisdiction to direct the insurer to pay the compensation notwithstanding the provisions contained in Section 14 of the Workmen's Compensation Act even in cases where Section 14 is not attracted.
8. In this connection, it will be useful to refer to Section 95 of the Motor Vehicles Act which deals with the requirements of the policy. The proviso to Section 95(1) of the Act makes it clear that it is a requirement to cover the liability arising under the Workmen's Compensation Act, 1923, in respect of the death or bodily injury to any employee. Section 110AA provides that notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923), where the death of, or bodily injury to, any person gives rise to a claim for compensation under the said Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may claim such compensation under either of those Acts but not under both. Reading the provisions contained in Section 110AA of the Motor Vehicles Act along with the proviso to Section 95 of the said Act, we have no doubt in our mind that the provisions contained in Section 14 of the Workmen's Compensation Act cannot be a bar to directing the insurer to discharge the liability of the employer in proceedings before the Workmen's Compensation Commissioner under the provisions of the Workmen's Compensation Act. In the instant case, there is the additional circumstance that the appellant had not raised such a plea and for this reason also, the appeal should fail.
9. In the result, the M. F. A. is dismissed. There will be no order as to costs.
Sivaraman Nair, J.
10. I agree with my learned brother. I am inclined to add a few words of my own.
11. It is true that Section 14 of the Workmen's Compensation Act enables the substitution of the employer as the person liable to compensate the workmen only in a few cases. There has been some difference of opinion as to whether the workman can proceed against the insurer even in the absence of such circumstances. I had taken the view that he can. I have given my reasons in United India Insurance Co. Ltd. v. Gangadharan [1986] KLT 1034. I had also stated that, ordinarily, an enabling provision cannot be read as precluding any other remedy and that should be more so in a beneficial and welfare legislation meant to assist the disadvantaged workman. The option given to the workman under Section 110AA of the Motor Vehicles Act makes the position absolutely clear. That Section provides that if a claim for compensation falls both under the Workmen's Compensation Act and under the Motor Vehicles Act, the claimant can choose his remedy; but once he has chosen, he cannot seek the other remedy also. This option of alternatives and statutory injunction against the other alternative after the option is exercised can be understood only if both are available to the claimant, not when one is ruled out and only the other can be resorted to. Nor can it be that the alternative under the Workmen's Compensation Act will be available only in such limited cases where the assumed prohibition contained in Section 14 of that Act is not operative. Section 110AA was engrafted in the Motor Vehicles Act by the Amendment Act of 1969. Obviously, its purpose was to give a free choice of alternatives to the claimant. Doubt, if any, about the availability of remedies against the insurer in a claim under the Workmen's Compensation Act must have been dispelled by the choice that the statute offered under Section 110AA of the Motor Vehicles Act. That clearly was its intention and nothing else was its effect.
12. Counsel for the appellant urged that a claim under the Workmen's Compensation Act which does not require any pleading or proof of negligence of the tortfeasor to make him liable in damages cannot be the subject-matter of a claim against the insurer who has undertaken only the tortious liability of the insured under the Motor Vehicles Act and, therefore, the Commissioner should not have made the insurer liable to pay the compensation. I do not think that this objection is sustainable in view of the specific statutory liability cast on the insurer by the terms of Section 95(1) of the Motor Vehicles Act and the conditions of the policy of insurance. One of the items of risk which the statute enjoins on the insurer to cover is the risk to employees under the Workmen's Compensation Act. In other words, the statutory cover is not only in respect of damages occasioned by negligence to passengers, third parties and other specified categories of persons but also in respect of risk to workmen arising out of and in the course of employment where negligence may not be a determinant factor at all. To say that the Tribunal, under the Motor Vehicles Act, shall determine the liability for damage in accordance with the law of torts is not to say that none other than tortious liability is covered by statutory insurance under the Act. I have, therefore, no hesitation in rejecting this contention. The insurer is liable for any risk covered by the policy of insurance including the one in which negligence may not be an element at all. I, therefore, agree that the appeal be dismissed.