Madras High Court
The Oriental Insurance Company Ltd vs G.Elango Alias Sundararajan .. 1St on 18 July, 2008
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/07/2008 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A(MD).No.265 of 2004 and C.M.P.No.2020 of 2004 The Oriental Insurance Company Ltd, No.16, K.J.R.Complex, North Veli Street, Madurai represented by its Divisional Manager. .. Appellant/2nd Respondent Vs 1.G.Elango alias Sundararajan .. 1st Respondent/Petitioner 2.M.Jeya .. 2nd Respondent/1st Respondent Prayer Appeal filed under Section 30 of the Workmen's Compensation Act, against the award dated 15.07.2004 passed in W.C.No.200 of 2002 by the Commissioner for Workmen's Compensation, Madurai. !For Appellant ...Mr.K.Bhaskaran ^For Respondents...Mr.R.Thangasamy for R.1 No appearance for R.2 :JUDGMENT
This Civil Miscellaneous Appeal is filed by the appellant/second respondent The Oriental Insurance Company Ltd, represented by its Divisional Manager, dissatisfied with the award dated 15.07.2004 passed in W.C.No.200 of 2002 by the Commissioner for Workmen's Compensation, Madurai/Tribunal.
2. The first respondent/petitioner has filed a claim petition before the Commissioner/Tribunal claiming a compensation of Rs.4,78,560/- (Rupees Four Lakhs Seventy Eight Thousand Five Hundred and Sixty only) and the Commissioner/Tribunal after contest, on an appreciation of oral and documentary evidence has passed an award on 15.07.2004 awarding a sum of Rs.1,08,146/- (Rupees One Lakh Eight Thousand One Hundred and Forty Six only) and directed the appellant/second respondent Insurance Company to deposit the said sum within thirty days from the date of receipt of a copy of this order, failing which the said sum shall carry an interest at the rate of 12% p.a. from the date of petition till date of deposit etc.
3. The short facts of the claim are as below:
The first respondent/petitioner who was a workman employed by the second respondent/first respondent on 08.12.2001 at about 11.00 p.m, met with an accident near Kamalapuram and received multiple abrasions in both lower limbs, dislocation of right hip and multiple injuries all over the body. The first respondent/petitioner was a mechanic with the second respondent/first respondent. While on the date of occurrence, the first respondent/petitioner and one Prabhu tried to remove the front tyre of the bus bearing Registration No.TN-59-E-8589 and in that process, the bus suddenly ran over the first respondent/petitioner and the said Prabhu who was also a mechanic. Due to the sudden impact, the first respondent/petitioner received multiple abrasions in both lower limbs, right lower limb internal rotation, addiction and flecious, right hip joint femoral pulse comparatively lock in left side, movements of right hip restricted and multiple injuries all over the body.
4. The accident and the consequential injuries sustained by the first respondent/petitioner arose out of and in the course of employment with the second respondent/first respondent. Immediately, the first respondent/petitioner was admitted into the Government Rajaji Hospital, Madurai and till now, he was continuing his treatment. The accidental injuries had resulted in permanent disability and the first respondent/petitioner was unable to attend his day-to-day affairs. The accidental injuries had completely incapacitated the first respondent/ petitioner to do any work. Hence, it was a total permanent disability and therefore, it was not possible for the first respondent/petitioner to resume his avocation as that of a mechanic. Therefore, the first respondent/petitioner had lost his source of income. The first respondent/ petitioner received a salary of Rs.4,000/- including the batta. He was aged about 34 years at the time of the accident. The relevant factor as per the Schedule IV of the Workmen's Compensation Act was Rs.199.40 and the first respondent/petitioner was entitled to a sum of Rs.4,78,560/- (Rs.2,400/- X Rs.199.40 = Rs.4,78,560/-) {Rupees Four Lakhs Seventy Eight Thousand Five Hundred and Sixty only} and hence, prayed for award being passed in favour of him.
5. The second respondent/first respondent took a plea that it was true that the first respondent/petitioner was employed as a mechanic under her and on 08.12.2001, he met with an accident during the course of employment with her. The first respondent/petitioner received only a sum of Rs.2,000/- p.m, towards his salary. The accident was an inevitable one and it took place during the course of employment. Since the vehicle was insured with the appellant/second respondent, if any liability would arise, then the appellant/second respondent Insurance Company alone was liable to pay the claim amount. The quantum of compensation claimed by the first respondent/petitioner was highly excessive and that the appellant/second respondent Insurance Company was liable to pay the compensation amount and hence, prayed for dismissal of the claim petition.
6. The appellant/second respondent Insurance Company took the stand that the first respondent/ petitioner with a view to suit his claim, had give a false narration in regard to the manner of accident and that no such accident took place at all as alleged by the first respondent/petitioner and that the appellant/second respondent was not at all a necessary party. The second respondent/first respondent's vehicle was insured with the appellant/second respondent Insurance Company at the time of accident. As per the policy conditions, the appellant could not be held responsible for any alleged injuries caused to the mechanic as the vehicle was the bus, the policy coverage is only for driver, conductor and checking Inspector and hence, the injuries caused to any mechanic would not cover under the policy. Moreover, no injury or accident caused out of the usage of the vehicle. Hence, the appellant/second respondent Insurance Company is an unnecessary party. The driver who was in-charge of the bus at the time of the accident was not having proper driving licence. The owner of the vehicle till date had not informed about the alleged accident. The driving licence and the accident details were not furnished to the appellant/Insurance Company and till date, the appellant was kept in the dark. No notice is contemplated under the Act was served on the appellant. Hence, the present claim petition had to be dismissed.
7. Before the Commissioner for Workmen's Compensation/Tribunal, on the side of the first respondent/petitioner, witness P.W.1 was examined and Exs.A.1 to A.6 were marked and on the side of the appellant/second respondent Insurance Company, witness R.W.1 was examined and Ex.R.1 was marked. As Court document, Ex.C.1, series of documents including the copy of the F.I.R, was marked.
8. At the time of admission of this Civil Miscellaneous Appeal, the following substantial questions of law were framed:
"(1) Whether the Commissioner for Workmen's Compensation, Madurai, is correct in invoking the provisions of Workmen's Compensation Act to fasten liability for the "third party"?
(2) Whether the Commissioner for Workmen's Compensation, Madurai, is correct in applying the benefit of proviso (ii) to Sec.147 of the Motor Vehicles Act to the claim under the Workmen's Compensation Act?
(3) Whether the injured is a "workmen" and the accident in question has "arisen in the course of employment" under the provisions of Workmen's Compensation Act?
(4) Whether the Award of Rs.1,08,146/- fixed by the learned Commissioner for Workmen's Compensation is just and proper and not exaggerated?"
9. Finding on the substantial question of law No:3 The first respondent/petitioner in his claim petition has averred that he was a mechanic under the second respondent/first respondent and on the date of accident, i.e, on 08.12.2001, at about 11.00 p.m, the first respondent/petitioner and one Prabhu, a mechanic, tried to remove the front tyre of the bus bearing Registration No.TN-59-E-8589 and in that process, the bus suddenly ran over the first respondent/petitioner and the said Prabhu who was a co-mechanic and due to the sudden impact, the first respondent/petitioner received multiple injuries all over the body and that the accident and the injury sustained arose out of and the in the course of employment with the second respondent/first respondent (owner of the bus).
10. The first respondent/petitioner has got himself examined as P.W.1 before the Tribunal and in his evidence, he has stated that he worked with the second respondent/first respondent, owner of the bus as mechanic and he was employed for the past thirteen years and one Prabhu was also a mechanic and on 08.12.2001 at about 11.00 p.m, the tyre of the said bus got burst and the bus came to a halt and that he along with Prabhu while removing and fixing the same in the bus, at that time, the bus was moved, as a result of which, the tyre rim dashed against his hip and resulted in injuries and that, his bone was disunited, etc.
11. It is to be pointed out that the term 'employment' and 'employed' in the definition in the main clause (n) of Section 2 of the Workmen's Compensation Act, as well as in the sub-clauses (i) and (ii) of the Act, suggest the existence of a master and servant relationship so as to bring a person within the category of 'workman' under the Act. Whether the relationship of master and servant exists between the employer and workman, is a question of fact to be decided in each case based on the prevailing facts and circumstances of the case. Admittedly, the relationship is characterised by contract of service between them. It is not out of place to point out that in "Bank Voor Handel en Scheepvaart N.V v. Slatford (1952) 2 All ER 956, 971, Denning L.J, observed that the test of being a servant does not rest now-a-days on submissions to orders. It depends on whether the person is part and parcel of the organisation.
12. Further in the decision, "United States v. Silk" (1947) 331 US 704, the Supreme Court of U.S.A, has observed that, 'the test to be applied was not that of power control, but whether the men were employees as a matter of economic reality.'.
13. As a matter of fact, the existence of contract of employment express or implied, between the employer and the injured workman, is necessary for the application of the Workmen's Compensation Act. In short, the contract of service is necessary to establish the relationship of a master and a workman under the Act. To put it differently, a person entitled to claim compensation under the Act, must have relationship between him and his employer as that of a employer and a workman or a master and a servant.
14. At this juncture, it is pertinent to point out that in the decision, Depot Manager, Andhara Pradesh State Road Transport Corporation, Karimnagar v. Gurrapu Anjamma {2000 (1) L.L.N. 932, it is held that 'conductor of the bus working in Andhra Pradesh State Road Transport Corporation is a 'workman' within the meaning of Section 2(1)(n) as he is connected with the motor vehicle.'. In the aforesaid decision, at page 937, it is observed as follows:
"With regard to the second contention of the learned counsel for the appellant that the conductor is not a workman within the meaning of S.2(1)(n) of the Act, it is relevant to extract the same as under: (prior to 15 September 1995)' "(n) 'workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is -
(i) a Railway servant as defined in S.3 of the Indian Railways Act, 1890, not permanently employed in any administrative, district or sub-divisional office of a Railway and not employed in any such capacity as is specified in Sch.II.
Schedule II: List of persons who subject to the provisions of S.2(1)(n) are included in the definition of workman.
The following persons are workmen within the meaning of S.2(1)(n) and subject to the provisions of that section, that is to say any person who is -
(i) employed otherwise than in a clerical capacity or on a railway, in connected with the operation of maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle; or ...."
Admittedly, in the present case conductor's duties consisted mainly of issuing tickets, collecting fares, writing SRS and looking after the convenience of the passengers and their luggage. He has also to do all that was prescribed in the Motor Vehicles Rules and is a person connected with the operation or maintenance of a mechanically propelled vehicle. In view of the nature of the job or which he is employed and also the vehicle propelled by mechanical power will have a wider meaning to cover conductor who is connected with the motor vehicle. As the conductor is a person connected with the motor vehicle, without hesitation, I can hold that he is also a workman within the meaning of S.2(1)(n) of the Act. I am also fortified with my view from the judgment of Madras High Court in Pollachi Transport, Ltd. v. Arumuga Kounder (A.I.R 1938 Mad. 485). In view of the same, the contention of the appellant that the conductor cannot be treated as workman is devoid of merits and the same cannot be accepted."
15. In the decision, "The Oriental Fire & General Insurance Company Ltd. and another v. Union of India (AIR 1975 ANDHRA PRADESH 222) at page 223 and 224, it is inter alia held that ' 'Workman' is defined as a person other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business, who is employed on monthly wages not exceeding five hundred rupees, in any such capacity as is specified in Schedule II. (Vide Section 2(1)(n) of the Act). Schedule II gives a list of persons who are included in the definition of 'workman'. It is sufficient to consider Item 1 which says that any one who is employed, otherwise than in a clerical capacity or on a railway, in connection with the operative or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle is a workman. The driver, the cleaner and the Hamalis would therefore, be 'workman' within the meaning of the Act. When an application is made under the Workmen's Compensation Act and it is ordered, it is must be presumed that the Commissioner who is the authority concerned was satisfied that all the provisions of the Act have been complied with in the matter of awarding compensation. Unless he is satisfied that the claimant before him is a workman and the accident arose out of and in the course of his employment, he cannot entertain the claim for payment of compensation. etc.'
16. Even though the first respondent/petitioner has mentioned in the claim petition that he was a mechanic with the second respondent/first respondent, a perusal of Ex.C.1 series, indicates that the first respondent/petitioner/P.W.1 in his statement has categorically stated that he was employed in Velmurugan bus as conductor, etc. Further, in his statement under Section 161(3) of the Code of Criminal Procedure, the first respondent/petitioner has clearly inter alia stated that he was serving as a conductor in the said Velmurugan bus and that two mechanics namely (i) Prabhu and (ii) Elango came with tyre and at about 11.00 p.m, in the night and he along with Prabhu was removing the front tyre of the bus and that suddenly, the bus proceeded speedily in front since the driver had not made arrangement to have any blockade and therefore, the tyre ran over his right thigh when he was doing the work in a sitting posture.
17. Moreover, one Prabhu in his statement under Section 161 (3) of the Code of Criminal Procedure, before the police, has also stated that he along with the conductor of the bus namely, Sundararajan, (first respondent/petitioner) was removing the front tyre of the bus, etc., at 11.00 p.m, in the night. Also, the statement of Elango, under Section 161(3) of the Code of Criminal Procedure, indicates that he has mentioned about Sundararajan as conductor and that on the said Sundararajan's right thigh, the tyre of the bus ran over, etc.
18. Suffice it to state that it is evident from Ex.C.1, series, that the first respondent/petitioner was a conductor and that he along with Prabhu while removing the front tyre of the bus, since no blockade was placed below the tyre, the bus was perforced to move forward, as a result of which, the tyre ran over his left thigh, while he was working in sitting posture and therefore, the first respondent/ petitioner was primarily a conductor of the said Velmurugan bus, but on 08.12.2001, at about 11.00 p.m, in the night, he removed the tyre of the bus along with Prabhu, and therefore, there is nothing wrong in the first respondent/petitioner describing himself as a mechanic in the petition while making claim before the Commissioner/Tribunal and in any event, since the first respondent/petitioner was attending repairing working as part of his duty on the date of occurrence on 08.12.2001 at about 11.00 p.m, and resultantly, met with an accident and therefore, this Court opines that his work of repairing, was within the term 'maintenance' as per Schedule II (i) of the Act and therefore, he was a workman as per the Workmen's Compensation Act, since the first respondent/petitioner worked under the second respondent/first respondent and consequently, there was a relationship of employer and employee between the parties and that the accident arose out of in the course of employment with the second respondent/first respondent and the point is answered accordingly.
19. Finding on the substantial question of law No.1:
According to the learned Counsel for the appellant/second respondent Insurance Company that no no 'third party' is entitled to claim the benefit conferred under the Workmen's Compensation Act and that the role of third party is no relevance at all under the Workmen's Compensation Act and when the Commissioner/Tribunal has stated that the injured is only a 'third party', then he ought not to have extended the principles enunciated in the decision "New India Assurance Company Limited, v. Dharam Singh Bhai and others {2003 (2) T.A.C.319 (Raj.)}, in view of the fact that the benefit of third party liability is applicable only under the Motor Vehicles Act and that the Commissioner/Tribunal ought not to have extended the benefit of extension of compensation to a third party by applying the principles laid down in the decision National Insurance Company Limited v. Nirmala Bai and others (2000 ACJ
932).
20. It is relevant to point out that R.W.1, Chellaiah (Assistant Divisional Manager), in his evidence has deposed that the passenger bus bearing Registration No.TN-59-E-8589 involved in the accident was insured with the appellant/second respondent Insurance Company at the time of the accident and that the copy of the policy is Ex.R.1 and that this policy covers the passengers, driver, conductor and checking Inspectors and premium of Rs.45/- at the rate of Rs.15/- each was collected and that this policy will not apply to persons like mechanics and the policy covers only for the aforesaid three persons which is a 'B' policy and that the said policy is valid in regard to vehicle damage, third parties' death, injury and loss. It is correct to state that for non-fare paying employee, a sum of Rs.110/- has been collected and in the policy, there is no specific mention as to who is the non-fare paying passenger. N.F.P.E will refer to the injured workers and that these persons are not workers under the Workmen's Compensation Act and that the policy covers Motor Vehicles Act and the Workmen's Compensation Act and that it will cover for workers as per Section 140 of the Motor Vehicles Act and that it is not correct to state that the policy covers driving, maintenance and repairing works.
21. In support of his contention that as per Ex.R.1, policy, the appellant/Insurance Company is not responsible for the injuries caused to the first respondent/petitioner as a mechanic. The learned Counsel for the appellant/second respondent Insurance Company relies on the decision Ramashray Singh v. New India Assurance Co. Ltd., and others {2004 (2) TN MAC 43 (SC)}, wherein the Honourable Supreme Court has observed as under:
"The appellant's next submission was that the concerned employee was a 'conductor'. It is doubtful whether a 'Khalasi' and a conductor are the same. But assuming this were so, there is nothing to show that the appellant had paid any additional premium to cover the risk of injury to a conductor. On the contrary, the policy shows that premium was paid for 13 passengers and 1 driver. There is no payment of premium for a conductor.
The appellant's final submission was that as the policy was a comprehensive one, it would cover all risks including the death of the Khalasi. The submission is unacceptable. An insurance policy only covers the person or classes of persons specified in the policy. A comprehensive policy merely means that the loss sustained by such person/persons will be payable upto the insured amount irrespective of the actual loss suffered. [See. New India Insurance Co. Ltd., v. J.M.Jaya, 2002 (2) SCC 278; Collnvaux's: Law of Insurance (7th Edition) p.93-94].
Consequently, although the appellant's claim under the insurance policy arose under the Workmen's Compensation Act, since the concerned employee was not engaged in the capacity of driver in respect of whom alone premium was paid apart from the passengers, his claim is unsustainable." (paras 13 - 15)
22. Per contra, the learned Counsel for the first respondent/petitioner contends that the appellant/Insurance Company is the first party and the insured is the second party and other than these two, every individual is a third party including the first respondent/petitioner who has suffered injuries and disability on account of the accident while doing repairing work in connection with the bus and therefore, the Commissioner/Tribunal is correct in invoking the provisions of the Workmen's Compensation Act to fasten the liability for the third party and to stress upon his argument, he cites the decision New India Assurance Company Ltd. v. Dharam Singh Bhai and others {2003 (2) T.A.C 319 (Raj.)}, wherein it is held that, 'third party' means one who is a stranger to transaction and the insurer is the first party and the insured is the second and other than insurer and insured, every person is a third party.
23. It is to be borne in mind that the jurisdiction of the Commissioner under Section 19 of the Workmen's Compensation Act, is not confined only against the employer. In fact, it exists to the liability on any person to pay compensation and that it is clear from Section 3(5) of the Act that once, a workman has laid his claim for compensation under the Workmen's Compensation Act before the Commissioner, no other suit in other suit will lie in regard to the same subject matter. As a matter of fact, the Commissioner under the Workmen's Compensation Act, derives jurisdiction not only to direct the Insurance Company which has issued the policy under the provisions of the Motor Vehicles Act to indemnify the insured, but also to pass an award against such Company, as per the decision Bibhuti Bhusan Mukherjee v. Dinamani Dei and others (1982 ACJ
338).
24. In the decision, New India Assurance Company Limited, v. Smt.Bismilla Bi and others (1986 (59) Company Cases 188, it is held that the Commissioner/Tribunal under the Workmen's Compensation Act has jurisdiction to consider liability of insurer along with that of the employer.
25. In the decision, Motor Owners' Insurance Company Limited, v. Jadavji Keshavji Modi and others. (AIR 1981 SUPREME COURT 2059), at page 2060, the Honourable Supreme Court has also agreed that under section 95(2)(a) of the Motor Vehicles Act, 1939, liability of the insured and therefore, the insurer's indemnity includes the liability under the Workmen's Compensation Act, 1923.
26. In the decision, Premier Insurance Company Limited, v. C.Thomas and others (1983 ACJ 783), at page 78, this Court has inter alia observed that 'Workmen's Compensation Act does not lay down that besides employer and employee no other person could be brought before the Commissioner to decide the claim and the powers of the Commissioner are inherent in some of the provisions of the Workmen's Compensation Act. Moreover under the provisions of sections 95, 96 and 110-AA of the Motor Vehicles Act, it is clear that the claim against the insurance company can be agitated before the Tribunal as well as before the Workmen's Compensation Commissioner and aid could be taken by the Commissioner of the provisions of sections 95, 96 and 110-AA of the Motor Vehicles Act for making the insurance Company a party under the Workmen's Compensation Act.'.
27. In the decision, Iqbal Shamsuddin Ansari v. Gazi Salauddin Ansari and another (1980 LAB.I.C 125), it is held as below:
"The contention that the Commissioner has no power to try or enforce the liability of the employer under Workmen's Compensation Act against the insurer by reference to his liability under S.96 of the Motor Vehicles Act is untenable. Firstly, the manner, in which, car owner's liability under the Workmen's Compensation Act, in respect of the special categories of employees, is required to be covered by the compulsory insurance under S.95 of the Motor Vehicles Act and such liability is made enforceable under S.96, indicates the legislative intent to make these provisions of Ss.95 and 96 the part of the Workmen's Compensation Act itself, for the limited purpose of such enforcement. Secondly, such incidental liability of insurer, being integrally connected with the primary liability of the employer, shall have to be tried and determined by one and the same Court. The Commissioner, being the substitute for the Court under the scheme of the Workmen's Compensation Act, with exclusive jurisdiction, alone can try such claims, against both the employer insured, and the insurer. Thirdly, under S.19(1) the Commissioner is competent to determine the claim against any person other than employer. The words 'any person' in S.19(1) are wide enough to include insurer made statutorily liable, for the liability of the employer under S.96(1) of the Motor Vehicles Act. The words 'court' in Section 96(2) and the 'judgment' and 'judgment-debtor' in S.96(1) in the context must be deemed to have been intended to cover Commissioner and his 'orders' under the Workmen's Compensation Act."
28. It is significant to make a mention that liability to pay compensation under the Workmen's Compensation Act is in the nature of torts. It does not result from any neglect or any default on the part of an individual. The compensation is for the injury caused, i.e something to replace the actual loss suffered. It is in the nature of Insurance Company to a workman against certain risks of accident. The scheme of the Act is not for compensating the workman in lieu of wages, in the considered opinion of this Court.
29. No wonder, even in cases not covered under Section 14 of the Workmen's Compensation Act, the Commissioner/Tribunal can validly direct the insurer to pay compensation awarded to the workman.
30. Where a cleaner in a lorry died as a result of an accident to the lorry, it was held that the Insurance Policy taken under Chapter VIII of the Motor Vehicles Act covered his widow's claim for compensation under the Workmen's Compensation Act and that the Insurance Company was duty bound under Section 96(1) of the Motor Vehicles Act to pay the amount awarded as compensation by the Commissioner. It was added, under Section 19(1) of the Act, the jurisdiction of the Commissioner was wide enough to decide the liability of the Insurance Company to pay the compensation as per the decision "United India Fire and General Insurance Company v. Kamlakshi (41 FLR (Ker) (DB).".
31. It is pertinent to state that under the provisions of the Workmen's Compensation Act, the Commissioner has to make an enquiry as to whether the insured or the deceased received injuries or died during the course of employment. It is also well-settled principle of law that if there is an insurance of the workers or vehicles of the employers, the insured being the identified by the employer, the Insurance Company is liable to pay the compensation.
32. It is needless to state that the provisions of the Motor Vehicles Act and the provisions of the Workmen's Compensation Act are there only for the interest and benefit of the claimants and the employer or the insurer has no say whatsoever in the matter, in the considered opinion of this Court.
33. However, the principle is that the Court or the Tribunal has to provide an opportunity to parties and after hearing them, to decide the matter in accordance with law on the basis of material placed on record.
34. In short, this Court opines that under the Workmen's Compensation Act, 1923, the Commissioner/Tribunal has to see only that the accident took place and the workman either received injury, permanent disablement or death during the course of his service and nothing more.
35. Ex.R.1, is the true copy of the Insurance Policy wherein the address of the insured is mentioned as M/s.Velmurugan Transport, 9, A.A.A, Main Road, Madurai-10. In the said policy, the insured estimated value of the vehicle is Rs.4,00,000/- (Rupees Four Lakhs only). The duration of the policy Ex.R.1 is from 14.30 hours on 22.01.2001 to midnight on 21.01.2002. The policy is a 'B' policy and a comprehensive one as seen from Ex.R.1, policy. The relevant portion in Ex.R.1, policy, the schedule of premium is mentioned as follows:
B) Liability to Public - Basic 1,443.00 Add. Legal Liability to Passengers 6,840.00 Add. Liability For Non Fare Paying Employees No.1 110.00 Paid Driver / Conductor / Workmen No.3 45.00 Add: TPPD Cover For Unlimited Amount 75.00 Add:
Total of (B) Rs.8,513.00 Total Premium (A+B) Rs.11,675.00
36. In the decision, United India Insurance Co. Ltd. v. Roop Kanwar, 1991 ACJ 74 (Rajasthan), it is held that 'it is correct that Section 14 of the Workmen's Compensation Act specified the liability of the insurance company, but that does not mean that the insurance company is liable to pay compensation only in case the employer becomes insolvent and the insurer is also liable, by reason of the provisions contained in the Motor Vehicles Act and if the person chooses his remedy under the Workmen's Compensation Act, the insurer cannot avoid his liability and the authority under the Workmen's Compensation act may fix the liability of the insurer.'.
37. Similar view has been observed in the decision "Bhajanlal Padia v.
Bajinath, 1987 ACJ 572 (Orissa). In this connection, this Court points out that in New India Assurance Company Limited vs. Darshani Devi 1985 ACJ 120 (Allahabad), it is held that the liability arising under the Workmen's Compensation Act is necessarily included in the statutory liability which is required by Section 95(1) of the Motor Vehicles Act, 1939 to be covered under the policy of the Insurance Company. Hence, the insurer cannot shirk liability by contending that its liability under the policy was merely a liability under the Motor Vehicles Act and cannot be extended to the liability incurred under the provisions of the Workmen's Compensation Act. Similar view has been expressed in Oriental Fire & General Insurance Co. Ltd v. Matias Burla, 1986 ACJ 732 (Orissa).
38. As far as the present case is concerned, even though the first respondent/petitioner has mentioned in the claim petition that he is a mechanic under the second respondent/first respondent, (owner of the bus) and notwithstanding the fact that he has deposed in his evidence as P.W.1 that he has worked as mechanic and that he is working for thirteen years, inasmuch as Ex.C.1 (series), the Court documents, indicates clearly that the first respondent/petitioner is a conductor in the said Velmurugan bus and on the day of the accident i.e, on 08.12.2001, he has been the conductor in the bus bearing Registration No.TN-59-E-8589 and since the first respondent/petitioner's statement under Section 161(3) of the Code of Criminal Procedure shows that he is the conductor in Velmurugan bus and since, Ex.R.1 policy, covers the conductor and since the first respondent/petitioner is a conductor who is a third party, this Court is of the considered view that the first respondent/petitioner's act of removing the tyre and resultant meeting that an accident on 08.12.2001 at about 11.00 p.m while re-fixing the tyre of the bus when the vehicle moved, is of a casual nature while assisting Prabhu, a mechanic, and therefore, by his act of repairing the first respondent/petitioner by no stretch of imagination can be described as a mechanic (notwithstanding the fact that the first respondent/petitioner in his claim petition has described himself as mechanic) and per contra, this Court holds that the first respondent/petitioner is only a conductor, third party, and the liability arising under the Workmen's Compensation Act is necessarily included in the statutory liability which is required under the Motor Vehicles Act to be covered under Ex.R.1, policy of insurance and in view of the fact that R.W.1, Chellaiah has stated that Ex.R.1, policy will cover driver and that Ex.R.1, policy, is a 'B' policy and therefore, this Court holds that the action of the Workmen's Compensation Commissioner/Tribunal in invoking the provisions of the Workmen's Compensation Act, to fasten the liability for the third party is perfectly legal and valid in law and the same does not suffer from any infirmity or illegality whatsoever and the point is answered accordingly.
39. Finding on the substantial question of law No.2:
The learned Counsel for the appellant/second respondent Insurance Company urges that the Commissioner/Tribunal is not correct in applying the benefit of the proviso (ii) to Section 147 of the Motor Vehicles Act to the present claim before this Court and in the absence of any contractual liability between the appellant/Insurance Company and the first respondent/petitioner, the benefit of the said proviso cannot be extended to a party and the term 'any' does not signify the inclusion of the incident also under the proviso (ii) to Section 147 of the Act under any circumstances merely because the appellant had collected an extra premium of Rs.110/- (for non-fare paying employee) and the insured and the insured cannot claim that the employee will come under the term 'any person' or 'passenger'.
40. Admittedly, Section 147 of the Motor Vehicles Act 1988, corresponds to Section 95 of the Motor Vehicles Act 1939. In reality, this Court opines that Section 147 of the Motor Vehicles Act enjoins upon the insurer certain requirements in regard to the use of a particular vehicle which are (i) the policy must specify the persons or class of persons who are insured with respect to their liability to third parties, (ii) the policy must specify the extent of liability which must extend to the extents specified in sub-section (2), (iii) the liability which may be incurred by the specific persons or class of persons in respect of death or bodily injury to any person caused by or arising out of use of the vehicle insured in a public place.
41. Moreover, Section 147 of the Act has to be given an effective and wider meaning, so that the object of legislature has clearly intended that every policy of insurance is statutorily required to cover the risk of liability in respect of class of persons in regard to all types of vehicles without exception and with no defence to the insurance company disclaiming the liability with regard to a particular class of persons or particular kind of vehicles.
42. No wonder, Section 147 of the Motor Vehicles Act deals with the requirements of the policies and limits of the liability. Actually, in clause (b) of sub-section (i) of Section 147, it is provided that in order to comply with the requirements of this Chapter, a policy of insurance must be a policy which insures a person or class of persons specified in the policy to the extent specified in sub-section (2).
43. It is not out of place to make a mention that the liability of the insurance Company is required to be something real and something that can be acted upon and that the Court of law must be extremely slow in absolving the insurance company of liability particularly in situations where the claimant will be left high and dry, if these are to be done.
44. It is apt to point out that in the decision Oriental Insurance Company Limited v.Kashim, 1996 ACJ 928 (Karnataka), it is observed that 'even in the case of a spare driver who is not actually driving the vehicle at the time of the accident that under the statutory cover in Section 147(1) proviso (i) (c) as an employee of the owner of the vehicle travelling in the course of employment, the claimant is entitled to compensation under the Workmen's Compensation Act. As a matter of fact, the liability under the Workmen's Compensation Act is absolute and the liability on the basis of the insurance policy becomes incidental, in the considered opinion of this Court.
45. At this stage, this Court points out that in the decision Ved Prakash Garg v. Premi Devi (AIR 1997 SUPREME COURT 3854), the Honourable Supreme Court has inter alia observed that 'the liability to pay compensation under the Workmen's Compensation Act gets foisted on the employer, if it is shown that the workman concerned suffered from personal injury, fatal or otherwise, by any motor accident arising out and in the course of his employment. Such an accident is also covered by the statutory coverage contemplated by Section 147 of the Motor Vehicles Act read with the identical provisions under the very contracts of insurance reflected by the Policy which would make the insurance company liable to cover all such claims for compensation for which statutory liability is imposed on the employer under Section 3 read with Section 4A of the Workmen's Compensation Act. All these provisions represent a well-knit scheme for computing the statutory liability of the employers in cases of such accidents to their workmen. etc.'.
46. Further, it is relevant to point out that in the decision Oriental Fire and General Insurance Company Limited v. Nani Bala Devi and another (1987 ACJ 655), wherein, it is held that 'the Commissioner can direct the insurance company to pay the compensation determined under the Workmen's Compensation Act and that the provisions of the Workmen's Compensation Act cannot be viewed in isolation when the Motor Vehicle Act has specifically stated that the policy of insurance cannot exclude the liability arising under the Workmen's Compensation Act; in view of Section 95(5) of the Motor Vehicles Act, expression 'any person' in Section 19 of Workmen's Compensation Act has to cover an insurer also'.
47. From the perusal of non-obstante clause of sub-section (5) of Section 95 (new Section 147) of the Motor Vehicles Act, it is quite evident that it empowers the authority to enforce the liability of the insurer in the case before it and it is to be borne in mind that when the authority gives a direction, it is only enforcing the statutory liability and not a contractual liability. Further, the terms 'judgment' and 'decree' carrying in Section 95 (new Section 147) of the Motor Vehicles Act, only denote the award and the same is not confined to that of the Claims Tribunal or the Civil Court. This Court points out that it refers to the decision of the competent forum under any law whatsoever enjoined to adjudicate upon the claim for compensation involving a motor vehicle. As a logical corollary, the provisions of the Motor Vehicles Act are therefore necessarily be read into the provisions of the Workmen's Compensation Act when the question arises as to the liability of the insurer to indemnify the insured and satisfy the claim of the person who is entitled to get the benefit of the adjudication.
48. In fact, R.W.1, Chellaiah (Assistant Divisional Manager of the appellant/Insurance Company) in his evidence before the Tribunal, has categorically deposed in his cross-examination that 'B' policy issued by them will statutorily cover for the driver, conductor and checking inspector and further that it is correct to state that for non-fare paying employee No.1, a premium of Rs.110/- has been collected and in the policy, it is mentioned that for a driver, conductor, / workman, a premium of Rs.15/- each, has been collected as Rs.45/- and the said cover will apply only for three persons.
49. Already this Court while answering the substantial question of law No.3, has come to the conclusion that even though the first respondent/petitioner has described himself as a mechanic in the claim petition before the Commissioner/Tribunal, as per Ex.C.1, series, he is only a conductor and in any event, his act of repairing on the date of accident, i.e, on 08.12.2001 at about 11.00 p.m, for lawful or legitimate purpose cannot make him a mechanic and since he is only a conductor as spoken to by Prabhu and Elango, mechanics, in their statements under Section 161(3) of the Code of Criminal Procedure (as seen from Ex.C.1 series) and inasmuch as a conductor, the first respondent/petitioner is statutorily covered as per policy, Ex.R.1, this Court comes to the inevitable conclusion that the Commissioner for Workmen's Compensation/Tribunal is quite correct in applying the benefit of proviso (ii) to Section 147 of the Motor Vehicles Act to the claim under the Workmen's Compensation Act and the direction so given by him in his award is only to enforce the statutory liability and not a contractual liability and the point is answered accordingly.
50. Finding on the substantial question of law No.4:
Before the Commissioner/Tribunal, on the side of the first respondent/petitioner, Ex.A.6, disability certificate dated 06.02.2003 given by Dr.A.Chinnadurai has been marked. A perusal of Ex.A.6, disability certificate, shows that the first respondent/petitioner has suffered an injury of posterior dislocation of right hip which is a grievous one. The Doctor in Ex.A.6, disability certificate, has opined that the disability is partial permanent one and has assessed the total disability at 48% and has opined that the first respondent/petitioner will have the difficulty in doing heavy manual labour like mechanic duty. Unfortunately, the Doctor, who issued Ex.A.6 disability certificate to the first respondent/petitioner has not been examined. However, before the Tribunal, Ex.A.6 disability certificate has been marked. In this connection, this Court pertinently points out that marking of document is one thing and proving the contents of the same is another thing in the eye of law and without proving the contents of the document, Ex.A.6, disability certificate, the same has no evidentiary value in the eye of law and in fact, the same is inadmissible in law, in the considered opinion of this Court. Inasmuch as, Dr.A.Chinnadurai, who issued disability certificate dated 06.02.2003 has not been examined before the Commissioner/Tribunal, marking of Ex.A.6 is of little significance and this Court holds that the contents of Ex.A.6, disability certificate, have not been proved in the manner known to law.
This aspect of the matter has not been looked into in a proper perspective by the Commissioner/Tribunal.
51. As far as the present case is concerned, Dr.A.Chinnadurai, in Ex.A.6 disability certificate, has assessed the total percentage of disability at 48%, but there is no evidence before the Commissioner/Tribunal to know about the actual loss of earning capacity of the first respondent/petitioner.
52. It is an axiomatic fact that one cannot come to the conclusion that the loss of earning capacity of the first respondent/petitioner (workman) is equal to the percentage of permanent or partial total disablement. In fact, the Commissioner/Tribunal before he proceeds to determine the compensation payable as per Section 4 of the Workmen's Compensation Act, 1923, read with Schedule IV, he should have necessarily assessed the loss of future earning capacity of the workman properly assessed by a qualified medical practitioner. In the instant case, there is no assessment of loss of earning capacity of the first respondent/petitioner by any qualified medical practitioner. Per contra, Ex.A.6, only refers to the total partial permanent disability at 48%.
53. It cannot be gainsaid that when a procedure prescribed under the statute is not followed, any deviation from the statutorily prescribed procedure amounts to an error apparent on the face of record. The non-examination of the Doctor A.Chinnadurai, who issued Ex.A.6 disability certificate assumes significance in the instant case. Moreover, when the Doctor has assessed the disability of the first respondent/petitioner at 48% as partial and permanent one, then it is not open to the Commissioner/Tribunal to ignore this aspect of the matter and decide the disability of the first respondent/petitioner as 29%. The Tribunal on a vacuum or void cannot substitute its views to that of a medical expert namely, Dr.A.Chinnadurai and determine the compensation amount.
54. To put it differently, in the instant case, the Commissioner/Tribunal cannot determine the compensation of Rs.1,08,146/- (Rupees One Lakh Eight Thousand One Hundred and Forty Six only) unilaterally on the basis of the loss of earning capacity at 29% as per the calculation made in the award in regard to the injury and disability sustained by the first respondent/petitioner ignoring the medical practitioner's certificate. At this stage, one cannot ignore a vital fact that it is equally possible for the opposite party to seek report from the qualified medical practitioner in regard to the assessment of the percentage of the disability of the first respondent/petitioner in the manner known to law. Generally speaking, the opinion of a medical expert overrides the view of the appropriate authority in determining the compensation amount.
55. Therefore, the award of Rs.1,08,146/- determined by the Commissioner for the Workmen's Compensation,/Tribunal is not a fair and prudent one and that this Court holds that the Commissioner/Tribunal has not followed the statutorily fixed procedure and the point is answered accordingly.
56. Earlier, in C.M.P.No.2020 of 2004, this Court on 01.12.2004, passed an order to the effect that 'it is represented that the amount has already been deposited. Under the circumstances, there will be an interim order as prayed for, for a period of four weeks.'.
57. In the view of the finding arrived at by this Court for the substantial question of law No.4, this Court allows the Civil Miscellaneous Appeal to prevent aberration of justice and to promote substantial cause of justice and consequently, sets aside the award dated 15.07.2004 passed in W.C.No.200 of 2002 by the Commissioner for Workmen's Compensation, Madurai, and remands the matter to the Commissioner/Tribunal with a direction to dispose of the same afresh, to a limited extent of determining the compensation amount, by affording opportunity to lead additional or fresh evidence both oral and documentary to all the parties concerned, in particular, the first respondent/petitioner is directed to examine the Doctor A.Chinnadurai, who issued Ex.A.6, disability certificate, at the earliest point of time, within three months from the date of receipt of a copy of this order, by following the statutorily fixed procedure as per law. The Commissioner/Tribunal shall take into consideration the amount already deposited by the appellant/second respondent Insurance Company and pass suitable orders as per law. Consequently, connected Miscellaneous Petition is closed. Considering the facts and circumstances of the case, there is no order as to costs.
rsb To The Commissioner for Workmen's Compensation, Madurai.