Gauhati High Court
Anil Chandra Sharma And Anr. vs Alka Rani Ghosh on 5 March, 1998
Equivalent citations: 2000ACJ307, (1999)ILLJ1356GAU
JUDGMENT D.N. Choudhury, J.
1. This appeal is directed against the judgment and order dated October 9, 1985 passed by the Commissioner, Workmen's Compensation, North Tripura, Kailashahar passed in T.S. (Workmen's Compensation) 2 of 90 (Agartala) and T.S. (Workmen's Compensation) 5 of 84 (Kailashahar) questioning the order and findings of the learned Commissioner in awarding compensation against the appellant and exonerating the Insurance Company from its liability from the payment of compensation arising out of the contractual liability.
2. The present proceeding was initiated at the instance of the parents of the deceased Bishnupada Sharma who was working as an Assistant/Handyman in a Truck bearing No. TRL-2103 owned by opposite party-respondent No. 1. On September 15, 1979 while the above Truck was proceeding from Guwahati towards Agartala through Assam-Agartala Road with load, the said Truck met with an accident at Panitila on Assam-Agartala Road. Shri Bishnupada sharma, Assistant/Handyman of the said Truck died due to injury caused to him as a workman by accident arising out of and in the course of his employment. The legal heirs of the deceased accordingly presented a petition before the Commissioner, Workmen's Compensation praying for compensation. In the petition, it has been stated that the monthly wages of the deceased Bishnupada Sharma was Rs. 350/- including meal, tiffin and misc. expenses and that the age of the deceased at the time of his death was 25/26 years.
3. The owner of the vehicle has contended, inter alia, that the vehicle in question was insured with the National Insurance Company Ltd. and the Insurance policy covered all the accidents and damages of the said vehicle. The owner opposite party also disputed the assertion of the petitioner that the deceased was getting a monthly wage of Rs. 350/- per month. In their objection, the owner opposite party cited that monthly wages of the deceased was Rs. 115/- per month and he was also getting Rs. 8 per day as footing charges when the Truck was in trip. The National Insurance Company which was impleaded as a party in the proceeding stated that mere was no relationship of master and servant between the deceased and the Insurance Company and there was no breach of contract between the Insurance Company and the deceased. The learned Commissioner considered the evidence on records and arrived at the conclusion that the deceased was getting monthly wages of Rs. 115/- plus and accordingly awarded the compensation of Rs. 11,520/- as per schedule 4. The learned Commissioner made an observation that as per the scheme of the Workmen's Compensation Act, the Insurance Company was not liable to pay.
4. Mr. S. Deb, learned senior counsel appearing on behalf of the appellant referred the various provisions of the Act and submitted that the learned Commissioner erred in law in holding that the deceased was only drawing a salary of Rs. 115/- plus. He has drawn my attention to the pleadings of the parties as well as the evidence on record. He also submitted mat the actual person who received the salary was no longer alive. The witness i.e. PW 1 asserted that the deceased used to draw a salary of Rs. 350/- per month inclusive of all footings. When he was cross-examined about the actual wage, the witness stated that deceased Bishnupada Sharma used to get Rs, 250/- as wages p.m. at the time of his death. In cross-examination the witness admitted that he could not produce any receipt in proof of his statement. The owner Smt. Alka Rani Ghosh was not examined but on her behalf Sri Rabindra Chandra Ghosh, the husband of the owner Smt. Ghosh was not examined. The said witness stated that he used to look after the transport business of his wife. He admitted that the deceased Bishnupada Sharma was an Assistant under his wife in respect of the vehicle No. 2103 and stated that he used to get Rs. 115/- as his salary per month and he used to get overtime allowance while there was over work. The witness deposed that deceased Bishnupada was a temporary employee under his wife and he worked for about two and a half months in the vehicle in question. The said witness produced a receipt showing the payment of salary and overtime allowances for the month of July, 1979 which was marked as exbt. A. Mr. Deb, learned counsel for the appellant therefore on the basis of evidence submitted that the learned Commissioner committed an error in accepting that the deceased was drawing a salary of Rs. 115/- per month in the absence of any reliable and unimpeachable evidence. Mr. Deb particularly drew my attention to the exbt. A. Mr. B. Bhattacharjee, learned counsel for the Insurance Company on the other hand submitted that the learned Commissioner acted on the evidence on record and on factual matrix and as such the said inference cannot be said to be unfounded or perverse.
5. Mr. Deb further submitted that in terms of the scheme of the Motor Vehicles Act and on the settled principles of law the learned Commissioner ought to have fixed the liability on the Insurance Company also. Mr. Bhattacharjee learned counsel for the Insurance Company vehemently disputed the contention of the appellant. Mr. Bhattacharjee has cited before me the provisions of the Workmen's Compensation Act more particularly in Sections 3, 13, and 14 of the said Act.
6. As alluded earlier that on behalf of the employer an attempt was made to justify the stand about the salary of the deceased Bishnupada Sharma on the basis of a receipt which was marked as Exbt. A. On scanning through the evidence on record it appears that the owner produced some payment receipt to some of her workmen. But in the case of the appellant only, an unsigned debit voucher was produced and marked as Exbt. A. The said debit voucher only shows that in the month of August 1979 an amount was debited on account of "salary and overtime for the month of July, 1979 at Rs. 125/-. The said debit voucher did not contain the payee's signature in the column. But on the reverse of the debited voucher it was stamped and signed, but that signature was however not proved. Though Evidence Act is strictly applicable in a proceeding under Workmen's Compensation Act, nonetheless authorities are required to observe the principles of natural justice. When a fact is disputed the said fact is required to be proved so that the other side can question the veracity and authenticity of the same by way of cross-examination. Further more in the instant case the best evidence like payment receipt or the relevant book of accounts were not produced. Exbt. A by itself did not establish the fact that the deceased was drawing a salary of Rs. 115/- per mensem. In the absence of any evidence to the contrary the learned Commissioner committed a serious error in basing its finding solely on exbt. A. In the absence of any contrary evidence the learned Commissioner ought to have accepted the evidence of the claimant to the effect that the deceased was drawing wages of Rs. 250/- per month. Before entering into the other issues it will be convenient to refer to the following provisions of the Workmen's Compensation Act in Sections 3, 13,, 14 and 19 as well as the Motor Vehicles Act in Sections 94, 95 and 96 which are extracted below:-
"Section 3 Employer's liability for compensation (1). If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of mis Chapter:
Provided that the employer shall not be so liable-
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding (three) days;
(b) in respect of any (injury, not resulting in death, caused by) an accident which is directly attributable to -
(i) the workman having been at the time thereof under the influence of drink or drugs, or
(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman, or
(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman......
Section 13. Remedies of employer against strangers. Where a workman has recovered compensation in respect of any injury caused under circumstances creating a legal liability of some person other than the person by whom the compensation was paid to pay damages in respect thereof, the person by whom the compensation was paid and any person who has been called on to pay an indemnity under Section 12 shall be entitled to be indemnified by the person so liable to pay damages as aforesaid.
Section 14. Insolvency of employer. (1) Where any employer has entered into a contract with any insurer in respect of any liability under this Act to any workman, then in the event of the employer becoming insolvent or making a compensation 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 respect 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 rest in the workman, 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 workman than they would have been under to the employer.......
Section 19. Reference to Commissioners. (1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by (a Commissioner).
(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.
Section 94(1) No person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy or insurance complying with the requirements of this Chapter.
Explanation - A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this sub-section, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force.....
Section 95(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -
(a) is issued by a person who is an authorised insurer (or any co-operative society allowed under Section 108 to transact the business of an insurer) and
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment (other than a liability arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets in the vehicle, or
(c) if it is a goods vehicle, being carried in the vehicle, or
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or
(iii) to cover any contractual liability.
Explanation: For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:-
(a) where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities if any, arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle.
(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment.
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;
(ii) in respect of passengers,
(i) a limit of fifty thousand rupees in all where the vehicle is registered to carry not more than thirty passengers;
(2) a limit of seventyfive thousand rupees in all where the vehicle is registered to carry more than thirty but not more than sixty passengers;
(3) a limit of one lakh rupees in all where the vehicle is registered to carry more than sixty passengers; and (4) subject to the limits aforesaid, ten thousand rupees for each individual passenger where the vehicle is a motor cab, and five thousand rupees for each individual passenger in any other case;
(c) save as provided in Clause (d) where the vehicle is a vehicle of any other class, the amount of liability incurred;
(d) irrespective of the class of the vehicle, a limit of rupees two thousand in all in respect of damages to any property of a third party.
Section 96. (1) If, after a certificate of insurance has been issued under Sub-section (4) of Section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this Section pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder as if he were the judgment debtor, in respect of the liability together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-
(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of Section 105; or
(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-
(i) a condition excluding the use of the vehicle -
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is (a transport vehicle) or
(d) without side - car being attached, where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to conditions of war, civil war, riot or civil commotion; or
(c) that the policy is void on the ground that it was obtained by the non disclosure of a material fact or by a representation of fact which was false in some material particular....."
7. The Workmen's Compensation Act is a beneficial statute which was enacted to provide payment by certain class of employers to their workmen of compensation for injury by way of accident. Since it is a beneficial legislation, the act is to be liberally construed so much so that it provides security to workmen and their family resulting in loss of earning capacity. Section 3 of the said Act fixes the liability on the employer for compensation. Compensation itself is defined in Section 2(c) of the said Act which means the compensation as provided by the Act. Sub-section 5 of Section 3 of the Act provides that nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury - (a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or (b) if any agreement has come into being (sic) between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act. It thus appears that the remedy that was made available by the Act to claim compensation can obtain either before the Commissioner or before the claims Tribunal. An application under Section 22 of the said Act can be presented only by dependent or dependents. Any question that has arisen between the parties in connection therewith (including a question whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by the Commissioner. Sub-section 2 of Section 19 of the said Act provides that no Civil Court shall have the jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act. Section 31 of the said Act enables the Commissioner to recover compensation as an arrear of land revenue any amount payable by any person under this Act. The scheme referred to thus impose an absolute liability on the employer in cases of accidents arising out of and in course of employment for the workman.
8. Sections 94 and 95 of the Motor Vehicles Act provide for a scheme for compulsory insurance of motor vehicle not only for the benefit for the third party but also for certain categories of employees. The Legislature introduced Section 94 of the Act with a view to embrace the liability which may bring upon the owner of the vehicle enabling the injured or dependent more to recoup the damages from the Insurer without depending on the financial ability of the owner. Under Section 95 of the said Act which provides that in order to comply with the requirements of this chapter, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent mentioned in Sub-section 2 of Section 95 of this Act which provides that the policy issued required to cover the liability in respect of death arising out of and in course of employment of person insured by the policy or in respect of fatal injury sustained by any employee arising out of and in course of employment (a) engagement in driving the vehicle; (b) if it is a public service vehicle engaged as a conductor of the vehicle or (c) if it is a goods vehicle being carried in the vehicle. Section 95(5) of the said Act speaks that notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this Section shall be liable to indemnify the persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. Sub-section 2 of the Section 96 envisages a notice to be served on the insurer in respect of the proceeding so that the insurer is able to contest on specified grounds. When the insurer is required to pay more than what is payable under the policy the remedy is provided in Sub-section 4 under which the insurer can recover the excess from the insured. The statutory scheme thus creates an obligation on the insurer to discharge the liability of the insured in the adjudication proceeding and for that purpose the Act empowers the authority to hear the insurer and to give appropriate directions.
9. Sections 94, 95 and 96 of the Motor Vehicles Act do not specifically provide any specific forum before which the liability of the insurer is to be settled. Section 95(5) of the Act empowers the authority to enforce the liability of insurer. The authority is, therefore, empowered to issue direction for enforcing the statutory liability and not contractual liability. The terminology like judgment and decree referred to Section 95 cannot be confined to a judgment and decree of Civil Court and the Motor Accident Claims Tribunal. It will also include an award of the Commissioner under the said Act since it discharges all the powers as per law. Such authority while exercising its jurisdiction under the said Act cannot overlook the scheme of the Motor Vehicles Act. The provisions of the Motor Vehicles Act are therefore to be read in a case of Workmen's Compensation Act and taken into consideration while deciding such claim. This Court already dealt with this matter in the case of Oriental Fire and General Ins. Co. Ltd. v. Nani Bala Devi and Anr. reported in AIR 1988 Gau 40. Hon'ble Justice HANSARIA as he then was when delivering the judgment considered the scheme of both the acts and law and a number of decisions of different Courts. The relevant portion of which is extracted below:
"(1) The provisions of the Workmen's Compensation Act cannot be viewed in isolation when the MV Act has specifically stated that policy of insurance taken out under the provisions of Chapter VIII cannot exclude the liability arising under the Workmen's Compensation Act even while dealing with liability under the MV Act has been clearly shown in the proviso to Section 95(1) and 110-AA of the latter Act.
(2) The Workmen's Compensation Act was enacted before the compulsory insurance of vehicle visualised by Chapter VIII of the MV Act had come into force. The benefits made available by the insurance cannot be set at naught. The far-reaching changes brought into play by the requirement of compulsory insurance must be allowed its full play.
(3) Realisation of the compensation from the employer alone even where the insurer is to bear the loss as per the terms of the policy would put the victim in a difficult situation inasmuch as it is well-known that realisation of compensation is easier when it is fastened on the insurer than on the insured. The financial position of the latter may in many cases thwart the realisation of the dues. The policy taken out for the benefit of workman has to allow him to reap full advantage of the same.
(4) If an employer is left to take recourse to an independent proceeding like civil suit to get himself indemnified, the same would result in multiplicity of proceedings which has to be avoided.
(5) Sections 12 and 13 of the Workmen's Compensation Act do indicate that persons other than employers can be made liable to pay compensation under the provisions of the Workmen's Compensation Act. In this context a narrow meaning to the expression 'any person in Section 18 of the Act', would militate against the wide sweep of the expression, specially when it is viewed in the background of the provisions finding place in the MV Act.
The thinking that the person visualised by Section 19 of the Workmen's Compensation Act has to be one who has to pay compensation as defined in this Act does not stand against the broad view indicated above because the word 'compensation' has been defined to mean "compensation as provided for by this Act". By asking the insurer to pay compensation as provided by the Workmen's Compensation Act (which is Rs. 18,000/- in the present case) nothing is being done against Section 19 of this Act. What this Section would interdict is to ask any person to pay compensation provided for by another statute, say the MV Act. Had (it been for sic.) the definition of compensation payable under this Act the matter might have been different.
(6) Significance of Section 95 of the MV Act has to be noted here. This Section has categorically stated that notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under Section 95 shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. In the face of this statutory provision, the expression any person in Section 19 of the Workmen's Compensation Act has to cover an insurer also.
(7) The provisions finding place in Section 96(2) of the MV Act cannot be confined to judgments of Civil Courts. There are plethora of decisions applying provisions of Section 96(2) regarding the defence available to an insurer to a proceeding before the Claims Tribunal set up under the provisions of MV Act.
(8) Section 10-AA of the MV Act having given as an option to the claimant to proceed either under the Workmen's Compensation Act or under the MV Act but not under both, it cannot be visualised that different considerations would arise regarding the liability of insurer in respect of the same claim depending upon the forum chosen. The liability of the insurer being a very material part relating to granting of compensation under the provisions of Chapter VIII of the MV Act. The legislature incorporating Section 110-AA in the MV Act could not have intended that the insured would cease to be liable at the hands of the Commissioner under the Workmen's Compensation Act in case approach were to be made to him under the latter Act.
(9) The deeming provisions enacted in Section 96 of the MV Act stating that under the conditions mentioned in the Section the insurer would be deemed to be judgment debtor has to be given full effect. A legal fiction is adopted in law for a limited and definite purpose, and the fiction must serve that purpose. Of course, a deeming provision cannot be pushed too far so as to result in a most anomalous or absurd position as pointed out in para 9 of the K. S. Dharmadatan v. Central Government, AIR 1979 SC 1495.......
(10) With the aforesaid legal view relating to the field of operation of a deeming provision in mind let it be seen whether the fiction created by Section-96(1) of the MV Act can be applied to the case at hand. Section 96(1) has provided that if after certificate of insurance has been issued in favour of any person, a judgment is obtained against that person relating to a liability which is covered by the policy then the insurer has to be treated as if he were the judgment-debtor. The wide language in which the fiction has been created by Section 96(1) cannot be confined to a proceeding only under the MV Act - it has to come into play with respect to any judgment which may be passed against the insured imposing upon him a liability which is covered by the policy taken out by him. The fiction has been incorporated in Section 96(1) with a definite purpose of treating an insurer as a judgment-debtor on satisfaction of certain conditions; and this fiction cannot be allowed to boggle down while trying to fasten the liability of judgment-debtor on an insurer even though the conditions mentioned in Section 96(1) are satisfied only on the ground that the judgment against the insured has been rendered by a Court or Tribunal not known to the MV Act. Placing of such a limitation shall stand in the way of giving full effect to the fiction. It cannot also be said that allowing of the fiction to operate in the field covered by the Workmen's Compensation Act will result in an anomalous position or will amount to extension of the scope of the deeming provision beyond its legitimate field or beyond the purpose for which the legislature have adopted it. Indeed, the extension shall serve the purpose the legislature had in mind".
10. For the reasons stated above and all the reasons, it thus emerges that the provisions of the Workmen's Compensation Act cannot be read in detachment overlooking the express provisions of the Motor Vehicles Act exonerating the Insurance Company from its contractual as well as from the statutory liability and thus the insurer is also liable to pay compensation under the Workmen's Compensation Act. The liability of any person to pay compensation as envisaged in Section 19 of the Workmen's Compensation Act shall also comperhend the insurer also. In view of my finding as made above the respondent No. 2 the National Insurance Company Ltd. is also liable for the payment of the compensation. On the basis of my conclusion mentioned in paragraph 6 of the judgment the amount of compensation is enhanced from Rs. 11,520/-(Rupees eleven thousand five hundred and twenty only) to Rs. 18,000/- (Rupees eighteen thousand only) as per schedule IV of the Workmen's Compensation Act. The respondent No. 2 the National Insurance Company Ltd. is accordingly directed to deposit the balance amount of Rs. 6,480/- (Rupees six thousand four hundred and eighty only) within a month from the receipt of this order and thereafter adjust its liability with the respondent No. 1 as per the policy not later than three months.
11. The Appeal is allowed to the extent indicated above. In the circumstances the parties are directed to bear their respective costs.