Bombay High Court
Razak Haji Jumma vs United India Insurance Co. & Ors. on 20 June, 1994
Equivalent citations: II(1995)ACC454, 1995ACJ402, (1995)ILLJ168BOM
ORDER D. R. Dhanuka, J.
1. One Razak Haji Jumma (Opposite Party No. 2) has preferred this appeal against Order dated 22nd January 1987, passed by the Commissioner for Workmen's Compensation Bombay in Application (WCA) No. 115/B-8 of 1983. By the impugned order, the learned Commissioner for Workmen's Compensation directed Shri Razak Haji Jumma (Opposite Party No. 2) i.e., the employer to pay a sum of Rs. 21,600/- along with simple interest at the rate of six per cent per annum from the date of the said order as more particularly set out therein. By the said Order, the learned Commissioner also directed the said Shri Razak Haji Jumma, the appellant herein to pay an amount of penalty at the rate of 25% on the amount of compensation of Rs. 21,600/-.
2. The appellant was the "Employer" of the deceased workman.
3. I have gone through the record of the case with help of learned counsel for Respondent no. 1 and 2 in this behalf.
4. One Nabirasul s/o. Babasahed Mullaner was in employment of Shri Razak Haji Jumma on the date of the accident. The said Shri Nabirasul met with an accident arising out of and during the course of his employment on 4th March 1981. Nabirasul expired on 4th March 1981. The deceased was demolishing the wall while performing his duty. The said wall fell on him and the deceased died as a result of the said accident.
5. Smt. Maktumbi wd/o Babasaheb Mullaner and mother of the deceased Nabirasul filed the above referred application claiming compensation under the Workmen's Compensation Act. Originally the said application was filed against M/s. Lakdawala Enterprises only. On 17th April 1974, an exparte order passed by the Commissioner for workmen's compensation against M/s. Lakdawala Enterprises i.e. opposite party no. 1. The opposite party no. 1 filed miscellaneous application (WCA) No. 405/I-32 of 1984 contending therein that the deceased was in employment of Shri Razak Haji Jumma. Notice was issued in that miscellaneous application to the opposite party no. 2. The opposite party no. 2 admitted that the deceased was in his employment. By consent the miscellaneous application No. 405/I-32 of 1984 was allowed and an exparte was set aside. After restoration the application was amended and opposite party no. 2 Shri Razak Haji Jumma was joined as a party in the present application. The Commissioner for workmen's compensation reached the conclusion that the opposite party no. 2 who was admittedly the employer of the deceased workman, was liable to pay sum Rs. 21,600/- as and by way of compensation with interest and penalty, as indicated in the said order. The facts are set out with reasonable accuracy in the judgment under appeal. I confirm the findings of learned Commissioner for Workmen's Compensation contained in the judgment under appeal insofar as the liability of Razak Haji Jumma to pay the amounts under the award is concerned. None of the findings are under challenge except in respect of claim of indemnification made by the employer against the insurance company.
6. The only question which arises for consideration of the Court is as to whether the opposite party no. 2 is entitled to be indemnified by United India Insurance Company Limited? At the instance of the appellant herein, notice was issued by the Court of the Commissioner for Workmen's Compensation to the above referred Insurance Company in From J under Rule 39 of the Workmen's Compensation Rules 1924. The learned Commissioner for Workmen's Compensation reached the conclusion that the. United India Insurance Company limited was not liable to indemnify the said Razak Haji Jumma for the liability, in question, even though the said Insurance Company has issued a policy covering the liability in question in view of the limited scope of the provisions contained in Section 12(2) of the Workmen's Compensation Act 1932. On this aspect it is necessary to consider the ratio of the Judgment of High Court of Rajasthan in the case of Madan Gopal & Ors, v. Anandi Lal & Ors. reported in (1992) ACJ 543. In this case the High Court of Rajasthan held that the Insurance Company was liable to indemnify the insured employer by virtue of the provisions contained in section 19(1) of Workmen's Compensation Act 1923. It is well settled law that the primary liability to pay amount of compensation, interest and penalty is that of the employer. Section 19(1) of Workmen's Compensation Act 1923 reads as under :-
"19(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) ".
In the above referred case of the High Court of Rajasthan has held that the expression "any person" includes the Insurance Company concerned. It is, therefore, obvious to me that if the Insurance Company has agreed to discharge the liability of the employer under the Workmen's Compensation Act, the liability of Insurance Company to indemnify the Insure shall have to be determined by the Commissioner for workmen's compensation in the same very proceedings by virtue of provisions contained in Section 19(1) of the Act. The learned counsel for Respondent no. 1 is right in his submission that the Respondent No. 1 should be given further opportunity to contest the claim of the employer for indemnification inasmuch as the notice issued to Respondent no. 1 by the Court of the Commissioner for Workmen's Compensation was restricted to the application for indemnification made by the employer invoking Section 12(2) of the Workmen's Compensation Act.
7. It appears that the appellant employer has deposited as sum of Rs. 27,000/- with the Court of Commissioner for Workmen's Compensation. It further appears that the applicant in the original application i.e. Respondent no. 2 in this appeal was permitted to withdraw a sum of Rs. 5,000/- only out of the said amount of Rs. 27,00000/-. It further appears that the balance of the amount as directed to be invested in fixed deposit with a nationalised bank. The Court is informed by the learned counsel for Respondent no. 2 that the Respondent no. 2 has already withdrawn the abovereferred sum of Rs. 5,000/-.
8. In the result the appeal is disposed of by passing the following Order :-
(a) The liability of the appellant to pay the amounts under Order dated 22nd January 1987 passed by Commissioner for Workmen's Compensation in Application (WCA) No. 155/B-9 of 1983 is confirmed. The appellant is primarily liable to pay the said amount in his capacity as an employer to Smt. Maktumbi wd/o Babasaheb Mullaner mother of the deceased Nabirasul. They Court of the Commissioner for Workmen's Compensation is directed to release the entire balance of the amount lying deposited with the Commissioner for Workmen's Compensation alongwith the accrued interest thereon to the original applicant latest within one month from today;
(b) The question as to whether Razak Haji Jumma, the appellant in this appeal is liable to be indemnified by United India Insurance Company Limited or not by virtue of the provisions contained in section 19(1) of the Workmen's Compensation Act 1923 shall be determined afresh by the Court of the Commissioner for workmen's compensation after giving due opportunity to the appellant and respondent no. 1 to file supplementary pleadings and lead such evidence as they wish to lead. The Commissioner for workmen's compensation must decide the said question in the light of the judgment of this Court and in light of the judgment of the High Court of Rajasthan in the case of Madan Gopal & Ors. v. Anandi Lal & Ors. 1992 ACJ 543. The Court of the Additional Commissioner for work-men's compensation need not withhold the release of the amount already deposited by the appellant in so far as the payment to the original applicant i.e. Respondent no. 2 in this appeal is concerned. Parties shall be at liberty to file their supplementary pleadings before the learned Commissioner within eight weeks from today. The learned Commissioner for Workmen's Compensation shall endeavour to dispose of the dispute in respect of indemnification of the employer by the Insurance Co. within six months from today as far as possible.
9. Having regard to the facts and circumstances of the case there shall be on Order as the Costs.
10. Register, High Court, Appellate Side is directed to return the record of the case to the learned Commissioner for Workmen's Compensation alongwith ordinary copy of the Order passed in this appeal duly authenticated by the Shiristidar of this Court expeditiously.
11. Issue of certified copy is expedited.