State Consumer Disputes Redressal Commission
M/S The New India Assurance Co. Ltd. vs Skyline Engineering Contracts (I). ... on 24 April, 2024
FA/633/2015 D.O.D.: 24.04.2024
M/S THE NEW INDIA ASSURANCE CO.LTD. VS SKYLINE ENGINEERING CONTRACTS (I) P. LTD
IN THE DELHI SATE CONSUMER DISPUTES REDRESSAL
COMMISION
Date Of Institution: 31.12.2015
Date Of Hearing: 04.12.2023
Date Of Decision: 24.04.2024
FIRST APPEAL NO. 633/2015
IN THE MATTER OF:
THE NEW INDIA ASSURANCE CO. LTD.,
SCOPE MINAR, LAXMI NAGAR DISTRICT CENTRE,
DELHI-110092.
(Through: Mr. Navdeep Singh, Advocate)
.... Appellant
VERSUS
SKYLINE ENGINEERING CONTRACTS (I) P. LTD,
PLOT NO. 4 GROUND FLOOR,
KEHAR SINGH ESTATE, SAIDUL JAB,
M.B ROAD NEW DELHI 110030.
(Through: Mr. Tarun Rana, Advocate)
.... Respondent
DISMISSED
PAGE 1 OF 10
FA/633/2015 D.O.D.: 24.04.2024
M/S THE NEW INDIA ASSURANCE CO.LTD. VS SKYLINE ENGINEERING CONTRACTS (I) P. LTD
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the Parties
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The brief facts of the case as recorded by the District Commission are as follows:
"This complaint has been filed with the allegation that the complainant company is involved in construction work on contract basis and it has taken workmen compensation policy from the respondent No.2 bearing No.420400/36/07/01/0000019 for their construction site at Today Hotel Okhla, New Delhi, which was valid from 20/11/2007 to 19/11/2008. The policy was further renewed for the period from 20/11/2008 to 19/11/2009. The fatal accident occurred at the site resulting in the workmen Sh. Surender Kumar death. An FIR No.461/2008 dated 22/10 / 2008 u / s 288 / 304A was registered at P.S. Okhla, Information was given to the respondent No.2 on 27/10/2008. On 4/11/2008 a letter was written to OP-1 by OP - 2 for appointment of the surveyor. The complainant filed the claim with the relevant documents. The respondent received the notice on 21/04/2009 from the office of the Commissioner of workman's compensation and the Asst. Labour Commissioner in respect of the filing of workman compensation claim WC 30/09 by Smt. Phula Devi, a wife of DISMISSED PAGE 2 OF 10 FA/633/2015 D.O.D.: 24.04.2024 M/S THE NEW INDIA ASSURANCE CO.LTD. VS SKYLINE ENGINEERING CONTRACTS (I) P. LTD the deceased. The Workmen Compensation Commissioner Allahabad issued the Show Cause Notice regarding the compliance of order dated 31/09/2010. The order was never received by the complainant. The complainant written to OP-2 regarding the order of Workmen Compensation Commissioner who has granted compensation of Rs.4,30,560/- along with interest with effect from 22/10/2008 but that order has never been complied by the respondent. The complainant has prayed for the direction to the OP-1 & 2 to pay Rs.4,30,560/- with interest @ 8% from 22/09/2008 and for ensuring the compliance of the workmen compensation order and damages & compensation of Rs 50,000/-."
2. The District Commission after taking into consideration the material available on record passed the judgment dated 16.09.2015, whereby it held as under:
"This fact is not in dispute that the workmen Sh. Surendra Kumar died at the site of the complainant on 22/10/2008 The FIR 461/2008 u/s 208 / 304-A has also not been disputed by the respondent. The only plea which the respondent has taken is with regard to delayed information and violation of condition No.3 of the policy which require the insured to take reasonable precaution to prevent the accident and for complying with all the statutory obligations. The FIR Annexure-C shows that accident took place at 5.00 pm on 22/10/2008 and the case was registered promptly on the same date. As per the allegation in the complaint, the information was given to the insurance company on 25/10/2008 vide letter dated 27/10/2008 and it was also served upon the respondent through courier service and the receipt has been filed on the record. In the present case, the complainant has DISMISSED PAGE 3 OF 10 FA/633/2015 D.O.D.: 24.04.2024 M/S THE NEW INDIA ASSURANCE CO.LTD. VS SKYLINE ENGINEERING CONTRACTS (I) P. LTD lodged the FIR promptly without any delay. The investigation was started by the police. This is not disputed by the respondent that they have received information regarding the claim and incident. In these circumstances this cannot be said that there was delay in giving the information regarding the incident and death of the workmen. In these circumstances the plea of respondent that complainant has violated the conditions of the policy cannot be accepted. In so far as the question of violation of condition No.3 of the policy is concerned the burden lies upon the OP-2 that the respondent company has not taken the reasonable precautions to prevent the accident. The complainant in their affidavit has alleged that the matter was adjudicated upon by the Workmen Compensation Commissioner and they allowed the claim petition. The respondent have failed to deposit the amount, the complainant has deposit the amount of Rs.4,30,560/- with additional interest of Rs.1,72,224 /- in compliance of the Court Order, to discharge the obligation of the respondent company. The amount was paid to the deceased workmen family. The question of deceased being employee of complainant and covered by the policy have already been decided before the Workmen Compensation Commissioner, as such we need not to go into this question. The workmen were covered by the policy. It is the obligation in that policy of the workmen that respondent shall reimburse the claim that complainant had paid in compliance of the Workmen Compensation Commissioner order. The respondent have taken the plea that the complainant is not the consumer as it is commercial Contractor Company, as such the matter is triable before the Civil Court. We are not inclined to accept the contention of the respondent. The complainant has taken the policy cover for its workmen from any mishap and this policy was not purchased by the company for any business purposes or to earn any money out of it. In these circumstances the policy in question has nothing to do with the nature of the work in which the complainant company is involved. This policy was for the DISMISSED PAGE 4 OF 10 FA/633/2015 D.O.D.: 24.04.2024 M/S THE NEW INDIA ASSURANCE CO.LTD. VS SKYLINE ENGINEERING CONTRACTS (I) P. LTD benefit of the employees. The deceased Sh. Surender Kumar was covered by this policy. The plea taken by the respondent as such is not tenable and devoid of any merit. The respondent company is under obligation to reimburse the complainant who has discharged the liability which was otherwise to be discharged by the respondent company. The amount which has been deposited by the complainant before the Workmen Compensation Commissioner is liable to be recovered from the respondents. The complainant has filed on record the proof of the payment of Rs.4,30,560/- through cheque No.868999 dated 09/10/2013 of Punjab National Bank, Gitanjali Enclave, New Delhi and the cheque of Rs.1,72,124/- of the same Bank and both the cheques have been deposited with the Workmen Compensation Commissioner Allahabad.
We allow this complaint. The respondents are directed to pay to the complainant total sum of RS.4,30,560/- and Rs.1,72,124/- with 9% interest thereon from 09/10/2013 till it is finally paid. We further award compensation for Rs.30,000/ to the complainant on account of harassment, mental pain and agony and this shall also include the cost of litigation. If this amount not paid within 45 days complainant shall be entitled for 9% on this amount also."
3. The Appellant/Respondent has challenged the aforesaid impugned judgment on the following grounds that the District Commission has failed to appreciate that the primary responsibility for the payment of compensation lies on the Respondent/Complainant under sub- section 1 of section 3 of the Workmen Compensation Act,1923. Therefore, the District Commission has committed grave error in exercising jurisdiction and hence, the compliance of order passed by WC Commissioner awarding compensation cannot be enforced through consumer forum. Also, the original remedy for the aggrieved Respondent/Complainant for the alleged deficiencies and DISMISSED PAGE 5 OF 10 FA/633/2015 D.O.D.: 24.04.2024 M/S THE NEW INDIA ASSURANCE CO.LTD. VS SKYLINE ENGINEERING CONTRACTS (I) P. LTD recovery of said amount lies with the civil court or via appeal in the High Court u/s 30 of the same Act,1923. The counsel for the Appellant further submitted that the District Commission has also failed to examine the contract between the parties and that there was no deficiency of services on the part of the Appellant. Pressing the aforesaid objection, the Appellant prayed for the set aside of the order passed by the commission.
4. The Respondent, on the other hand, denied all the allegations of the Appellant and submitted that there is no error in the impugned order as the entire material available on record was thoroughly scrutinized and every aspect and fact has been properly dealt with before passing the said order and that the present appeal is to be dismissed with cost.
5. We have heard the learned counsel for both the parties and perused the material available on record.
6. The question for consideration before us is whether District Commission erred in holding the Appellant deficient in providing its services to the respondent.?
7. The expression deficiency of services is defined in Section 2 (1) (g) of the Consumer Protection Act, 1986 as:
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
8. The expression 'service' in Section 2(1)(o) of the Consumer Protection Act, 1986 is defined as:
DISMISSED PAGE 6 OF 10 FA/633/2015 D.O.D.: 24.04.2024 M/S THE NEW INDIA ASSURANCE CO.LTD. VS SKYLINE ENGINEERING CONTRACTS (I) P. LTD
(o)"service" means service of any description which is made avail-
able to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"
9. The fact that the Respondent had taken a workmen compensation policy bearing no. 420400/36/07/01/0000019 for the period from 20/11/2007 to 19.11.2008, and the same was further renewed for the period from 20.11.2008 to 19.11.2009, is not disputed by the parties. Furthermore, it is clear from the record that the workman, i.e., Mr. Surrender Kumar, unfortunately died from a fatal incident that occurred at the site. Accordingly, the Respondent duly intimated the same to the Appellant and also requested the Appellant to appoint a surveyor.
10. On the other hand, Phulo Devi, i.e., the wife of the deceased Mr. Surrender Kumar, lodged a claim before the Workmen Compensation Commissioner, Allahabad, whereby a compensation amount of Rs. 4,30,560/- with interest at 8% and compensation of Rs. 50,000/- was passed, and the same was paid by the Respondent to the wife of the deceased. However, the Appellant failed to pay the same to the Respondent.
11. Now, the question for consideration is whether the Respondent is entitled to receive the said claim from the Appellant.
12. At this stage we deem it appropriate to refer terms of the policy stated herein as under:
"NOW THIS POLICY WITNESSETH that if any time DISMISSED PAGE 7 OF 10 FA/633/2015 D.O.D.: 24.04.2024 M/S THE NEW INDIA ASSURANCE CO.LTD. VS SKYLINE ENGINEERING CONTRACTS (I) P. LTD during the period of insurance any employee in the insured's immediate service shall sustain personal injury by accident or disease arising out of and in the course of his employment by the insured in the Business and if the Insured shall be liable to pay compensation for such injury either under the Laws (s) set out in the Schedule or at Common Law then subject to the terms exception and conditions contained herein or endorsed hereon the Company will indemnify the Insured against all sums for which the insured shall be so liable and will in addition be responsible for all costs and expenses incurred with its consent in defending any claim for such compensation.
PROVIDED ALWAYS that in the event of any changes in the law(s) or the substitution of other legislation thereof this policy shall remain in force but the liability of the Company shall be limited to such sum as the Company would have been liable to pay if the Law (s) had remained unaltered."
13. After perusing the terms of the policy, subject to its terms and conditions, it cannot be disputed that the Appellant, the insurance companies concerned, are contractually liable to make good the claims for compensation arising out of employers' liability computed as per the provisions of the Compensation Act. It is evident that the Appellant indeed undertook to indemnify the Respondent/Complainant for all sums which he is liable to pay DISMISSED PAGE 8 OF 10 FA/633/2015 D.O.D.: 24.04.2024 M/S THE NEW INDIA ASSURANCE CO.LTD. VS SKYLINE ENGINEERING CONTRACTS (I) P. LTD towards compensation amounts.
14. To strengthened our case, we deem it appropriate to refer civil appeal bearing no. 4769 of 2022 titled as National Insurance Company Ltd. Versus the Chief Electoral Officer & Ors. decided on 08.02.2023, the Hon'ble Apex court analyzing the principles on which a claim under any insurance policy is examined, held the following:
".....It is trite to say that the terms of the insurance policy are to be strictly construed.
27. The insurance contracts are in the nature of special class of contracts having distinctive features such as utmost good faith, insurable interest, indemnity subrogation, contribution and proximate cause which are common to all types of insurances. Each class of insurance also has individual features of its own."
15. Further, it is well settled law that insurance contracts are in the nature where exceptions cannot be made on ground of equity and the Courts ought not to interfere with the terms of an insurance agreement (Export Credit Guarantee Corporation of India Limited vs. Garg Sons International [2014 1 SCC 686]).
16. Having regard to the aforementioned discussion and legal positions explained, the Appellant, therefore, cannot shrug off responsibility to indemnify the Respondent, as was also directed by the Workmen's Compensation Commissioner in its order. The conduct of the Appellant would not entitle them to fasten liability on the Respondent and would have to be borne by them, as per the terms of the policy.
17. In view of the forgoing, we are in agreement with the reasons given by the District Forum and fail to find any cause or reasons to reverse DISMISSED PAGE 9 OF 10 FA/633/2015 D.O.D.: 24.04.2024 M/S THE NEW INDIA ASSURANCE CO.LTD. VS SKYLINE ENGINEERING CONTRACTS (I) P. LTD the findings of the District Commission. Consequently, we uphold the judgment dated 16.09.2015 passed by the District Consumer Disputes Redressal Forum (East), Saini Enclave, Delhi- 110092.
18. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment. FDR, if any, be released in favour of the respondent.
19. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
20. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
24.04.2024 LR-ZA DISMISSED PAGE 10 OF 10