Branch Manager, New India Assurance Co. Ltd. vs Mahadev and Others

B. Sreenivas Gowda, J.—Appeal is by the insurer challenging the judgment and award passed by the Commissioner for Workmen''s Compensation, Bidar (hereinafter referred to as ''Commissioner'' for short) on the ground of liability and quantum. After hearing the learned Counsel appearing for the parties and perusing the judgment and award of the Commissioner, the substantial questions of law arise for consideration in this appeal are:

"(i) Whether Commissioner is justified in fastening liability on the insurer of the employer?

(ii) Whether quantum of compensation and interest awarded by the Commissioner is in accordance with the provisions of the Workmen''s Compensation Act?"

The learned Counsel for the insurer of the employer of the injured-claimant submits although the insurer has submitted the policy alongwith a memo bringing to the notice of the Commissioner that in the event of claimant establishing his claim liability of the insurer has to be restricted to Rs. 60,000/-, the Commissioner has committed an error in fastening the entire liability on the insurer. Regarding quantum he submits even though the doctor has stated the claimant has suffered disability of 50% - 55% to limb and 20% - 25% to the whole body, the Commissioner has committed an error in taking disability at 40% while working out loss of earning capacity. He further submits though the insurer has produced the statement of the claimant made before the police wherein the claimant has mentioned his wages at Rs. 3,000/- per month, the Commissioner has committed an error in taking his income at Rs. 3,100/- per month. Therefore, he prays for allowing the appeal.

Per contra, learned Counsel for respondent No. 1/claimant submits that the insurer neither have stated anything about the alleged policy in their written statement nor have produced a copy of the policy along with their written statement and no issue was framed by the Commissioner to that effect. Therefore, he contends that the insurer cannot contend for the first time in this appeal that their liability is restricted to Rs. 60,000/-. Regarding quantum he submits the claimant in his claim petition as well as in his evidence has stated that he was getting wages of Rs. 5,000/- per month by working as a Fitter with the employer - M/s. Satwik Drugs Limited, at Industrial Area, Kolar (K), Bidar. He submits the statement alleged to have been made by the claimant before the police cannot be taken into consideration. Hence, he submits the compensation awarded by the Commissioner is less than just entitlement and there is no scope for reduction and prays for dismissal of the appeal.

I have carefully perused the written statement filed by the insurer before the Commissioner. In the entire written statement the insurer has not admitted the insurance policy obtained by the first respondent - M/s. Satwik Drugs Limited covering the risk of the employees in the event of accident which may take place in the course of and out of employment. It is stated in the written statement that if the policy is proved, liability is restricted to wages. This is not what is expected from the insurer. When the employer insures the risk of his employees in the event of they sustaining any injury or succumbing to injuries in the course of their employment and claimants filing claim petitions before the Commissioner seeking compensation, the insurer is expected to produce such policy and state the terms and conditions of the policy and extent of their liability. The insurer who produced the policy subsequent to filing of written statement along with a memo have not confronted the same to the claimant in the course of evidence to the effect that their liability is restricted to Rs. 60,000/- in respect of the injured/claimant. On the other hand, the insurer has not adduced any evidence and no issue was framed by the Commissioner to that effect. As per the judgment of the Division Bench of this Court in the case of Ramakrishna Reddy Vs. The Manager, Purchase, Hindustan Machine Tools Limited and Another, the insurer cannot raise such plea for the first time in the appeal. Considering the same, the Commissioner was justified in fastening the liability on the insurer. However, it is always open to the insurer to point out the same to the insured i.e., employer and recover the difference amount from the employer. The finding of Commissioner on liability is modified accordingly.

Regarding Point No. 2

It is not in dispute that the injured claimant while working as a Fitter with the first respondent - M/s. Satwik Drugs Limited, Industrial Area, Kolar (K), Bidar, sustained fracture of tibia of right leg in the course of and out of employment. The claimant in his claim petition as well in his evidence has stated that he was getting wages of Rs. 5,000/- per month by working as a Fitter under the first respondent-employer. The first respondent - employer who entered appearance before the Commissioner through Advocate simply denied the claim of the claimant and have not produced documents with regard to terms of employment of the claimant including wages. Name of the claimant finds place in the insurance policy produced by the insurer along with the memo. According to which, wages of the claimant is shown as Rs. 1,333/-, that must be the wages shown by the employer for the purpose of covering the risk of the employee and not the actual wages. The claimant in the complaint lodged before the Police has mentioned his wages as Rs. 3,000/- per month. It is to be noted wages paid in an industry is excluding certain perks.

The Commissioner who had an opportunity to appreciate the nature of injuries sustained by the claimant and their impact on his earning was justified in taking the disability at 40% and wages of the claimant at Rs. 3,100/- and awarding compensation of Rs. 1,50,035/- which does not call for interference of this Court. Hence, I pass the following:

"ORDER

The appeal is allowed in part. The judgment and award of the Commissioner for Workmen''s Compensation is modified on liability holding that insurer is liable to pay the compensation awarded by the Commissioner to the claimant with a right to recover the difference amount from the employer of the claimant.

As the liability of the insurer as per the policy is restricted to Rs. 60,000/-, the insurer shall pay the entire compensation awarded by the Commissioner to the claimant and with a liberty to recover the difference amount from the employer by filing an execution petition before the jurisdictional Court viz., Civil Judge (Senior Division), Bidar.

The amount in deposit is ordered to be transmitted to the jurisdictional Court for disbursement to the claimant in terms of the award of the Commissioner.

No order as to costs."