National Insurance Co. Ltd vs Yog Raj and Others

Muzaffar Hussain Attar, Judge

A claim petition was filed before the Authority under the Workmen's Compensation Act, 1923, Assistant Labour Commissioner (for short,

ALC) wherein it was stated that on 06.04.2004, the claimant 'respondent during and in the course of his employment with respondent no.2, while

unloading G.C. Tin Sheets from Tipper No.2567-JK02V, sustained injury on his left ankle joint which got fractured. It was also stated that at the

time of the accident, the age of applicant was 21 years and that the injury which he sustained rendered him permanently disabled and he has lost his

earning capacity by 50%. In the petition, notices were issued to appellant as well as respondent no.1. The appellant filed objections in which

following stand was taken at para 4 under the captioned preliminary objections:

That the replying respondent is not liable to indemnify the owner of the vehicle as the vehicle in question was not insured with replying

respondent at the time of alleged accident. The alleged accident has taken place on 6th of April, 2004 whereas as per cover not attached the

vehicle no.JK02v 2567 was insured from 5.3.2005 to 4.3.2006

After conclusion of the inquiry, the ALC passed the award on 28.07.2007 and directed the appellant to deposit an amount of Rs.1,95,000/-

(Rupees one lac and ninety five thousands only) on the ground that the appellant being the Insurance Company is liable to indemnify the owner

'respondent no.1. The appellant was also directed to deposit the awarded amount within 30 days from the date of pronouncement of the award

and it was also provided that in case, the directions were not complied with, the award amount will be recovered as prescribed under Workmen's

Compensation Act, 1923 (for short, the Act of 1923).

The award is called in question in this appeal by the Insurance Company. Learned counsel for the appellants submitted that a specific objection

was taken before the ALC that the vehicle was not insured with the respondent no.1 and there was no privity of contract with the respondent no.1,

so the Insurance Company was not liable to indemnify the respondent no.1. Learned counsel also submitted that the evidence of Medical Officer

who has entered into the witness box and has certified about the injury sustained by the respondent no.1 and disability suffered by him could not be

taken into consideration as the ALC had to wait for a minimum period of nine months.

Learned counsel for the appellant in support of his contentions referred to and relied upon the judgment in case titled Ghulam Hassan Vs.

Divisional Manager J&K State Forest Corporation, Doda' reported in 2003(1) JKJ 698(HC), to indicate as to what substantial questions of law

would mean in the facts of this case.

The Workmen's Compensation Act, 1923 is beneficial legislation. Legislatures in their wisdom, in order to ensure that benefits available in law

reach to the aggrieved persons without any delay, have made the appeal provision stringent, inasmuch as, in order to make the appeal competent,

it has been provided u/s 30 of the Act of 1923 that no appeal would lie against any order unless a substantial question of law is involved in the

appeal. The appeal, thus, has to be entertained and admitted for hearing on substantial question of law.

In the case in hand, the respondent no.1 has admitted the claim of the respondent no.2 in its entirety.

The submission of the learned counsel for the appellant that there was no privity of contract with the respondent no.1, is not the stand taken by

the appellants in their objections before the ALC. What is stated is that at the time of the alleged accident, the vehicle was not insured with the

appellant Insurance Company. As a matter of fact, the stand taken by the appellant before the ALC has to be taken note of and the stand taken in

the appeal before this Court cannot be accepted on issue of fact. Such a mode cannot be adopted as is not permissible under law. If the stand

other than one taken before the ALC is allowed to be raised and accepted by the Court, the valuable rights available to the respondents would be

infringed. The law of pleadings would not permit this Court to allow the appellants to take complete U-turn on issue of fact in this appeal, and

would not be permitted to wriggle out of the stand taken before the ALC. The Doctor has appeared as a witness before the ALC and it is stated

that on examination, he found that the claimant-respondent no.1 has multiple healed scars on left ankle joint with fracture dislocation of the said

joint. The Doctor has also deposed that there was swelling of the injured/affected area of the joint because of malunited fracture of the joint and

further stated that the respondent is unable to walk without crutches and cannot bear the whole body weight on the left limb. The Doctor opined

that the claimant has become disabled for performing heavy laborious work more than 80% and is permanently disabled. In the cross examination,

the Doctor stated that the claimant is unable to perform heavy laborious work and for this reason, the claimant has lost 100% earning capacity. The

Doctor further stated that his opinion is based on the clinical examination and as well as the record shown to him. The ALC has considered the

evidence recorded and passed the award.

The judgment in Ghulam Hassans case (Supra) is not applicable to the facts of this case as in that case the Doctor had examined the injured

claimant after three years of accident. The Doctor in that case was neither certain nor definite whether the injury sustained related to the accident in

question. On facts, there being material difference between two cases, the judgment referred to, thus, would not be applicable to the facts of this

case. The another judgment reported in 2011 (3) JKJ 193 (HC) referred to by the learned counsel for the appellant is not be applicable again to

the facts of this case as ALC in that case in perfunctory manner had passed the award without referring to and dealing with the evidence. In this

case, the evidence has been referred to and dealt with. For the above said reasons, it is held that no substantial question of law is involved in this

case, therefore, the appeal stands dismissed. After dictating the order in the open Court, learned counsel for the appellant submitted that the

interest has to be given on the awarded amount in accordance with Section 4(a) of the Act of 1923. Learned counsel in this behalf referred to the

judgment of the Supreme Court reported in Palraj Vs. The Divisional Controller, NEKRTC, and submitted that the interest is to be ordered to be

paid in view of the law laid down hereinabove. The ALC while making the payment to the claimant shall comply with the mandate contained in the

aforementioned judgment of the Supreme Court.

Record be sent back.