New India Assurance Co Ltd. vs Bhopal Singh

Dr. Kaushal Jayendra Thaker, J.—This appeal, at the behest of the New India Assurance Co. Ltd. (hereinafter referred to as ''Insurance Company''), raises a question of law whether the Workmen Compensation Commissioner/Additional Labour Commissioner, Meerut (hereinafter referred to as ''Authority'') had the power of review.

Certain facts would be relevant before we advert to the legal aspect whether the Authority had any power of review. In this case, it is an admitted position of fact, though disputed by the Insurance Company, that the details of the policy number were given by the claimant in the claim application itself mentioning that the vehicle of which the deceased was employed was insured with the present appellant. Unfortunately, this fact without being properly verified, the Insurance Company filed a denial reply that is how the Authority saddled the liability on the owner only.

It was the duty of the Insurance Company to come out with clean hands which unfortunately was not done by the Insurance Company. The apex court in National Insurance Company Ltd. v. Jugal Kishor and Others, AIR 1988 SC 719 has held as follows:

"The attitude of not filing copy of policy of insurance is worth mentioning. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. The Supreme Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in cause to produce the said document and such party should not be permitted to take shelter behind abstract doctrine of burden of proof. This duty is greater in the case the instrumentalities of the state such as the appellant Insurance Company who are under an obligation to act fairly. In many case even the owner of the vehicle for reasons known to him does not chose to produce the policy or a copy thereof. It has to be emphasised that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence."

In this case immediately thereafter the owner who was saddled with the liability came for correction of the mistake. The Insurance Company again did not come with clean hand.

The entire reply was perused by the this Court. Had the Insurance Company with whom the vehicle was insured not taken such a pedantic stand of review? The authority had decided the matter as neither the Insurance Company nor the owner who are the best person to produce the policy did not produce the same. The owner seems to have been complacent that his vehicle was insured and he has already paid Rs. 45,000/- ex gratia to the each of the original claimants he take the case very lightly.

While going through the judgments of the first instance, it is very clear that despite the fact being brought to the notice of the Authority that there was already a policy in vogue the, Authority burst to decide the same as relying on the written statement of the Insurance Company.

Later on when the amount was ordered to be paid by the owner, he went before the Authority and it was only for production of the said amount he had already deposited the amount also as per the orders which is evident from the record on 24.10.2003 which is reproduce below:

"mijksDr okn esa vkns''k fnukad 28-12-2002 ds fo:) izfroknh la[;k 1 }kjk fjO;q izkFkZuk&i= fn;k x;k Fkk] ftl ij lquokbZ ds fy, nksuksa i{kksa dks cqyk;k x;kA izfroknh la[;k 1 }kjk vius izkFkZuk&i= esa dfri; dFku izLrqr djrs gq, nq?kZVuk esa fyIr okgu la0 th0ts0 12ch@8946 ds ikfylh dh ewy izfr nkf[ky djrs gq, dgk gS fd oknh i{k dkss {kfriwfrZ nsus dk nkf;Ro izfroknh la[;k 2 chek dEiuh dk gSA

oknh i{k }kjk Hkh ,d izkFkZuk&i= izLrqr fd;k x;k] ftlesa muds }kjk vuqjks/k fd;k x;k gS fd ikfjr vkns''k fnukad 28-12-2002 esa vknsf''kr /kujkf''k :0 1,66,790=00 ds LFkku ij :0 2]11]790@& fnyk;s tk;saA

izfroknh la[;k 2 }kjk Hkh viuh vkifRr nkf[ky dh xbZA esjs }kjk okn i=koyh ij nkf[ky vfHkys[kh ,oa fyf[kr dFkuksa ,oa i{kksa ds lk{;ksa] izfroknh la[;k 1 dk fjO;q izkFkZuk&i= ,oa i{kksa dh ekSf[kd cgl dh leh{kk dh xbZA oknh bl }kjk vius mijksDr i= ds leFkZu esa dksbZ izekf.kr vk/kkj izLrqr ugha fd;k x;k gS] vr% oknh dk izkFkZuk i= vLohdkj fd;k tkrk gSA izfroknh la[;k 1 }kjk vius dFku ds leFkZu esa okgu la0 th0ts0 12ch@8946 dh ewy ikfylh nkf[ky dh xbZA ftlesa mijksDr okgu dh izfroknh la[;k 2 ds ;gkWa chfer gksuk ik;k x;k gSA vr% mijksDr vfHkys[k ls larq"V gq, eSa vkns''k fnukad 28-12-2002 esa vknsf''kr /kujkf''k ds Hkqxrku dk nkf;Ro izfroknh la[;k 2 chek daiuh ij Mkyrk gwWa vkSj C;kt nsus dk nkf;Ro Hkh izfroknh la[;k 2 dk gksxkA ''ks"k vkns''k fnukad 28-12-2002 ;Fkkor jgsaxsA"

Despite this, the Insurance Company with whom the vehicle was insured even before the Authority who had been vested with certain rights under the Act, did not raise the matter there and carried the matter here.

The learned counsel for the appellant has relied on a full Bench of this Court in Smt. Shivraji and others v. Dy. Director Consolidation, Allahabad and Others, 1997 (31) ALR 680 and has submitted that the owner should have moved this Court by way of appeal. It is a cardinal principle of law that if the policy is with the Insurance Company it was its duty to have come immediately come forward with the Authority concerned with clean hands which it has not done.

The respondent has relied on decisions of this Court in Oriental Insurance Company Limited v. Fida Ali, 1994 Law Suit (All) 251 and United India Insurance Co. Ltd. v. Workmen''s Compensation Commissioner/ Regional Assistant Labour Commissioner and others, 1996 A.W.C. 565. While considering the peculiar facts of this case, had the appellant shown caution and just not taken a pedantic approach about whether review is maintainable under section 19 Workmen''s Compensation Act, 1923 (hereinafter referred to as ''Act, 1923'') which is reproduced below:

"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."

The primary liability was of the employer and thereafter it would be the Insurance Company too has to discharge its liability. Had the employer not gone to the Authority and sought recovery from the Insurance Company as per the terms of agreement rather contract? The Insurance Company was bound to indemnify the owner as it was under a legal obligation to discharge its liability as the workmen was insured and premium was paid. Had the Authority followed the provisions of section 23 of the Act, 1923? This peculiar situation would not have a reason as the Insurance Company could have been compelled to produce the documents namely the policy for which neither they had denied nor they had accepted that the vehicle was insured with them.

This Court is unable to accept the submission of the learned counsel that the owner should have preferred the appeal as in this case as far as the owner is concerned, there was no substantial question of law involved and, therefore, he could not have moved this Court as it was a question of fact whether the policy was in vogue or not.

This appeal was admitted and, therefore, this Court has no other option to hold that the Authority had no power to review but could correct its mistake which was a mistake perpetuated by the appellant itself by not producing the policy even if the number is given. Power of review is existed or not in the peculiar facts and circumstances of the case as this Court held that withholding of policy by the Insurance Company despite its number being given cannot be said to be reviewing the order.

Thus, this appeal sans merit and is dismissed.