Oriental Insurance Co. Ltd. vs Rafat Rehamath and Others

K.R. Prasada Rao, J.—This appeal is filed by the Insurer u/s 30(1) of the Workmen''s Compensation Act, 1923 (for short the ''Act'') against the award dated August 10, 2000 passed by the Commissioner for Workmen''s Compensation, Chamarajanagar, Dist. Chamarajanagar. The amount of compensation awarded to the respondents No. 1 to 4/claimants who are widow and children of the deceased employee Syed Arif, as computed under the provisions of the Act, is questioned as excessive on the grounds other than those by which, it, as an insurer could have been entitled to defend the claim for compensation under Sub-section (2) of Section 149 of the Motor Vehicles Act (Amended in the year 1994).

We have heard the arguments of the learned counsel for the appellant Sri Shrishaila, regarding admission of this appeal.

It is vehemently contended by the learned counsel for the appellant that the Commissioner has committed an error of jurisdiction in taking into consideration monthly wages of the deceased workman as Rs. 3,600/- though under the amended provisions of Section 4(1) of the Act read with Explanation 2, the monthly wages of the workman even if they exceed Rs. 2000/- shall be deemed to be Rs. 2,000/- only, and has awarded excess amount of compensation in favour of respondents No. 1 to 4. It is further contended by him that since this appeal involves a substantial question of law, the Insurer is entitled to maintain this appeal.

It is admitted by him at the time of submitting the arguments that, he has not been granted leave by the Commissioner for Workmen''s Compensation, to raise any defence other than the defences available u/s 149(2) of the Amended Motor Vehicles Act, 1994. It is also submitted by him that the employer has not contested the proceedings before the Commissioner and he remained ex parte.

So, the only question which arises for consideration in the present appeal is whether the appellant/insurer can be permitted to raise any new defence other than the defences provided u/s 149(2) of the Motor Vehicles Act and whether the appellant can be considered as a "person aggrieved" by the impugned award passed by the Commissioner. This matter has been concluded by several decisions of this Court as well as by the latest decisions of the Supreme Court. In an earlier decision of this Court decided by a Division Bench updated in New India Assurance Co. Ltd. v. Raja Naika ILR 1996 Kar 1325 wherein it has been held that "No appeal by insurer u/s 30(1) Workmen''s Compensation Act could lie on grounds other than u/s 149(2) of Motor Vehicles Act subject to further condition such grounds involve substantial questions of law". A similar question arose in the said case as to whether the insurer is entitled to challenge the award passed by the Commissioner on the ground that the compensation awarded by the Commissioner as computed under the provisions of the Act is excessive on the grounds other than those by which, it, as an insurer could have been entitled to defend a claim for compensation u/s 149(2) of the Motor Vehicles Act. The said question formulated in that case has been answered in the negative.

In another recent decision of this Court rendered in National Insurance Co. Ltd. v. Obalesh and Anr. ILR 1999 Kar 1181 it has been clearly held that "in a case arising under Workmen''s Compensation Act, the Insurance Company contended that when the insurer is made a party in the claim petition but not at the instance of the Tribunal either u/s 149 or Section 170, then the insurance company becomes entitled to "wider defences" than those mentioned in Section 149(2)." High Court rejected this contention relying on the. decisions of the Division Bench of the High Court of Karnataka in New India Assurance Co. Ltd. v. Rajanaik 1999 III LLJ 432 and Oriental Insurance Co. Ltd. Vs. Veronica Obrin (Smt.) and Others, it is observed. that "keeping in view the law laid down by the Supreme Court and Division Bench of this Court referred to above, even if there is a question of law which does not stand covered by any of the defences available u/s 149(2) of M.V. Act then, the appeal u/s 30 of the W.C. Act (sic) on behalf of the insurer is not maintainable on those grounds of defences which are not covered by Section 149(2) of the Act because he cannot be deemed to be a person aggrieved from the order, if person aggrieved only means, that a person who is aggrieved against the decision rejecting the claim or pleas raised by the person and available to him under the law. Thus considered, in my opinion, the ground of challenge on which the insured has sought to challenge the award are not available to it". In a latest decision of the Supreme Court rendered in Chinnama George and Others Vs. N.K. Raju and Another, while considering the scope of Section 173 and 149(2) of the Motor Vehicles Act (59 of 1988) it was held as under:

"The insurer by associating the owner or the driver in the appeal when the owner or the driver is not an aggrieved person cannot be allowed to mock at the law which prohibit the insurer from filing any appeal except on the limited grounds on which it could defend the claims petition. Provision of law cannot be undermined in this way. Court has to give effect to the real purpose of the provisions of law relating to the award of compensation in respect of accident arising out of the use of the motor vehicles and cannot permit the insurer to give him right to defend or appeal on grounds not permitted by law by a back-door method. As such an insurer cannot maintain a joint appeal along with the owner or the driver if defence on any ground u/s 149(2) is not available to it. In that situation joint appeal will be incompetent. It is not enough if the insurer is struck out from the array of the appellants. The appellate Court must also be satisfied that a defence which is permitted to be taken by the insurer under the Act was taken in the pleadings and was pressed before the Tribunal. On the appellate Court being so satisfied the appeal may be entertained for examination of the correctness or otherwise of the judgment of the Tribunal on the question arising from/relating to such defence taken by the insurer. If the appellate Court is not satisfied that any such question was raised by the insurer in the pleadings and/or was passed before the Tribunal, the appeal filed by the insurer has to be dismissed as not maintainable. The Court should take care to ascertain this position on proper consideration so that the statutory bar against the insurer in a proceeding of claim of compensation is not rendered irrelevant by the subterfuge of the insurance company joining the insured as a co-appellant in the appeal filed by it. Any other interpretation will defeat the provision of Sub-section (2) of the Section 149 of the Act and throw the legal representatives of the deceased or the injured in the accident to unnecessary prolonged litigation at the instance of the insurer".

In another latest decision of this Court rendered in United India Insurance Company Limited and Another Vs. Smt. V. Nagarathna and Others, it has been held that

"where the owner and driver not appeared before Tribunal and not filed their objections, owner cannot be held to be an aggrieved party. So, neither the owner nor the driver can be permitted to file an Appeal. Insurer cannot be permitted to make use of the owner for getting over the statutory provisions, just as Shikhandi was made use of in Mahabharata War by Pandavas".

Thus, it is clear from the above pronouncements of the Supreme Court and this Court that, an insurer who is not permitted to raise the defence other than those permitted under the provisions of Section 149(2) of the Motor Vehicles Act, by the Tribunal cannot be considered as an aggrieved party to file an appeal when the owner or the driver of the vehicle has not appeared, before the Commissioner and have not contested the matter before the Commissioner and when they are not the aggrieved parties and when the appeal filed is on the ground other than those permitted under the provisions of Section 149(2) of the Motor Vehicles Act. We are of the firm opinion that the appellant/Insurer cannot be permitted to expand the defence allowed to it in the present appeal and it is not entitled to contend that their appeal is maintainable not withstanding the fact that they arc not aggrieved parties in respect of the award passed, when the owner or driver of the Vehicle involved in the accident have not contested before the Commissioner.

In view of the specific bar under the provisions of Section 149 (2) of the Motor Vehicles Act, the petitioner is not entitled to contend that a substantial question of law is involved and that the present appeal is maintainable under the provisions of Section 30 of the Workmen''s Compensation Act.

For the above reasons, we find that there are no grounds to admit this appeal.

This appeal is therefore, dismissed.