The Oriental Fire and General Insurance Co. Ltd. vs G. Gopalakrishna Pillai and Another

George Vadakkel, J.—The 1st Respondent at the material time was the driver of the 2nd Respondent''s lorry, K.L.A. 4164. On 24-8-1974 he carried in it a load of timber to a saw-mill. He parked the loaded vehicle in the timber-yard. While he was climbing down from the cabin after so parking the lorry one of the logs on the lorry fell on his left leg. That leg was fractured and consequently amputated above the knee. The Commissioner for Workmen''s Compensation found that the accident arose out of and in the course of his employment and fixed the compensation payable to him under the provisions of the Workmen''s Compensation Act, 1923 at Rs. 6,720/-. The Commissioner declared that the Appellant, the insurer, impleaded as a party-Respondent to the proceedings before him is liable to pay the said sum to the workman on behalf of the employer. He directed the insurer to deposit the said sum in his Court on behalf of the 2nd Respondent for payment to the 1st Respondent within 30 days of his judgment which is under appeal. The insurer, in this appeal, challenges the validity and legality of this declaration and direction.

There is no finding that Section 14 of the Act is attracted to this case nor that any of the conditions mentioned therein are obtained in it. The Act contains no other provision whereby an insurer becomes liable to the employee in respect of the employer''s liability to him to pay compensation for personal injury. See The New India Assurance Co. Ltd. v. Parameswan Amma ILR 1976 Ker 237.

There is no dispute that the Appellant has issued a policy of insurance in relation to the use of the vehicle, K.L.A. 4164, as contemplated by Section 94 of the Motor Vehicles Act, 1939. Clause (i) of the proviso to Sub-section (1)(b) of Section 95 of that Act provides that such a policy shall cover a liability arising under the Workmen''s Compensation Act 1923 in respect of the death of or bodily injury to (amongst other employees) an employee engaged in driving the vehicle. Section 96(2) of that Act enables one seeking judgment against an insured in respect of any such liability which u/s 95(1)(b) is required to be cove red by a policy of insurance, to issue through the court, after commencement of the proceedings in that behalf, a notice of bringing such proceedings to the insurer, if any, who has issued a policy covering such liability. That sub-section also entitles the insurer to whom such notice is given to be made a party to the proceedings and to defend the same on the grounds set out therein, but only on those grounds. See British India General Insurance Co. Ltd. Vs. Captain Itbar Singh and Others, and under Sub-section (1) of Section 96 read with Sub-section (6) thereof subject to the avoidance of his liability on these grounds by the insurer, he is bound to pay to the person entitled to the benefit of the decree such sum as not exceeding the sum assured payable under the policy.

4 The Appellant-company got notice of the proceedings before the Commissioner. It did not defend the proceedings on any of the grounds mentioned in Section 96(2) though it was made a party to those proceedings. Section 96(1) and (6) of the Motor Vehicles Act, 1939 are attracted to the instant case and the Appellant is statutorily liable to pay to the employee, the 1st Respondent herein, the sum awarded to him as compensation--there is no case for the Appellant that it exceeds the sum assured payable under the policy of insurance issued by it to the employer. The Commissioner held that the employee, the 1st Respondent herein, is entitled to get Rs. 6,720/- from the employer, the 2nd Respondent herein and declared that the Appellant is liable to pay the same to the 1st Respondent, on behalf of the 2nd Respondent as insurer. This is in accordance with the provisions of the Motor Vehicles Act, 1939 discussed above.

There is nothing in the provisions of Section 96 of the Motor Vehicles Act, 1939 to confine its operation to suits in civil courts or to take proceedings before the court of the Commissioner for workmen''s compensation outside its scope. Before the proviso to Section 95(1)(b) of the Motor Vehicles Act, 1939 was amended by the Motor Vehicles (Amendment) Act, 1956 it was only discretionary with the State Governments to lay down that a policy of insurance required u/s 94 of that Act, should also cover liability arising under the Workmen''s Compensation Act, 1923. After the amendment it is compulsory. No civil court is, in view of Section 19(2) of the Workmen''s Compensation Act, 1923, competent to adjudicate upon any matter required by the provisions of that Act to be adjudicated upon by a Commissioner functioning under the Workmen''s Compensation Act, 1923 and the liability of a person to pay compensation under that Act is on such matter required to be decided by the Commissioner. This means that the Commissioner has exclusive jurisdiction to decide the question of compensation payable under the provisions of that Act. The Commissioner has no jurisdiction to decide any other matter wherefore, such matters, as for example, a third-party claim for damages arising out of rash and negligent driving of the vehicles, have to be adjudicated in other forums, a civil court or a Claims Tribunal constituted u/s 110 of the Motor Vehicles Act, 1939 as the case may be. It is difficult to conceive that the legislature intended to confine the procedure contemplated by Section 96 of the Motor Vehicles Act, 1939 to those who are entitled to approach the civil court and to deny the benefit of the simple procedure contained therein to employees who have perforce to approach the Commissioner''s Court and third-party claimants who have to, likewise, approach the Claims Tribunal. The legislature appears to have proceeded on the basis that Section 96 as it stood prior to 1956 would be attracted to proceedings before the Commissioner''s Court as also to those before a Claims Tribunal as it would to proceedings in civil court. We are not prepared to hold that the provisions of Section 96 are not capable of being construed as aforesaid. Section 96 nowhere speaks of institution of a suit. On the other hand, it refers to ''bringing of proceedings''. It is of ''bringing of the proceedings'' that notice is to be given to the insurer; it is to such proceedings that the insurer is entitled to be made a party and in which he can raise the grounds of defence set out in Section 96(2); and obviously the ''action'' which the insurer is entitled to defend in the said proceedings. Viewed so, the expressions ''decree'', ''judgment'', ''judgment debtor'' and ''court'' in Section 96 would respectively mean, the final decision, the reasons given in support of it, the person liable under that decision and the forum where the proceedings are brought, irrespective of whether the proceedings are in the nature of suit instituted in a civil court or not. This view finds support in the decisions N.I.M.O. Insurance Co. v. M.S. Solanki 1974 A.C.J. 55, B.I.G. Insurance Co. v. Sabanna 1967 A.C.J. 165, Oriental Fire and Genl. Ins. Co. v. Moola Singh 1970 A.C.J. 401 and Hindustan Ideal Ins. Co. Ltd. v. Pappu Poojary 1972 A.C.J. 433. We hold that the Commissioner is competent to decide and declare the liability of an insurer made a party to the proceedings before him under the Workmen''s Compensation Act, 1923 in accordance with the provisions of Section 96 of the Motor Vehicles Act, 1939. That is all what has been done by the Commissioner in this case, the direction that the Appellant shall deposit the amount in his Court within a specified time being one to the effect that the employee, the 1st Respondent, shall not seek to enforce the Appellant''s statutory liability arising from the decision as against it during that period and therefore, to the Appellant''s advantage.