United India Insurance Co. Ltd. vs Pushpathal

S. Manikumar, J.—Wife, minor daughters and parents, have filed W.C. No. 264 of 2007, on the file of the Commissioner for Workman Compensation (DCL) Salem, claiming compensation, for the death of their breadwinner, Palaniswami, who was engaged as a driver, under Mr. N.M. Thangaraj, the 1st opposite party in the claim petition. The owner of the vehicle, 1st opposite party remained ex parte. The United India Insurance Company Limited, Dharapuram, insurer of the Autorickshaw bearing Regn. No. TN 33 AU 0171, has opposed the claim petition contending inter alia that at the time of accident, deceased did not possess a valid and effective driving licence and that therefore, the insurer is not liable to pay compensation. As regards the employer-employee relationship, they have put the claimants to proof. Before the Commissioner for Workman Compensation (DCL), Salem, wife of the deceased examined herself as AW1 and reiterated the manner of accident. Ex. P1, FIR, Ex. P2, Observation Mahazar, Ex. P3, Rough sketch, Ex. P4, Case history, Ex. P5, Final Report, Ex. P7, Post-mortem certificate, Ex. P8, Legal Heir certificate, Ex. P9, Driving licence, Ex. P10, Insurance Policy, Ex. P11, Registration certificate, Ex. P12, Lawyer''s notice, Exs. P13 and P14, Postal Acknowledgement cards, have been marked. RW1, is the Assistant Manager of the Insurance Company. R1, policy, has been marked on the side of the appellant Insurance company.

While adverting to the case of the insurance company for exoneration of its liability, to pay compensation to the claimants on the grounds that the deceased did not possess a valid and effective driving licence and that the driver of the offending vehicle did not have a badge, the Commissioner for Workman Compensation (DCL), Salem, taking note of the decision of this Court in Branch Manager, National Insurance Company Ltd. Vs. Venkatan and B.R. Kumaresan, , held that the objections, were not tenable. At this juncture, it is worthwhile to extract the decision considered by the Commissioner for Workman Compensation (DCL), Salem.

"In Branch Manager, National Insurance Company Ltd. Vs. Venkatan and B.R. Kumaresan, :

When the claimant having chosen the forum under the 1923 Act for the purpose of obtaining compensation against his employer, the insurance company cannot now fall back upon the provisions of the 1988 Act therefor, to raise the defences available under the Motor Vehicles Act, inasmuch as the procedure laid down under both the Acts are different save and except those which are covered by section 143 thereof.

The decisions of the Supreme Court in Ved Prakash Garg Vs. Premi Devi and others, and National Insurance Co. Ltd. Vs. Mastan and Another, would squarely bring out the manner in which the provisions of Workmen''s Compensation Act and Motor Vehicles Act have to be construed having regard to the provisions of the Act. As noted earlier, in the present case, since the premium was paid for the cleaner of Tempo Van, the cleaner/injured workman is under insurance coverage. When premium has been paid so as to meet the requirements of Workmen''s Compensation Act, it is not open to the insurance company to raise the defence which are available to it under Motor Vehicles Act pleading exoneration of its liability on the ground of breach of conditions of policy. As the cleaner suffered personal injuries during the course of and arising out of his employment while he was discharging his service obligations, the compensation payable would be squarely governed by the provisions of Workmen''s Compensation Act and the insurance company cannot be absolved of its liability."

RW1, Assistant Manager of the Insurance Company has categorically admitted that Ex. P10, policy, covered five employees and that premium has also been paid. In addition to the above, as per 1st proviso to sub-section 1 of Section 147 of the Motor Vehicles Act, 1988, a policy shall not be required (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment, other than a liability arising under the Workmen''s Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee, (a) engaged in driving the vehicle, or (b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.

There is no serious dispute over the employer-employee relationship. Ex. P10, policy, covers five employees. The defence that all are available to the insurer under Section 149 of the Motor Vehicles Act, 1988, cannot be raised in a claim, under the Workmen''s Compensation Act, in the light of the categorical pronouncement of this Court in Branch Manager, National Insurance Company Ltd. Vs. Venkatan and B.R. Kumaresan, , based on Ved Prakash Garg Vs. Premi Devi and others, and National Insurance Co. Ltd. Vs. Mastan and Another, . No substantial question of law is involved in this appeal.

Though, Mr. T. Ravichandran, learned counsel for the appellant Insurance company relied on S. Iyyapan Vs. United India Insurance Company Ltd. and Another, and contended that it is open to the insurer, to seek for exoneration of the liability to pay compensation, or at least, to the extent seek for recovery, of the amount paid, from the insured, this Court is not inclined to accept the said contentions, for the reason that Iyyappan''s case has arisen out of a claim under the Motor Vehicles Act, 1988 and in the light of the decisions of the Supreme Court in Ved Prakash Garg Vs. Premi Devi and others, and National Insurance Co. Ltd. Vs. Mastan and Another, stated supra, it is not open to the insurance company to raise the defenses, available to it under Motor Vehicles Act, 1988, for exoneration or to seek for a right of recovery.

Material on record discloses that the claim in W.C. No. 264 of 2007, made in the year 2007, has culminated into an award, only in the year 2012, vide order dated 31.12.2012 and it has taken nearly five years. The present appeal, is heard in 2014, after two years. For nearly 7 years, the respondents, wife and minor children aged about 8 years and 9 years, respectively, parents aged about 60 years and 55 years, respectively, at the time of filing of the claim petition, have to litigate for many years, for compensation. While dismissing the appeal, this Court deems it fit to observe that decisions of the Hon''ble Apex Court is binding on all Courts and Insurance Companies, who are parties to the claim petitions, arising out of similar set of facts, should not mechanically file appeals, brushing aside the principles of law or the ratio decidendi, in the reported judgments. When the claims tribunals/Courts are mandated to apply a decision of the Apex Court to the facts of a case, to arrive at a final determination of the rights and if the decision of the claims tribunals are adverse to the interest of the insurance companies, they must in categorical terms explain as to how the decision of the Hon''ble Apex Court is not applicable to the case, on which an adverse order has been passed. Without doing so, the Insurance companies, who have a battery of lawyers, should not file appeals mechanically, blaming the tribunals, that they have erred in law. The attitude of the insurance company in protracting payment of compensation due and payable to the legal representatives cannot be appreciated. While dismissing the appeal as devoid of merits, this Court is constrained to award cost of Rs. 10,000/- to be paid by the United India Insurance Company Limited, Dharapuram, to the respondents in addition to the compensation amount determined, within two weeks from the date of receipt of a copy of this order.

Registry is directed to send a copy of this order to the Managing Director, United India Insurance Company Limited, for appropriate action to be taken by the insurance company, while taking up the defences before the Commissioner for Workman Compensation, in matters arising under Workmen''s compensation claim. In the result, the Civil Miscellaneous Appeal is dismissed with cost. Consequently, the connected Miscellaneous petition is closed.