While dealing with the Appeal under section 30 of the Employees Compensation Act, the High Court of Himachal Pradesh noted that the insurer cannot let go of their liability just because compensation was available under another act with another company, because it is up to the claimant to claim for compensation either under the Workmen’s Compensation Act or under the Motor Vehicles Act.
Brief Facts:
The present appeal has been filed under section 30 of the Employees Compensation Act. the appellant or the insurer has assailed the award passed by the Commissioner under the compensation act, wherein the respondent was paid a sum of Rs. 5,41,910/- as compensation.
Respondent no. 1 had applied for compensation under Section 22 of the Employees’ Compensation Act on account of the death of her son Sh. Santosh alias Ganpat Ram. The deceased was a workman employed by respondent No. 2 as a helper of the JCB machine. The deceased had received fatal injuries and died when he was working with the JCB. The appellant came in because the respondent had purchased a policy of insurance from the insurer having coverage for 15 of his workmen. After analyzing the proofs concerning the employment of the deceased, the commissioner awarded compensation of Rs.4,36,940/- besides interest to the tune of Rs.1,04,870/- in favor of the claimant. The current appeal has been filed because the insurer is dissatisfied with the award.
Observations of the Court
The Hon’ble Court noted that three issues have been raised by the appellant, first that the commissioner was not justified in awarding the interest given the exclusion clause in the policy, the second is regarding the assessment of compensation being wrong, and the third is that the employer had purchased the insurance policy for motor vehicles act from the national insurance company and they should have been liable to pay the compensation.
For the first contention regarding the exclusion clause, the court noted that there is no evidence led for the same, instead when the policy was analyzed it was seen that the same was relevant for adjudication and further it was observed that no terms and conditions of the insurance policy were placed on record which excludes the liability of the insurer. And it was concluded that the appellant is not justified in claiming the benefit of the exclusion clause.
Then for the second contention with regards to the compensation, it was contended that the insured has purchased a policy of insurance on the basis of Rs. 4000/- and Rs. 3000/- respectively for the skilled and unskilled laborers. The court noted that this contention has to be rejected because there were no details of the skilled and unskilled workers and such lapse on the insurer's part has not been explained. The court then noted that the total wages as shown to be paid by the insured to his 15 employees is Rs.4,32,000/- and in the absence of any details as to how many of the 15 insured employees were skilled and unskilled, it cannot be assumed that the deceased was getting salary less than that of the skilled workmen and accordingly no fault of the commissioner was found in this regard as well.
The third contention raised that the liability has been fastened on respondent No.3 – National Insurance Company Ltd. was also rejected by the court because it was for the claimant to have opted for a claim under either Workmen’s compensation act or under the motor vehicles act.
The Decision of the Court:
No merit was found in the petition and accordingly, it was dismissed.
Case Title: New India Assurance Company Ltd v. Smt. Fulla Devi and others
Coram: Justice Satyen Vaidya
Case No.: FAO (WCA) No. 448 of 2010
Advocates for the Appellants: Mr. B.M. Chauhan, Senior Advocate, with Mr. Amit Himalvi, Advocate.
Advocate for the Respondents:
Mr. Surender Verma, Advocate, for respondent No.1.
Mr. Narender Sharma, Advocate, for respondent No.2.
Mr. Rajiv Jiwan, Senior Advocate with Mr. Prashant Sharma, Advocate, for respondent No.3.
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