New India Assurance Co. Ltd. vs Smt. Annapurna Gupta And Another
2018 Latest Caselaw 7 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 16
 
Case :- FIRST APPEAL FROM ORDER No. - 1946 of 2018   AFR
 
Appellant :- New India Assurance Co. Ltd.
 
Respondent :- Smt. Annapurna Gupta And Another
 
Counsel for Appellant :- Archana Singh
 
Counsel for Respondent :- Rishi Bhushan Jauhari
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Supplementary affidavit filed on behalf of the appellant is taken on record.

Heard Smt. Archana Singh, learned counsel for the insurer-appellant, Sri Rishi Bhushan Jauhari, learned counsel for the caveator-respondent and perused the material brought on record.

By way of the instant appeal, challenge has been made to the judgment and order dated 19.02.2018 passed by the Workmen's Compensation Commissioner / Deputy Labour Commissioner, Shahjahanpur Region, Shahjahanpur, in W.C. Case No.31 of 2013, Smt. Annpurna Gupta and another Vs. Baghauli Sugar Factory and Distillery Ltd. and another, whereby compensation to the extent of Rs.4,97,542/- (four lacs ninety seven thousand five hundred and forty two only) have been awarded in favour of respondent no.1, Smt. Annapurna Gupta.

Brief reference of the relevant facts of the case as discernible from the certified copy of the impugned award appears to be that late Rakesh Chandra Gupta, husband of the respondent no.1 was employed in the Bhagauli sugar factory and distillery Ltd. Bikapur, District Hardoi as an employee/store clerk at monthly stipend Rs.6500/- besides Rs.100/- @ per diem as diet money. The deceased Rakesh Chandra Gupta was working in the aforesaid factory at the direction of his employer. On 04.01.2013 when the offending truck PV 29-9735 dashed him due to which he died. The case was registered at Police Station Baghauli, District Hardoi and post mortem examination was conducted. The deceased was aged about 50 years at the time of the accident.

It is admitted position that the deceased Rakesh Chandra Gupta died while discharging his duty as an employee of the aforesaid sugar mill. The deceased was survived apart from his wife Annapurna Gupta - respondent no.1, by his son Abhishek, daughter Km. Monika and mother Munni Devi aged 70 years. The entire family of the deceased was based on the monthly earning of the deceased. Due to sudden demise of the deceased employee Rakesh Chandra Gupta, no one else was left there to look after welfare of his family which created question of livelihood for all the family members.

The case was contested by the present appellant and the written statement was filed raising various objections and on the basis of rival claims, as many as five issues were framed. Issue no. 1 related to the factum of the accident, whereas, issue no.2 related to the fact of insurance and to the fact of the insured company and its employees. Issue no.3 related to the fact whether the claimant-respondent no.1 was/is legal successor of the deceased. Issue no.4 related to fact of monthly income and age of the deceased. Issue no.5 related to the point of compensation to be awarded to the claimant-respondent no.1.

Learned Workmen's Commissioner after discussing the factual and evidentiary aspect of the case allowed claim of the claimant-respondent no.1 for Rs.4,97,542/- and rejected objection raised by the Insurance Company-appellant that one claim petition based on same accident preferred before the Motor Accident Claims Tribunal as Claim Petition No.46 of 2013 under Section 166 of the Motor Vehicles Act decided on 26.03.2015 would not debar remedy under the Workmen's Compensation Act, because basis of both the claim petitions are exclusively independent of each other.

Learned counsel for the appellant has vehemently submitted that in this case, by virtue of mandate contained under Section 167 of the Motor Vehicles Act, 1988, it was not feasible on the part of the Motor Accident Claims Tribunal concerned and the Workmen's Compensation Commissioner to have awarded compensation for the same accident to the dependents of the deceased. Claim petition could have been preferred before either of the two forums. Either of the two forums would prevail but compensation awarded by both the Motor Accident Claims Tribunal concerned and the Workmen's Compensation Commissioner concerned is not permissible, under facts and circumstances of the case, as such the same is not sustainable in the eye of law and primarily by virtue of the specific mandate and the law laid down by Hon'ble Apex Court in the case of Deepal Girish Bhai Soni and others Vs. United India Insurance Co. Ltd. Baroda reported in 2004 (2) TAC 289, particularly under paragraph no.66. As per mandate, it is obvious that by virtue of Section 167 of the Motor Vehicles Act, only one petition is to be presented i.e. - either under Section 163-A or under Section 166 of the Motor Vehicles Act - but not under both the aforesaid Sections of the aforesaid Act.

Learned counsel for the appellant has further relied upon the decision of Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Mastan and another reported in 2006 (1) TAC 321 SC, particularly on paragraph no.23. It has been stressed that by virtue of the mandate, the petition cannot be filed both under the Employee's Compensation Act, 1923 and under Section 166 of the Motor Vehicles Act, 1988. Section 167 contains a non-obstante clause providing for such an option notwithstanding anything contained in the Act 1923.

While retorting to the aforesaid contention, learned counsel for the caveator-respondent no.1 has urged that by virtue of mandate contained under the relevant provisions of the Motor Vehicles Act, 1988 - say Sections 143, 145 b, 147 b and 167, the doctrine of election prevails and under these circumstances, the claimants are not prevented from preferring the claim before the Motor Accident Claims Tribunal concerned and the concerned Workmen's Compensation Commissioner in two different capacity / situations under different circumstances.

Learned counsel for the caveator-respondent further added by reinforcing that in this case, the policy issued by the insurer of the employer in favour of the factory employees and the deceased was basically a policy of the Insurance Compancy issued in favour of 29 employees of the Sugar Mill (concerned) and specific provision was made that in the event of death of any of the employees, certain amount of compensation, based on formula calculation shall be given irrespective of any other claim or compensation that may be raised before any other forum based on different footing.

Learned counsel engaged attention of the Court and laid stress on page no.7 of the supplementary affidavit (filed today) by the appellant - insurer which contains copy of the insurance policy issued by the New India Assurance Company Ltd. wherein name of the insured is Baghauli Sugar and Distillery Ltd., therefore, insured was Sugar Mill which in the capacity of being employer was required to compensate its employees and no question of assimilation of any other law was required at this juncture and there was no worthy point for applicability of the doctrine of election by virtue of the aforesaid Section 167 of the Motor Vehicles Act and also the Insurance policy so issued in favour of the employees (29 in all) of the Sugar Mill, was meant for ensuring welfare of the employees.

Insofar as claim preferred by different persons at both the different forums is concerned, Section 2 (1) d of the Workmen's Compensation Act provides that insofar as hierarchy of successor of the deceased is concerned then widow would have preferential claim, therefore, claim of the widow before the Workmen's Compensation Commissioner is preferential one to the exclusion of the other heirs of the deceased. Hence claim was preferred by the widow alone and not by any other successor/dependent of the deceased. Rules 3 (c) of the Workmen's Compensation Rules 1924 also provides specific condition for payment of compensation amount to any other person who may appear to be entitled to it.

Considered the rival submissions too.

In this case, it is obvious that there are two insurance companies involved in the affair one in the Workmen's Compensation Act - say the present appellant and the another insurance company - National Insurance Company Ltd. Involved in the MACP No.46 of 2013 under Section 166 of the Motor Vehicles Act, 1988. The first one was to compensate the employees of the sugar mill in the event of death or injury and the second one was to compensate dependents of the claimants on account of liability towards third party-claim.

After considering the entirety of the case and in the light of the particular facts and circumstances of this case, the reply so extended on behalf of the caveator-respondent no.1 through her counsel is sustained and it cannot be said that the Workmen's Compensation Commissioner faulted on the point when compensation had been awarded by the Motor Accident Claims Tribunal concerned to the claimants in MACP No.46 of 2013, but that compensation on the face appears to have been given for third party claim raised before the Tribunal and the case is not hit by Section 167 of the Motor Vehicles Act, for reason that there is no petition preferred under Section 163A of the Motor Vehicles Act. Moreso, it is admitted position that in this case, insurer at both the levels i.e. - of the concerned Sugar Mill and at the stage of the case before the Tribunal concerned of the offending truck PV-29 9735 are two different insurance companies and the same are not one and the policy issued by the insurer of the offending truck was one primarily for different premium paid and meant for awarding compensation by the Motor Accident Claims Tribunal on the basis of third party liability which was raised by the claimants in the case of aforesaid Claim Petition No.46 of 2013.

Learned counsel for the appellant, was time and again specifically quizzed as to whether the insurance policy issued in the name of the sugar mill for its employees contained any specific condition or exclusion clause for settlement of compensation, in case any claim based on the accident in question is raised before any other forum seeking compensation based on third party liability, the learned counsel for the appellant could not reply to the specific query so raised nor could she show any such exclusion clause meant for adjudication and settlement of the compensation amount in case any compensatory remedy is sought at another appropriate forum based on different ground say third party liability.

The Workmen's Compensation Commissioner was fully aware of the proceeding before the Motor Accident Claims Tribunal concerned and the proceeding initiated before itself but rationale of its decision was resting on the anvil of the mandate contained in the decision of Hon'ble Apex Court in the case of Ramchandra Vs. Regional Manager, United India Insurance Company Ltd. AIR 2013 SC 2561 and based its conclusion primarily on paragraph nos.18 and 20 of the aforesaid decision. For ready reference, paragraph nos.18 and 20 of the aforesaid decision are extracted herein below:

"18. Thus in so far as the view of the High Court is concerned to the extent that the compensation would be restricted to be paid only to the extent which is payable under the Workmen's Compensation Act by making as sweeping generalisation, the same is clearly contrary to the view taken by this Court even in the judgment and order on which reliance has been placed by the counsel for the respondent-insurance company as it is sufficiently clear and unambiguously laid down which is recorded hereinbefore that the compensation payable to the employee cannot be restricted merely under the Workmen's Compensation Act and it can be expanded provided the contractual document which is the policy of insurance incorporates such clause regarding the premium to be paid taking into account the nature of the policy.

20. The claimant/appellant is surely entitled to the amount of compensation over and above the Workmen's Compensation Act in view of the ratio of the decisions referred to hereinbefore. The rider no doubt is that the statutory liability cannot be more than what is required under the statute under Section 95 of the Motor Vehicles Act which cannot bind the parties or prohibit them from contracting or creating unlimited or higher liability to cover wider risk and the insured is bound by the terms of the contract specified in the policy in regard to unlimited or higher liability as the case may be. Thus, it is although correct that limited statutory liability cannot be extended to make it unlimited or higher, it is also manifestly clear that insofar as the entitlement of the claimant/deceased cleaner of the vehicle is concerned, the same cannot be restricted to the compensation under the Workmen's Compensation Act and is entitled to compensation even under the Motor Vehicles Act which will depend upon the terms and conditions of the policy of insurance."

Therefore, by virtue of the rationale emanating from the aforesaid paragraphs of the aforesaid decision, the claimant-respondent no.1 cannot be stopped from seeking compensation by resorting to Section 166 of the Motor Vehicles Act on ground of third party liability. Obviously, claim raised before the Workmen's Compensation Commissioner was based on fact that the deceased Rakesh Chandra Gupta was insured by its employer sugar mill and the locus for claim was based on specific condition of death being caused while the employee was working in the discharge of his duty as such. Therefore, the claim raised before the Workmen's Compensation Commissioner cannot be equated with the third party claim as provided under the relevant provisions of the Motor Vehicles Act and particularly under Section 166 of the Motor Vehicles Act. Can it be said that a different Insurance Company namely - National Insurance Company - which was insurer of the offending truck PV 29 -9735 was, under circumstances, exonerated of its liability accruing on the ground of third party liability. The answer is certainly in the negative and the legal corollary will be that insurer of the offending truck is liable to pay compensation arising out of third party risk under Section 166 of the Motor Vehicles Act, whereas, the Workmen's Compensation Commissioner is to appreciate things totally from different angle based on scheme of welfare insurance of the employees of the employer sugar mill. Therefore, two different avenues are open for awarding compensation. The Workmen's Compensation Commissioner is restricted and confined to circumference of the terms and conditions of the insurance policy issued in favour of and for the welfare of the employees of the sugar mill, whereas, the Motor Accident Claims Tribunal is concerned with the issue of third party risk for which the Insurance policy was issued and specific premium paid.

The aforesaid parameters carry weight in favour of the claimant-respondent no.1 and the contention raised on behalf of the appellant do not carry substance.

For the reasons aforesaid, the instant appeal lacks merit and the same is dismissed.

Order Date :- 17.4.2018

rkg