Allahabad High Court
Sri Shamshad Ali And Another vs Sri Ahmad Ullah And Another on 19 March, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 1687 of 2020
Appellant :- Sri Shamshad Ali And Another
Respondent :- Sri Ahmad Ullah And Another
Counsel for Appellant :- Ram Singh,Amit Kumar Singh
Counsel for Respondent :- Amit Manohar
Hon'ble Vivek Agarwal,J.
This appeal has been filed by the claimants being aggrieved of award dated 24.12.2019 passed by the learned Commissioner under Employees Compensation Act and Deputy Labour Commissioner, Prayagraj Zone, Prayagraj in Case No. E.C.13 of 2017, on the ground that compensation has been awarded against the employer exonerating the Insurance Company, whereas, even if the owner was proceeded ex parte, then award should have been passed against the Insurance Company. Placing reliance on the judgment of Hon'ble Supreme Court Vimla Devi & Others vs. National Insurance Company Limited and Another, 2019 (1) AICC 394 to support of this contention.
Sri Radhey Shyam, learned counsel for Insurance Company submits that claimant has no locus to file this appeal. He submits that appeal has been filed at the instance of the employer, who appears to be acting in collusion with the claimants, inasmuch as, if employer would have filed this appeal, then as per provisions contained in the Employees Compensation Act, 1923, he would have been required to deposit complete sum of amount awarded by learned Claims Tribunal. It is further submitted that claimants are only interested and can only be logically interested in the compensation and not in the party from whom compensation will be received by them.
After hearing learned counsel for the parties and going through the award as well as judgment rendered in case of Vimla Devi (supra), the ratio of judgment rendered in Vimla Devi is that if driver and owner of the offending vehicle do not appear before the Tribunal, then adverse inference should be drawn against them. In the present case, employment of the claimant has been accepted, compensation has been awarded but Insurance Company has been exonerated. If any cause of action has accrued, then it is in favour of the employer that despite recording a finding that vehicle in question, on which deceased was employed, was insured at the relevant point of time when accident took place, yet Insurance Company has been exonerated. It is no more open to the claimants to seek compensation from the Insurance Company. Otherwise, also law is crystal clear Insurance Company only indemnifies and it is for the insured, who has locus standi to seek compensation from the Insurance Company and not the claimant.
In case of Smt. Neelam Devi and Another vs. Devendra Singh Yadav and Another, 2005 (2) TAC 964 M.P., in para 8 has been held that the owner of the vehicle had neither filed appeal or cross objection challenging the finding of the Commissioner. Thus, so far as the owner is concerned his liability has attained finality. Thus, at the instance of the claimants, liability cannot be shifted.
In view of such facts and law, this appeal prima facie appears to be motivated and filed at the instance of the employeer, is not maintainable and, therefore, deserves to be dismissed and is dismissed.
In normal circumstances, I would have imposed heavy cost, but taking into consideration, benevolent provisions of the Employees Compensation Act, cost is not imposed, however, it will not be out of place to mention that this appeal has been filed in gross misuse of process available to the claimants.
Order Date :- 19.3.2021
Ravi/-
