The New India Assurance Company ... vs Govind Nandu Rathod And Others
2016 Latest Caselaw 1187 Bom

                                         1                     FA NO.3272015

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                       
                       BENCH AT AURANGABAD

                           FIRST APPEAL NO.3271 OF 2015




                                              
                                       with
                                 CA NO. 4350/2016

      The New India Assurance Company Ltd.




                                             
      A subsidiary of the General Insurance
      Company of India Ltd., having one of
      its Divisional office at Adalat
      Road, Aurangabad through its
      Aurorized Signatory               =                APPELLANT




                                      
               VERSUS        
      1)       Govind Nandu Rathod 
               Age: 38 Yrs., occu. Nil
               R/o Varkhede Tq. Chalisgaon,
                            
               District Jalgaon.

      2)       Managing Director,
               Dr.Baburao Bapuji Tanpure
               Sahakari Sakhar Karkhana Ltd.
      


               Shri Shivajinagar, Tq. Rahuri,
               District Ahmednagar.
   



      3)       Mukadam
               Ramdas Maharu Bacchav (Dhangar)
               Age: 42 Yrs., occu. Labour





               Contractor, R/o at Londhe,
               40Gaon, Dist. Jalgaon.

      4)       Chairman,
               The Krushak Seva Sahayyak Samiti
               Trust, Shri Shivajinagar,





               Tq. Rahuri, Dist. Ahmednagar. =    RESPONDENTS 
                                             (Resp.No.1 is orig.
                                             claimant; Resp.Nos.
                                               2-4 orig.Resp.Nos. 
                                                            1 -3)
                                   -----
      Mr. AB Kadethankar,  Advocate for Appellant;

      Mr. RB Ade, Adv. for Respondent No.1.




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                                              2                       FA NO.3272015

                                       -----




                                                                             
                                   CORAM :       P.R.BORA, J.

DATE :

4 th

April,2016.

ORAL JUDGMENT:

1) Heard. Admit. With consent of the

learned Counsel for the parties, taken up for

final hearing.

2) Appellant/insurance company has

challenged the Judgment and Award dated 10th

March, 2015 passed by the Commissioner for

Workmen's Compensation and Judge, Labour Court at

Jalgaon (hereinafter referred to as the

Commissioner) in WCA No.1/2009. The aforesaid

claim application was filed by present Respondent

No.1 claiming compensation on account of the

personal disablement incurred by him during the

course of his employment with Respondent No.2-

sugar factory. It was the contention of the

original claimant that he got injured in the

course of his employment with Respondent No.2-

sugar factory and incurred 25% permanent

3 FA NO.3272015

disability. He, had, therefore, filed the

application claiming compensation amounting to

Rs.1,50,000/- jointly and severally from the

present appellants and other respondents.

3) The claim application was resisted by

the appellant/insurance company firstly on the

ground that it was not maintainable before the

learned Commissioner. The another contention

which was raised by the insurance company was

that no Award beyond the amount of the risk which

was covered under the insurance policy could have

been passed. The learned Commissioner, however,

on the basis of evidence, which was brought

before him, partly allowed the application and

held the claimant entitled to the compensation

amounting to Rs.1,24,788/- and also awarded

interest on the said amount. The learned

Commissioner held the sugar factory and all other

respondents including the present appellant,

jointly and severally liable to pay the said

amount of compensation. Being aggrieved by the

4 FA NO.3272015

aforesaid Judgment and Award, the insurance

company has filed the present appeal.

4) Shri Kadethankar, learned Counsel

appearing for the appellant, submitted that the

insurance policy which was involved in the

present matter was styled as "Janata Personal

Accident Policy". The learned Counsel further

submitted that the said policy was purchased by

Respondent No.2-sugar factory. The learned

Counsel submitted that under the said policy, the

risk was to be covered only up to the extent of

Rs.1,00,000/-. The learned Counsel further

submitted that as per the terms of the policy,

the purchaser of the policy should have applied

to the insurance company with necessary

particulars so as to consider the proposal for

award of compensation and the learned

Commissioner was not having any jurisdiction to

either entertain the claim under the said policy

or to give any direction under the provisions of

The Workmen's Compensation Act. The learned

5 FA NO.3272015

Counsel has, therefore, prayed for setting aside

the impugned Award passed by the learned

Commissioner. It was also brought to my notice

that the appellant/insurance company has

deposited the amount under the Award with the

learned Commissioner as statutorily the same was

required to be deposited and the same is lying

with the learned Commissioner.

5) The learned Counsel appearing for the

original claimant/Respondent No.1, submitted that

the learned Commissioner was having every right

and authority to entertain the application filed

by the claimant and the compensation awarded by

the learned Commissioner is just and adequate and

no interference is required in the impugned

Judgment and Award. The learned Counsel

alternatively submitted that if this Court

reaches to the conclusion that no compensation

could have been awarded by the learned

Commissioner beyond the covered risk under the

insurance policy, i.e. sum of Rs.1,00,000/-, the

6 FA NO.3272015

claimant is ready to restrict his claim to the

said amount; and if the Award is modified to that

extent, the claimant may not have any objection.

6) After having considered the submissions

made as above by the learned Counsel appearing

for the respective parties, apparently there

remains no dispute as regards quantum of

compensation. Apparently, the submission, made

by the appellant/insurance company that when the

risk was limited up to Rs.1,00,000/-, the Award

ought to have been passed to that extent, appears

to be acceptable. When the learned Counsel for

the original claimant has come out with the

proposal that the claimant would be happy with

the said amount of Rs.1,00,000/- and he may not

have any objection, if the Award is modified to

that extent, the issue of quantum of the

compensation stands resolved.

7) The only issue which remains to be

considered is whether the learned Commissioner

7 FA NO.3272015

was having authority to entertain the application

and pass such Award. It appears to me that the

said issue need not be gone into and shall be

kept open to be agitated in an appropriate

proceedings. In the instant case, the

application has already been entertained by the

Commissioner and Award has also been passed. As

mentioned herein before, the learned Counsel

appearing for the claimant has restricted the

claim of compensation to Rs.1,00,000/-, having

regard to the fact that the risk covered under

the Janata Personal Accident Policy was

restricted to the sum of Rs.1,00,000/-. Even if

the contention of the learned Counsel appearing

for the appellant/insurance company is accepted

that appropriate course would have been that the

sugar factory approaches the insurance company

with a proposal in prescribed proforma providing

all necessary particulars, the amount of

compensation would have remained the same, i.e.

Rs.1,00,000/-. In the circumstances, now, I do

not see any reason for setting aside the Award

8 FA NO.3272015

passed by the Commissioner and direct the sugar

factory to move the proposal in the prescribed

proforma claiming compensation under the said

Janata Personal Accident Policy. When in both

the contingencies the liability to pay the

compensation was to be discharged by the

insurance company and as mentioned herein before,

when no dispute has remained as regards the

quantum of compensation, it appears to me that

there is no propriety in setting aside the Award

on the ground of maintainability. It would meet

the ends of justice if the Award is modified and

the liability of the insurance company to pay the

compensation is restricted to the sum of

Rs.1,00,000/-. Hence, the following order, -

ORDER

i) The appeal is partly allowed;

ii) The impugned Award stands modified to the

extent that the claimant is held entitled for the

total compensation of Rs.1,00,000/- in lump sum,

to be paid to the claimant by the insurance

9 FA NO.3272015

company;

iii) The claimant is at liberty to withdraw Rs.

1,00,000/- from and out of the amount deposited

by the insurance company before the learned

Commissioner;

iv) The Insurance Company is at liberty to

withdraw the balance amount lying with the

learned Commissioner;

8) The appeal stands disposed of in the

aforesaid terms. CA No.4350/2016 for withdrawal

of the amount stands disposed of.

sd/-

(P.R.BORA) JUDGE

bdv/