The Oriental Insurance Co. Ltd vs Lulfa Bewa & Ors
2023 Latest Caselaw 7632 Cal

Citation : 2023 Latest Caselaw 7632 Cal
Judgement Date : 11 December, 2023

Calcutta High Court (Appellete Side)

The Oriental Insurance Co. Ltd vs Lulfa Bewa & Ors on 11 December, 2023

                           IN THE HIGH COURT AT CALUTTA
                              Civil Appellate Jurisdiction
 11.12.2023
SL No.7
Court No. 551
   Ali


                              FMA 18 of 2018
                                   With
                IA No. CAN/1/2017 (Old NO: CAN/10115/2017)
                       The Oriental Insurance Co. Ltd.
                                     Vs.
                           Lulfa Bewa & Ors.

                    Mr. Parimal Kumar Pahari
                               .......... for the appellant/Insurance Co.

                    Mr. Snehasis Jana
                                  ...for the respondents /claimants.

The instant appeal has been preferred

against the Judgment and Award dated 14th June,

2008 passed by learned Commissioner, Employees'

Compensation Tribunal, West Bengal in Claim Case

no. 218 of 2008.

The brief facts of the case is that the present

respondent being the claimants have preferred an

application before the learned tribunal for getting

compensation on the ground that their predecessor

was a driver of vehicle No. WB-57/5478 under

employment of one Partha Pal and was preferring

the duty as a driver under the same employment.

On 30.05.2007 the said vehicle met with an accident

as a result of collision with another vehicle on NH-

34 under Chakdaha P.S., as a result the predecessor

of the present applicant, namely, Taijel Sk became

seriously injured and, thereafter, succumbed to his

injuries.

The claimants have prayed compensation

before the owner of the offending vehicle but the

owner did not pay the compensation, accordingly,

they preferred a claim case before the learned

tribunal.

The insurance company contested the case

before the learned tribunal and after hearing the

parties the learned tribunal has allowed the claim in

favour of the claimants amounting to Rs. 4,27,140/-

alongwith interest @ 12% per annum from the

expiry of one month from the date of accident and

directed the insurance company to pay the

compensation.

Being aggrieved by and dissatisfied with the

impugned judgment, the insurance company has

preferred the present appeal.

Learned advocate for the insurance company

submits that the deceased died under the

employment of the owner of the vehicle. The owner

is solely liable to pay the compensation and if the

owner satisfied that there was a contact between the

owner and the insurance company; thereafter, the

insurance company is at liability to indemnify the

owner. In this case the learned tribunal has directed

directly the insurance company to pay the

compensation. He further argued that the

observation of the learned tribunal is erroneous so

the award passed by the learned tribunal is not

justified.

The learned advocate for the respondents-

claimants submits that by virtue of the decision of

the Hon'ble High Court, the insurance company may

be liable to pay the compensation.

Mr. Parimal Kumar Pahari, learned advocate

appearing on behalf of the insurance company has

frankly submitted before this Court that the Division

Bench of this Hon'ble Court has decided the issue,

on earlier occasions this Court has adopted the

same view in several appeals that the insurance

company may be directed to pay the compensation if

the vehicle duly insured by the insurance company.

Heard the learned advocate for the claimants

and the appellant. By virtue of the decision of the

Hon'ble Division Bench of this Hon'ble Court

passed in National Insurance Company Versus

Nimai and Others. The Division Bench of this Court

has specifically pointed out that when ultimate

payment has to be made by the insurance company

and when the claimants has chosen the forum of

Workmen's Compensation Tribunal so it is

necessary to direct the insurance company to pay

the compensation. The paragraph 32 and 33 of the

Nimai is set out as under:-

"32.However, since the p[resent cases involve accidental

injury and death arising out of use of motor vehicles, the claim for compensation could be laid either under the provisions of the 1923 Act or the 1988 Act. it is the forum under the former Act that the concerned claimant chose to approach. Once a party elects the forum under the 1923 Act, he cannot claim any benefit under the 1988 Act and vice versa. Upon reading the relevant provisions of the 1923 Act and the 1988 Act, we are of the view that while under the latter Act the insurance company may be held liable to indemnify the claimant provided the vehicle involved in the accident is covered by a policy issued by it, the same is not so in case of a claim for compensation succeeding before the Commissioner under the former Act. Mr. Singh is right in his contension that unless section14 of the 1923 Act is attracted in a given case, the compensation found payable to the claimant cannot be directed to be made good by the insurance company; the liability is that of the insured employer who should pay and recover from the insurance company.

33. For the reasons aforesaid, the appeals are liable to succeed and the impugned decisions interdicted. However, Mr. Singh and Mr. Das have very fairly submitted that the vehicles involved in the accidents in

question being covered by policies issued by National and Oriental and the claimants being poor people would otherwise be prejudiced if remand were ordered, they shall pay compensation as directed by the concerned Commissioners to Nimai and Afruja."

Perused the direction of the Hon'ble Division

Bench of this Court.

Considering the entire materials it appears

to me that the offending vehicle was well covered

under the policy of the insurance company at the

time of alleged accident. Thus, in my view I find no

infirmity in the award passed by the learned

tribunal.

The learned advocate for the insurance

company submits that the entire awarded amount

has already been deposited to the office of the

learned Commissioner. This Court has already