National Insurance Company ... vs Reba Mondal & Ors
2023 Latest Caselaw 6952 Cal

11.10.2023
 Ct. 654
 D/L 174
   ab

                    IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURIDICTION
                            APPELLATE SIDE

                             FMA 1678 of 2019
                                    With
              IA No. CAN 1 of 2019(Old No. CAN 11229 of 2019)

                     National Insurance Company Limited
                                     -Vs-
                              Reba Mondal & Ors.


             Mr. Rajesh Singh
                           ... for the appellant-Insurance Company

             Mr. Muktakesh Das
                      ... for the respondent Nos. 1 and 2-claimants

This appeal is directed against the judgment and

award dated 5th July, 2019 passed by the learned

Commissioner, Employee's Compensation, 1st Court,

West Bengal in Claim Case No. 48 of 2012 granting

compensation of Rs. 3,32,055/- together with interest

in favour of the claimants under the Employee's

Compensation Act, 1923 (hereinafter referred to as the

said Act).

The brief fact of the case is that on 10th April,

2006 while the victim working as a "Khalasi" in the

vehicle bearing registration No. WB-51/2317 under his

employer met with a road accident due to a head-on-

collision with another vehicle and he sustained fatal

injuries and died on the same day. On account of

sudden demise of the victim, the parents filed

application for compensation under the Workmen's

Compensation Act, 1923.

The claimants in order to establish their case

examined claimant no. 1 Reba Mondal and also

produced documents, which have been marked as

Exhibits 1 to 8 respectively.

The employer did not contest the claim

application.

The Insurance company did not adduce any

evidence.

Upon considering the materials on record and the

evidence adduced on behalf of the claimants, the

learned Commissioner, Employee's Compensation

granted compensation of Rs. 3,32,055/- together with

interest in favour of the claimants under the Employee's

Compensation Act, 1923.

Being aggrieved by and dissatisfied with the

impugned judgment and award of the learned

Commissioner, Employee's Compensation, the

insurance company has preferred the present appeal.

Mr. Rajesh Singh, learned advocate for the

appellant-insurance company submits that the

relationship of employee and employer, which is a

primary condition in a claim under the said Act has not

been established by the claimants and as such they are

not entitled to receive compensation. He further

submits that as per the said Act, the insurance

company cannot be saddled with the liability to pay

compensation at the first instance. The Act provides

that the employer is to compensate the employee at the

first instance and thereafter, recover the same from the

insurance company under the said Act. The insurance

company is not statutorily liable to pay compensation.

To buttress his contentions, he relies on the decisions of

this Court passed in Sukro Munda and Ors. versus

National Insurance Company Ltd. and Ors., reported

in 2013 (2) TAC 524 and National Insurance Co. Ltd.

and Ors. versus Nimai and Ors., reported in 2017 (4)

LLN 580 (Cal). In the light of his aforesaid submissions,

he prays for setting aside the impugned judgment and

award of the learned Commissioner, Employee's

Compensation.

Mr. Muktakesh Das, learned advocate for the

respondent nos. 1 and 2 (claimants) submits that since

the insurance company has already deposited the

compensation amount and the interest, the

respondents-claimants may be permitted to withdraw

the same.

Having heard the learned advocates for the

respective parties, following issues have fallen for

consideration. Firstly, whether the employee and

employer relationship has been established and

secondly, whether the insurance company is liable to

pay compensation to the claimant at the first instance

under the said Act.

In order to appreciate the first issue, it would be

relevant to reproduce Section 30 of the Act of 1923 as

hereunder:

"30. Appeals.- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:-

(a) an order awarding as compensation a lump sum whether by way of redemption of a half- monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;

[(aa) an order awarding interest or penalty under Section 4A;]

(b) an order refusing to allow redemption of a half- monthly payment;

(c) an order providing for the distribution of compensation among the dependants of a deceased (employee), or disallowing any claim of a person alleging himself to be such dependant;

(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or

(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions;

Provided that no appeal shall lie against any order unless a substantial question of law is involved in this appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount is dispute in the appeal is not less than [ten thousand rupees or such higher amount as the Central government may, by notification in the Official Gazette, specify]:"

The proviso to Section 30 of the said Act as above

provides that no appeal shall lie against any order

unless a substantial question of law is involved in the

appeal. The issue of establishing relationship of the

employee and employer are matters of fact. The learned

Commissioner has extensively dealt with that issue and

came to a categorical finding that the victim was an

employee under his employer. The issue raised

challenging the relationship of employee and employer

is beyond the scope of appeal as provided in the said

Act. Accordingly, such ground is not sustainable in

appeal.

With regard to the second issue, as to whether

the insurance company is liable to pay compensation at

the first instance, it would be apposite to refer to the

observations of this Court relied upon by the appellant-

insurance company in Sukro Munda (supra) and Nimai

(supra).

In Sukro Munda (supra), this Court observed as

follows:

"41. Accordingly, sustaining the objection of Shri Singh for the Insurance Company, we hold that in a case under the said Act, the Insurance Company has no primary liability. It is the lis between the employer and the workmen and the Insurance Company is nothing but a hidden agenda in the entire scheme of things. Whereas after the Act for short, it is precursor for all claim and there is a legal mandate upon it to extinguish the same.

42. Since we have held that the Insurance Company at the first instance has no liability to meet the award of compensation, we would set aside all the chain of awards that have carved the fortune of these appeals wherein the Insurance Companies were made liable to pay."

In Nimai (supra), this Court observed as

hereunder:

"32. However, since the present 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 contention that unless section 14 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."

From the aforesaid observations of this Court, it

goes without saying that the insurance company under

the said Act has no primary liability to pay

compensation at the first instance. It is the lis between

the employer and the workmen.

However, during the course of hearing Mr. Rajesh

Singh, learned advocate for the insurance company

submits that after passing of order in Nimai (supra), the

insurance company has been making payment of

compensation in other subsequent appeals. He also

fairly submits that since the insurance company is

ultimately to indemnify, hence, the respondents-

claimants may be permitted to withdraw the amount of

compensation and the interest which has already been

deposited by the insurance company before the learned

Commissioner, Employee's Compensation. He files

photocopy of two receipts dated 02.03.2020 which is

taken of record.

It is found from the aforesaid photocopy of

receipts dated 02.03.2020 that insurance company has

deposited a sum of Rs. 3,32,055/- and Rs 4,39,186/-.

Although it is held that the insurance company

within the scope of the said Act has no primary liability

at the first instance to pay compensation, however,

considering the submissions advanced on behalf of the

insurance company that since the insurance company

would be finally liable to indemnify the owner

afterwards, the respondent nos. 1 and 2 are given

liberty to approach the learned Commissioner,

Employee's compensation for disbursal of the

compensation amount together with interest which has

been deposited by the insurance company. If the

approach is made, the aforesaid amount along with

accrued interest shall be disbursed in favour of the

rightful claimants in accordance with law as early as

possible.

With the aforesaid observations, the appeal

stands disposed of. No order as to costs.

All the connected applications, if any, stand

disposed of.

Interim order, if any, stands vacated.

Let a copy of this order be sent to the learned

Commissioner, Employee's Compensation, 1st Court,

West Bengal in accordance with rules.

Urgent photostat copy of this order, if applied for,

be given to the parties upon compliance of necessary

legal formalities.

( Bivas Pattanayak, J.)