The National Insurance Company ... vs Manoj Nath And Anr
2021 Latest Caselaw 1386 Gua

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GAHC010007032015




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : MFA/2/2015

            THE NATIONAL INSURANCE COMPANY LIMITED
            SUBSIDIARY OF GENERAL INSURANCE CORPORATION OF INDIA
            REGISTERED HEAD OFFICE AT 3, MIDDLETON STREET, CALCUTTA 700071,
            REPRESENTED BY THE ASSTT. MANAGER, GAUHATI REGIONAL OFFICE,
            BHANGAGARH, GUWAHATI 781005



            VERSUS

            MANOJ NATH and ANR.
            S/O SRI BIREN NATH, VILL. NIJ DHING, P.O. DHING, DIST. NAGAON,
            ASSAM.

            2:SUDARSHAN BHARDWAJ

             S/O LT. CHAND BHARDWAJ
             VILL. J.P. ROAD
             JORHAT
             DIST. JORHAT
             ASSAM OWNE

Advocate for the Petitioner   : MS.N SARMA

Advocate for the Respondent :




                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                       JUDGMENT

Date : 09-04-2021 Page No.# 2/10

Heard Ms. R. D. Mozumdar, the learned counsel appearing for the appellant as well as Mr. N. Sarkar, the learned counsel appearing for the respondent.

2) This is an appeal u/s 30 of the Workmen Compensation Act, 1923 against judgment

dated 05.05.2014, passed by the Commissioner, Employees Compensation, Nagaon in NWC

Case No. 97/07 awarding compensation of Rs. 2,015,40/- to the respondent no.

1.

3) The facts of the case in nutshell is like this: on 16.06.2007, the claimant was driving

one vehicle bearing registration No. AS 03F/009 (truck). The vehicle was loaded at Guwahati

with sanitary tiles, mango fruit juice etc. The

goods were to be unloaded at Jorhat, while the vehicle reached Gomothagaon, in the

National Highway No. 37, suddenly the deferential of the vehicle broke down and the front

wheels came out from the chassis of the vehicle. The vehicle turned turtle on the road side.

The accident took place at about 4 am. The claimant/driver sustained injury on his right

forearm and over the chest wall. He was taken to B.P. Civil Hospital, Nagaon for treatment

with the help of Traffic Police. Nagaon Police, Traffic Branch, registered a case viz Nagaon P.S.

Traffic Branch GDE No. 218, dated 16.05.2007. The owner of the vehicle informed about the

accident but he did not pay any compensation.

4) The issues framed by the Commissioner, Workmen Compensation are Page No.# 3/10

(i) Whether the claimant petitioner Sri Manoj Nath is an employee as per law ?

(ii) Whether the claimant Sri Manoj Nath has sustained injury in a accident during

course of arising out of his employment under the opposite party no. 1?

(iii) Whether the injury sustained by the petitioner caused any permanent physical

disability and if so, whether such disablement resulted any loss of his earning capacity? What

would be the extent of such loss?

(iv) What would be the due amount of compensation due based on the monthly wages

and age of the petitioner.

5) The respondent examined two witnesses and finally an amount of Rs. 2,0,15,40/- was

awarded as compensation, after holding that the accident occurred during the course of

employment of the respondent.

6) Being aggrieved by the aforesaid judgment the present appeal has been preferred.

7) The learned counsel for the appellant has submitted that the learned Commissioner

failed to appreciate that the Workmen Compensation Act, 1923 stipulates that the insured

(owner of the involved vehicle) is to satisfied the award in terms of the statutes and in

accordance with law. Since the provision of the statute would always prevail over any contract

entered into between two individuals. Insurance Company is only to indemnify/reimburse the

awarded amount to the owner of the vehicle concerned (if any) after the amount stands paid

by the said owner/insured concerned.

Page No.# 4/10

8) Mrs. Mozumdar further submitted that the learned Commissioner failed to appreciate

that as per the provisions of the MV Act 1988 the claimant can chose either options from

amongst the two i.e either the MV Act, or the Workmen Compensation Act not both. Mrs.

Mozumdar clarified that under the Workmen Compensation Act "employee" is not the "third

party" and therefore, the said employee or his representative choosing the provision of

workmen Compensation is entitled to receive the compensation amount from the

insured/employer at the first instance and not from the Insurance Company as wrongly held,

by the learned Commissioner.

9) The learned counsel for the appellant, has submitted that the driving license of the

injured which was exhibited as exhibit 7 discloses that the driver was 17 years old on the

date of the accident, and therefore, he was not entitled to have valid driving license. Mrs.

Mozumdar further submitted that the respondent was the driver of the vehicle and therefore,

he cannot be treated as a third party and therefore the Insurance Company is not liable to

pay any compensation to him.

10) Per contra, the learned counsel for the respondent relied upon a decision of the Hon'ble

Supreme Court that was rendered in Ved Prakash Garg Vs. Premi Devi and others reported in

(1997) 8 SCC 1. The Para 14 reads as under:

"On a conjoint operation of the relevant schemes of the aforesaid twin Acts, in

our view, there is no escape from the conclusion that the insurance companies will Page No.# 5/10

be liable to make good not only the principal amounts of compensation payable by

insured employers but also interest thereon, if ordered by the Commissioner to be

paid by the insured employers. Reason for this conclusion is obvious. As we have

noted earlier the liability to pay compensation under the Workmen's Compensation

Act gets foisted on the employer provided it is shown that the workman concerned

suffered from personal injury, fatal or otherwise, by any motor accident arising out

of and in the course of his employment. such an accident is also covered by the

statutory coverage contemplated by Section 147 of the Motor Vehicles Act read

with the identical provisions under the very contracts of insurance reflected by the

Policy which would made the insurance company liable to cover all such claims for

compensation for which statutory liability is imposed on the employer

under Section 3 read with Section 4A of the Compensation Act. All these provisions

represent a well- knit scheme for computing the statutory liability of the employers

in cases of such accidents to their workmen. As we have seen earlier while

discussing the scheme of Section 4A of the Compensation Act the legislative intent

is clearly discernible that once compensation falls due and within one month it is

not paid by the employer then as per Section 4A(3)(a) interest at the permissible

rate gets added to the said principal amount of compensation as the claimants

would stand deprived of their legally due compensation for a period beyond one

month which is statutorily granted to the employer concerned to make good his

liability for the benefit of the claimants whose bread-winner might have either

been seriously injured or might have lost his life. Thus so far as interest is

concerned it is almost automatic once default, on the part of the employer in Page No.# 6/10

paying the compensation due, takes place beyond the permissible limit of one

month. No element of penalty is involved therein. It is a statutory elongation of the

liability of the employer to make good the principal amount of compensation within

permissible time limit

during which interest may not run but otherwise liability of paying interest on

delayed compensation will ipso facto follows. Even though the Commissioner under

these circumstances can impose a further liability on the employer under

circumstances and within limits contemplated by Section 4A(3)(a) still the liability

to pay interest on the principal amount under the said provision remains a part and

parcel of the statutory liability which is legally liable to be discharged by the

insured employer. Consequently such imposition of interest on the principal amount

would certainly partake the character of the legal liability of the insured employer

to pay the compensation amount with due interest as imposed upon him under

the Compensation Act. Thus the principal amount as well as the interest made

payable thereon would remain part and parcel of the legal liability of the insured to

be discharged under the Compensation Act and not dehors it. It, therefore, cannot

be said by the insurance company that when it is statutorily and even contractually

liable to reimburse the employer qua his statutory liability to pay compensation to

the claimants in case of such motor accidents to his workmen, the interest on the

principal amount which almost automatically gets foisted upon him once the

compensation amount is not paid within one month from the date it fell due, would

not be a part f the insured liability of the employer. No question of justification by Page No.# 7/10

the insured employer for the delay in such circumstances would arise for

consideration. It is of course true that one month's period as contemplated

under section 4A(3) may start running for the purpose of attracting interest under

sub-clause (a) thereof in case where provisional payment becomes due. But when

the employer does not accept his liability as a whole under circumstances

enumerated by us earlier then section 4A(2) would not get attracted and one

month's period would start running from the date on which due compensation

payable by the employer is adjudicated upon by the Commissioner and in either

case the Commissioner would be justified in directing payment of interest in such

contingencies not only from the date of the award but also from the date of the

accident concerned. Such an order passed by the Commissioner would remain

perfectly justified on the scheme of Section 4A(3)(a) of the Compensation Act. But

similar consequence will not follow in case where additional amount is added to

the principal amount of compensation by way of penalty to be levied on the

employer under circumstances contemplated by Section 4A(3)(b) of the

Compensation Act after issuing show cause notice to the employer concerned who

will have reasonable opportunity to show cause why on account of some

justification on his part for the delay n payment of the compensation amount he is

not liable for this penalty. However if ultimately the Commissioner after giving

reasonable opportunity to the employer to show cause takes the view that there is

no justification for such delay on the part of the insured employer and because of

his unjustified delay and due to his own personal fault he is held responsible for

the delay, then the penalty would get imposed on him. That would add a further Page No.# 8/10

sum up to 50% on the principal amount by way of penalty to be made good by the

defaulting employer. So far as this penalty amount is concerned it cannot be said

that it automatically flows from the main liability incurred by the insured employer

under the Workmen's Compensation Act. To that extent such penalty amount as

imposed upon the insured employer would get out of the sweep of the term

'liability incurred' by the insured employer as contemplated by the proviso

to Section 147(1)(b) of the Motor Vehicle Act as well as by the terms of the

Insurance Policy found in provisos (b) and (c) to sub-section (1) of section II

thereof. On the aforesaid interpretation of these tow statutory schemes, therefore,

the conclusion becomes inevitable that when an employee suffers from a motor

accident injury while on duty on the motor vehicle belonging to the insured

employer, the claim for compensation payable under the Compensation Act along

with interest thereon, if any, as imposed by the Commissioner Section 3 and 4A(3)

(a) of the Compensation Act will have to be made good by the insurance company

jointly with the insured employer. But so far as the amount of penalty imposed on

the insured employer under contingencies contemplated by Section 4A(3)(b) is

concerned as that is on account of personal fault of the insured not backed up by

any justifiable cause, the insurance company cannot be made liable to reimburse

that part of the penalty amount imposed on the employer. The latter because of

his own fault and negligence will have to bear the entire burden of the said penalty

amount with proportionate interest thereon if imposed by the Workmen's

Commissioner".

Page No.# 9/10

11) Reverting to the case in hand, the only ground of appeal is that the Insurance

Company is not liable to pay compensation. Mrs. Mozumdar, has submitted that the owner

has to pay the first compensation and after that the Insurance Company shall pay him the

compensation.

12) In Ved Prakash Garg (Supra), the Supreme Court has held that the insurance

company will be liable to meet the claim for compensation along with interest as imposed on

the insured employer the Workmen's Commissioner under the Compensation Act on the

conjoint operation of Section 3 and Section Act on the conjoint operation of Section

3 and Section 4A

13) So far as the age of the driver/respondent is concerned, in my considered opinion, for a

case under the Motor Vehicle Act, the age of the driver is relevant. So far as the Workmen

Compensation Act of 1923, is concerned, age of the driver is not that relevant as has been

highlighted by the appellant. The scheme of the Act of 1923 is that when ever, a workman

gets injured during the course of his employment, his employer is to pay the compensation.

There is no doubt that the respondent/driver sustained injury, in course of his employment

and that is why, he is entitled to get compensation. This Court finds that the impugned

judgment of the learned Commissioner does not required any interference by this appellate

Court.

14) The appeal is found to be devoid of merit and stands dismissed accordingly.

JUDGE

Nabanita Page No.# 10/10

JUDGE

Comparing Assistant