Kerala High Court
United India Insurance Co Ltd vs Sasankan on 18 June, 2025
MFA (ECC) NO. 32 OF 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 18TH DAY OF JUNE 2025 / 28TH JYAISHTA, 1947
MFA (ECC) NO. 32 OF 2023
AGAINST THE ORDER DATED 23.01.2023 IN ECC NO.9 OF 2021 (OLD
NO.36/2011) OF EMPLOYEES COMPENSATION COMMISSIONER (INDUSTRIAL TRIBUNAL),
THIRUVANANTHAPURAM
APPELLANT/2ND OPPOSITE PARTY:
UNITED INDIA INSURANCE COMPANY LTD
DIVISIONAL OFFICE, NO.1, 3RD FLOOR, CWC BUILDING,
LMS COMPOUND, THIRUVANANTHAPUARAM REP BY THE DULY AUTHORISED
SIGNATORY ASST. MANAGER, REGIONAL OFFICE, HOSPITAL ROAD,
KOCHI., PIN - 682011
BY ADV SHRI.RAJAN P.KALIYATH
RESPONDENTS/APPLICANTS AND 1ST OPP.PARTY:
1 SASANKAN
PULIYTH CHARUVILA VEEDU, PALACHIRA, VARKALA,
THIRUVANANTHAPURAM, PIN - 695143
2 AJITHAKUMARI
W/O. SASANKAN, PULIYTH CHARUVILA VEEDU, PALACHIRA, VARKALA,
THIRUVANANTHAPURAM., PIN - 695143
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3 ARCHANA
D/O. SASANKAN, PULIYTH CHARUVILA VEEDU, PALACHIRA, VARKALA,
THIRUVANANTHAPURAM., PIN - 695143
4 CHANDRA BABU
MANAGING PARTNER, SREE DHANYA CONSTRUCTION COMPANY,
SASTHAMANGALAM, THIRUVANANTHAPURAM., PIN - 695010
BY ADVS.
SMT.K.K.JYOTHILAKSHMY
SRI.SAIJO HASSAN
SMT.LEKSHMY I.
SRI.RINU. S. ASWAN
SMT.GOPIKA H.H
SHRI.BENCILAL B.S.
SHRI.NAGARAJ NARAYANAN
SRI.BENOJ C AUGUSTIN
SHRI.RAFEEK. V.K.
SRI.U.M.HASSAN
SMT.AATHIRA SUNNY
SMT.RAJALAKSHMI R.
SMT.SARITHA K.
THIS MFA (ECC) HAVING COME UP FOR ADMISSION ON 18.06.2025, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The 2nd Opposite Party - Insurance Company has filed this
Appeal challenging the liability fixed on the 2nd Opposite Party
to pay the entire compensation ordered by the Employees
Compensation Commissioner. The respondents 1 to 3 are the
Applicants and the 4th respondent is the 1st Opposite party
before the Commissioner.
2. In view of the arguments addressed before me, the following
substantial question of law is formulated.
1. Whether the Commissioner is justified in directing
the 2nd Opposite party - Insurance Company to pay
the compensation calculated on monthly wages in
excess of Rs.5,000/- stipulated in Ext.B3 policy?
3. The learned counsel on both sides consented for addressing
arguments on the aforesaid substantial question of law.
Accordingly, the matter was heard on the aforesaid question of
law.
4. The counsel for the appellant, Sri. Rajan P. Kaliyath contended
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that in the Ext.B3 Insurance Policy Certificate, the wages of the
Supervisor is restricted to Rs.5,000/- per month. Hence the 2nd
Opposite party has a liability to pay the compensation
calculated on the monthly wages of Rs.5,000/-. The Employees
Compensation Commissioner has fixed compensation of
Rs.9,00,880/- on the monthly wages of Rs.8,000/- and ordered
the 2nd Opposite Party to pay the entire compensation with
interest. In view of the limit of the monthly wages in Ext.B3,
the commissioner ought to have directed the 1st Opposite Party
to pay the compensation over and above the compensation
calculated on the monthly wages of Rs.5,000/-. The learned
counsel invited my attention to the specific clause in Ext.B3
policy that, even if there is a change of law, the terms of the
policy shall prevail.
5. The learned counsel for the respondents 1 to 3 pointed out that,
in the evidence of DW1, the Assistant Manager of the Insurance
Company, it is admitted that the Policy was not a limited one.
The Commissioner has specifically relied on the evidence of
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DW1 and found that the Insurance Company is liable to pay
compensation calculated on the monthly wages @ Rs.8,000/-.
There is no perversity in the said finding to interfere in this
appeal. The Substantial question of law formulated does not
arise for consideration in the light of the evidence of DW1.
6. The learned counsel for the fourth respondent/employer
contended that the Policy was issued before the 2009
Amendment. Hence, the monthly wages was fixed at Rs.5,000/-
in the Policy. When the monthly wages was increased with
effect from 18.01.2010, the applicants are entitled to get the
said benefit since the accident happened on 09.03.2010, i.e.,
subsequent to the date of the Amendment. It was the duty of
the Insurance Company to intimate the insured to make the
necessary additions in the Policy on implementing the
Amendment increasing the wage limit.
7. I have considered the rival contentions.
8. When an insurance policy is taken by the employer, the terms
and conditions of the contract of the insurance policy govern
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the field unless the Policy is a statutory one. Ext.B3 is not a
statutory policy. Even if there is an increase in the wage limit
in the Employee's Compensation Act through the Amendment,
what is relevant is the wages declared in the insurance policy.
In the Ext.B3 insurance policy, it is revealed that the wages
declared is Rs.5,000/- per month for a supervisor. When the
monthly wages is limited to Rs.5,000/- in Ext.B3 policy, even if
the witness of the Insurance Company has stated otherwise in
the oral examination, the same is not relevant in view of the
terms in Ext.B3 Insurance Policy admitted by the parties.
Hence, the 2nd opposite party is liable to pay compensation
calculated on the monthly wages of Rs.5,000/- and the
remaining compensation is to be paid by the 1st Opposite party.
The issue is covered by the judgment of this Court dated
22.06.2023 in MFA (ECC) No.210/2010, in which this Court has
specifically held that the Insurance Company is liable for
compensation with respect to the monthly wages declared in
the insurance policy.
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9. In view of the aforesaid decision of this Court and the monthly
wages of Rs.5,000/- declared in Ext.B3 Insurance Policy, I am
of the view that the 2nd Opposite Party is liable to pay
compensation of Rs.5,63,050/- calculated on the monthly
wages of Rs.5,000/- and the 1st Opposite Party is liable to pay
compensation of Rs.3,37,830/- calculated on the monthly
wages of Rs.3,000/- out of the total compensation of
Rs.9,00,880/- fixed by the Commissioner.
10. Accordingly, this Appeal is allowed in part without costs
confirming the amount of compensation fixed by the
Commissioner in the impugned Order and modifying the
direction as to payment of the same by ordering as follows:
a. The 1st Opposite party shall pay Rs.3,37,830/- as
compensation with interest @ 12% per annum from the
date of accident till the date of deposit of the same, with
funeral expenses of Rs.5,000/- and costs of Rs.1,900/- to
the applicants.
b. The 2nd Opposite party shall pay Rs.5,63,050/- as
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compensation with interest @ 12% per annum from the
date of accident till the date of deposit of the same to the
applicants.
c. The 1st Opposite party is directed to deposit his part of the
compensation within a period of 30 days from today.
d. The 2nd Opposite Party is allowed to withdraw the excess
amount deposited by it.
Sd/-
M.A. ABDUL HAKHIM
JUDGE
Shg/xx
