Madras High Court
Messers The United India ... vs Thiru.M.Erudhayaraj on 20 January, 2021
C.M.A.No.1320 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.01.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.1320 of 2008
and
M.P.No.1 of 2008
Messers The United India Insurance Co., Ltd.,
Motor Third Party Cell, 38, Anna Salai,
Chennai – 2. ..Appellant
Vs.
1.Thiru.M.Erudhayaraj
2.Thiru.M.Mohan ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 30 of
Workmen's Compensation Act, against the order dated 12.10.2007 made
in W.C.No.485 of 2006 on the file of the Court of Commissioner for
Workmen's Compensation (Deputy Commissioner of Labout – 2) at
Chennai and received on 31.12.2007.
For Appellant : Mr.M.Krishnamoorthy
For Respondents : Mr.M.Pachaiyappan
[For R1]
R2 – Want of correct address
1/8
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C.M.A.No.1320 of 2008
JUDGMENT
The Award passed in W.C.No.622 of 2016 dated 12.10.2007 is
under challenge in the present Civil Miscellaneous Appeal.
2. The Substantial questions of law raised in the appeal on hand
are that Whether liability can be fastened on the insurer when the
contract of insurance does not give coverage for such type of person,
more specifically for a Cleaner in the present case, when there is no
coverage for the Cleaner under the terms and conditions of the Insurance
policy; Whether the Deputy Commissioner of Labour is empowered to
fix the loss of earning capacity overlooking the provisions of Section
4(1)(C)(II) of Workmen's Compensation Act, when there is no evidence
fixing loss of earning capacity by a qualified medical practitioner.
3. The 1st respondent filed an application under Section 10 of the
Workmen Compensation Act, 1923 on the ground that he was engaged
as a Cleaner by the 2nd respondent/Mr.M.Mohan in his lorry bearing
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C.M.A.No.1320 of 2008
Registration No.MSY.2106. The 1st respondent has stated that he was
drawing a monthly salary of Rs.6,000/- on 30.09.2006 at about 6.00
A.M., when the 1st respondent was on duty as Cleaner, a load of Rubbies
which was demolished from the old building into the lorry at Door
No.129, Broad way Road, which was parked, suddenly the wall of the
building had broken and fell down on the 1st respondent. The 1st
respondent sustained injuries and a F.I.R. was filed in Crime
No.725/2006. The 1st respondent filed application, seeking
compensation.
4. The appellant/Insurance company raised objections mainly on
the ground that the application for compensation itself is not
maintainable. The accident occurred on 30.09.2006 at 06.00 hours and
the 1st respondent/applicant was working as a Cleaner and sustained
injuries during the course of his employment. The said factum itself is
incorrect. The 1st respondent has not established these factors before the
Deputy Commissioner of Labour. The application is not maintainable, in
view of the fact that the 1st respondent was not employed as Cleaner in
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C.M.A.No.1320 of 2008
lorry bearing Registration No.MSY.2106. The Injury allegedly sustained
were no way connected with the 2nd respondent's lorry, the lorry bearing
Registration No.MSY.2106 was not parked in front of Door No.129,
Broadway on 30.09.2006 at about 06.00 hours. The 1st respondent had
colluded with the 2nd respondent and filed the application for unjust
enrichment. This apart, there is no coverage in the Insurance policy as
far as Cleaner is concerned. When the accident was not occurred during
the course of employment and the facts are also contradictory, the
Deputy Commissioner of Labour has committed an error in granting
compensation.
5. This Court is of the considered opinion that the Deputy
Commissioner of Labour proceeded on the basis that the vehicle bearing
Registration No.MSY.2106 was insured with the appellant / Insurance
company. Further, the Deputy Commissioner of Labour made a finding
that there was no coverage for the Cleaner as per the terms and
conditions of the policy. The coverage was in force in respect of a third
party liability alone. When there is no policy at all, there is no reason to
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C.M.A.No.1320 of 2008
grant compensation. In such circumstances, the owner of the vehicle is
liable to pay compensation.
6. In the present case, the 2nd respondent, who is the owner of the
vehicle, is liable to pay the compensation to his employee. Contrarily,
the compensation cannot be granted in violation of the terms and
conditions of the Insurance policy. The 1st respondent has not
established that as per the coverage, the Cleaner is entitled to get
compensation from the Insurance company.
7. In the absence of establishing such factors, the Deputy
Commissioner of Labour has committed an error in granting
compensation by fixing liability on the appellant/United India Insurance
company. This being the factum, this Court is of the considered opinion
that the 2nd respondent/owner of the vehicle is liable to pay
compensation to the 1st respondent/employee. As far as the appellant/
Insurance company is concerned, they have established that there is no
coverage for Cleaner with reference to the terms and conditions of the
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C.M.A.No.1320 of 2008
Insurance policy and no such coverage was established by the 1st
respondent during the course of trial before the Deputy Commissioner of
Labour. Accordingly, the questions of law raised is accepted and the
liability cannot be fastened on the insurer when there is no contract of
insurance policy providing coverage to the applicant.
8. Thus, the Award dated 12.10.2007 passed in W.C.No.622 of
2016 is set aside and the Civil Miscellaneous Appeal in C.M.A.No.1320
of 2008 stands allowed. The appellant is permitted to withdraw the
amount already deposited along with accrued interest by filing an
appropriate application before the Deputy Commissioner of Labour. No
costs. Consequently, connected miscellaneous petition is closed.
20.01.2021
kak
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
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C.M.A.No.1320 of 2008
To
1. The Court of Commissioner
for Workmen's Compensation
(Deputy Commissioner of Labout – 2)
Chennai.
2.The Sub-Assistant Registrar,
A.E.Section,
High Court of Madras.
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C.M.A.No.1320 of 2008
S.M.SUBRAMANIAM, J.
kak
C.M.A.No.1320 of 2008
20.01.2021
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