Madras High Court
National Insurance Company ... vs Tmt.S.Mathina on 29 January, 2021
C.M.A.No.1763 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.1763 of 2018
and
C.M.P.No.13631 of 2018
National Insurance Company Limited,
No.751, Anna Salai,
Chennai – 600 002. ..Appellant
Vs.
1.Tmt.S.Mathina
2.Minor S.Mohammed Ibrahim
3.Thiru C.Selvam ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 30 of
Workmen's Compensation Act, 1923 against the Award dated
30.11.2017 made in W.C.No.71 of 2014 on the file of the Commissioner
for Workmen's Compensation - 1 cum Deputy Commissioner of Labour
– 1 Tribunal, Chennai. I.
For Appellant : Mr.S.Vadivel
For Respondents : M/s.M.Malar Cav
1/8
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1763 of 2018
JUDGMENT
The substantial question of law raised in the present Civil
Miscellaneous Appeal is that:
'1. whether the Deputy Commissioner of Labour is
right in fixing liability on the Insurance Company in the
absence of Insurance policy.
2. Whether the Deputy Commissioner of Labour as
interpreted as Exs.R1 to R8 in the manner known to law. '
2.The fact remains that the respondents 1 and 2 are claimants,
filed an application under Section 10 of W.C.Act, on the ground that on
23.02.2014 at about 7.15 hours, when the deceased viz., Z.Safiullah was
driving his car bearing Registration No. TN 09 BH 9133 proceeding to
GST Road, met with an accident and sustained multiple head injuries
and died on the spot. The application was filed stating that the husband
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C.M.A.No.1763 of 2018
of the first respondent was employed as a driver and the accident
occurred during the course of employment. It is an admitted fact that the
deceased was employed as a driver with the third respondent
Mr.C.Selvam, who is the owner of the vehicle. The application was
adjudicated by the Deputy Commissioner of Labour and the factum
regarding the accident was established. The employment of the deceased
with the third respondent Mr.C.Selvam, was also established. However,
the Appellant Insurance Company raised a specific ground that the
policy was canceled well before the date of the accident and therefore,
the liability cannot be fixed on the Insurance Company, but it is to be
fixed on the third respondent/owner of the vehicle.
3. In this regard, with reference to the policy, it is contended that
on 09.03.2013, the owner of the vehicle issued the premium cheque
bearing No.038293, drawn on Bank of Baroda for Rs.24,530/-. The
cancellation of policy vide Policy No.500401/31/12/6300012665 was
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C.M.A.No.1763 of 2018
from 12.03.2013 to 11.03.2014. On 13.03.2013, the Bank returned the
cheque with an endorsement “insufficient funds”. On 15.03.2013, the
appellant Insurance Company canceled the policy, in view of the fact
that the cheque was dishonored. On 18.03.2013, intimation was given to
the third respondent/owner of the vehicle and concerned RTO about the
cancellation of the policy and the document was marked as Exs.R5 and
R6 before the Deputy Commissioner of Labour. Admittedly, the
accident occurred on 23.02.2014, after the cancellation of the Insurance
Policy.
4. When the cancellation of the Insurance Policy was marked as
Ex.R5 and the said cancellation was intimated to the RTO concerned as
well as the owner of the vehicle, the Deputy Commissioner of Labour
has committed an error on fixing the liability on the Appellant Insurance
Company. In fact, the liability should be fixed on the third respondent/
owner of the vehicle, in view of the fact that the policy was canceled
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C.M.A.No.1763 of 2018
well before the date of the accident and the cheque issued was also
dishonored and this vital aspect was not considered by the Deputy
Commissioner of Labour.
5. On perusal of the documents marked by the Insurance
Company reveals that the cancellation of Insurance Policy was marked
as Exs.R5 & R6. Therefore, there is no reason to disbelieve the said
document which was communicated to the RTO concerned as well as to
the owner of the Vehicle. It is pertinent to note that the dishonor of the
cheque was not disputed by the owner of the vehicle, who was a party to
the WC proceedings. However, such being the factum, there is no reason
to disbelieve the said document. The dishonoring of the cheque will
result in cancellation of Insurance Policy, which is a procedure followed
by the Insurance Company. When the cheque issued by the owner was
dishonored with an endorsement “insufficient funds”, then the Insurance
Company in routine course would cancel the Insurance Policy. This
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C.M.A.No.1763 of 2018
being the factum, the Deputy Commissioner of Labour committed an
error in fixing the liability on the Appellant Insurance Company.
6. Accordingly, this Court is of an opinion that the liability should
be fixed on the third respondent/owner of the vehicle. Thus, the third
respondent/owner of the vehicle Mr.C.Selvam, is liable to pay the award
amount with accrued interest to the appellant. As far as the appellant
Insurance Company is concerned, they are exonerated from the liability
and therefore, the award amount already deposited by the Appellant
Insurance Company is to be returned back to the appellant with accrued
interest and the appellant Insurance Company is permitted to withdraw
the same by filing an appropriate application and all the payments are
made through the RTGS.
7. Accordingly, the Award dated 30.11.2017, passed in
W.C.No.71 of 2014, is set aside and C.M.A.No.1763 of 2018 stands
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C.M.A.No.1763 of 2018
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
29.01.2021
Pns
Index: Yes/No
Internet:Yes/No
Speaking order/Non speaking order
To
The Commissioner for Workmen's Compensation - 1
cum Deputy Commissioner of Labour – 1 Tribunal,
Chennai. I.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1763 of 2018
S.M.SUBRAMANIAM, J.
Pns
C.M.A.No.1763 of 2018
29.01.2021
https://www.mhc.tn.gov.in/judis/
