The Divisional Manager vs A.Pazhaniappan
2021 Latest Caselaw 790 Mad

                                                                             C.M.A. No. 2191 of 2010

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 11.01.2021

                                                       CORAM

                            THE HONOURABLE MR.JUSTICE S.M. SUBRAMANIAM

                                              C.M.A. No. 2191 of 2010
                                                 M.P.No.1 of 2010

                     The Divisional Manager
                     National Insurance Company Limited,
                     74, Paramathi Road,
                     Namakkal.                                                 ... Appellant
                                                    -vs-

                     1. A.Pazhaniappan
                     2. A. Elango                                              ... Respondents


                     PRAYER: Civil Miscellaneous Appeal filed under Section 30 of
                     Workmen's Compensation Act, 1923 against the order passed in W.C.
                     No. 731 of 2006, dated 30.10.2009, on the file of the Workmen
                     Compensation Commissioner, Deputy Commissioner of Labour, Salem.


                                       For Appellant    :   Mr.N.B.Surekha

                                       For Respondents: :   Mr.C.K.M.Appasi
                                                            for Mr.K.Rajasekaran for R1
                                                            No appearance for R2




                     1/8
https://www.mhc.tn.gov.in/judis/
                                                                           C.M.A. No. 2191 of 2010




                                                  JUDGMENT

The award passed in W.C. No. 731 of 2006 dated 30.10.2009 is

under challenge in the present Civil Miscellaneous Appeal.

2. The first respondent one Pazhaniappan was working as a Lorry

Driver with the second respondent, who is the owner of the vehicle

bearing registration No. HR-63-A-9797. On 23.05.2006, the first

respondent/Mr.Pazhaniappan was driving the vehicle which belongs to

the second respondent from Tamil Nadu to Silvasa. At about 6.15 p.m.,

the first respondent parked the said vehicle opposite to Kounduskar

Petrol Pumb at Gokul Shirgon M.I.D.C., on the left side of the Tamil

Nadu to Mumbai Highway. After parking the vehicle, the first respondent

/ driver had gone to the Petrol Pumb for punching the card. While

passing the road on Pune to Bangalore Highway, one motor cycle bearing

Registration No. MH-09-AA-2475 driven by its driver in a rash and

negligent manner came from the wrong side of the Pune to Bangalore

Highway and having lost its control, dashed on the backside of the first

respondent Pazhaniappan. Due to the above accident, the first respondent

https://www.mhc.tn.gov.in/judis/ C.M.A. No. 2191 of 2010

sustained grievous injuries on his left hip, knee, ankle and all over his

body. Immediately after the accident, he was admitted in the Doshi

Hospital, Kolhapur and had taken treatment and then he continued his

treatment in Ganga Hospital, Coimbatore.

3. The Deputy Commissioner of Labour adjudicated the issues

with reference to the facts, evidence and documents. Accordingly, the

liability was fixed on the appellant/National Insurance Company mainly

on the ground that the lorry which met with an accident was insured with

the appellant/Insurance Company and therefore, the appellant is liable to

pay compensation to the driver of the lorry.

4.The contention of the appellant is that the lorry insured with the

appellant/Insurance Company had not involved in the accident at all. The

first respondent/driver, parked the lorry and walked on the Pune to

Bangalore Highway to punch the card in the Petrol Pumb. While crossing

the road, the accident occurred and therefore, the lorry insured had not

involved in the accident. Thus, as per the terms and conditions of the

Insurance Policy, the appellant/Insurance Company is not liable to pay

https://www.mhc.tn.gov.in/judis/ C.M.A. No. 2191 of 2010

compensation to the lorry driver.

5. The learned counsel appearing on behalf of the first respondent

disputed the said contention by stating that the owner of the lorry is

liable to pay compensation as employer and the Insurance Company is

consequently liable to pay the said compensation as per the Insurance

Policy. Therefore, there is no infirmity as such in the award passed by the

Deputy Commissioner of Labour and the appeal is liable to be dismissed.

6. Substantial question of law raised by the appellant is that

whether the Deputy Commissioner of Labour is right in fixing the

income of the claimant as per the provisions of the Act? Whether the

Deputy Commissioner of Labour is right in fixing the liability on the

Insurance Company, irrespective of the fact that the accident had not

occurred while driving the insured vehicle?

https://www.mhc.tn.gov.in/judis/ C.M.A. No. 2191 of 2010

7. This Court is of the considered opinion that with reference to the

liability, undoubtedly, terms and conditions of the Insurance policy place

a pivotal role. The liability is to be fixed based on the statutes and based

on the Insurance Policy, if in-force. The Insurance policy is a contract.

Thus, in the event of any violation of the terms and conditions of the

Policy issued by the Insurance Company, the liability cannot be fixed on

the Insurance Company. Admittedly, the first respondent had parked the

lorry and thereafter, walked on the Pune to Bangalore Highway in order

to punch the card in the petrol Pumb. The lorry was just parked on the

road side and the said lorry had not involved in the accident at all. When

the driver of the lorry was walking towards the Petrol Pumb, another

vehicle hit him and caused accident. Therefore, the accident is in no way

connected with the lorry, which was insured with the

appellant/Company. Thus, the Insurance Company is not liable to pay

compensation. However, since the employer/employee relationship was

established, the owner of the lorry is liable to pay compensation to the

first respondent, who is the driver of the vehicle. During the course of

employment, the accident occurred and the employer/employee was also

https://www.mhc.tn.gov.in/judis/ C.M.A. No. 2191 of 2010

established. Thus, the owner of the vehicle is liable to pay compensation

to the employee.

8. This being the factum established, the Deputy Commissioner of

Labour has committed an error in fixing the liability on the Insurance

Company. The liability is to be fixed on the second respondent/employer.

Therefore, the award deserves to be modified. However, the employee is

entitled for compensation as awarded by the Deputy Commissioner of

Labour along with interest at the rate of 12% per annum.

9. Under these circumstances, the second respondent/employer is

directed to pay the awarded compensation in W.C.No.731 of 2006 to the

first respondent/employee along with interest at the rate of 12% per

annum.

10. Thus, the award dated 30.10.2009 passed in W.C.No.731 of

2006 is set aside, as far as the appellant/Insurance Company is concerned

and the award stands confirmed in respect of the second

respondent/owner of the vehicle. Accordingly, the Civil Miscellaneous

https://www.mhc.tn.gov.in/judis/ C.M.A. No. 2191 of 2010

Appeal stands allowed. No costs. Consequently, connected

miscellaneous petition is also closed.

11.01.2021

Index: Yes Speaking Order: Yes vji/ssb

https://www.mhc.tn.gov.in/judis/ C.M.A. No. 2191 of 2010

S.M. SUBRAMANIAM, J.

vji/ssb

To

The Workmen Compensation Commissioner, Deputy Commissioner of Labour, Salem.

C.M.A. No. 2191 of 2010

11.01.2021

https://www.mhc.tn.gov.in/judis/