Madras High Court
M/S. New India Assurance Company ... vs Kokila on 10 April, 2023
C.M.A.No.274 of 2016 and M.P.No.2311 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.04.2023
CORAM
THE HON-BLE MR.JUSTICE P.B.BALAJI
C.M.A.No.274 of 2016 and
M.P.No.2311 of 2016
M/s. New India Assurance Company Limited,
Post Box No.47, Kumaran Shopping Complex,
Kumaran Road,
Tiruppur 641601. ...Appellants/2nd Opp.Party
Vs.
1.Kokila
2.Nagarasan (Minor)
3.Akila Shree (Minor)
4.Dasan @ Guruva Dasan
5.Kannammal ...Respondents1to5/Applicants
6.The Management,
M/s. Periyanayagi Amman Indane Gas Service,
SF No.168/4, 168/7, 168/8
Periyapalayam Village,
Mannarai (PO), Tiruppur. ...6th Respondents/1st Opp Party
Prayer: Civil Miscellaneous Appeal is filed under Section 30 of Workmen's
Compensation Act, 1923 against the order in EC No.95 of 2014 dated
14.09.2015 on the file of Commissioner for Workmen Compensation,
Page: 1 / 8
https://www.mhc.tn.gov.in/judis
C.M.A.No.274 of 2016 and M.P.No.2311 of 2016
Deputy Commissioner of Labour, Coimbatore.
For Appellants : Mr.R. Sivakumar
For Respondents : R1 – served (No appearance)
R2 & R3 minors Rep.by R1
*****
JUDGMENT
The Insurance Company is the Appellant in the above Civil
Miscellaneous Appeal, aggrieved by the Order passed in E.C.No.95 of 2014
on the file of the Commissioner for Workmen Compensation, Deputy
Commissioner of Labour, Coimbatore.
2. The Applicants namely, Kokila, her two minor children represented
by their mother Kokila and parents of the deceased Devarasu viz., Dasan @
Guruva Dasan and Kannammal, approached the Commission seeking
compensation for the demise of the said Devarasu, claiming Rs.10 lakhs.
3. It is the case of the claimant that on 02.08.2014 the deceased was
Page: 2 / 8
https://www.mhc.tn.gov.in/judis
C.M.A.No.274 of 2016 and M.P.No.2311 of 2016
working in the 1st Respondent gas company, proceeded to attend a complaint
of gas leakage problem at Sri Krishna Bakery situated on Universal Theater
Road, Tirupur, and at that time the fire accident occurred, resulting in the
unfortunate demise of said employee, Devarasu. He sustained burn injuries
and subsequently succumbed to the same on 05.08.2014 at Ganga Medical
Center Hospital, Coimbatore.
4. The deceased, according to the applicants, was earning Rs.9,500/-
per month and he died only in the course of employment with the 1st
Respondent and since the 1st Respondent was duly insured with the 2nd
Respondent, Appellant herein, the Insurance Comnpany was liable to pay
compensation.
5. 1st Respondent filed its counter, admitting the employment of the
deceased Devarasu with them. The 1st Respondent however, contended that
since the 1st Respondent was insured with the 2nd Respondent/Appellant
herein, the Appellant alone have to pay compensation under Employees
Compensation Act.
Page: 3 / 8
https://www.mhc.tn.gov.in/judis
C.M.A.No.274 of 2016 and M.P.No.2311 of 2016
6. The 2nd Respondent/Appellant herein filed a counter stating that the
policy that was taken by the 1st Respondent covers risk to public, in other
words, it was a public liability policy and therefore, an employee of the 1 st
Respondent i.e., the deceased Devarasu was not liable to be compensated by
the Insurer.
7. Before the Tribunal, the 1st Petitioner Kokila was examined as
P.W.1 and Exs.P.1 to P.8 were marked. On the side of the 1st Respondent
Ex.R1 Policy was marked. The Policy was marked not only by the 1st
Respondent but also by the 2nd Respondent, Appellant herein.
8. The Tribunal negatived the contention of the Appellant that being a
public liability policy, they were not liable to pay compensation, and
proceeded to award Rs.6,82,097/- towards compensation, holding that the
accident occurred during the course of the employment and the employment
of the deceased with the 1st Respondent company has been established.
Page: 4 / 8
https://www.mhc.tn.gov.in/judis
C.M.A.No.274 of 2016 and M.P.No.2311 of 2016
9. The Respondents have not chosen to appear despite steps taken by
the counsel for Appellant. This Court therefore permitted the Appellant to
serve summons to the Respondents by way of substituted service.
Accordingly, paper publication has also effected in Malai Malar dated
07.03.2023, Tiruppur Edition, putting the respondents on notice of the
hearing of the above C.M.A. Despite the said paper publication, there is no
appearance on the side of the Respondents.
10. This Court proceeded to hear the learned counsel for the
Appellant. The only contention raised by the learned Counsel for the
Appellant is that the policy has been admittedly marked by not only the
petitioner before the commission but also by the 1st Respondent, the
employer and also the Appellant, the 2nd Respondent. The Policy clearly
indicates that it is only a public liability policy. This Court has perused the
policy issued by the 2nd Respondent to the 1st Respondent and found that the
liability is specifically limited to public liability to a limit of Rs.5 lakhs. No
extra premium has been paid for covering employees of the 1st Respondent
Company. Therefore, the appellant cannot be called upon to compensate
Page: 5 / 8
https://www.mhc.tn.gov.in/judis
C.M.A.No.274 of 2016 and M.P.No.2311 of 2016
cases of this nature where an employee of the 1st Respondent suffered
injuries and subsequently, succumbed to the said injuries.
11. It is also brought to the notice of this Court that the Appellant has
deposited the entire award amount. It is however, not known whether the
Respondents have withdrawn the award amount or any portion thereof.
12. This Court has considered the submissions of the learned counsel
for the Appellant and finds force in his argument that the approach of the
Tribunal in passing the Award is totally erroneous and contrary to the settled
legal position.
13. The Tribunal has found fault with the Insurance Company for not
filing the proposal form. Admittedly, the policy that has been issued which
is the final document, which has been marked not only on the side of the
Appellant but also marked on the side of the family of the deceased
employee as well as employer. Once the Policy issued there is no necessity
to fall back on the proposal form, which is only a negotiation before the
Page: 6 / 8
https://www.mhc.tn.gov.in/judis
C.M.A.No.274 of 2016 and M.P.No.2311 of 2016
contract is concluded. The Tribunal therefore certainly went in error in
fastening the liability on the Appellant Insurance Company. The Liability
was limited to loss occasioned to general public and could not extent to an
employee of the Insured. This Court has to necessarily set aside the order
passed by the Commissioner of Workmen Compensation Act, Deputy
Commissioner of Labour, Coimbatore, for the above said reason.
14. In fine, the Civil Miscellaneous Appeal stands allowed and the
Judgment and Decree is set aside passed by the Commissioner for
Workmen Compensation, Deputy Commissioner of Labour, Coimbatore, in
E.C.No.95 of 2014 dated 14.09.2015. It is open to the Appellant/Insurance
Company to take out appropriate proceedings for recovering the amounts
that have been withdrawn, if any by the Respondents. There is no Order as
to costs. Consequnetly connected Miscellaneous Petition is closed.
10.04.2023
Index : yes/no
Internet : yes
Neutral Citation: Yes/No
ggs
Page: 7 / 8
https://www.mhc.tn.gov.in/judis
C.M.A.No.274 of 2016 and M.P.No.2311 of 2016
P.B.BALAJI.,J.
ggs
To
The Deputy Commissioner of Labour,
Commissioner of Employee Compensation Act,
Coimbatore.
C.M.A.No.274 of 2016 and
M.P.No.2311 of 2016
10.04.2023
Page: 8 / 8
https://www.mhc.tn.gov.in/judis
