1. The above First Appeal filed under section 30 of the Workmen's Compensation Act, 1923 raises an important question of law as to whether, having held the respondent No. 1 employer liable for the compensation under that Act, in respect of the accident to a motor vehicle viz. Auto-ricksha, as a result of which Chandkhan the workman died on June 14, 1975, the learned Commissioner for Workmen's Compensation Act, Poona was right in dismissing the claim against the New India Assurance Co. Ltd., respondent No. 2.

2. The learned Commissioner appears to have taken the view that notwithstanding the decision of the Division Bench of the Gujrat High High Court in Northern India Motor Owner Insurance Co. v. Madan Shahanazi Solanki . 1974 A.C.J 55., wherein, with respect, the learned Judges of the Gujarat High Court had very carefully and fully considered all the relevant provisions of the Motor Vehicles Act and the Workmen's Compensation Act, 1923 and sections 95 and 96 of the Motor Vehicles Act, 1939 along with section 110(v) and rightly held after discussing all the case laws which were cited before them and came to the conclusion that the Commissioner under the Workmen's Compensation Act, 1923 had exclusive jurisdiction to decide the liability of the insurer in a claim in respect of a motor vehicle made under the Workmen's Compensation Act, 1923.

3. The learned Commissioner did not follow the Gujrat High Court decision because of an unreported decision of this Court in Letters Patent Appeal No. 51 of 1971 decided on June 19, 1972, where a view appears to have been taken that the Commissioner had no jurisdiction to pass an order against the Insurance Company even though a notice under section 96(2) of the Motor Vehicles Act was given to the Insurance Company.

4. It is necessary in this connection to notice all the relevant provisions of the Motor Vehicles Act, 1939 which are section 95(1) which read as under:

Section 95(1) “In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which (a) is issued by a person who is an authorised insurer by a co-operative society allowed under section 108 to transact the business of an insurer, and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)—

(i) against any liability which may be incurred by him in respect of the death of or Bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place:

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Provided that a policy shall not be required—

(i) to cover liability in respect of the death arising out of and in the course of his employment of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee—

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or

(c) if if is a goods vehicle, being carried in the vehicle, or

(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or

(iii) to cover any contractual liability.

Explanation: For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.”

5. It is, therefore, clear that it is compulsory for owner of a motor vehicle to have a policy to cover even a liability arising under the Workmen's Compensation Act, 1923.

6. Mr. Chaphekar, the learned counsel appearing for the Insurance Company has fairly stated that this position cannot be controverted by the Insurance Company.

Clause (5) of section 95 says:

“(5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of person.”

To my mind, this makes the position of the Insurance Company as the same as the position of a judgment debtor against whom the liability to pay the compensation is imposed under the Workmen's Compensation Act, 1923.

7. Section 96 makes this very clear by laying down that if, after a certificate of insurance has been issued under sub-section (4) of section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 95 being a liability covered by the terms of the policy is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.

8. It is not contended that the circumstances in which the liability imposed under section 96(1) are established in this case which exonerate the Insurance Company from the liability.

9. The liability of the insured is further affirmed in section 110B of the Motor Vehicles Act, 1939 which requires the Claims Tribunal to specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.

10. Turning now to the relevant provisions of the Workmen's Compensation Act, 1923, we have first to consider section 19 of that act which runs as under:—

“19(1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation including any question as to whether a person injured is or is not a workman or as to the amount or duration of compensation including any question as to the nature or extent of disablement, the question shall, in default of agreement, be settled by a Commissioner.

(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.”

11. It is manifest that it is, therefore, the exclusive jurisdiction of the Commissioner for Compensation under the Workmen's Compensation Act, 1923 to consider whether any person like the Insurance Company which has insured the motor vehicle, which must be insured by the Motor Vehicles Act, is liable to pay the compensation fixed under the Act.

12. The Commissioner for Compensation under the Workmen's Compensation Act, 1923 in the present case has unfortunately ignored this section completely in delivering his judgment perhaps because of the judgment in Letters Patent Appeal No. 51 of 1971 decided by this Court on June 19, 1972, where too the provisions of section 19 were not brought to the attention of the Court and the Court proceeded on the footing, and with respect, proceeded erroneously, that there was no provision in the Act which confer restrictions on the Commissioner for Compensation under the Workmen's Compensation Act, 1923.

13. As already stated above, the Division Bench of the Gujarat High Court has fully discussed all the relevant provisions of the Motor Vehicles Act and the Workmen's Compensation Act, 1923 in the case of Northern India Motor Owner Insurance Co. v. Madan Shahanazi Solanki and has rightly held that it is the Commissioner who has exclusive jurisdiction to pass an order against the Insurance Company for payment of the compensation, the extent of the liability of the Insurance Company being determined in accordance with the terms of the policy under the Motor Vehicles Act, 1939. The view to the Gujarat High Court is followed by the learned Single Judge of the Allahabad High Court in Sital Prasad v. Afsari Begum . 1977 A.C.J 486., after fully discussing the case laws on the point observing, with respect, rightly at page 491:

“It has to be consistently borne in mind that section 19 of the Workmen's Compensation Act has advisedly used such wide language as to embrace the determination of various kinds of liabilities and not merely the liability of an employer where the letter arises purely under the old statutory, namely, the Workmen's Compensation Act or as a result of the applicability of the provisions of Chapter VIII of the Motor Vehicles Act. The entire gamut of liabilities is covered by the jurisdiction of the Compensation Commissioner under section 19 of the Workmen's Compensation Act. The forum for the adjudication of such liabilities is the Commissioner and it is immaterial that the provisions such as those contained in Chapter VIII of the Motor Vehicles Act have not been incorporated into the Workmen's Compensation Act itself.”

14. With respect, I am inclined to follow the decision of the Gujarat High Court and the Allahabad High Court as I fully agree with the view taken in respect of the provisions of section 19 of the Workmen's Compensation Act, 1923.

15. It is also worthwhile noting that in Sital Prasad's case, the learned Judge has further rightly observed at page 493:

“I am, however, inclined to hold that even though there is no express provision for impleading the insurance company in the proceedings under section 22 of the Workmen's Compensation Act, is to make the insurance company a necessary party to such proceedings…”

16. I concur with this conclusion. On the proper interpretation of the two Acts together it is clear that a claim against the insurance company in made liable under the Workmen's Compensation Act, and payment of compensation under the Insurance Policy to an injured person, who can claim compensation under the Workmen's Compensation Act, 1923.

17. The view which I have taken was also the view of a Division Bench of this Court consisting of Tambe C.J and Bal J. in Special Civil Application No. 1653 of 1965, decided on March 9, 1966 in an unreported judgment of this Court, where as soon as the Insurance Company was joined as a party in the proceedings under the Workmen's Compensation Act, 1923 in respect of an accident to a motor car, which was insured with the petitioner Bagle Star Insurance Co. Ltd. The Insurance Company raised a plea of no jurisdiction which was overruled by the Commissioner and the Insurance Company was held liable.

18. The order of the Commissioner was challenged under Articles 225 and 227 of the Constitution of India raising various points including a point that the Commissioner had no jurisdiction to join the Insurance Company as a party and it was the Claims Tribunal under the Motor Vehicles Act, 1939 which could order recovery of the amount from the Insurance Company having regard to the scheme of the Motor Vehicles Act.

19. The Division Bench of this Court (Tambe C.J and Bal J.) referred to sections 95 and 96 and other provisions of the Motor Vehicles Act and overruled the contention holding as follows:—

“None the less the jurisdiction that has been excluded under section 110F is the jurisdiction of the Civil Court and not the jurisdiction of the Commissioner for Workmen's Compensation.”

“It cannot be disputed and it has not been disputed that the rights and obligations created by the Workmen's Compensation Act are special rights and obligations. Workmen's Compensation Act also created its own special remedy and forum for enforcement of rights arising out of the Workmen's Compensation Act. A motor driver to whom the Workmen's Compensation Act applies when he meets with an accident, or his legal representatives when the driver has died as a result of the accident, must file their claim before the Authority under the Workmen's Compensation Act for the enforcement of their rights under the said Act to claim compensation against the owner who is the insured person, because that is the special forum created by the statute for the enforcement of rights arising under the special statute. According to Mr. Desai the Commissioner for Workmen's Compensation has no jurisdiction to issue a notice to the insurer under sub-section (2) of section 96. If no notice is issued to the insurer, then the decree obtained by the driver or his legal representatives against the insured cannot by reason of the provision of sub-section (1) of section 96 be executed against the insurer. The driver or his legal representatives have to go to the Commissioner for Workmen's Compensation, because he has to establish that the accident occurred out of the employment and during its course. That is a matter exclusively triable by the Authority under the Workmen's Compensation Act…”

“It is indeed true that the provisions of the Workmen's Compensation Act relate to the inter se rights and liabilities between the employer and the employee and under the provisions of the Workmen's Compensation Act itself the insurer has not been made liable. However, the liability of the insurer arises under the provisions of section 96 of the Motor Vehicles Act and for reasons already stated that liability could be enforced before the Commissioner for Workmen's Compensation, because the jurisdiction of that Authority has not been excluded by reason of the language used and the necessary implication thereof.”

It is to be noted that the Division Bench came to this conclusion even when their attention was not brought to the provisions of section 19 of the Workmen's Compensation Act, 1923.

20. The said decision was not cited and was not noticed by the Division Bench when deciding Letters Patent Appeal No. 51 of 1971, perhaps because it was unreported and not known to the counsel appearing before the Division Bench dealing with the Letters Patent Appeal. The decision in the Letters Patent Appeal, however, being unreported cannot be said to be binding on me in all the facts and circumstances of the case as it was a judgment, with respect, in curim and the learned counsel who appeared for the appellants did not bring to the notice of the learned Judges the above case decided by Tambe C.J and Bal J. and the attention of the learned Judges was not at all drawn to the provisions of section 19 of the Workmen's Compensation Act, 1923, and it is in my opinion wholly inconsistent with the provisions of that section, which cannot be ignored by this Court.

21. I, therefore, follow the plain and simple provisions of section 19 as well as the decision of the Gujarat High Court and Allahabad High Court referred to above and set aside the judgment and order passed by the Commissioner for Workmen's Compensation Act, Poona dated April 22, 1977 and order both the respondents jointly and severally to pay to the appellants a sum of Rs. 9,000 by depositing before the Commissioner the said amount.

22. The Commissioner shall consider whether under section 4A(3) of the Workmen's Compensation Act, 1923, the respondents should be ordered to pay interest and penalty. For this purpose and for other purposes of law, Application (WC/LCP) No. 55 of 1976 is restored to the file of the Commissioner for Workmen's Compensation, Poona, who shall hear and dispose it of in the light of the findings and directions given hereinabove and in accordance with law.

23. The First Appeal is allowed with costs.

Appeal allowed.