Oriental Insurance Co. Ltd. v. Commissioner, Workmen Compensation. Hazaribagh And Others

1. Heard Mr. Sahni and learned counsel for respondent Nos. 2 and 3 (claimants).

2. The petitioner has prayed for quashing the order dated 5.12.2002, passed by the Commissioner, Workmen Compensation, Hazaribagh in WC Case No, 68 of 2001, directing the petitioner to pay Rs. 3,37,830/- as compensation to the respondent Nos. 2 and 3 within 60 days failing which the amount will also carry an interest @7% per annum after the expiry of 60 days till the date of payment.

3. The son of respondents 2 and 3 was a khalasi (cleaner) employed under the owner of the vehicle (respondent No. 4). When he was so employed in the Truck, an accident took place causing death of the son of the claimants, namely Shankar Kumar Singh. The claimants claimed that their son was aged about 19 years and was an employee under the owner of the Truck on a monthly salary of Rs. 3,000/- and also fooding allowances of Rs. 40/- per day khoraki. The owner of the vehicle accepted that Shankar was a cleaner, employed under him in the said Track who died during the course of employment. He was paid a monthly salary of Rs. 3,000/- and JCR--(1)--33(HC) khoraki of Rs. 40/- per day. The vehicle was insured with the petitioner's Insurance Company at the time of the accident.

4. The Insurance Company disputed the claim mainly on the ground that it has no knowledge about the relationship of master and servant between the owner of the vehicle and the deceased and there is no proof of the same. Further there is no proof regarding the alleged wages and the age of the deceased. However, the Insurance Company could not deny its liability on the basis of the Insurance Policy.

5. On the basis of the evidence including the payment register, it was found that the deceased was getting Rs. 3,000/-per month as salary, and as per the postmortem report, his age was found as 19 years. On these basis, the amount of compensation was calculated and the petitioner was directed to pay the same as the vehicle was insured at the time of the accident.

6. Mr. Sahni submitted that the petitioner-Insurance Company will be liable only when the employer has become insolvent. He further submitted that when he contested the claim, the Workmen Compensation Commissioner had no jurisdiction to pass the impugned award.

7. The case of Raj Kishan & Company v. State of Bihar, 1999 (1) PLJR 803, relied on by Mr. Sahni is not applicable in the present case. In that case the employer contested that the concerned employee was not employed under their establishment rather he was employed by some other establishment. In that situation, it was held that when there was such contest, it was the Presiding Officer of the Labour Court who shall have jurisdiction to adjudicate such matters. The judgment of Patna High Court in case of Oriental Insurance Company v. Shanti Devi, 2001 (4) PLJR 690, relied on by Mr. Sahni is also of no help to him. The learned Single Judge found that the case of the claimant in that case was not that the khalasi was engaged in driving the vehicle and that there was no evidence on the above line therefore he was unable to accept that even khalasi is covered by the first proviso to Section 147. In the case on hand the owner of the vehicle has produced payment register to prove that the deceased was his employee. The other points raised by Mr. Sahni including the aforesaid point of scope of Section 14 of the Workmen Compensation Act are equally not tenable in view of the following judgments. The Oriental Fire & General Insurance Company v. The Presiding Officer etc., 1988 PLJR 987 : (1997) 8 SCC 1 : AIR 1989 Ker 140 (FB); United India Insurance Company v. Vasudevan, AIR 1993 Ker 226 (FB); National Insurance Company v. Philomina, 1997 (2) PLJR 186.

8. I also do not find any illegality in the order granting interest @7% per annum if the amount is not paid within 60 days from the order. The petitioner-Insurance Company has chosen to file this writ petition under Article 227 of the Constitution of India, on 19.12.2003 i.e. after about an year of passing of the impugned award dated 5.12.2002, instead of filing an appeal, within 60 days, as provided under Section 30 of the Workmen's Compensation Act, 1923 after depositing the amount payable under the order under appeal, in order to circumvent the provision of the appeal.

9. This Court is satisfied that the impugned order has been passed on the basis of the evidences on record and as per the law. There is no reason to interfere with the same. Accordingly this writ petition is dismissed.