M. Ramakrishna, J.:— The appellant-insurer being aggrieved by the judgment and award dated 20.8.1992 made by the Commissioner for Workmen's Compensation, Bijapur, in case No. WC. MSR. 46 of 1991 directing the appellant to make good the entire amount of compensation of Rs. 78,648/- awarded for the death of lsak in the accident involving the tempo bearing registration No. KA-28-423 belonging to Yaseena Babusaba Nimbargi, respondent-6 herein, has come up with this Appeal.
2. The appellant has mainly taken the following four grounds to attack the judgment and award appealed against:
(1) The Commissioner was not justified in holding that the claimants, respondents 1 to 5 herein, were the legal representatives of deceased lsak, though they failed to do so.
(2) The deceased was earning only Rs. 300/- per month plus batta during his employment. But the Labour Court was in error in holding without considering properly the evidence on record that he was getting Rs. 600/- p.m plus batta of Rs. 10/- per day.
(3) The Commissioner has wrongly taken the age of the deceased as 24 years though it was on record that he was more than 30 years at the time of his death.
(4) The deceased had a licence to drive only light motor vehicles and not transport vehicles. The tempo he was driving being a transport vehicle and not a light motor vehicle, the appellant was not answerable to the risk he had taken in driving such a vehicle. That being so, the Commissioner was not justified in directing the appellant to pay the entire amount awarded.
3. During hearing, Sri G.S Kannur, learned Counsel for some of the claimants viz., respondents 2, 3 and 5, has raised a preliminary objection on the maintainability of this Appeal for non-compliance of the mandatory requirement of the third Proviso to sub-section (1) of Section 30 of the Workmen's Compensation Act, 1923 (the Act for short). His contention is that the appellant to maintain the Appeal should have filed along with the Appeal a Certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. Since the appellant has failed to do so, the Appeal is liable to be dismissed at the threshold as not maintainable.
4. An important question of law having been raised on the said Proviso, we think it necessary to record our finding first on it before proceeding to consider the grounds urged in the Appeal.
5. We have heard the learned Counsel on both sides. Sriyuths S.P Shankar, Chinnappa and H.G Ramesh, learned Counsel, also assisted the Court to consider on this legal question.
6. Sri O. Mahesh, learned Counsel for the appellant, mainly contended that having regard to the language employed in the third Proviso to sub-section (1) of Section 30 of the Act particularly the word ‘employer’, the appellant being not the employer of the deceased need not comply with the said Proviso. His contention is that only in a case where an employer aggrieved by the order of the Commissioner filed an appeal, he has to comply with the requirement of the said Proviso and not in a case where the insurer files an appeal against an order of the Commissioner. In the instant case, the Appeal is by the insurer and therefore he need not comply with such a requirement. That being so, the Appeal as filed by the insurer is maintainable.
The learned Counsel also contended that having regard to the provisions of Section 110AA of the Motor Vehicles Act, 1939 (the Act of 1939 for short), on the death of, or bodily injury to, any person in the accident, any person entitled to compensation thereon may, notwithstanding anything contained in the Workmen's Compensation Act, 1923 and without prejudice to the provisions of Chapter VII-A of the Motor Vehicles Act, 1939, claim such compensation under either of those Acts but not under both. Accordingly, in the instant case, when the claimants claimed compensation before the Commissioner for Workmen's Compensation for the death of lsak in the accident out of and in the course of his employment, the appellant being the insurer of the vehicle involved in the accident contested the claim as respondent-2, participated in the trial and urged several grounds, amongst them the important being about the age of the deceased, the salary he was drawing and the licence he held to drive the light motor vehicle. None of them was considered with reference to the evidence on record in a proper perspective by the Commissioner; therefore, his finding as against the liability of the appellant to make good the entire amount of compensation awarded was liable to be set aside.
In support of his arguments, Sri Mahesh, placed strong reliance on the following authorities:—
(1) ILR 1992 KAR 13251;
(2) 1988 ACJ 3372;
(3) 1992 ACJ 7363;
(4) 1982 ACJ 34.
7. Opposing the arguments of Sri O. Mahesh, Sri G.S Kannur, learned Counsel for claimants, respondents 2, 3 and 5 herein, contended that the insurer as indemnifier of the insured under the Motor Vehicles Act as well as the Workmen's Compensation Act must be treated as a person entering the shoes of the insured-employer to make good the compensation. He further contended that having regard to the scope and object of the enactment of the Act, the insurer having agreed under the policy to indemnify the insured-employer, for all purposes, is liable to pay the compensation awarded by the Commissioner and therefore he must comply with the requirement of the third Proviso to Section 30(1) of the Act.
8. Sriyuths: S.P Shankar, Chinnappa and H.G Ramesh, learned Counsel, who were good enough to come forward to assist the Court, have drawn the attention of the Court to the several provisions of the Workmen's Compensation Act as well as the provisions of Sections 95 and 96 of the Motor Vehicles Act, 1939 and placed certain authorities both for and against the arguments advanced in this Appeal.
9. In order to appreciate the legal contentions urged on both sides, it is better to extract the provisions of Section 30(1)(a) with the relevant proviso thereunder. It reads:
“30. Appeals. - (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:
(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum.
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Provided further that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a Certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.
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10. It is not in dispute that the Appeal as brought by the insurer as against the judgment and award impugned herein is maintainable in view of Clause (a) of sub-section (1) of Section 30 of the Act. Therefore, on this question, there is no dispute. But the real dispute is, by non-compliance of the Proviso referred to above, whether the appeal could be entertained. Admittedly, the appellant has not produced any Certificate from the Commissioner that the appellant has deposited with him the amount payable under the order appealed against. Therefore, in the absence of such a Certificate as contemplated in the Proviso, whether the appeal by the insurer could be entertained is the question to be decided.
11. In Saifuddin's case supra, the learned single Judge of the Madhya Pradesh High Court dealing with this question, has held in paragraph-10 as follows:—
“…… The restriction contained in the proviso to Section 30 of the Act for depositing the amount is expressly limited to an appeal filed by the employer and since the insurance company is not the employer, that restriction is not applicable to the insurance company.”
The learned single Judge while reaching the above conclusion has not considered the relevant provisions of law nor has be given reasons therefor. To hold so, he has relied upon the Decision of the Division Bench of the same High Court in Northern India Insurance Co. Ltd. v. Commissioner for Workmen's Compensation . 1973 ACJ 428.. The question that arose for consideration in that case was whether the Insurance Company could not be made party to the proceedings under the Workmen's Compensation Act and if so, whether no liability could be fastened on it. The further question that arose in that case was whether the Writ Petition field by the Insurance Company as against the order of the Commissioner for Workmen's Compensation without filing an appeal as contemplated in Section 30(1) of the Act was maintainable. Therefore, the question as is arisen in the case on hand was not posed before the Division Bench and hence it had no occasion to consider such a question. As a matter of fact, another learned single Judge of the same High Court (M.P) in New India Assurance Co. Ltd. Nagpur v. Mohinder Singh . 1986 ACJ 1101. following the Division Bench Decision of the Kerala High Court in Jayarama Naik's case supra has rendered a different law contrary to one enunciated in Saifuddin's case. As to the contention based on the observations in Northern India Insurance Company's case, the Division Bench in Jayarama Naik's case held as follows:
“….. The question is applicability of the 3rd proviso to an appeal filed by the insurer on grounds available to the insured only did not arise in that case.”
12. Thus following the Ruling in Jayarama Naik's case, the learned single Judge in Mohinder Singh's case considered the third Proviso to Section 30(1) of the Act and held in paragraph-8 as follows:—
The proviso 3 to Section 30 of the Workmen's Compensation Act is abundantly clear and so also the ruling that deposit of the amount of compensation at the time of the presentation of appeal is mandatory. Because time was given by the Court to deposit the amount of compensation, the period of limitation is not extended. The appeal would be deemed to be competent only on that day when the amount of compensation as awarded by the Commissioner is deposited in full in the Court. The proviso-3 of Section 30 of the Workmen's Compensation Act has not been complied with.”
Admittedly, the appeal in Mohinder Singh's case also was by the insurer. No doubt, the learned Judge also held that though time was given by the Court to deposit the amount of compensation, the period of limitation is not extended, for which we are not concerned here; yet it presupposes that deposit of the compensation by the insurer is mandatory to maintain its appeal. Thus, we are of the opinion that the Decision in Saifuddin's case relied upon by Sri O. Mahesh, learned Counsel for the appellant-insurer is not much helpful to him for the above reasons.
13. In Raja Naika's case referred to above the question that arose for consideration before the Division Bench of this Court was whether the appeal filed by the Insurance Company under Section 30(1) of the Act could lie on grounds other than those mentioned in Section 149(2) of the Motor Vehicles Act, 1988. This Court has answered the question in the negative and against the insurer holding that no appeal by the insurer under Section 30(1) of the Act could lie on the grounds other than those mentioned in Section 149(2) of M.V Act subject to further condition such grounds involve substantial questions of law. In that case, the question with which we are now concerned in this Appeal did not come up for consideration. Therefore, that Decision is of no assistance to the appellant.
14. In New India Assurance Co. Ltd. v. Shankar Behera relied on by Sri Mahesh, the learned single Judge of the Orissa High Court at Cuttack referring to Section 30 of the Act, has held in paragraph-8 as follows:—
“…. Once the insurer is made liable under the Act and the language of Section 30 of the Act does not provide as to who would file the appeal, a reasonable construction would be that any person aggrieved by the order can prefer an appeal. The insurer has been aggrieved by the order of Commissioner in this case fixing the liability on it and accordingly, the appeal by the insurer is maintainable.”
So far as this Decision is concerned, there is no difficulty at all to hold and in fact I have already held earlier in the course of the order that the Appeal as brought by the insurer against the judgment and award of the Commissioner under Section 30(1)(a) of the Act is maintainable. But we are concerned in this Appeal with the compliance of the requirements of the third Proviso to Section 30(1) of the Act to maintain the Appeal by the insurer. Such a question did not come up for consideration strictly in that Decision. Therefore, again this Decision is of no assistance to the appellant.
15. Sri Mahesh also relied upon the Decision of the Division Bench of the Kerala High Court in Jayarama Naika's case which is, in fact, against him and to which I have already referred to while referring to the Decision in Mohinder Singh's case. As regards the third Proviso to Section 30(1) in respect of an appeal by the insurer, the Division Bench held in paragraph-7 as follows:—
“….. The insurer is only stepping into the shoes of the insured, the employer, and the defence is not quo insurer but in the name of the insured and in his place. An appeal preferred on such grounds, if successful, will jeopardise the employee's right to recover the compensation from the employer also. What the insurer seeks in such an appeal is that the insured may be found to be not liable to pay the compensation, and consequently, the insurer also may be held to be not liable. The primary relief sought for is the first mentioned relief and the other relief is consequent to the grant of that relief. Hence, such an appeal is preferred by the insurer for and on behalf of the employer and in his stead, though the aim of the insurer is to exonerate his own liability, what the insured cannot do by himself, viz., filing of an appeal without complying with the requirements of the third proviso to Section 30 of the Act, cannot be done by another on his behalf. So the third proviso to Section 30 of the Act governs such appeals.”
(emphasis supplied)
To say so, the Division Bench followed the earlier Decision of the Orissa High Court in C.E Corporation v. Dorai Raj . 1958-65 ACJ 19 Orissa.. Thus Sri Mahesh cannot derive any assistance from the Decision in Jayarama Naika's case also.
15(a). Learned Counsel Sriyuths: Shankar, Chinnappa and H.G Ramesh argued as Amicus Curiae both for and against. From their arguments it is clear that the object and the scope of the enactment prevalent earlier to the insertion of the third Proviso to Section 30(1) by Act 15 of 1933 was entirely different from that found in the amending Act of 1933. Secondly, the Insurance Act, 1923 and the Workmen's Compensation Act, 1923 having been enacted earlier to the Indian Constitution, perhaps, the Parliament while bringing amendment to Section 30(1) inserting the third Proviso did not foresee this kind of complicated questions having its own intricacies being arisen. However, having regard to the indemnity undertaken by the insurance company while issuing a policy in respect of a motor vehicle of the insured including the employer under the Act, we must see whether the insurer having entered the shoes of the employer or the owner of the vehicle could escape its liability merely because the word ‘employer’ is found in the third Proviso to Section 30(1) of the Act. It is needless to point out that more than one Court have held that the insurer having undertaken to indemnify the insured, must be held to be liable as judgment debtor for the purpose of construction of Section 30 of the Act. [Please see 1979 ACJ 277 (Bombay)]8.
16. Another learned Single Judge of the Madhya Pradesh High Court in New India Assurance Co. Ltd. v. Dujiya Bai . 1986 940 Company Cases. interpreting the provisions of Section 96 of the Motor Vehicles Act read with Sections 14 and 19 of the Workmen's Compensation Act, held as follows:—
“… Under Section 96 of the Motor Vehicles Act, 1939, it had been made quite clear that the insurance company was liable to pay the amount as if it was a judgment debtor under the decree. The insurance company which was ultimately liable to discharge the claim was a proper party to the proceedings in which a binding liability upon the insurance company was to be determined.”
(emphasis supplied)
Dealing with Section 14 of the Act, the learned Judge says:
“Section 14 of the Workmen's Compensation Act, 1923, did not negative the liability of the insurance company in cases wherein Section 14 was not attracted. The Commissioner was competent to pass an award against the insurance company and the insurance company was liable to discharge the liability.”
Therefore, our view is supported by the Decision rendered by the learned Single Judge in the above case.
17. As far back as in the year 1946, a Division Bench of the Bombay High Court had the occasion to deal with this question. Considering the very question arising under the third Proviso to Section 30(1) of the Act with reference to the scope and object of the Act 15 of 1933 by which the third Proviso came to be inserted, the Division Bench held:
“The deposit as well as the certificate evidencing the deposit is a condition precedent. This condition seems to be incorporated to give relief to dependents of persons who are in humble station of life and the compensation should be quickly available to supply their needs (Please see A 1946 Bom 110(112).
The same view was taken by the Calcutta High Court in B.P Nandy v. General Manager, East India Rly. . AIR 1954 Calcutta 453 Vol. 41 C.N 152..
18. Apart from construing the provisions of Section 30 of the Act, they were called upon to decide the difference between Clause (a) and Clause (d) of sub-section (1) of Section 30 of the Act. While doing so, their Lordships have held in paragraph-12 as follows:—
“Thus, where the appeal, while it may be an appeal against the order allowing the claim of indemnity against the appellant, is not such an appeal alone, but is also an appeal against the basic order awarding compensation to the workman then it is not an appeal such as is contemplated by Clause (d), but is in truth and substance an appeal under Clause (a), for which reason the third proviso to Section 30(1) must apply.”
Therefore, considering the third Proviso to Section 30(1) with reference to an appeal either under Clause (a) or Clause (d) of Section 30(1), their Lordships have taken the view that in both cases a deposit as contemplated in the third Proviso is necessary to maintain an appeal. This again supports our view.
19. In a different way, this question cropped up for consideration by a Division Bench of this High Court in United India Fire and General Ins. Co. Ltd. v. Machinery Manufacturers Corpn. Ltd. . 1986 ACJ 1079.. The Division Bench consisting of N. Venkatachala and Murlidher Rao, JJ., as they then were, construing the provisions of Section 19(1) and Section 14 of the Workmen's Compensation Act, has held in paragraph-7 as follows:—
“To construe such a provision as one which takes away the right of the insured-employer to obtain indemnity under a contract of insurance, unless he becomes insolvent or makes a composition or a scheme of arrangement with his creditors or if the employer-insured is a company, unless its winding-up commences, is to read something into the provision which is alien to it. We, therefore, hold that the provision in Section 14 does not enable the insurance Company (appellant) to avoid its liability under a contract of insurance issued specially for covering the employer's liability to a workman under the Workmen's Compensation Act, to avoid such liability on the ground that the insured employer has not become insolvent, or made a composition or a scheme or arrangement with his creditors or being a company, the proceeding relating to its winding up has not commenced. Thus, both the contentions urged on behalf of the appellant fail.”
The view taken by the Division Bench construing the provisions of Section 14 is to the effect that the insurer cannot avoid its liability under a contract of insurance issued specially for covering the employer's liability to a workman under the Workmen's Compensation Act. Therefore, the construction of Section 14 by the Division Bench of this Court is in favour of the claimants and against the insurer. Indeed, the conclusion in the above Decision goes to show that if the insurer were to enter into the shoes of the employer for the purpose of indemnifying the employer by virtue of the policy issued by the insurer, then the insurer cannot escape its liability on the ground that it is not the employer. By a literal construction of the third Proviso if we were to hold that an appeal as brought by the employer is only maintainable and not that of the insurer for want of compliance of the requirement of the Proviso, the very object of the Proviso would be defeated and the object as held by the Bombay High Court in the case reported in AIR 1946 Bom 11012 is to give relief to dependents of persons who are in humble station of life, and hence the compensation as awarded by the Commissioner must be quickly made available to supply their needs.
20. Referring to the construction of the word ‘employer’ as found in the third Proviso, we are of the view that we must construct the said Proviso such as to give effect to the scope and object of the Act. In other words, we must construct that Proviso with a view to advancing cause of Justice and not to defeat it. The Supreme Court in a recent Decision in A.A Haja Muniuddin v. Indian Railways . 1992 4 SCC 736, has held in paragraph-5 as follows:—
“A view which advances cause of justice must be preferred to the one which defeats it. When an indigent person approached the Tribunal for compensation for the wrong done to him, the Tribunal cannot refuse to exercise jurisdiction merely because he does not have the means to pay the fee. The ends of justice require that the Tribunal should follow the procedure laid down in Order XXXIII of the Code to do justice.”
Thus, following the Ruling of the Supreme Court in the above case, to construct the Proviso-3 of Section 30(1) of the Act, we should not confine to the literal meaning of the Act, but, on the other hand, we must hold, having regard to the object of the Proviso and the fact that the insurer could be adjudged as if a judgment debtor under the decree, that in a case where an appeal is filed by the insurer challenging the judgment and award of compensation in favour of the workman, it cannot be entertained unless it is accompanied by a Certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against, or otherwise, the very object of the Proviso would be defeated. In the instant case, since the insurer has not filed the Certificate along with the appeal for having deposited the compensation amount awarded by the Commissioner, the Appeal is not maintainable. It is not possible to accede to the contention of Sri Mahesh that the Parliament intended to exempt the insurer from complying with the requirement of the third Proviso to Section 30(1) of the Act.
21. Having answered the preliminary objection as to the maintainability of the Appeal under Section 30(1)(a) Proviso-3 of the Act against the insurer, we think it necessary to say that it is only when the appellant-insurer complies with the requirement of the third Proviso to Section 30(1) of the Act and wants findings on the grounds 1 to 4, referred to above, urged in the Appeal, then only the Court will have to record its findings on those grounds. Therefore, there is no need for us at this stage to record our findings on the four grounds raised in the Appeal.
22. In the result and for the reasons stated above, we make the following
This Appeal is dismissed as not maintainable.