Shamsuddin, J.:— The second respondent in W.C.C 29 of 1982 on the file of the Commissioner for Workmen's Compensation, Kottayam, is the appellant in this appeal. The first respondent herein filed an application under S. 22 of the Workmen's Compensation Act alleging that her husband, a workman employed by the second respondent herein received personal injury by accident arising out of and in the course of employment which resulted in his death. While he was driving the bus bearing Registration No KRE 8415 he had a chest pain and was admitted in the Government Hospital, Munnar, but he died at the hospital. In the application his monthly salary was shown as Rs. 693. The applicant-widow claimed a lump sum amount of Rs. 24,000 as compensation. The second respondent herein who is the owner of the vehicle contended that the vehicle was covered by valid insurance policy with the appellant on the date of death and, therefore, the appellant alone was liable under S. 96 of the Motor Vehicles Act, and it is necessary to implead the insurer as a party to the proceedings. Accordingly, the appellant was impleaded as a party. The appellant contended that the deceased had not received any personal injury as a result of any accident and the death on 27 September, 1981, was as a result of a sudden heart attack, it was also contended that he was only a casual labourer.
2. Commissioner for Workmen's Compensation found that death was due to chest pain while the deceased workman was driving the vehicle and, therefore, the death was during the course of employment. The compensation was fixed at Rs. 23,100 and the appellant was directed to pay this amount.
3. It was fairly conceded by the learned counsel for the appellant that though the death was not due to injury sustained in an accident, since the chest pain which resulted in death developed while he was driving the vehicle and in the course of his employment, the employer was liable to pay compensation. He however, vehemently contended that in view of S. 14 of the Workmen's Compensation Act the insurer was liable to pay compensation only in the event of the employer becoming insolvent or making a composition or scheme of arrangement with his creditors or, if the employer is a company, in the event of the company having commenced to be wound up, and since in the instant case these circum stances were not present, no liability was fastened on the part of the insurer to pay the compensation under Workmen's Compensation Act though policy had covered the risk. The learned counsel for the appellant invited our attention to the decisions in New India Assurance Company, Ltd. v. Parameswari Amma [I.L.R 1976 Ker. 237] and United India Fire and General Insurance Company, Ltd. v. Joseph Mariam [1979 A.C.J 349]. In both these decisions this Court took the view that it was only in the event of the employer becoming insolvent or making a compensation or scheme of arrangement with his creditors or, if the employer is a company, in the event of the company having commenced to be wound up, the provisions contained in S. 14 of the Workmen's Compensation Act are attracted and in this view of the matter in both the cases it was held that the Workmen's Compensation Commissioner had no jurisdiction to issue any direction to the insurer to pay the amount of compensation due from employer to the employee under Workmen's Compensation Act. A different view has been taken by a Division Bench of this Court in United India Insurance Company v. Gangadharan Nair [1987—II L.L.N 180], to which one of us (Sivaraman Nair, J.) is a party. In that decision this Court held, in Para. 8, at page 182:
“… The purport of the provision appears to us to be only that in such circumstances the right of the workmen shall not be defeated and the insurer can then be substituted in place of the insolvent employer. It does not appear to us to operate as a prohibition against any proceedings before the Workmen's Compensation Act involving the, insurer who is liable under a contract of insurance to discharge the liability of the employer to compensate the workmen, according to the provisions of the Workmen's Compensation Act…”
In holding so this Court also drew support from a ruling of a Division Bench of this Court in United India Fire and General Insurance Company, Ltd. v. P.M Ishammal [1979 A.C.J 448], where it was held:
“It is a settled rule of law that where there is no lack of inherent jurisdiction in a Court or Tribunal and jurisdiction is conditional on the existence of certain facts, lack of jurisdiction on account of nonexistence of jurisdictional facts ought in the first instance be raised before the Tribunal or the Court as the case may be.”
In the instant case also the lack of jurisdiction on account of non-existence of jurisdictional fact mentioned in S. 14 of the Workmen's Compensation Act had not been raised. The decision in the latter case rested on the fact that such plea was not raised before the Tribunal and in the circumstances the Court could presume that the Tribunal was competent to pass an award as contemplated under S. 14 of the Act making the insurer liable.
4. In other jurisdictions also this question has arisen. In National Insurance Company, Ltd. v. Prembai [1987 A.C.J 278], a Single Judge of the Madhya Pradesh High Court followed a Full Bench decision of the same High Court and held that the Workmen's Compensation Commissioner has jurisdiction to direct the insurer to discharge the liability of the employer even in the absence of facts mentioned in S. 14 of the Workmen's Compensation Act. The Court said:
“Full Bench of this Court by order, dated 31 March, 1985, decided the questions in favour of the claimants and against the appellant by giving its opinion that the Commissioner for Workmen's Compensation has jurisdiction under the Act, in a proceeding for compensation for the personal injury or death of an employee occurring in a motor accident to award compensation against the insurance company; and that the insurance company can be fastened with the liability of making payment of compensation to the successful applicant in a proceeding before the Commissioner for Workmen's Compensation under the Act even in the absence of the employer being adjudged an insolvent as required under Sub-sec. (1) of S. 14 of the Act.”
In New India Assurance Company, Ltd. v. Dujiya Bai [1983 A.C.J 601], also the Madhya Pradesh High Court has taken the same view and held that S. 14 of the Workmen's Compensation Act does not negative the liability of insurance company in cases where S. 14 is not attracted and, therefore, the Commissioner has jurisdiction. The learned counsel for the appellant brought to our notice the ruling in National Insurance Company, Ltd., Calcutta v. Smt. Jabunbi [1985—I L.L.N 373], where the learned Single Judge of the Madhya Pradesh High Court took a different view, but in view of the decision of the Full Bench of the High Court referred to in National Insurance Company, Ltd. v. Prembai (vide supra), this view has not been treated as a good law by the Madhya Pradesh High Court. It may be also noticed that it is the same learned Single Judge who decided New India Insurance Company, Ltd. v. Dujiya Bai (vide supra), who held in Prembai case (vide supra), who held that S. 14 of the Workmen's Compensation Act does not negative the liability of insurance company in cases where the said section is not attracted. In United India Fire and General Insurance Company, Ltd. v. Machinery Manufacturers Corporation, Ltd. [1987—I L.L.N 321] the Karnataka High Court also has taken the view that the Workmen's Compensation Commissioner has jurisdiction to direct the insurer to pay the compensation notwithstanding the provisions contained in S. 14 of the Workmen's Compensation Act even in cases where S. 14 is not attracted.
5. In this connection it will be useful to refer to S. 95 of the Motor Vehicles Act which deals with the requirement of policy. Proviso to S. 95(1) of the Act makes it clear that it is a requirement to cover the liability arising under the Workmen's Compensation Act, 1923, in respect of the death or bodily injury to any employee. Section 110-AA provides that notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under the said Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may claim such compensation under either of those Acts but not under both. Reading the provisions contained in S. 110-AA of the Motor Vehicles Act along with proviso to S. 95 of the said Act we have no doubt in our mind that the provisions contained in S. 14 of the Workmen's Compensation Act cannot be a bar in directing the insurer to discharge the liability of the employer in proceedings before the Workmen's Compensation Commissioner under the provision of Workmen's Compensation Act. In the instant case there is the additional circumstance that the appellant had not raised such a plea and for this reason also the appeal should fail. In the result Miscellaneous First Appeal is dismissed. There will be no order as to costs.