JUDGMENT Misra, C.J.
1. This appeal by the employer under Section 30 of the Workmen's Compensation Act calls in question the order dated September 9, 1980, passed by the Workmen's Compensation Commissioner, Puri, in a claim laid by respondent No. 1.
2. One Pramod Kumar Mohanty, aged about 22 years, was employed by the appellant, a bus operator, as a cleaner in a stage carriage bus bearing No. ORP 3215 of which he was the owner. The said bus was operating between Puri and Konark and had been duly insured with the National Insurance Co. Ltd. (respondent No. 2). On June 4, 1977, Promod was travelling in the said bus and was performing the duties of a cleaner. Immediately following a jerk of the vehicle on the road, the side door of the bus opened and the cleaner was thrown out. He sustained severe injuries, became unconscious and, ultimately, succumbed to the injuries in the afternoon of that day. Claim was laid by respondent No. 1, the widowed mother of the deceased, impleading the employer as also the insurer.
3. The employer did not dispute that the workman was engaged as cleaner at the relevant time, nor was there any dispute that death occurred in the course of employment. It was, however, pleaded that the driver was neither rash nor negligent; the deceased had, without informing the driver to stop the vehicle, opened the door to enable him to spit outside when he fell down. The insurer in a six-paragraphed written statement, without denying any factual averment, took the stand that the claimant had no right to implead the insurer before the Workmen's Compensation Commissioner and it should be deleted from the dispute.
4. The Commissioner framed five issues and issue No. 5 was for the determination of the liability of the insurer. The Commissioner found :
"AS regards the liability of National Insurance Company, opposite party No. 2, it is contended that there is no cause of action against the insurance company and the court has no jurisdiction to determine any liability between opposite party No. 2 and the applicant since there never existed any relationship of employer and servant between them. The learned advocate for the applicant, however, contends that it has already been decided in several cases that the insurance company can be impleaded as party in cases under the
Workmen's Compensation Act and they can be held liable to satisfy the award passed against the employer. The learned advocate cites cases reported in [
1972] ACJ 433 (
Hindustan Ideal Insurance Co. Ltd. v. Papptt Poojary) and [
1973] ACJ 428 (
Northern India Insurance Co. Ltd. v. Commissioner for Workmen's Compensation). It has been decided in the said cases that there is no bar to impleading the insurance company and in declaring its liability to satisfy the award passed against the employer. It is also held that though the primary liability is that of the employer yet the insurance company is also liable to discharge the claim as if it was a judgment-debtor. In the present case, although the applicant claims that the vehicle ORP 3215 was insured with the National Insurance Company Ltd., no document in support of the insurance has been produced. Opposite party No. 1, the bus operator, has also not produced the policy or any oral evidence to prove that the vehicle was insured with opposite party No. 2. In absence of any evidence regarding insurance of the vehicle, it is not possible to fix up any liability on opposite party No. 2."
5. The Compensation Commissioner determined the liability at Rs. 16,800 but called upon the employer to pay the amount. The employer is in appeal. Several grounds have been taken, but at the hearing, the only ground pressed is that the liability was of the insurer and the Compensation Commissioner went wrong in exonerating it. Section 95 of the Motor Vehicles Act provides what the requirements of policies under that Act should be and also prescribes the limits of the liability. It has been clearly provided in Section 95(2)(b)(i) of the M.V. Act :
" Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely :--......
(b) 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,--
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all. "
6. The deceased being an employee and not a passenger is covered by this clause and the upper limit of the insurer's liability is Rs. 50,000. In the instant case, the compensation payable is Rs. 16,800, well within the statutory limit. If the Commissioner under the Compensation Act would have jurisdiction to fix the liability and call upon the insurer to bear it, such a direction would otherwise be valid. Under Section 96 of the M.V. Act, it is the duty of the insurer to satisfy the judgment against persons insured in respect of third party risks. But according to the Commissioner, in the absence of such a provision under the Workmen's Compensation Act, no liability of the insurer could be fixed. Mr. Patnaik for the appellant relies on a series of decisions where it has been held that the Compensation Commissioner is entitled to call upon the insurer to bear the burden. A learned Single Judge of the Allahabad High Court in the case of Oriental Fire & General Insurance Co. Ltd. v. Govind Singh [1972] ACJ 137 held :
"I have heard the learned counsel for Govind Singh and he has not been able to satisfy me that under the law he is not liable to pay compensation. However, I do agree with him that he having insured the vehicle driven by deceased Sabat Singh with the Oriental Fire and General Insurance Company and he being liable to pay compensation to the widow of deceased Sabat Singh under the
Workmen's Compensation Act, the widow ought to realise the compensation decreed from the said Insurance company under the
provisions of Section 96 of the Motor Vehicles Act......"
7. A Division Bench of the Mysore High Court in the case of Hindustan Ideal Insurance Co. Ltd. v. Pappu Poojary [1972J ACJ 433, in dealing with the present contention held that though the provisions of the Workmen's Compensation Act did not expressly provide for impleading the insurer in an application under Section 22 claiming compensation or for the Commissioner declaring the liability of the insurer to pay the sum awarded against the employer, there was no impediment for invoking th& provision of Sub-sections (1) and (2) of Section 96 of the M.V. Act in proceedings under the Workmen's Compensation Act. It was, however, correct that the provisions of s. 96(1) of the M.V. Act did not contemplate that the decree should be passed against the insurer himself. The award had to be against the insured, with a declaration that the liability had to be satisfied by the insurance company. The learned Chief Justice of the Rajasthan High Court in the case of Kamla Devi v. Navin Kumar [1973] ACJ 115, also held that in a proceeding under the Workmen's Compensation Act, the provisions of ss. 95 and 96 of the Motor Vehicles Act were applicable and that the liability could be enforced. The self-same question came up for consideration before a Division Bench of the Madhya Pradesh High Court in the case of Northern India Insurance Co. Ltd. v. Commissioner for Workmen's Compensation [1973] ACJ 428, where it was held that the insurance company was a proper party to the proceedings under the Compensation Act; the provisions of Section 96 of the M.V. Act were applicable and although the primary liability to compensate was that of the employer, yet the insurance company was also liable to discharge the claim as if it was a judgment-debtor. In the case of Sital Prasad v. Ajsari Begum, [1977] ACJ 486, a learned Single Judge of the Allahabad High Court examined the self-same question and held:
"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, yet the inevitable impact of
sections 95 and 96 of the Motor Vehicles Act is to make the insurance company a necessary party to such proceedings. In that view of the matter the Compensation Commissioner was in error in upholding the preliminary objection of the insurance company in the instant case and rejecting the claim of the applicant against the company summarily and by his order dated 19-3-1974 completely absolving the insurer of the liability for payment of compensation to the applicant."
8. In the operative portion of the decision, the learned Single Judge while fixing the liability on the owner directed the order to be satisfied by the insurer.
9. In view of the consistent opinion in the series of cases referred to above, I am inclined to agree that the amount of compensation determined could be directed to be recovered from the insurer.
10. The Compensation Commissioner had no justification to look for evidence of insurance. In the claim petition it was specifically averred that the vehicle had been insured with respondent No. 2. In the written statement of respondent No. 2, there was no denial. In the absence of denial, the question of insurance did not become an issue and no proof was necessary to substantiate the allegation. By the rule of non traverse, the pleading that the vehicle had been insured with the respondent No. 2 went unchallenged. Since the amount of compensation is within the statutory liability of the insurer, as referred to above, while sustaining the award of compensation and dismissing the appeal, so far as the employer's liability is concerned, I direct that the said amount of compensation be recovered from respondent No. 2--National Insurance Company Limited. The insurer is directed to pay the amount within one month from today failing which the amount shall bear interest at twelve per cent, from today till recovery.
11. There would be no order for costs.