NEW INDIA ASSURANCE CO LTD Vs. PARAMESWARI AMMA
HIGH COURT OF KERALA
NEW INDIA ASSURANCE CO. LTD.
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(1.) The appellant before us is the New India Assurance Company Limited and the challenge is to the award of the Commissioner for Workmen's Compensation, Kozhikode. That adjudicated the claim of the dependant of a workman who died as a result of an accident. During the course of the proceedings before the Commissioner for Workmen's Compensation the New India Assurance Company which was the insurer in regard to such accident was made a party. The Commissioner has found that the employer, Opposite Party No. 1 is liable to pay to the applicant Rs. 7,000 as compensation. That was directed to be deposited by Opposite Party No. 1, namely the employer. Though in this appeal an attempt is made to challenge that finding, we see no reason to interfere with that finding as it is a finding of fact. But the main grievance of the appellant is as to the direction towards the end of the award of the Commissioner wherein he mentions.-
"Opposite Party No. 1 is entitled to be indemnified by Opposite Party 2 to the full extent of the above mentioned amount of compensation".
It is urged before us that this direction in the order of the Commissioner is incompetent.
(2.) S.12 of the Workmen's Compensation Act enables a claim against the principal employer to be pressed. The question of a principal employer would arise only where "any person in the course of or for the purposes of his trade or business contracts with any other person for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal". S.12(2) provides for indemnity to the principal from the contractor or any other person from whom the workman could have recovered compensation. There is no question of any principal employer and contractor in this case. It is not anybody's case that the Insurance Company is the principal employer, or that it is a contractor Therefore no question of indemnity under S.12(2) arises. The only other provision which, it may be necessary to refer to in this case is S.14. Sub-s.(1) of this section enables the insurer company to be treated as an employer in the event of insolvency of the employer. The scheme of the Act indicates that this is the sole circumstance under which the liability of the employer extends to the insurer also. Of course, as between the insurer and the employer there may be scope for indemnity apart from the terms of the Workmen's Compensation Act. That is because of the contract of the insurance and any adjudication on that question is not within the province of the Workmen's Compensation Commissioner. Therefore the direction of the nature found in the impugned order and which is under challenge is not one which the Commissioner for Workmen's Compensation is expected to make. To that extent the appellant must succeed. In fact we find that that direction is inoperative, for, claims if any of the Opposite Party No. 1 as against Opposite Party No. 2 will nevertheless have to be worked out in other proceedings. Whatever that be it is sufficient to say that the observation in the order which is objected to by the appellant was uncalled for. That is the only relief the appellant can seek. We wonder whether it was necessary at all for the appellant to come to this court. Probably it was out of an apprehension that the observation might prejudice the appellant one way or other that the appeal was moved. Anyhow we leave the matter there.
(3.) We hare to notice an apprehension of the first respondent, the dependant of the workman that our decision should not in any way lead the authorities to construe that S.96 of the Motor Vehicles Act could not be invoked against the appellant. This is a provision which imposes a duty on an insurer to satisfy judgments against persons insured in respect of third party risks. That provides that if, after a certificate of insurance has been issued 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 is obtained against any person concerned 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 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. The contention of the first respondent is that by virtue of this provision without any direction from the Commissioner for Workmen's Compensation, it is possible to treat the insurer as the judgment debtor against whom the relief awarded by the Commissioner could be worked out without anything more and in support of this certain decisions are brought to our notice. We do not want to go into this question, for we are not called upon to pronounce on this one way or the other. It is said that the amount has been deposited and part of the amount has been paid. There is no stay from this court and we wonder why only part of the amount has been paid to the first respondent. Whatever that be, if the first respondent invokes S.96 and claims the balance amount, our decision would not stand as a bar, for independent decision on that question, for, we do not propose to pronounce on this in this appeal.
The appeal is allowed to the limited extent pointed out above. Parties are directed to suffer costs.;
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