Hon'ble VYAS, J. - (1.) APPELLANT United India Insurance Company has preferred this appeal under Section 30 of the Workman Compensation Act against judgment dated 31.03.1997 passed by the Commissioner, Workman Compensation, Udaipur in Case No.44/93, whereby, the learned Commissioner passed award in favour of respondent No1 applicant and a sum of Rs.83,515/- was allowed as compensation along with interest at the rate of 6% after one month from the date of accident, which is 02.03.1991, till payment of the amount of compensation; and, further ordered to pay penalty of Rs.20,878/-, 25% of the amount of compensation, within 60 days.
(2.) FIRST of all, with regard to imposition of penalty upon the insurance company, learned counsel for the appellant invited attention of the Court towards judgment of this Bench rendered in the case of United India Insurance Company Ltd. vs. Smt. Kanwari Devi & Others, reported in MACD 2010(1) (Raj.) 196 = 2010(1) CCR 201 (Raj.), in which, while following the judgment of Hon'ble Supreme Court, rendered in Kamla Chaturvedi's case, (2009) 1 SCC 487, this Bench has held that liability of penalty against the insurance company is not justified and it is to be paid by the employer. Therefore, while following the above judgment, the liability fastened upon the insurance company vide impugned judgment dated 31.03.1997 with regard to penalty is hereby set aside as against the insurance company and shifted upon the employer. If the said amount has been paid to the claimant the insurance company shall be entitled to recover the said amount from the employer. Learned counsel for the insurance company vehemently argued that the Commissioner, Workman Compensation has committed an error while awarding compensation in favour of the respondents because while passing the award the learned Commissioner has not considered the policy of tractor No. RJB 6360, upon which, the accident took place. The insurance company has covered the risk of driver only and risk of cleaner was not covered by the appellant insurance company, therefore, the award impugned deserves to be quashed. It is submitted in the appeal that the learned Commissioner has erred in not considering the sitting capacity of the tractor No.RJB 6360 which is evident from the registration certificate of the tractor which was on file, in which, it is clearly mentioned that the sitting capacity, including the driver, is one; meaning thereby, the insurance company has insured the driver only and not other person because it is not permissible by the registering authority. The net argument of learned counsel for the appellant is that the learned Commissioner has erred in holding the insurance company liable for the risk of cleaner which is not covered under the policy. Learned counsel for the appellant, for the aforesaid purpose, invited my attention towards regulation 28 of the Rules of Road Regulations 1989, in which, it is provided that a driver while driving a tractor shall not carry or allow any person to be carried on the tractor and a driver of goods carriage shall not shall not carry in the driver's cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward. While referring to Regulation 28, learned counsel for the appellant invited my attention towards judgment reported in 2009 ACJ 1828 of the High Court of Chhattisgarh, rendered in the case of Royal Sundaram Alliance Insurance Co. Ltd. vs. Eshwar & Others, in which, said regulation was considered and it has been held that according to Regulation 28 of the Rules of Road Regulations, the driver is prohibited to be carried on a tractor. Learned counsel appearing on behalf of respondents submits that in this case conduct of the appellant is required to be seen. Before the Commissioner, Workman Compensation, no documentary evidence whatsoever was produced by the appellant insurance company, so also, no evidence whatsoever has been produced by the insurance company and, on the contrary, counsel for the appellant is misleading this Court that in view of Regulation 28 of the Rules of Road Regulations, 1989, the driver is prohibited to carry or allow any person to be carried on a tractor.
(3.) WHILE inviting my attention towards judgment reported in 2006 ACJ 2212, New India Assurance Co. Ltd. vs. Sita & Others, it is submitted by learned counsel appearing on behalf of the workman that as per the said judgment the plea taken by the petitioner for the first time before this Court cannot be considered. I have considered the rival submissions made by both the parties and perused the judgments cited by both the parties and, so also, the facts of the present case. Admittedly, the insurance company is not disputing the accident nor it is disputed that the workman was cleaner upon the tractor in question. It is also one of the important aspects of the matter that no documentary evidence whatsoever was produced by the insurance company which is evident from the observation made by the workman in para 5 of the judgment. It is also not disputed by the appellant insurance company that the vehicle in question was insured with the insurance company. Further, there is no objection before the Commissioner, Workman Compensation that the claimant was passenger upon the tractor. In this view of the matter, if no evidence was produced by the insurance company before the Workman Compensation Commissioner, then, in view of the judgment reported in 2006 ACJ 2212, rendered in the case of New India Assurance Co. Ltd. vs. Sita & Others (supra), at this stage, the appellant cannot be permitted to raise any ground contrary to the plea taken before the Commissioner, Workman Compensation. Para 21 of the aforesaid judgment reads as' under : "21. Therefore, in view of the above legal position even if the more number of persons were travelling in the truck then it has no adverse affect on the claim of the claimants and upon the claim of the insured to claim reimbursement from the insurance company. The judgments relied upon by learned counsel for the appellant which was delivered in the cases of New India Assurance Co. Ltd. vs. Asha Rani, 2003 ACJ 1 (SC) and Oriental Insurance Co. Ltd. vs. Devireddy Konada Reddy, 2003 ACJ 468 (SC), have no application to the facts of this case in view of the fact that the insurance company itself specifically undertook liability of the persons engaged in the work of unloading of the fodder in this case, I do not find any force in the submission of the learned counsel for the appellant that the appellant can take plea of limit of liability at this stage on the plea that the insurance company can be directed to pay the compensation to the claimants only up to the extent of the amount which can be awarded to the employees under the provisions of the Workmen's Compensation Act, 1923. Neither it was pleaded by the insurance company in the reply nor it Was argued before the Tribunal and nor it has been raised as ground in the memo of appeal." ;