M.C. JAIN, J. - (1.) THIS appeal has been filed against the judgment of the Workmen's Compensation Commissioner, Jodhpur dated 16-02-1985 by which he has awarded Rs. 25,200/- as compensation and Rs. 12,600/- as penalty with interest @ 6% p.a. from 23-03-1981. The facts of the case giving rise to this appeal may be summarised thus.
(2.) BHAGWAN Singh, husband of Roop Kanwar (respondent No. 1) and father of Sarwan Singh (respondent No. 2) and Smt. Keshaw Kanwar (respond-ent No. 3.), was a cleaner in the truck No. RSN 5900, owned by Hari Singh (respondent No. 4). On March 23, 1981, its driver Tulchha Ram took it to the work-shop of Kasim Khan, P.W. 3 for certain repairs. When it was being put in the garage of the said work-shop, its stone-patties fell down over BHAGWAN Singh. As a result thereof, he received serious injuries, he was immediately taken to Mahatma Gandhi Hospital, Jodhpur and he remained there for about four months for his treatment. On 8-7-1981, he filed a claim petition under Rule 20, Workmens Compensation Rules, 1924 before the Workmen's Compensation Commissioner, Jodhpur for the recovery of Rs. 23,520/- as compensation with cost, interest and penalty against Hari Singh (owner of the truck) and United India Insurance Co. Ltd., Jodhpur (Insurer of the truck). The owner of the truck Hari Singh filed his written-statement admitting the claimant Bhagwan Singh was a cleaner in his truck No. RSN 5900, he was getting Rs. 200/- per month as pay, the truck was insured with the United India Insurance Co. Ltd., Jodhpur (appellant), the accident had taken place, he received injuries, and the Insurance Co. was duly informed of the accident. The appellant Insurance Co. admits in its written-statement that the said truck No RSN 5900 was insured with it and a letter was received from the insured Hari Singh informing about an accident. The remaining allegations of the claim petition were denied. It has also been averred that the accident took place due to the carelessness and negligence of the claimant himself, it did not arise out of his employment and the insurance policy did not cover the risk of a cleaner. The Workmen's Compensation Commissioner framed five issues and recorded the evidence of the claimant and the employer Hari Singh. The Insurance Co. did not produce any evidence despite taking several adjournments During the pendency of the case, the claimant Bhagwan Singh died on 07-05-1983 and his heirs (respondents No. 1 to 3) were brought on record. After hearing the parties, the said award was passed by the Workmen's Compensation Commissioner, Jodhpur. It has been contended by the learned counsel for the appellant that the Workmen Commissioner has seriously erred to pass the award against the appellant despite the fact that the accident took place in the garage of Kasim Khan which was a private place and over which the public had no right of access He also contended that the Insurance Company did not undertake the liability for a cleaner and the liability for the driver was only undertaken. It was further contended by him that the Commissioner had no jurisdiction to pass the award against the Insurance Company as it was not proved on record that the employer Hari Singh had become insolvent. He relied upon R. P. Moondra & Co. vs. Bhanwari(I), National Insurance Co. vs. Jabuni (2), United India Fire & General Insurance Co. Ltd. vs. Joseph Marlam (3) and United India Fire & General Insurance Co. Ltd. vs. P. M. Ishammal (4). He lastly contended that penalty and interest could not be awarded against the appellant and placed reliance upon Gautam Transport vs. Husain Ahmed (5).
(3.) IN reply, it has been contended by the learned counsel for the claimants that it has not been averred in the written-statements that the place where the accident took place was not a public place and as such the appellants cannot be allowed to contend that the place where the accident took place was a private place. He relied upon United INdia INsurance Co. vs. Gangadharan (6). He also contended that the garage of Kasim Khan was a public place as defined in section 2(24), Motor Vehicles Act, 1939 as the public had and have a right of access in it. He relied upon Pandurang vs. New INdia INsurance Co. (7). He further contended that it is clear from the Cover-Note Ex. A-10, Certificate of INsurance Ex.A-12 and INsurance Policy Ex.A-19 that they also included the liability of the cleaner and it is clear from the various provisions of the Motor Vehicles Act, 1939 and Workmens Compensation Act, 1923 that an INsurance Company is liable to pay compensation under the Workmens Compensation Act, 1923. He relied upon Oriental Fire & General INsurance Co vs. Nani Bala Devi (8), Oriental Fire & General INsurance Co. vs. Presiding Officer (9) Oriental INsurance Co. vs. Jeva Ramma (10) and National INsurance Co. Ltd. vs. Narayan Nair (11). He lastly contended that the INsurance Company is also liable to pay the penalty and interest as it was promptly informed of the accident by the insured. The learned counsel for the respondent No. 4 Hari Singh duly supported the learned counsel for the claimant-respondents No. 1 to 3. He also contended that the said truck No. RSN 5900 was not of higher capacity requiring two drivers, additional premium of Rs. 16/- was paid for covering the liability for the driver and the cleaner and as such the risk of the cleaner Bhagwan Singh was also covered. He lastly contended that to fasten the liability under the Workmens Compensation Act, 1923 against an Insurance Company, it is not necessary that the accident should have taken place in a public place. The first question for consideration is whether the appellant is liable to indemnify the insured-employer Hari Singh, respondent No. 4. (It is corrects that under section 14 of the Act of 1923, the Insurance Company is liable to pay the amount of compensation when the employer becomes insolvent. This does not mean that an Insurance Company is liable to pay compensation only in case the employer becomes insolvent. The first proviso to sub-section (1) of section 95 of the Act of 1939 simultaneously used two negatives, Two negatives J result in one positive. Shorn of the two negatives, the proviso runs as under: - "Provided that a policy shall be required to cover liability in respect of death, arising out of and in the course of employment of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of employment under the Workmens Compensation Act, 1923 (No. VIII of 1923), in respect of the death of, or bodily injurd, too, by such an employee........." ;