- (1.) This is miscellaneous appeal under Section 30 of the Workmen' Compensation Act, 1923 (hereinafter 'the 1923 Act') against the judgment dated 15-5-2002 passed by the Workmen' Compensation Commissioner, Sikar (hereinafter 'the Commissioner'). Thereunder the Commissioner has awarded to the claimants compensation of Rs.4,10,200/- along with interest at the rate of 12% from the date of the judgment till the date of payment for the death of Shambhuram, aged 31 years in an accident on 28-1-2001 while driving truck No.RRF 5013 insured with the appellant insurance company.
(2.) Learned counsel for the appellant insurance company has submitted that it has wrongly been held liable for payment of the compensation as awarded. The submission is that from the admitted facts on record, the vehicle in question truck No.RRF 5013 was transferred and delivered for consideration to Khushi Ram, on or about 29-6-1993 by its registered owner Liyakat Ali the respondent No.8 the insured to the respondent No.7 Khushi Ram. Yet Liyakat Ali continued to obtain insurance policy in his own name with regard to the said truck No.RRF 5013 from the appellant insurance company suppressing the fact of transfer/ delivery of the truck No.RRF 5013. The last of such insurance was fraudulently obtained from the appellant insurance company by Liyakat Ali from 1-6-2000 to 31-5-2001. The insured truck No.RRF 5013, was then involved in an accident on 28-1-2001, no doubt during the currency of the policy whatever its worth in the circumstances obtained by Liyakat Ali, in spite of sale/ transfer and delivery to Khushi Ram. It was submitted that from the evidence on record of the claim petition, the claimants admitted to the factum of the deceased Shambhu Ram being an employee of Khushi Ram and not of Liyakat Ali. And that this admission itself was sufficient for the appellant insurance company being absolved of any liability towards the payment of compensation to the claimants for the death of Shambhu Ram. Counsel submitted that the liability of the insurance company under the Act of 1923 has been held by the Hon'ble Supreme court to be a contractual liability and not a statutory liability. Consequently, the only liability of insurer can be to the insured and his lawful employee in terms of the contract of insurance. There is a privity of contract which cannot extend to cover liability of a subsequent purchaser of the insured vehicle towards his own employee/s. It was submitted that the liability under the Act of 1923 covers the owner of the vehicle insured with the insurer and not the vehicle itself and the transfer of the vehicle does not entail substitution per se of the insured owner. It has been submitted that the appellant insurance company insuring a vehicle is only liable vicariously or otherwise under the contract of insurance to the owner it has contracted with for the payment of compensation to his employee but not liable to pay compensation to an employee of a third party, stranger (subsequent purchaser of the vehicle) to the contract between the insurance company and the originally insured. He submitted that the transfer of the vehicle and the insurance policy under Section 157 of the Motor Vehicles Act, 1988 enures only to the benefit of transferee only in respect of third party liability and not to the liability of the third party to its employee under the Act of 1923 or otherwise. Reference has been made to the judgment of the Orissa High Court in the case of National Insurance Co. Ltd. Vs. Mayadhar Pal, 1993 ACJ 444] in support of the contention.
(3.) Mr. Ved Prakash, learned counsel for the claimants has submitted that the defence of the appellant insurance company to have itself absolved of its liability on the ground of the deceased Shambhu Ram being an employee of the transferee Khushi Ram, who was not a party to the contract of insurance between the insurance company and Liyakat Ali is technical in nature. He submitted that as the Act of 1923, is a socio economic beneficial legislation, and court should not countenance evasive tactics at the instance of the insurance company, more so a public sector undertaking. Counsel submitted that the insured truck No.RRF 5013 continued to remain in the name of registered owner Liyakat Ali and was delivered/ transferred to Khushi Ram only under an arrangement. Counsel submitted that in fact an arrangement appears to have been made in the knowledge of insurance company, inasmuch as the insured truck No.RRF 5013 for which the policy of insurance was obtained by Liyakat Ali for the period 1-6-2000 to 31-5-2001 recorded the address as C/o K.R. Golden Transport Co. Counsel has further submitted that in these circumstances, Khushi Ram should be deemed to be an agent of Liyakat Ali and as such the deceased Shambhu Ram by extension an employee of Liyakat Ali the insured. Counsel submitted that the arrangement so construed would entail a liability for the death of Shambhu Ram while driving the insured truck No.RRF 5013, not only to his employer Khushi Ram but also Liyakat Ali the registered owner in turn making the insurer the appellant insurance company liable.;