M.THANIKACHALAM, J. - (1.) The 2nd opposite party, in all the above complaints, is the appellant in all the appeals. 2.This order shall dispose of the above said appeals, as agreed by the learned counsel for the appellant. 3.Common facts, necessary for the disposal of all the appeals. 4.The parties are referred in this order as arrayed in the original complaints. 5.The 1st opposite party (in all the cases), is having a cracker manufacturing workshop, for which, at the instance of the 3rd opposite party (in all the cases), the 2nd opposite party (in all the cases), had given Group Personal Accident Insurance Scheme, assuring a sum of Rs.50000/-, in case of accident, and under the Group Personal Accident Insurance, the maximum workers/employees cover are 100, but unnamed. In the said 1st opposite party fire works industries, the persons shown in the table below, under column 1, were working as employees/ workers, and they are also, covered by Group Personal Accident Scheme, for which premium, was paid by the 3rd opposite party. S.No. Employee/ Worker (1) Legal heirs of the deceased employees (2) OP.Nos. (3) Appeal No. (4) Claim amount (5) 1. Jakkammal V.Rajamani and others 47/2007 770/2008 Rs.50000 2. Ramalakshmi S.Santhanam and others 34/2007 771/2008 -do- 3. Mariselvi P. Durairaj, and others 31/2007 772/2008 -do- 4. Perumalsamy P.Karuppaee and others 33/2007 778/2008 -do- 5. Mariammal R. Kalirajan 35/2007 779/2008 -do- 6. Lakshmi K. Kaleeswari 37/2007 780/2008 -do- 7. Anthony Muthu A. Saraswathi and others 32/2007 297/2009 -do- 8. Sangiliammal Mariammal 36/2007 298/2009 -do- 6.On 2.7.2005, a fire accident had taken place in the 1st opposite party Fire works industries, in which not only the persons shown in the above table, under column (1) died, but four others persons also died, in addition, many sustaining injuries, for which FIR was registered. After the accident, the Legal heirs of the deceased shown in Column No.3, were given solacium and other benefits, but the 2nd opposite party despite the claim made, based upon policy, failed, neglected to pay the sum of assured under the policy, thereby they have committed deficiency in service. The insurance company instead of honouring the policy, repudiated the claim, on the ground that the opposite parties 1 and 3, have committed breach of written warranty, and they have also failed to pay the additional premium for additional number of employees, since in the accident, according to them 167 workers were working, which is incorrect. The workers or their legal heirs, have not committed any violation of the terms and conditions of the policy, and therefore having given insurance for 100, when the claim was less than that number, the 2nd opposite party should have settled the claim, and the failure should be construed as deficiency in service. Thus alleging, all the legal heirs of the deceased, as shown in the above table, column 3 have filed the consumer complaints, claiming a sum of Rs.50000/-, each as well as cost of Rs.5000/-, with interest. 7.The 1st opposite party, admitting the Group Personal Accident Insurance Scheme, taken with the 2nd opposite party, contending that the 3rd opposite party is the custodian of the workers, by whom premiums were paid to the 2nd opposite party, resisted the case on the grounds, that if the workers died during the course of employment, the family of the deceased is entitled to get a sum of Rs.50000/- from the Group personal Accident Insurance scheme, that has directed by the Hon?ble High Court, for the legal heirs of the deceased, as well as for the insured they have paid a total sum of Rs.10,65,000/-, including the claimants in all the complaints, and therefore as such they are not liable to pay any more compensation, further contending that only 100 labours were working, at the time of accident, in their factory, thereby praying to dismiss the case, as far as they are concerned. 8.The 2nd opposite party, admitting the insurance taken by the 3rd opposite party for 100 workers of the 1st opposite party, under the Group Personal Accident insurance claim, for the period from 30.12.2002 to 29.12.2005, resisted all the cases, contending that as per the warranty clause, total number of employees working in the factory should not exceed Rs.100/-, whereas there was breach of warranty clause, since at the time of accident 149 employees working in the 1st opposite party factory, that because of the breach of warranty clause, as well for not following of enrolment procedure, there were violation of policies, and they are not liable to pay the sum assured, under the Group insurance policy, praying for the dismissal of the complaint, denying further averments also. 9.The District Forum, in its separate orders dt.27.12.2007, recorded a finding that the 2nd opposite party failed to prove, the breach of employees warranty, since as per the Muster Role, only 99 workers were working in the 1st opposite party Fire Works factory, which is within the norms under the policy, that despite this fact, the non-settlement of the claim should be construed as deficiency. Thus concluding, under the Group Personal Accident Insurance Scheme, the District Forum directed in each case, the 2nd opposite party alone should pay the sum of Rs.50000/-, being the assured amount, with cost of Rs.5000/-, which are challenged by the 2nd opposite party, in the above said appeals, independently. 10.The facts beyond controversy are that the 1st opposite party is running a fire work industries at Sivakasi, which is under the control of the 3rd opposite party. Securing the safety and welfare of the workers, under the Group Personal Accident insurance cover, for fire works in the factory, at the instance of the 3rd opposite party, collecting premium, the 2nd opposite party issued a Group Personal Accident claim policy, covering the period 30.12.2002 to 29.12.2005. Total numbers of workers, covered under the policy are 100. In the said factory, admittedly there was a fire accident on 2.7.2005, in which admittedly 12 workers died, and many injured. Out of the 12 workers died, legal heirs of 8 have filed cases, as shown in the table, and they have succeeded also, which are now impugned. 11. The learned counsel for the appellant urged, that as per the certificate of insurance, premium was paid Rs.4526/-, covering 100 employees, working in the factory of he 1st opposite party, and in this case, more than 100 workers were employed, and therefore there is a breach of warranty, inviting our attention to the conditions attached to the Group Personal Accident insurance policy. The condition mandate, premium should have been paid for all the workers, between the age of 14 to 70 years, working in the factory, and the number of workers working in the factory should not exceed the actual number of workers covered in the policy, i.e., 100 in this case. It is also an admitted fact, that only for 100 workers, premium was paid, collected. In view of the above said admitted facts, as per the records, it is for the appellant/2nd opposite party to prove that either the 1st opposite party or the 3rd opposite party, had violated the terms and conditions of the policy viz. they have employed more than 100, thereby committed the breach of warranty.12. It is no doubt true during the currency of the policy, fixing the total number of employees, working in the factory, should not exceed 100, and this can be taken as promissory warranty, as pointed out by the learned counsel for the appellant. If such a warranty is a condition, that must be exactly complied with, whether it is material to the risk or not, as rightly urged by him also. For the non-compliance of the promissory warranty is an excuse, for that there should be change of circumstances, and it should be shown the warranty was referred unlawful in subsequent provisions, which is not the case here. The importance of the warranty was enlightened by the learned counsel for the appellant, inviting our attention to a decision of the National Commission in T.S. Vivekananda Kumar Vs. United India Insurance Co. Ltd., and another, reported in I (2009) CPJ 288 (NC), wherein the Hon?ble National Commission has held, if the warranty and exclusion clauses are available under the policy, irrespective of its significance, that should be followed, failure should make the policy void. In the policy involved, in the above decision, there was a warranty that the stock should be secured in locked burglar proof, safe at night. It appears, that was not complied with, though otherwise the premises was secured. After the burglary when a claim was made, this warranty clause was pressed into service to reject the claim, accepted by the National Commission. If this is to be followed, insured cannot have any claim, as said above, it is the duty of the insurance company, to prove that the warranty was breached by employer, more than 100, employing workers, then claiming accident benefit for these employee also. 13. In this case, total number of workers died were only 12, out of which legal heirs of 8 alone, have filed the case. We do not have exact figure regarding the number of persons insured, and it is not made out, even by pleadings by the 2nd opposite party, that more than 100 persons have claimed under the Group Personal Accident insurance cover. Thus we can safely conclude, number of persons covered under the policy is within 100. But, the learned counsel for the appellant, would contend, that the number of claimants are not the criterion, though it may less than 100, but the number of workers employed in the 1st opposite party should be taken into consideration, and irrespective number 100, since the 1st opposite party had employed 159 workers, or exceeding 100, then it should be construed as breach of warranty, which submission we are inclined to accept, want of proof. 14. This submission is made to avoid unnecessary claim by 3rd parties, being engaged by the fire work industries illegally, then in the case of accident, covering them also, that should be prevented, which we are not going to quarrel. Therefore, now the only question is, how many employees, were employed by the 1st opposite party, at the time of accident, or during the currency of the policy. 15. After the accident, as seen from Ex.A1, FIR was lodged, wherein also, we find the number of employees insured or dead, not exceeding 100, whereas FIR would disclose the names of some dead persons, further informing many injured. The police have also not filed the final report, which would disclose the number of persons dead, as well as injured, warranting punishment against the accused. Thus, from the records produced on behalf of the complainant, as well as on behalf of the opposite parties 1 and 3, we are unable to say, that the 1st opposite party would have engaged more than 100 workers, in order to say, they have committed breach of warranty, as discussed above. 16. The enrolment procedure, or the prescribed form, not produced, cannot be taken, as the violation of the policy, to construe the policy itself null and void, since we find no such condition, though employment procedure contemplates, all workers in the age group of 14 to 70 years have to give their names of the employer, under whom they are working in form No.1, and if at all it must be a lapse on the part of the 3rd opposite party, for that we feel the genuine claim for the death of the actual worker, should not be deprived of. 17. The insurance company, upon information, about the accident, appointed one Antony Ran, for investigation, he being the insurance surveyor, authorized, and his report is marked as Ex.B4. By going through this report also, we find no indication, that the 1st opposite party should have employed more than 100, though he would state, that they are not maintaining Form No.1, as well they have submitted, Muster Roll, only on 1.7.2006. The Muster Roll copy is marked as Ex.B13, which says, there were only 99 workers or so. Based upon this record, the surveyor in his final remarks, recorded, as per the Muster Roll copy, only 99 employees present in the factory, as on the date of accident, thereby confirming the defense of the opposite parties 1 and 3 also, instead of improving the case of the 2nd opposite party, as if there was breach of warranty employing more than 100, offending the certificate of insurance policy. The District Forum, considering the surveyor?s report, as well as the admitted fact, viz. the deceased were working in the 1st opposite party, who are all should be covered under the policy, the policy being unnamed, came to the just and correct conclusion, that the non-settlement of the claim, when made by the legal heirs should be construed as deficiency, and that is the case of the complainants also, in all the cases. For the above said reasons, though, a sincere attempt was made by the learned counsel for the appellant, to say that the opposite parties 1 and 3 have committed breach of warranty, for want of evidence, we are unable accept the same, whereas by the presence of evidence, we conclude there would not have been more than 100 employees, and under the policy, the 2nd opposite party, as agreed, entitled to compensate for the death, the maximum amount of Rs.50000/-, for which alone, award was given, not even interest, only alongwith cost, in which operative portion of the order also, we are unable to find any error, and we refrain ourselves from disturbing the findings and conclusion, of the District Forum, thereby concluding all the appeals are devoid of merits, liable to be dismissed. 18. In the result, all the appeals are dismissed, confirming the order of the District Forum in all the complaints. There will be no order as to cost in the appeals.;