New India Assurance Company Limited v. Kunju s/o Kunji Mayan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 29TH DAY OF JANUARY 2016/9TH MAGHA, 1937** **MFA (WCC) No. 62 of 2013 ()** **----------------------** **AGAINST THE ORDER IN WCC 97/2009 ON THE FILES OF THE COURT OF COMMISSIONER FOR WORKMEN'S COMPENSATION, (DEPUTY LABOUR COMMISSIONER), PALAKKAD DATED 30.11.2011** ## **APPELLANT/2ND OPP.PARTY:** **------------------------** **NEW INDIA ASSURANCE COMPANY LIMITED POORNIMA THEATRE, 2ND FLOOR, ABOVE WASAN AUTOMOBILES MURBAD ROAD, KALYAN WEST 421301, THANE DISTRICT MAHARASHTRA, REP. BY THE DY. MANAGER, REGIONAL OFFICE KOCHI.** **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENTS/APPLICANTS AND OP1:** **-------------------------------** **1. KUNJU S/O. KUNJIMAYAN** **2. THAYU** **W/O. KUNJU.** **3. KRISHNAKUMAR** **S/O. KUNJU.** **4. VIJAYAKUMAR S/O. KUNJU, ALL ARE RESIDING AT PARAKUNNAM, VENGODI ELAPPULLY, PALAKKAD DISTRICT, PIN-678622.** **5. V.K.BALAN ROOM NO.4, CHINDAMAN, GUIKAR CHOWK DOKE, DEPPARALI, TALUK ULLAS NAGAR THANE DISTRICT, MAHARASHTRA, PIN-211121.** **THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 29-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA/-** # **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.** -------------------------------------------------- M.F.A. (WCC) No.62 of 2013 -------------------------------------------------Dated this the 29[th] day of January, 2016 ## **J U D G M E N T** ## Anil K. Narendran, J. The appellant is the 2[nd] respondent in WCC No.97/2009 on the files of the Commissioner for Workmen's Compensation, Palakkad, an application filed by respondents 1 to 4 herein under Section 4 read with Section 22 of the Workmen's Compensation Act, 1923 (renamed as the Employees Compensation Act, 1923, by Act 45 of 2009, with effect from 18.1.2010), claiming compensation on account of the death of one Sivan, who was employed as a driver in a lorry bearing No.MH-05/K-7018, owned by the 5[th] respondent herein and insured with the appellant. The accident occurred on 08.09.2000, at about 12.00 hours, while the deceased was under the employment of the 5[th] respondent as a driver in the bearing No.MH-05/K-7018, which was proceeding from Thane M.F.A. (WCC) No.62 of 2013 **==> picture [20 x 8] intentionally omitted <==** to Ottappalam. At the place of accident, it dashed against another lorry, bearing No.CAM 3600 due to mechanical problem. The deceased sustained fatal injuries and he succumbed to injuries. Respondents 1 to 4 contended that at the time of the accident, the deceased was aged 29 years and was earning a salary of 7,000/- per month. They filed₹ an application before the Commissioner for Workmen's Compensation, claiming a total compensation of 7,00,000/-.₹ 2. On receipt of notice from the Commissioner, the appellant insurer alone contested the matter. They filed written statement admitting that the vehicle involved in the accident has valid insurance with them. However, they denied employer-employee relationship between the 5[th] respondent and the deceased. According to them, one Khaja @ Babulu, S/o Ayook Sheik was the driver of the vehicle at the time of accident, who died on the spot, and his legal heirs filed claim before the Commissioner for Workmen's Compensation, Bijapur, as WCA No.374 of 2000. Based on the order passed in that claim, appellant insurer M.F.A. (WCC) No.62 of 2013 **==> picture [20 x 8] intentionally omitted <==** deposited ₹2,56,624/-, vide cheque No.952865 dated 05.02.2002, before Workmen's Compensation Commissioner, Bijapur towards compensation. They also contended that, as per the policy, only one driver is covered. Hence, they are not liable to pay any compensation. The appellant insurer contended further that, respondents 1 to 4 have filed OP (MV) No.145/2004 before the Motor Accidents Claims Tribunal, Palakkad, under Section 163A of the Motor Vehicles Act, 1988, claiming compensation, which was dismissed on the ground that the accident occurred due to the rash and negligent driving of the deceased. As such, the subsequent application filed before the Commissioner is not maintainable. 3. Before the Commissioner, Exts.A1 to A6 were marked on the side of applicants and the 1[st] applicant was examined as AW1. On the side of the insurer, the order passed by the Motor Accidents Claims Tribunal, Palakkad in OP(MV) No.145 of 2003 was marked as Ext.B1. M.F.A. (WCC) No.62 of 2013 **==> picture [20 x 8] intentionally omitted <==** 4. After considering the pleadings and materials on record, the Commissioner came to the conclusion that the deceased was an employee as defined under Section 2(1)(n) of the Workmen's Compensation Act and there was employer-employee relationship between the 5[th] respondent and the deceased; and that the accident arose out of and in the course of his employment. The Commissioner fixed monthly wages of the deceased at 2,000/- and assessed₹ the compensation payable under Section 4 of the Act at ₹2,09,920/-. By order dated 31.11.2011, the Commissioner directed the appellant insurer to pay the amount of compensation together with simple interest @ 12% per annum from 08.09.2000 till the date of deposit within 30 days of the date of receipt of a copy of the order. 5. Aggrieved by the aforesaid order of the Commissioner in WCC No.97/2009, the appellant insurer is before this Court in this appeal. 6. Though notice was served on the respondents in C.M.Appl.No.1258/2013 for condonation of delay, there is M.F.A. (WCC) No.62 of 2013 **==> picture [20 x 8] intentionally omitted <==** no appearance for them. 7. We heard the arguments of the learned counsel for the appellant insurer. 8. The learned counsel for the appellant insurer would contend that, going by Section 167 of the Motor Vehicles Act, 1988, the application filed by respondents 1 to 4 before the Commissioner was not maintainable, in view of the dismissal of their claim petition filed under Section 163A of the Motor Vehicles Act by the Motor Accident Claims Tribunal, Palakkad,vide Ext.B1 order in OP (MV) No.145/2003. 9. Section 167 of the Motor Vehicles Act reads thus: “Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923), where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.” Going by the provisions under Section 167 of the Motor M.F.A. (WCC) No.62 of 2013 **==> picture [20 x 8] intentionally omitted <==** Vehicles Act, where the death or bodily injury to any person gives rise to a claim for compensation under the Motor Vehicles Act and also under the Workmen's Compensation Act, the person entitled to compensation may, without prejudice to the provisions of Chapter X of the Motor Vehicles Act, claim such compensation either under the Motor Vehicles Act or under the Workmen's Compensation Act, but not under both. 10. In the case on hand, the claim petition filed by respondents 1 to 4 under Section 163A of the Motor Vehicles Act ended in dismissal by Ext.B1 order holding that, since the accident happened due to the negligence of the deceased himself, a claim petition under Section 163A of the Motor Vehicles Act is not maintainable. The question that arises for consideration is as to whether the liability of the employer to pay compensation under the Workmen's Compensation Act, on account of death of bodily injury to a workman/employee will cease on the dismissal of a claim petition filed under Section 163A of the Motor Vehicles Act, M.F.A. (WCC) No.62 of 2013 **==> picture [20 x 8] intentionally omitted <==** on a finding that the accident happened due to the negligence of the injured/deceased himself. 11. Going by the proviso to sub-section (1) of Section 3 of the Workmen's Compensation Act, the employer shall not be liable for compensation in respect of any injury, not resulting in death or permanent total disablement caused by an accident, which is directly attributable to (i) the workman/employee having been at the time thereof under the influence of drink or drugs; or (ii) the wilful disobedience of the workman/employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the security of workmen/employees; or (iii) the wilful removal or disregard by the workman/employee of any safety guard or other devise which he knew to have been provided for the purpose of securing the safety of the workman/employee. 12. In **State of Orissa v. Mohd. Illiyas (2006 (1) SCC 275)** , the Apex Court, following the principle laid down in **Rakapalli Raja Rama Gopala Rao v. Naragani** M.F.A. (WCC) No.62 of 2013 ..8.. **Govinda Sehararao (1989 (4) SCC 255)** reiterated that, an act is said to be 'wilful' if it is intentional, conscious and deliberate. In **Mohd. Illiyas's** case (supra), the Apex Court held further that, the expression 'wilful' excludes casual, accidental, bona fide or unintentional acts or genuine inability. A wilful act does not encompass accidental, involuntary or negligent. It must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing therefrom. The expression 'wilful' means an act done with a bad purpose, with an evil motive. 13. If the provisions under clause (b) of the proviso to sub-section (1) of Section 3 is read in the light of the law laid down by the Apex Court as above, it can be seen that even in respect of any injury, not resulting in death or permanent total disablement, caused by an accident, which is directly attributable to the wilful disobedience of the workman/ employee to an order expressly given or to a rule expressly framed for the purpose of securing the safety of workman/employee or the wilful removal or disregard by M.F.A. (WCC) No.62 of 2013 **==> picture [20 x 8] intentionally omitted <==** such workman/employee of any safety guard or other devise which he knew to have been provided for the purpose of securing his safety; in order to absolve the employer from the liability for compensation it has to be established that the act of the workman/employee was wilful and not casual, accidental or bona fide or unintentional act or genuine inability. Further, the provisions contained in sub-clauses (i) to (iii) of Clause (b) to the proviso to sub-section (1) of Section 3 of the Workmen's Compensation Act have no application in the case of death or permanent total disablement of the workman/employee in an accident arising out of and in the course of his employment. The express wording of the proviso to the effect that 'the employer shall not be liable for compensation in respect of any injury, not resulting in death or permanent total disablement, caused by an accident' itself excludes the cases involving death or permanent total disablement from the purview of the proviso. Therefore, mere dismissal of the claim petition filed under Section 163A of the Motor M.F.A. (WCC) No.62 of 2013 **==> picture [26 x 8] intentionally omitted <==** Vehicles Act on a finding that the accident happened due to the negligence of the injured/deceased himself will not disentitle the claimants from approaching the Commissioner with an application for compensation under Section 4 read with Section 22 of the Workmen's Compensation Act. In that view of the matter, the contention of the appellant insurer regarding the maintainability of the application filed by respondents 1 to 4 before the Commissioner can only be repelled. 14. The further contention raised by the learned counsel for the appellant insurer is that, based on an application filed before the Commissioner in the year 2009, in respect of the accident occurred in the year 2000, the appellant insurer is mulcted with the liability to pay interest from the year 2000 onwards. As borne out from the pleadings and materials on record, after the accident, respondents 1 to 4 filed a claim petition under Section 163A of the Motor Vehicles Act before the Motor Accident Claims Tribunal, Palakkad in the year 2003, as OP(MV) M.F.A. (WCC) No.62 of 2013 ..11.. No.145/2003. The said claim petition ended in dismissal only on 16.3.2009 by Ext.B1 order. It was immediately thereafter respondents 1 to 4 filed the present application before the Commissioner. 15. A Four-Judge Bench of the Apex Court in **Pratap Narain Singh Deo v. Srinivas Sabata (1976 (1) SCC 289)** held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workman by the accident which arose out of and in the course of employment. A Three-Judge Bench of the Apex Court in **Kerala State Electricity Board v. Valsala K. (1999 (8) SCC 254)** reiterated that the amount of compensation is payable on the date of accident. In the light of the judgment of the Apex Court referred to above, the Commissioner was legally correct in granting respondents 1 to 4 statutory interest at the rate of 12% from the date of accident on the amount of compensation. 16. Another contention raised by the learned counsel for the appellant insurer is that there was no employer- M.F.A. (WCC) No.62 of 2013 **==> picture [26 x 8] intentionally omitted <==** employee relationship between the 5[th] respondent and the deceased and that one Khaja @ Babulu was the driver of the vehicle in question at the time of accident, who died on the spot of accident, and that, his legal heirs filed claim petition before the Commissioner for Workmen's Compensation, Bijapur as W.C.A.No.374/2000, which was allowed , pursuant to which order, the appellant insurer deposited a sum of 2,56,524/- vide cheque dated 5.2.2002. Therefore,₹ the learned counsel for the appellant insurer would contend that the deceased was not the driver of the vehicle in question. A reading of the order passed by the Commissioner would show that such a contention was raised before the Commissioner, which has been dealt with under issue No.5. After considering the materials on record, the Commissioner arrived at a finding that the aforesaid Khaja @ Babulu was not the driver of the vehicle in question, but he was the cleaner of the said vehicle. The Commissioner has also found that the deceased Sivan was driving the vehicle at the relevant time. The aforesaid M.F.A. (WCC) No.62 of 2013 **==> picture [26 x 8] intentionally omitted <==** findings of fact arrived at by the Tribunal are neither perverse nor patently illegal, warranting an interference in this appeal. 17. Further, the compensation awarded by the Tribunal cannot be said to be on a higher side and in that view of the matter as well, no interference with the order passed by the Commissioner is warranted. In the result, the appeal fails and the same is dismissed. Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** bka/- //True copy// PA to Judge