#compensationandinterest

[seemabhatnagar]

National Insurance Company Limited v. Kalawati and Others

FAO No.439/2012

Before High Court of Himachal Pradesh at Shimla

The Bench of Hon’ble Mr. Justice Sushil Kukreja J partly allowed the Appeal of the Insurance Company to the extent of setting aside the liability of payment of penalty. However upheld the order of Workman Compensation Commissioner for payment of compensation and interest by the Insurance Company.

Background

The appeal is filed by the National Insurance Company against the order dt. 05.05.2012 passed by the Commissioner, Employee’s Compensation Solan u/s 30 of Employees Compensation Act awarding compensation amounting to Rs.4,52,760/- with 12% interest per annum.

Fact

Deceased Sunil Kumar was Bus conductor and also worked as coolie for the truck owned by Sukh Pal and was insured with National Insurance Company.

On 22.01.2006 near Durgaghat, Arki the Truck rolled down the valley due to rash and negligent driving of the driver Om Prakash and he died instantly.

It was submitted by the parents of the deceased that their son was working with Respondent Sukh Pal and was getting Rs.5000/- per month as fixed amount and Rs.100/- as daily allowance.

At the time of death Sukh Pal was just 18 years old.

Submission of the owner of the Truck

Sukh Pal died as driver lost control over the truck.

Owner of the Truck denied contention of the parents of the deceased that he was getting fixed amount of Rs. 5000/- per month along with Rs.100/- as daily allowance.

Rather he was getting Rs.1800/- per month and since vehicle was insured with National Insurance Company & Insurance Company is under obligation to indemnify the Truck Owner.

Submission of the Insurance Company

Insurance Company denied that deceased Sukh Pal was engaged as conductor by the Truck Owner.

Insurance Company denied that the deceased Sukh Pal was getting Rs. 5000/- per month.

Issues as framed by Motor Accident Claim Tribunal (MACT)

Whether the deceased was engaged as conductor & coolie by the truck owner and he died in the course of employment.

Whether the deceased falls under the definition of workman as defined under Workman Compensation Act.

Whether petitioners(parents) are entitled for compensation & if so to what extent & from whom.

Whether the driver of the vehicle was not having valid and effective driving license.

Order of the MACT

Respondents are liable to pay compensation amounting to Rs.4,52,760/- with interest @12% per annum one month after 22.02.2006 failing which liable to pay interest as per law.

Aggrieved by the order of MACT, Insurance Company filed First Appeal before High Court.

High Court framed substantial question of law

Whether order of the MACT can be sustained?

Whether the MACT was correct in awarding interest?

Submission of the Insurance Company before High Court

Insurance company’s contention was it is not liable to pay penalty as awarded by the Workman Compensation Commissioner.

As this amount was awarded against the owner of the Truck as it was owner’s default for which Insurance Company is not liable.

Observation of the High Court

The insurance company is not liable for payment of penalty.

It is the owner of the Vehicle liable for payment of penalty.

Wherefore, the order of the Workman Compensation Commissioner to the extent of directing Insurance Company to pay penalty to the petitioner (parents of the deceased) is set aside.

Insurance Company is only liable to pay compensation with Interest.

Order

Insurance Company is exonerated from the payment of penalty and it shall be paid by the owner of the truck within a period of two months from the date of judgement.

Seema Bhatnagar