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The Oriental Fire and General Insurance Company Ltd. and anr. Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 520 of 1970
Judge
Reported inAIR1975AP222
ActsWorkman's Compensation Act, 1923 - Sections 2(1), 13, 13(1) and 19(2); Motor Vehicles Act, 1939 - Sections 110 and 110F
AppellantThe Oriental Fire and General Insurance Company Ltd. and anr.
RespondentUnion of India (Uoi)
Appellant AdvocateM. Sankara Rao and ;S. Mohan Rao, Advs.
Respondent AdvocateA. Raghuveer, Standing Counsel
DispositionAppeal allowed
Excerpt:
.....before commissioner of workmen's compensation - appeal filed against order rejecting such claim - commissioner does not have jurisdiction to deal with the case - section 13 does not empower commissioner to entertain such claims - held, civil court proper authority for adjudication. - - the only conditions that are to be satisfied are that the injury must be caused to a workman and the accident must arise out of and in the course of his employment. when an application is made under the workmen's compensation act and it is ordered, it must be presumed that the commissioner who is the authority concerned was satisfied that all the provisions of the act have been complied with in the matter of awarding compensation. unless he is satisfied that the claimant before him is a..........act a state government may, by notification in the official gazette, constitute one or more motor accidents claims tribunals (hereinafter referred to as claims tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles. section 110-b provides that the tribunal shall after holding an enquiry make an award determining the amount of compensation. section 110-d provides for appeal to the high court from the award of a claims tribunal. section 110-f provides that where any claims tribunal has been constituted for any area, no civil court shall have jurisdiction to entertain any question relating to any.....
Judgment:

Alladi Kuppuswami, J.

1. The facts and circumstances which gave rise to this appeal have been stated in our judgment in A. S. No. 519 of 1970. For the purpose of convenience they may be briefly repeated.

2. On 20th January, 1962 there was a collision between a goods train and a lorry belonging to the second plaintiff in O. S. 4 of 1967, Sub-Court, Adoni. The lorry was insured with the first plaintiff. The case of the plaintiff is that the lorry was crossing a railway gate when it was struck by a goods train. The lorry was damaged and the driver of the lorry and its cleaner and one of the coolies who were in the lorry died as a result of the injuries sustained during the accident. Another coolie who was in the lorry has lost his right arm and two other coolies received minor injuries. The case of the plaintiffs is that the accident was a result of the negligence of the employees of the railway. They also stated that a sum of Rs. 3,500 had been deposited before the Commissioner for Workmen's Compensation under the provisions of the Workmen's Compensation Act in regard to the claim preferred by the legal representatives of the lorry driver. Another amount of Rs. 1,500 was deposited in regard to the claim of the legal representative of the coolie and Rs. 1,800 in regard to the claim of the legal representatives of the cleaner and a sum of Rs. 1587-60 regarding the claim of the injured persons. In the plaint, the plaintiffs claimed that they are entitled to the recovery of these sums also together with interest thereon.

3. The court below held that the accident was due to the negligence of the employees of the railway and the plaintiffs were entitled to a decree for a sum of Rs. 14,000 for the damages sustained to the lorry. It however, negatived the claim regarding the amounts deposited before the Commissioner for Workmen's Compensation.

4. This appeal is preferred by the plaintiffs against the dismissal of the suit in so far as it relates to the claim for recovery of the amounts of compensation deposited before the Commissioner for Workmen's Compensation.

5. The amounts in question were deposited in the following circumstances. The legal representatives of the cleaner end the deceased coolie made a claim under the Workmen's Compensation Act on 13-12-1962 and the legal representatives of the driver made a claim on 16-12-1962. The injured coolies made their claims a little later. The claims were made against the owner, the second plaintiff, but as the second plaintiff had insured his lorry with the first plaintiff, against third party risk, the Insurance Company applied to the Commissioner to be impleaded as party and deposited the aforesaid amounts of compensation. The payments of compensations are proved by Exs. A-43 and A-19 to A-21. Hence there can be no doubt that these amounts were deposited before the Commissioner.

6. The court below however, dismissed the suit in regard to these amounts on the ground that there is nothing to show that the Commissioner had conducted any enquiry as contemplated by the Act to see whether the amounts which were deposited were in accordance with the provisions of Section 4 of the Act. Unless it was proved that there was a duty cast upon the employer to pay those amounts, the Insurance Company cannot have any right to reimbursement by merely paying some amounts before any regular enquiry is made. That apart, the material before the court does not prove that the persons who died and whose heirs were paid the compensation were workmen as defined by Section 2(1)(n) of the Act and that they were working at the place mentioned in Schedule II, clause XXV of the Act. In the absence of details as to the nature of employment, the place where the accident took place being within the precincts as postulated by Schedule II, Clause 25, it is difficult to hold whether the provisions of the Workmen's Compensation Act could be invoked.

7. We find it difficult to agree with the above reasoning and conclusion of the court below. Under Section 3 of the Workmen's Compensation Act if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this chapter. The proviso says that the employer shall not be so liable (a) in respect of an injury which does not result in the total or partial disablement of the workman for a period exceeding three days and (b) in respect of injury not resulting in death caused by an accident which is directly attributable to certain causes mentioned in that proviso. It is not the case of the respondents that this is covered by Provisos (a) and (b) of Section 3 of the Act Hence, the employer, that is, the second plaintiff would be liable to pay compensation in accordance with the provisions of the Act. It is seen from the section that the liability is absolute and does not depend upon any negligence on the part of the employer. The only conditions that are to be satisfied are that the injury must be caused to a workman and the accident must arise out of and in the course of his employment. 'Workman' is defined as a person other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business, who is employed on monthly wages not exceeding five hundred rupees. In any such capacity as is specified in Schedule II. (Vide Section 2(1)(n) of the Act). Schedule H gives a list of persons who are included in the definition of 'workman'. It is sufficient to consider Item 1 which says that any one who is employed, otherwise than in a clerical capacity or on a railway, in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle is a workman. The driver, the cleaner and the Hamalis would therefore, be 'workman1 within the meaning of the Act. When an application is made under the Workmen's Compensation Act and it is ordered, it must be presumed that the Commissioner who is the authority concerned was satisfied that all the provisions of the Act have been complied with in the matter of awarding compensation. Unless he is satisfied that the claimant before him is a workman and the accident arose out of and in the course of his employment, he cannot entertain the claim for payment of compensation. Section. 4 of the Act provides how the amount of compensation is to be computed. Section 4A provides for the payment of compensation and the penalty for default. Section 8 provides for the deposit of compensation before the Commissioner, as also to the distribution of compensation by the Commissioner. Section 10 provides how the Commissioner has to deal with a claim for compensation. If the employer disclaims liability, Section 10A provides for enquiry by the Commissioner. Section 22A enables the Commissioner to require the employer to make a further deposit if the compensation deposited is insufficient. Section 23 gives the Commissioner certain powers of a Civil Court. Section 24 deals with appearance of parties and Section 25 provides for the recording of the evidence. Section 30 provides for appeals to the High Court from the orders awarding compensation or disallowing a claim in certain cases. It is thus seen that a procedure is prescribed for determining and payment of compensation to the injured workman by the employer under the Workmen's Compensation Act. If, orders have been passed regarding payment of compensation and the amount has been deposited, it must be presumed that all the conditions laid down in the Act are satisfied, including the fact that the Commissioner was satisfied that the injured were 'workmen' within the meaning of the Act and that the accident arose out of and in the course of his employment. The court below therefore, erred in holding that there is nothing to show that the Commissioner conducted the enquiry as contemplated by the Act or that the persons who died or injured were workmen within the meaning of the Act or they were working in the place mentioned in Schedule II, Clause 25 of the Act.

8. It is true that the respondent-railway was not a party to those proceedings and is not bound by those proceedings. It is therefore, open to the respondent in the suit to dispute the fact that the persons who died or injured were 'workmen' and that there was any liability on the part of the owner under the Workmen's Compensation Act. Apart from stating that there is no privity of contract between the Insurance Company and the respondent and hence the suit is not maintainable, we do not find anything in the written statement to suggest that the respondent disputed that the injured were 'workmen' within the meaning of the Act or entitled to compensation under the Act.

9. The learned counsel for the respondent argued that the Civil Court had no jurisdiction to entertain the suit. This contention was not raised in the written statement and there is no issue regarding the jurisdiction nor is there any consideration of such question in the judgment of the court below. It has however, been submitted that as the point raised relates to jurisdiction, the respondent may be permitted to urge it before us for the first time in support of the dismissal of the suit.

10. The contention is that the suit is barred by reason of the provisions of the Motor Vehicles Act. Under Section 110 of the Motor Vehicles Act a State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles. Section 110-B provides that the Tribunal shall after holding an enquiry make an award determining the amount of compensation. Section 110-D provides for appeal to the High Court from the award of a Claims Tribunal. Section 110-F provides that where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. It is argued that the claim of the plaintiffs is a claim for compensation in respect of an accident involving the death of or bodily injury to persons arising out of the use of motor vehicles within the meaning of Section 110. Hence such claim is within the jurisdiction of the Claims Tribunal constituted under the Motor Vehicles Act and the Jurisdiction of the Civil Court to entertain any question relating to any claim for such compensation is barred under Section 110-F of the Act. This contention appears to be attractive at first sight, but on closer scrutiny, we do not find it acceptable. It is true that the jurisdiction of the Claims Tribunal under Section 110 is stated to be to adjudicate upon claims in respect of accidents involving the death, of or bodily injury to, persons arising out of the use of motor vehicles. It is therefore submitted that it would include a claim against any person provided that the accident arose out of the use of a motor vehicle. But if we have regard to the scheme of the Act and the context in which Section 110 appears, it is clear that the claim referred to in the section can have reference only to claims against the owner or the driver of the motor vehicle concerned in the accident. It could not have been the intention of the framers of the Act to include claim against other persons as well. The Motor Vehicles Act is an Act to consolidate and amend the law relating to motor vehicles. This section occurs in the chapter dealing with insurance of motor vehicles against third party risks. The object behind this section is to provide for a speedy and effective machinery for persons injured in accidents arising out of the use of the motor vehicles against the owners and drivers and insurers of motor vehicles. To accept the contention of the learned counsel for the respondent that it would include claims against all persons, would lead, in our view, to consequences which were never contemplated by the framers of the Motor Vehicles Act. For instance, a person proceeding in a motor vehicle may be injured by an accident resulting from the fall of a tree or the collapse of a building. It cannot be said that the occupants can lay a claim in the Tribunal constituted under the Motor Vehicles Act against the owners of the building or of the tree, if it was due to the negligence of such owner that such accident occurred. Similarly in this case we do not think the provisions of the Motor Vehicles Act were intended to enable the parties injured or the owner of the lorry to make a claim against the railway, simply because the accident arose out of the use of a motor vehicle. In our view, the claims referred in Section 110 are applicable only to cases of claims against the owner or the driver of the motor vehicle or the insurer as the case may be and not as against strangers. The proper forum for adjudicating the claim against the strangers is a civil court. The jurisdiction of the civil court is not in our view barred by Section 110-F of the Act.

11. Further, in this case, it has been brought to our notice that on the date of the accident or even on the date when the claim was made under the Workmen's Compensation Act no Tribunal was constituted under Section 110 of the Act The accident took place on 20th January, 1962 and the claims by the legal representatives of the deceased persons were made in December, 1962. By G O Ms. .835 Home (Tr. J.) dated 29-4-1963 published in the Gazette dated 23-5-1963 the District Judge was constituted as a Tribunal under the Act with respect to accidents arising within his jurisdiction. Hence, on the date of the accident or on the date when the claim was made, there was no Claims Tribunal under the Motor Vehicles Act before which the injured persons or the legal representatives of the deceased could seek redress. It was not possible for them to invoke the provisions of the Motor Vehicles Act. Hence Section 110 to Section 110-F of the Act were not applicable to the present case.

12. Even assuming the provisions of the Motor Vehicles Act were applicable, it will still be open to the persons concerned to make a claim under the Workmen's Compensation Act. It has been held by this Court in Pedda Ranganna v. Zaleka Bee, : AIR1970AP124 that the Tribunals under the two Acts have concurrent jurisdiction. The option lies with the claimant to choose one or the other Tribunal. Of course, if the workman chooses a particular Tribunal, it will not be open to him to choose the other one. Hence, it was permissible for the injured persons and the legal representatives of the deceased to choose the forum under the Workmen's Compensation Act to put in a claim for compensation. As has already been observed when the legal representatives of the workmen put in claims and the employer deposited the compensation under the Act, the first plaintiff who was the insurer and who was liable to pay the amount under the contract of insurance with the employer, deposited the amounts before the Commissioner for Workmen's Compensation. But as the accident arose out of the negligence of the railway and the employer was not really liable to pay the compensation, the employer and the insurer who paid the amount on his 'behalf claimed to be indemnified for such payment from the railways who are legally liable. Section 13 of the Workmen's Compensation Act expressly provides for such indemnity. It says:--

'Where a workman has recovered compensation in respect of any injury caused under circumstances creating a legal liability of some person other than the person by whom the compensation was paid to pay damages in respect thereof, the person by whom the compensation was paid and any person who has been called on to pay an indemnity under Section 12 shall be entitled to be indemnified by the person so liable to pay damages as aforesaid.'

13. Under the first part of Section 13, as the legal liability was of a person other than the person by whom the compensation was paid namely the railway in the instant case the person by whom the compensation was paid, that is, the insurer is entitled to be indemnified by the person so liable tc pay damages, namely the railway. Thus a liability to indemnify is created under this section. There is no machinery provided in the Act for the enforcement of such a right. From the provisions of the Act set out earlier, the jurisdiction of the Commissioner is only limited to the enquiry regarding payment of compensation to the injured persons and their representatives. There is no provision in the Act which deals with the enquiry by the Commissioner as to the right of the person who was made to pay the compensation against a stranger who had the legal liability. This, in our view, is rightly so because the Workmen's Compensation Act is only an Act which in main deals with the relations between the employers and their workmen and provides, for the payment of compensation by employers to workmen and is not concerned with the liabilities of strangers. The remedy provided is summary and it was not intended that strangers should be brought within the framework of the Act. The right to indemnity is no doubt, conferred by Section 13, but the Act does not provide for a remedy. In such a case, the person on whom such a right is conferred is entitled to look to the civil court for his remedy. Section 19(2) of the Act bars the jurisdiction of the Civil Court only in respect of a question which is by or tinder the Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under the Act. The question as to whether a stranger is liable to indemnify the person who has deposited compensation is not a question, which is by or under the Act to be decided or dealt with by the Commissioner. The suit also is not to enforce any liability incurred under the Act. The liability to be indemnified cannot be said to be a liability incurred under the Act as such liability can only be referred to a liability determined after the Commissioner has settled, decided or dealt with under the Act. We are fortified in this view by a decision of the Madras High Court in Trustees of the Port of Madras v. Bombay Company (P.) Ltd-, : AIR1967Mad318 . In that case the plaintiff had to pay compensation to its workmen under the Workmen's Compensation Act in respect of the injuries sustained by them. He thereafter filed a suit against the defendant claiming the amount on the ground that it was the tortious act of the defendant's servants that resulted in the permanent disablement of the plaintiff's workmen. It was held the civil court had jurisdiction to entertain the suit. The right of indemnity is conferred by Section 13 of the Act. The employer is entitled to pursue his remedies against the tort feasor in a civil court having satisfied the workmen's claim under the Workmen's Compensation Act.

14. Sri Raghuveer, the learned counsel for railways however, submitted that the suit is barred under Section 19(2) as the question ior decision in this suit is one which is required to be settled, decided or dealt with by a Commissioner under the Act. He submitted that on a proper reading of Section 13 with Section 12(2) of the Act, it would follow that the question relating to the right of the plaintiff to be indemnified by the railways falls to be considered by the Commissioner. We do not agree. Under Section 12(1) of the Act where a principal contracts with any other person ior execution by or under the contract oi the whole or any part of any work, the principal is liable to pay to any workman the compensation which he would have been liable to pay if that workmen had been immediately employed by him. Section 12(2) provides that where the principal is liable to pay compensation he shall be entitled to be indemnified by the contractor and all questions as to the right to and the amount of any such indemnity shall, in default of agreement be settled by the Commissioner. It is therefore, seen that in the case of a claim for indemnity by a principal against the contractor in respect of compensation paid by him. Section 12(2) expressly provides that such questions have to be settled by the Commissioner. Therefore, by reason oJ Section 19(2) the Civil Court has no jurisdiction to settle, decide or deal with such a question which by Section 12(2) is required to be settled, decided or dealt with by the Commissioner. But the case of indemnity against a stranger conferred under Section 13 of the Act stands on a different footing. As has already been observed, there is no provision in the Act enabling the Commissioner to settle the question of indemnity between a person and stranger, as has been provided in the case of indemnity between a principal and a contractor. Section 13 consists of two parts; the first part says that a person other than the person who is legally liable to pay damages or compensation to the workman who is paid compensation under the provisions of the Act is entitled to be indemnified by the person who is so legally liable; the second part says that a person who is called upon to pay an indemnity under Section 12 is himself entitled to be indemnified by the person who is legally liable to pay the damages. This is a case which comes within the first part of Section 13. In either of the two cases provided under Section 13, the Act does not provide machinery for settlement of the question by the Commissioner. It is only in a case coming under Section 12(2) i.e. where a principal is liable to pay compensation and is entitled to be indemnified, the question as to the right to and the amount of indemnity is to be settled by the Commissioner. We are unable to see how this case comes within Section 12(2). Sri Raghuyeer drew our attention to the decision in Medina Saheb v. Province of Madras, AIR 1946 Mad 113. In that case the contractor entered into a contract with the Government for doing some work on a road. During the execution of the work a coolie engaged by the contractor died and the Government was made to pay Rs. 500 as compensation to the dependants of the deceased by an order passed by the Commissioner. The contractor was not a party to the order. The Government while paying the contractor his dues for the work done deducted the sum of Rs. 500 as indemnity under Section 12(2) of the Act. The contractor denied his liability to pay that sum as indemnity to Government and brought a suit in the Civil Court to recover that amount as balance of the amount due to him for the work done under the contract. It was held that the suit was maintainable. We are unable to understand how this decision is applicable to the facts of this case. It is only while dealing with Section 12(2) that it was observed that when the right of the Government who was the principal in the case to be indemnified by the contractor, the question as to such a right has to be settled by the Commissioner and that there was nothing in the enactment which excludes any case of disputed right to indemnity or the jurisdiction, of the Commissioner to adjudicate under Section 12(2). This decision has no application to a case which does not come under Section 12(2), but is covered only by Section 13.

15. Lastly, it was argued that a master is not entitled to claim damages under the ordinary law of tort against a third party for injury or death caused to bis servants. Reference was made to Halsbury's Laws of England, Third Edition, Vol. 25. P. 558 to the effect that a master may recover damages in an action per quod servitium amisit for loss of services attributable to personal injuries occasioned by the wrongful act of a third party to members of his family who render him services in the household, and to domestic servants; but the action does not lie in respect of the loss of the services of other categories 'of servants. It was therefore, argued that under the ordinary law of tort, a master is not liable to recover damage for the loss of services of the servants other than domestic servants. It is unnecessary for us to consider this larger question whether under the ordinary Law of tort, a master is entitled to claim damages for the injuries or death caused to servants other than domestic servants. In this case, the right which is sought to be enforced is the right expressly conferred under Section 13 of the Workmen's Compensation. Act to be indemnified for the amount of damages paid under the Workmen's Compensation Act. In this suit, the plaintiffs are not claiming damages in tort for the loss of services of the second plaintiff's servants. They are claiming indemnity for the amount deposited by the insurer on behalf of the employer under the Workmen's Compensation Act, their case being that the legal liability to pay damages to the injured person or his legal representatives is on the railway as it was due to the negligence of its servants that the accident resulted, but that the plaintiffs were forced to pay the amount by reason of the absolute liability imposed by the workmen's compensation and they have a right to be indemnified under Section 13 of the Act.

16. We are of the view that the civil court had jurisdiction to entertain this suit.

17. In the result, the appeal is allowed, but in the circumstances without costs.

18. This appeal having been set down to for being mentioned on the office note regarding the interest on the amounts awarded in the judgment and upon hearing the arguments of M/s. M. Sankara Rao and S. Mohan Rao, advocates for the appellants and Mr. A. Raghuveer, Standing Counsel for Railways on behalf of the sole respondent the court made the following order:

We do not see any reason for granting interest from the date of plaint to the date of the decree on the sum which has been awarded by way of damages.


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