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The Workmen' S Compensation Act, 1923
Section 30 in The Workmen' S Compensation Act, 1923
Section 30(1) in The Workmen' S Compensation Act, 1923
The Motor Vehicles Act, 1988
Section 2 in The Workmen' S Compensation Act, 1923

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Rajasthan High Court
Oriental Insurance Co Ltd vs Badami Devi And Others on 23 April, 2012

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

SB CIVIL MISC. APPEAL NO.737/2012.

The Oriental Insurance Co.Ltd. – APPELLANT.

VS

Smt. Badami Devi & Others. – RESPONDENTS.

DATE OF JUDGMENT : 23rd APRIL, 2012.

PRESENT

HON'BLE MS. JUSTICE BELA M. TRIVEDI

Mr. R.P. Vijay for the appellant.

Mr. Vinay Mathur for the respondents.

BY THE COURT :

REPORTABLE

1. The present appeal has been filed by the appellant-Insurance Company under Section 30 of the Employee's Compensation Act, 1923 (hereinafter referred to as 'the E.C. Act') against the judgment and award dated 9.1.12 passed by the Employees Compensation Commissioner, Beawar, Sub-Division Beawar in Claim Application No. WCA/F/18/2008, whereby the Commissioner has allowed the claim petition of the respondent Nos. 1 to 3 (original claimants) directing the appellant-Insurance Company to pay compensation of Rs. 4,33,820/- and interest amount of Rs. 1,90,880/- and in aggregate Rs. 6,24,700/- within 60 days from the date of the order.

2. When the appeal was put up for admission hearing, a preliminary objection was raised by the learned advocate Mr. Vinay Mathur for the respondent Nos. 1 to 3 as regards the maintainability of the appeal, pressing into service the third proviso to Section 30(1) of the E.C. Act by submitting that the appellant-Insurance Company had not produced the certificate of the Commissioner regarding payment of the interest amount alongwith the memorandum of appeal. The matter thereafter was heard finally at the admission stage with the consent of the learned counsels for the parties.

3. The short facts giving rise to the present appeal are that the respondent Nos. 1 to 3 (original claimants) filed the claim petition before the Commissioner on 22.2.08 alleging interalia that Shri Omprakash Singh son of respondent No.1, husband of respondent No.2 and father of respondent No.3 was working as driver on the vehicle with steel tank No. New-07-E-240017, under the employment of the respondent No.4, the owner of the vehicle. It was further alleged that on 4.2.08 at about 11.30 A.M., an accident took place out of the use of the said vehicle and the said Omprakash Singh sustained injuries and died as a result of the said injuries on 7.2.08. The respondents-claimants had, therefore filed the claim petition claiming compensation of Rs. 6,55,410/- with interest @ 12% per annum against the appellant and the respondent No.4 (non-claimants). In the said claim petition, the respondent No.4 did not appear, however the claim petition was contested by the appellant (non-claimant No.2), contending interalia that no such accident as alleged had taken place and the deceased Omprakash Singh had died as a result of electric shock received by him from the high tension wire, and not as a result of any accident out of the use of the vehicle in question. It was also contended that the deceased was not the employee of the respondent No.4 and a false claim was made by the claimants involving the vehicle in question in order to get the compensation. The commissioner allowed the claim petition of the claimants against the appellant-Insurance Company only awarding the compensation as stated hereinabove by the impugned award. Being aggrieved by the said award, the appellant-Insurance Company has preferred the present petition under Section 30 of the E.C. Act.

4. The learned counsel Mr. R.P. Vijay appearing for the appellant-Insurance Company has vehemently submitted that a false claim was made by th respondents-claimants before the Commissioner involving the vehicle in question, colluding with the respondent No.4, the owner of the vehicle, who deliberately did not appear before the Commissioner. He further submitted that there was no evidence to show that the deceased was the employee of the respondent No.4 and that the deceased expired as a result of the accident which occurred out of the use of the said vehicle and during the course of employment of the respondent No.4. According to him, none of the documents on record suggested that the accident had taken place in the manner alleged, but on the contrary it had emerged that the deceased had died due to the electric shock only. Placing heavy reliance on the decision of the Supreme Court in case of Malikarjuna G. Hiremath Vs. The Branch Manager, The Oriental Insurance Co. Ltd. and Anr. AIR 2009 (SC) 2019 Mr. Vijay submitted that the claimants had failed to establish the casual connection of the injury and the accident, and the accident and the work done in the course of employment, and that the Commissioner without considering the contentions raised by the appellant-Insurance Company had decided the claim petition in favour of the respondents-claimants and against the appellant.

5. Responding to the preliminary raised by the learned counsel Mr. Vinay Mathur for the respondent Nos. 1 to 3 regarding the compliance of the third proviso to Section 30(1) of the E.C. Act, the learned counsel Mr. R.P. Vijay submitted that the said proviso is applicable when the appeal is filed by the employer and the same is not applicable to the insurer. He further submitted that the definition of “employer” contained in Section 2(e) of the E.C. Act, does not include the “insurer-Insurance Company”. Therefore, according to Mr. Vijay when the appeal is preferred by the insurer-Insurance Company, the certificate as contemplated in the third proviso to Section 30(1) is not required to be accompanied with the memorandum of appeal. Placing heavy reliance on the decision of Apex Court in case of New India Assurance Co. Ltd. Vs. Harshadbhai Amrutbhai Modhiya & Anr. 2006 (5) SCC, 192, the learned counsel Mr. Vijay submitted that the insurer does not have the statutory liability to pay compensation under the E.C. Act, unlike the Motor Vehicles Act, and that the obligation of the insurer-Insurance Company to pay compensation under the E.C. Act would depend upon the terms and conditions of the contract of insurance policy taken by the employer. Mr. Vijay also relied upon the judgment of the Gauhati High Court in case of United India Insurance Co. Ltd. Vs. Biakthuami & Ors. 2010(4) T.A.C. 816 (Gau.) to submit that the limitations of statutory defences prescribed under Section 149(2) of the Motor Vehicles Act are not applicable to the appeals filed by the insurer under Section 30 of the E.C. Act and that the award of Commissioner could be challenged by the insurer on all available grounds.

6. Per contra, the learned counsel Mr. Vinay Mathur for the respondent Nos. 1 to 3 submitted that there being no substantial question of law involved in the present appeal and the appellant-Insurance Company having not complied with the third proviso to Section 30(1) of the E.C. Act, the appeal is not maintainable in the eye of law. Relying upon the decision of the Apex Court in case of Ved Prakash Garg Vs. Premi Devi & Ors. AIR 1997 (SC) 3854, Mr. Mathur submitted that the Insurance Company is liable to make good not only the principal amount of compensation payable by the insured-employers but also the interest thereon if ordered by the Commissioner under the Workmen Compensation Act. According to Mr. Mathur though the word “employer” has been used in the third proviso to Section 30(1) of the E.C. Act, the Insurance Company being the insurer of the insured employer would step into the shoes of the employer and, therefore, the said proviso would be applicable to the Insurance Company also when the appeal is filed by it under Section 30 of the said Act. Relying upon the judgment of High Court of Jammu in case of Oriental Insurance Co. Ltd. Vs. Ishwar Lal & Ors 2008 (1) JKJ, 339, Mr. Mathur submitted that the third proviso to sub-section 1 of Section 30 of the said Act is applicable to the insurer who seeks to file the appeal against the order passed by the Commissioner. Mr. Mathur has also relied upon the unreported judgment of this court in case of United India Insurance Co. Ltd. Vs. Smt. Chhoti Devi & Ors. SBCMA No. 1948/10 decided on 29.9.2010 and also another judgment in case of State of Rajasthan & Another Vs. Rukma Devi MACD 2007(2) (Raj.) 1211 to buttress his submissions.

7. Now, the precise question that falls for consideration before this court is – whether the word “employer” appearing in the third proviso to Section 30(1) of the E.C. Act includes the “insurer”? In other words, is it obligatory on the part of the insurer to pre-deposit the amount of compensation payable as per the order of Commissioner passed under the E.C. Act, before preferring an appeal under Section 30 of the said Act. In order to answer this question it would be apposite to refer to certain provisions of the Employee's Compensation Act, 1923. It cannot be gainsaid that the Employee's Compensation Act earlier known as Workmen's Compensation Act, 1923 is a piece of social security and welfare legislation, the object of which is to provide for the payment by certain classes of employers to their employees of compensation for the injury sustained by them by accident arising out of and in the course of their employment. The word “employee” has been defined under Section 2(dd) of the Act, relevant part which reads as under :- “2(dd) “employee” means a person, who is--

(i) ......

(ii) (a) a master, seaman or other members of the crew of a ship,

(b) a captain or other member of the crew of an aircraft,

(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,

(d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India ; or

(iii) .......”

8. The definition of “employer” has been contained in Section 2(e) which reads as under :-

“2(e) “employer” includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of an employee are temporarily lent or let on hire to another person by the person with whom the employee has entered into a contract of service or apprenticeship, means such other person while the employee is working for him.”

9. Section 3 of the said Act makes it obligatory on the part of the employer to pay compensation to his employee if personal injury is caused to the employee by accident arising out of and in course of his employment, except in the circumstances mentioned in the proviso to the said section. Section 4 deals with the amount of compensation payable under the Act, when death results from the injury, or when the permanent total or partial disablement results from the injury. It is pertinent to note that sub-section (3) of Section 4A read with clause (a) and (b) thereof envisages that additional amount of compensation could be levied against defaulting employer by way of penalty over and above the interest of compensation, if it is shown that there was no justification for the delay on the employer's part in making good the compensation amount to the claimant. The relevant part of Section 4A reads as under :- “4A. Compensation to be paid when due and penalty for default.--

(1) .....

(2) .....

(3) Whether any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall--

(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and

(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifth per cent of such amount by way of penalty.”

10. The legislative mandate to protect the rights of the employees could be spelt out from Section 17 of the Act which reads as under:-

17. Contracting out.- Any contract or agreement whether made before or after the commencement of this Act, whereby a *[employee] relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment, shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act.

11. Section 30 of the said Act provides for filing of appeals to the High Court from certain orders of the Commissioner, subject to the provisos mentioned therein. The relevant provisos to Section 30(1) read as under :-

“30. Appeals.--(1) An appeals shall lie to the High Court from the following orders of a Commissioner, namely:-

(a) .....

(aa) .....

(b) ......

(c) ......

(d) ......

(e) ......

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:

Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties :

Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.”

12. From the bare perusal of the said provisions of the E.C. Act, it clearly transpires that it is the employer only who has been made statutorily liable under Section 3 of the Act to pay the compensation to his employee when his employee receives personal injury by accident arising out of and in the course of his employment. An employee defined under the E.C. Act may receive the injury by any type of accident including vehicular accident arising out of and in the course of the employment of his employer, however it is only the employer and not the insurer who has been made statutorily liable to pay the compensation to the employee under the E.C. Act. The word “insurer” has neither been defined nor used in any of the provisions of the E.C. Act. The “insurer” has also not been included in the definition of the “employer” contained in Section 2(e) of the said Act. Thus, “insurer” is an entity absolutely different from the entity “employer”. When the specific word “employer” has been used in the third proviso to Section 30(1) of the said Act, it could not be inferred by any stretch of imagination that the “insurer” steps into the shoes of the “employer” for the purpose of the proviso in question or that whenever the appeal is preferred by the insurer under Section 30 of the Act, a certificate by the Commissioner has to be accompanied with the memorandum of appeal. The general rule of interpretation of Statutes is – verbis legis non est recedendum, meaning thereby, you must not vary the words of a Statute. As per the settled legal position, the courts should not make any interpretation contrary to the express words of an enactment. In a recent decision, in case of Satheedevi Vs. Prasanna & Anr. AIR 2010 (SC) 2777, the Apex Court following the earlier decisions in case of Union of India Vs. Deoki Nandan Aggrawal AIR 1992 (SC) 96 and in case of Shyam Kishori Devi Vs. Patna Municipal Corporation AIR 1966 (SC) 1678, held as under, in para 10 :- “Before proceeding further, we may notice two well recognized rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise—Kanai Lal Sur v. Paramnidhi Sadhukhan, 1958 SCR 360 : ( AIR 1957 SC 907). The other important rule of interpretation is that the Court cannot rewrite, recast or reframe the legislation because it has no power to do so. The Court cannot add words to a statute or read words which are not therein. Even if there is a defect or an omission in the statute, the Court cannot correct the defect or supply the omission.--Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323 : (AIR 1992 SC 96 : 1991 AIR SCW 2754), Shyam Kishori Devi v. Patna Municipal Corporation (1996) 3 SCR 466 : (AIR 1966 SC 1678)”

13. In view of the above, it is clear that when the word “employer” has been used in the third proviso to Section 30(1) of the E.C. Act, it is not permissible to read it so as to include the word “insurer”, which otherwise would tentamount to re-writing of the said proviso by the court which is not permissible under the general rule of interpretation of Statute and as per the settled legal position.

14. It further appears that the insurer/Insurance Company comes within the arena of the W.C. Act or E.C. Act, when in certain cases the personal injury is sustained by the employee by an accident caused out of the use of the vehicle insured by the employer and when such accident takes place during the course of the employment of the employer. It is significant to note that the statutory mandate under Section 147 of the Motor Vehicles Act, 1988 requires the policy of insurance to cover the liability arising under the W.C. Act, in respect of the death or bodily injury to a certain class of employees namely the driver, the conductor, the ticket checker and if it is a goods carriage, an employee carried in the vehicle. However, the E.C. Act does not mandate any such requirement as contemplated under Section 147 of the M.V. Act. The class of employees covered under Section 147 of the M.V. Act is also much smaller than the class of employees covered under th E.C. Act. It is also required to be noted that as per Section 167 of the M.V. Act, the person entitled to the compensation could file claim petition either under the W.C. Act or under the M.V. Act but not under both the Acts. Since there is no statutory liability fastened on the insurer under the E.C. Act, to pay compensation to the employee of the insurer employer, the defences of the insurer are also not limited as under the M.V. Act, when the claim petition is filed against the insurer and the insured under the E.C. Act, and the insurer could raise all possible defences, including that a particular class of vehicle was outside the coverage of policy of insurance or that the employee in respect of whom the claim petition was filed was not the employee covered under Section 147 of the Motor Vehicles Act.

15. It is also further required to be noted at this juncture that the statutory liability of the insurer under the M.V. Act is limited only to the class of persons mentioned under Section 147 of the M.V. Act, namely the driver, conductor, ticket checker and the employee carried out in the goods carriage, whereas statutory liability of the employer to pay compensation under the E.C. Act is for all classes of employees covered under the definition clause of Section 2(dd) of the said Act. Thus the liabilities of an employer under the E.C Act and the liabilities of the insurer under the M.V Act, are absolutely different and not the same. This is also because in certain cases, the insurer may not be liable to indemnify the employer (insured) in respect of his liability to pay compensation to his employee out of the use of his vehicle, though the vehicle was covered under the policy of insurance, if such employee was not the employee covered under the class of employees contemplated under Section 147 of the Motor Vehicles Act. The Apex Court, in catena of decisions has distinguished the entity of insurer from that of the employer. The liabilities of the employer under the E.C. Act are far greater than the liabilities of the insurer under the M.V. Act to indemnify the employer for his liability arising under the E.C. Act/W.C.Act and, therefore, it would be sheer fallacy to hold that the insurer steps into the shoes of the employer in all cases under the E.C. Act, or that the word 'employer' used in the third proviso to Section 30(1) of the E.C. Act should be construed to include “insurer” also.

16. Of course, there are divergent views expressed by the various High Courts with regard to the issue as to whether the insurer would step into the shoes of the employer for the purpose discharge of the liability of the employer under the Employee's Compensation Act or Workmen's Compensation Act. The learned counsel Mr. Vinay Mathur has placed heavy reliance on the decision of Jammu High Court in case of Oriental Insurance Company Ltd. Vs. Ishwar Lal (supra), wherein it has been held interalia that the insurer when seeks to maintain appeal in terms of Section 30 of the Workmen's Compensation Act, he steps into the shoes of the employer, as after all the insurer only has to indemnify for the liability of the employer in terms of the insurance policy. It has also been held therein interalia that the insurer cannot have any better right than the employer in maintaining the appeal and that if the employer cannot maintain the appeal without satisfying the requirement of the third proviso, the insurer also cannot have the right to maintain the appeal without satisfying that requirement. Similar view has been expressed by the High Court of Andhra Pradesh in case of Gangireddy Vankateswara Rao Vs. Divisional Manager, New India Assurance Co., Guntur and Ors. 1999 ACJ, 262, by Orissa High Court in case of Koili Bewa Vs. Akshaya K. Mishra (1994) IILLJ, 71 (Orissa) and also by the Kerala High Court in case of New India Assurance Co. Ltd. Vs. M. Jayarama Naik 1982 ACJ, 3.

17. As against that, the High Court of Gauhati considering all the above stated judgments of various High Courts and the Apex Court in a very well reasoned judgment, in case of Oriental Insurance Co. Ltd. Vs. Umesh Nath and Anr. I (2007) ACC, 701, has held as under:-

“33. Liability of the 'insurer' is governed by the contract of insurance policy and subject to the terms, conditions and the limitations thereof and not beyond that. It is not that in all the cases the 'insurer' becomes liable to indemnify the 'employer'. In certain cases the 'Insurer' may not be liable to indemnify the 'employer' even though the motor vehicle is covered by a policy of insurance. It always depends upon the terms, conditions and the limitations contained in the contract of policy and not beyond that. That is the reason why the Supreme Court, while determining the liability of penalty under Workmen's Compensation Act, in case of Ved Prakash Garg v. Premi Devi (supra), elaborately discussed and explained the relevant provisions of the W.C. Act and the M.V. Act and held that the 'Insurer' cannot be made liable to reimburse that part of the penalty amount imposed on the 'employer' as provided under Section 4A(3)(b) of the W.C. Act. Once the 'Insurer' is presumed to step into the shoes of the 'employer, the 'Insurer' will become liable to indemnify all liabilities imposed on the 'employer' including the penalty, which in the light of the law laid down in Ved Prakash Garg (supra), is not the liability of the 'Insurer'. It is important to note that the word 'employer' is also used in Section 4A(3)(b) of the Act. But, then, the fact that there is a distinction between the two, namely, the 'employer' and 'Insurer' is apparent as explained by the Supreme Court in Ved Prakash Garg (supra). On the other hand, it is repeatedly held by the Apex Court in its various decisions that while interpreting any word in any statute or different provisions of any section of the same statute, possible conflict between different provisions of the section or between different sections of the same statute must be avoided. Once it is held that the 'Insurer' steps into shoes of the 'employer', it is bound to create conflicts amongst different provisions of the Act itself.

34. The liability of the 'Insurer' is to indemnify the insured-employer in certain cases when the insured becomes liable, but not in all cases, unlike the liability under the M.V. Act. It is pertinent to note herein that when an appeal is filed under Clause (d) of Sub-section (1) of Section 30, which is primarily the indemnity clause, the requirement of deposit of the awarded amount is not there. Had the intention of the Legislature been to cover the 'Insurer' with liability to indemnify the 'employer', then Clause (d) would have, at least, been included in the Third Proviso to Section 30.”

18. This court totally agrees with the views expressed by the Gauhati High Court in the above referred decision, and with respect does not agree with the views expressed by the High Court of Jammu and by other High Courts which have taken different view on the issue. Apart from the reasons noted hereinabove, it may be further noted that the insurer or the Insurance Company could be made liable only when there is a contract of insurance entered into between the insurer and the employer in terms of the provisions of the Insurance Act. While considering the issue whether the interest was payable by the insurer while indemnifying the insured the amount of compensation awarded against him under the Workmen's Compensation Act, in case of New India Assurance Co. Ltd. Vs. Harshadbhai Amrutbhai Modhiya & Anr. (2006) 5 SCC, 192, the Apex Court (Per P.K. Balasubramanyan J., concurring with S.B. Sinha J.) observed in para 24 as under :- “24. Section 17 of the Workmen's Compensation Act voids only a contract or agreement whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment and insofar as it purports to remove or reduce the liability of any person to pay compensation under the Act. As my learned brother has noticed, in the Workmen's Compensation Act, there are no provisions corresponding to those in the Motor Vehicles Act, insisting on the insurer covering the entire liability arising out of an award towards compensation to a third party arising out of a motor accident. It is not brought to our notice that there is any other law enacted which stands in the way of an insurance company and the insured entering into a contract confining the obligation of the insurance company to indemnify to a particular head or to a particular amount when it relates to a claim for compensation to a third party arising under the Workmen's Compensation Act. In this situation, the obligation of the insurance company clearly stands limited and the relevant proviso providing for exclusion of liability for interest or penalty has to be given effect to. Unlike the scheme of the Motor Vehicles Act the Workmen's Compensation Act, does not confer a right on the claimant for compensation under that Act to claim the payment of compensation in its entirety from the insurer himself. The entitlement of the claimant under the Workmen's Compensation Act is to claim the compensation from the employer. As between the employer and the insurer, the rights and obligations would depend upon the terms of the insurance contract. Construing the contract involved here it is clear that the insurer has specifically excluded any liability for interest or penalty under the Workmen's Compensation Act and confined its liability to indemnify the employer only against the amount of compensation ordered to be paid under the Workmen's Compensation Act. The High Court was, therefore, not correct in holding that the appellant insurance company, is also liable to pay the interest on the amount of compensation awarded by the Commissioner. The workman has to recover it from the employer.”

19. In another case of Ved Prakash Garg Vs. Premi Devi & Ors. AIR 1997 SC 3854, the Apex Court while interpreting the provisions contained in Section 3 and 4A of the Act, as regards the liability of the employer to pay the additional amount of compensation by way of penalty imposed on the employer by the Commissioner, categorically distinguished the liability of the 'insurer' and the 'employer' by holding interalia that so far as additional amount of compensation by way penalty imposed on the insured employer by the Workmen's Commissioner under Section 4A(3)(b) is concerned, the Insurance Company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone. In view of the said ratio of the judgment of the Apex Court, it is clear that the Commissioner under W.C. Act or E.C. Act may impose certain liabilities like penalty on the insured-employer, which the insurer would not be liable to indemnify, and, therefore, also the liability of the insurer will not always be co-extensive and co-terminus with the liability of the employer. The irresistible conclusion therefore would be that the insurer will not always and invariably step into the shoes of the employer, and therefore the word 'employer' used in the third proviso to Section 30(1) of the E.C. Act could not be construed to include the 'insurer'.

20. The learned counsel Mr. Mathur for the respondents had also placed heavy reliance on the Division Bench judgment of this court in case of State of Rajasthan Vs. Smt. Rukma Devi (supra) and the judgment of Single Bench of this court in case of United India Insurance Co. Ltd. Vs. Smt. Chhoti Devi & Ors.(supra) to submit that no appeal would be maintainable unless the amount of compensation under Section 30 (1)(a) is deposited and the certificate of such deposit has been filed alongwith the appeal. In the opinion of this court the judgment of Division Bench in case of Smt. Rukma Devi (supra) would not be applicable to the facts of the present case, for the simple reason that in the said case the appeal was preferred by the State of Rajasthan under Section 30 of the W.C. Act against the order of Commissioner determining the amount payable by the appellant i.e. the State of Rajasthan to the respondent Smt. Rukma Devi, the widow of Shri Surat Singh, who had died as a result of an accident that occurred while he was crossing the railway line in the course of his employment in the PHED for reaching the pipeline for maintenance purposes. In the said case, the employer was the State Government itself who had preferred the appeal, and there was no question of filing appeal by the Insurance Company or the insurer of any vehicle, as in the instant case. The said court had no occasion to consider the issue as involved in the instant case. The State of Rajasthan in the said case being undisputedly the employer, the court had held that the mandate of proviso to Section 30 of the said Act was not fulfilled by the employer while filing the appeal under Section 30 of the said Act. Such is not the case in the instant case. The learned Single Judge in case of Smt. Chhoti Devi (supra) has followed the said judgment in case of Smt. Rukma Devi (supra) for holding that the appeal was not maintainable for want of compliance of the proviso to Section 30 of the said Act. As stated earlier, the issues involved in the said case of Smt. Rukma Devi being totally different from the issues involved in the instant case, the court does not find any substance in the submission made by the learned counsel Mr. Mathur for the respondents.

21. When the word 'employer' has been used in the third proviso to Section 30 (1) of the said Act, it has to be given the meaning which is general and universal in nature, and the said word must be interpreted giving effect to the policy or object of the Act, and not by any hypothetical construction, as observed by the Apex Court in case of Satheedevi (supra). If the intention of the legislature was to include the “insurer” also in the said proviso, the legislative would have used the word 'appellant' or 'the aggrieved person' in place of the word 'employer' in the said proviso. The W.C. Act has been amended time and again, and latest by the Amendment Act 45 of 2009 under which number of amendments including the title of the Act has been amended as the Employee's Compensation Act, 1923 in place of Workmen's Compensation Act, 1923, however no such amendment in the word 'employer' has been made in the third proviso to Section 30(1) of the said Act. Therefore, what the legislature has willfully omitted and expressly provided for has to be read and interpreted as it is, more particularly when there is no ambiguity in the specific word used in the Act. In that view of the matter, this court has no shadow of doubt in reaching to the conclusion that the “insurer” cannot be held synonymous to the “employer” and cannot be construed to include within the sweep of the “employer” for the purpose of proviso to Section 30(1) of the said Act. The question posed earlier therefore needs to be answered in negative, and it is held that it would not be obligatory on the part of the insurer to pre-deposit the amount of compensation payable as per the order of Commissioner passed under the said Act, before preferring an appeal under Section 30(1) of the said Act.

22. So far as the merits of the appeal are concerned, it clearly transpires from the impugned order and from the documents on record of the present appeal that the appellant-Insurance Company (original non-claimant No.2) had raised a specific contention that the deceased was not the employee of the respondent No.4 nor the vehicle in question was involved in the alleged accident. It was also contended that the death of the deceased was not caused as a result of an accident out of the use of the vehicle in question nor during the course of employment of the respondent No.4, but was caused due to electric shock as mentioned in the documents Ex.1 to Ex.6 produced before the Commissioner.

23. The learned counsel Mr. R.P. Vijay for the appellant-Insurance Company had taken the court to the contentions raised by the appellant in the reply filed by it to the claim petition filed by the claimants, as also to the FIR, inquest Panchnama, Postmortem Report etc. in which it has been specifically mentioned that the deceased had died due to electric shock received by him from the high tension wire, and that burn injuries were seen on the dead body of the deceased. Even the witness examined by the claimants had also admitted that the deceased had died due to the electric shock. According to the witness Vikram Singh examined by the claimants, the deceased Om Singh had climbed on the truck and at that time, he received electric current from one wire passing over the said truck. However, there was no documentary evidence whatsoever produced by the claimants to show that the deceased was the employee of the respondent No. 4 or that he had died by accident arising out of and in course of the employment of the respondent No.4 and that too out of the use of the vehicle insured with the appellant-Insurance Company.

24. At this juncture, a very pertinent observation made by the Apex Court, in case of Malikarjuna G. Hiremath Vs. The Branch Manager, The Oriental Insurance Co. Ltd. & Anr. Air 2009 SC 2019 are required to be reproduced, in which the Apex Court has laid down certain principles to be considered for the purpose of awarding compensation, and for making the employer liable under Section 3 of the W.C. Act, which are as under:- “14. There are a large number of English and American decisions, some of which have been taken note of in ESI Corpn.'s case (supra) in regard to essential ingredients for such finding and the tests attracting the provisions of Section 3 of the Act. The principles are:

(1) There must be a causal connection between the injury and the accident and the accident and the work done in the course of employment.

(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.

(3) If the evidence brought on records establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the fact of each case.

15. An accident may lead to death but that an accident had taken place must be proved. Only because a death has taken place in course of employment will not amount to accident. In other words, death must arise out of accident. There is no presumption that an accident had occurred.

16. In a case of this nature to prove that accident has taken place, factors which would have to be established, inter alia, are:

(1) stress and strain arising during the course of employment,

(2) nature of employment,

(3) injury aggravated due to stress and strain.

17. In G.M., B.E.S.T. Undertaking v. Agnes (1964 (3) SCR 930) referring to the decision of the Court of Appeal in Jenkins v. Elder Dempster Lines Ltd. (1953 (2) All ER 1133) this Court opined therein that a wider test, namely, that there should be a nexus between accident and employment was laid down. It also followed the decision of this Court in Saurashtra Salt Mfg. Co. v. Bai Valu Raja (AIR 1958 SC 881).”

25. Unfortunately, in the instant case the Commissioner has not only ignored the settled legal position but has also ignored the contentions raised by the appellant-Insurance Company supported by the documentary evidence, and has held the appellant-Insurance Company alone liable to pay the compensation without holding the respondent No.4 - the employer liable to pay the said compensation. The impugned order passed by the Commissioner ex-facie appears to be perverse and illegal. Apart from the facts that the claimants had miserably failed to prove that the deceased was the employee of the respondent No. 4 and that there was a casual connection between the injury and the alleged accident, and that the accident had taken place in the course of the employment of the respondent No.4, the claimants had also miserably failed to prove that the death of the deceased was caused out of the use of the vehicle in question insured with the appellant-Insurance Company. On the contrary, the appellant-Insurance Company had proved by producing cogent evidence that the death had occurred due to the electric shock and not due to the accident out of the use of the vehicle in question and in the course of employment of the respondent No.4. As discussed earlier, the appellant insurer could be held liable under Section 147 of the Motor Vehicles Act in respect of the liability arising under the W.C. Act in respect of the death of only that class of employees who are covered under the said Section 147 of the Motor Vehicles Act and not otherwise. There was also no evidence whatsoever to suggest that the deceased was the employee of the respondent No.4 falling under any of the class of employees mentioned in Section 147 of the M.V. Act and covered under the Insurance Policy. It cannot be also gainsaid that the insurer-Insurance Company alone could not be held liable without holding the employer liable under the E.C. Act. The Commissioner in the impugned order therefore has not only committed a serious error of law apparent on the face of the record by holding the appellant-Insurance Company alone liable without holding the respondent No.4 – the employer liable to pay compensation, but has also awarded the compensation to the claimants thoroughly mis-appreciating the evidence on record. The impugned order of Commissioner being absolutely illegal and perverse, the same deserves to be set aside and is accordingly set aside.

26. In the aforesaid premises, the appeal of the appellant-Insurance is allowed and the impugned order dated 9.1.12 passed by the Commissioner in WCA/F/18/2008 is set aside. The appellant shall be at liberty to withdraw the amount of compensation deposited by it with the Commissioner forthwith.

(BELA M. TRIVEDI) J.

MRG.

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

M.R. Gidwani

PS-cum-JW