JUDGMENT
W.A. Shah, J.
1. This common order governs the disposal of the appeals detailed below:
(a) Misc. Appeal No. 1027 of 1999 preferred under Section 30 of Workmen's Compensation Act (hereinafter 'the W.C. Act') in which the award appealed against by the insurer is of Workmen's Compensation Commissioner, Labour Court, Ujjain dated 25.8.1999 in Case No. 5 of 1995 (Fatal).
(b) Misc. Appeal No. 1033 of 1999 preferred under Section 30 of the W.C. Act in which the award appealed against by the insurer is of the Workmen's Compensation Commissioner, Labour Court, Ujjain dated 25.8.1999 in Case No. 6 of 1995 (Fatal).
(c) Misc. Appeal No. 1507 of 2000 preferred under Section 30 of the W.C. Act in which the defeated claimants have called into question the order of the Workmen's Compensation Commissioner, Labour Court, Ujjain dated 3.11.2000 passed in Case No. 9 of 1995 (Fatal).
2. At the relevant time truck No. MOU 551 owned by the respondent Abdul Rajjak was insured with the appellant New India Assurance Co. Ltd. Kanhaiyalal was its driver and Firoz Khan was its cleaner. They were employed by Abdul Rajjak. On 11.11.1994 during the course of their employment while they were transporting soyabean through the said truck, some unknown miscreants waylaid them and the consignment was looted and both of them were lynched. The legal representatives of the deceased persons preferred separate claim petitions under the provisions of Section 10 of the W.C. Act exercising the option as allowed by Section 167 of the Motor Vehicles Act, 1988 (hereinafter 'the M.V. Act, 1988'). In these claims Abdul Rajjak did not file written statements and only the appellants filed their written statements. The learned Workmen's Compensation Commissioner in Case No. 5 of 1995 awarded Rs. 87,388 along with 12 per cent interest from the date of incident and directed for 25 per cent penal interest in the event of default in payment within 90 days and likewise in Case No. 6 of 1995 compensation awarded was Rs. 87,980. Hence these appeals by the insurer.
3. Material factual matrix of Misc. Appeal No. 1507 of 2000 is that truck No. MP 09-D 3817 was at the relevant time owned by respondent Gurubachansingh and insured by the respondent New India Assurance Co. Ltd. Sunderlal Sharma was employed on the said truck as driver by its owner. During the course of his employment, on 14.11.1995 Sunderlal Sharma died in the truck. The legal representatives of Sunderlal Sharma preferred claim under Section 10 of the W.C. Act. The respondent Gurubachansingh resisted it on the ground that the deceased took the truck to wrong destination and abandoning it there left for a place not yet known as his whereabouts are not known since then. Legal representatives in their greed to get compensation claimed the dead body of driver Kanhaiya-lal of truck No. MOU 551 and preferred a concocted baseless claim. The respondent insurer raised the plea of absence of effective driving licence with Sunderlal Sharma. Learned Workmen's Compensation Commissioner at the conclusion of the enquiry held that Sunderlal Sharma did not die on 14.11.95 and he was alive uptil 12.6.1996, therefore, it dismissed the claim. Hence the appeal by his legal representatives.
4. In the appeals preferred by the insurer, following questions are sought to be adjudicated as substantial questions of law:
(1) Whether under the facts and circumstances of the case, the alleged death can be termed to be a death during the course of employment and whether the injuries sustained can be considered to be the employment injuries?
(2) Whether under the facts and circumstances of the case, the injuries so sustained and the death so arisen have any causal connection with the nature of employment?
(3) Whether the identification of dead bodies were done strictly in accordance with law to establish the factum and identification of the deceased?
5. The learned Counsel for the claimant-respondent Nos. 1 and 2 of both appeals submitted that the above questions do not fall within the category of substantial questions of law within the meaning of Section 30 of W.C. Act. He submitted that these are only pure questions of fact and, therefore, as a preliminary objection he submitted that the appeals are not tenable being beyond the scope of Section 30 of the W.C. Act. He in this connection referred to National Insurance Co. Ltd. v. Susanta Das .
6. In National Insurance Co. Ltd. , it has been held that under Section 30(1) of the W.C. Act the questions decided by the Workmen's Compensation Commissioner on appreciation of evidence relating to questions of age, employment, wages, nature of injuries and factum of accident are findings of facts and are not liable to be interfered with in appeal preferred under Section 30(1) of the W.C. Act. However, I find that Section 19 of the W.C. Act provides that in cases under Section 10 if any question arises as to the liability of any person to pay the compensation including any question as to whether a person injured is or is not a workman or as to the amount or duration of compensation including any question as to the nature or extent of disablement, that question has to be decided by a Workmen's Compensation Commissioner, in the event of default of an agreement to the contrary. The jurisdiction of the Commissioner is exclusive. To my mind the subject-matter of the questions as quoted above is within the ambit of the question to be decided by the Workmen's Compensation Commissioner under Section 19 of the W.C. Act. Therefore, they are substantial questions of law within the meaning of Section 30 of the W.C. Act and in a situation similar vide Nandu v. Sheela Bai , this Court held such questions to be substantial questions of law capable of consideration within the meaning of Section 30 of the W.C. Act in an appeal thereunder. Therefore, I am not in agreement with learned Counsel for respondent Nos. 1 and 2 and to my mind National Insurance Co. Ltd. , cited by the
learned Counsel cannot be pressed into service in view of Nandu (supra). Thus the above preliminary objection is overruled.
7. The learned Counsel for respondent Nos. 1 and 2 raising another preliminary objection submitted that in the appeals by the insurer no question relating to available defences under Section 149(2) of the M.V. Act, 1988, being involved, these appeals under Section 30(1) of the W.C. Act are not maintainable. To repel the objection as stated above, the learned Counsel for the insurer appellant submitted that when an award is passed under the W.C. Act insurance company has to pay the compensation as judgment-debtor in respect of liability together with costs and interest on behalf of the insured and, therefore, the insurance company steps into the shoes of the employer and has to discharge liability cast on the insured. He, therefore, submitted that the insurance company is entitled to raise all those questions which employer is entitled to raise in an appeal under Section 30(1) of the W.C. Act. In support of his contention he has relied upon United India Insurance Co. Ltd. v. Chandra Kali . For reasons stated herein below, it would be plain that the argument of the learned Counsel for the appellants does not hold good and the case-law sought to be applied by him does not apply.
8.In the circumstances it is appropriate to consider the relevant provisions of the M.V. Act, 1988 and the W.C. Act. First I take up Section 167 of the M.V. Act, 1988. It reads as under:
167. Option regarding claims for compensation in certain cases.--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.
9.Now I take up Section 149 of Motor Vehicles Act, 1988. It reads as under:
149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-
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(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular.
10. Now I am brought to Section 30 of the W.C. Act. It reads as under:
30. Appeals.-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:
(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;
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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.
(2) The period of limitation for an appeal under this section shall be sixty days.
(3) The provisions of Section 5 of the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section.
11. From a conjoint reading of the above provisions, it is clear that the object of M.V. Act as well as W.C. Act is to provide compensation to the victims of the accidents. The only difference between the two enactments is that so far as the W.C. Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of the M.V. Act is available to all the victims of accidents involving a motor vehicle. This conclusion is very well supported by Section 167 of the M.V. Act, under which it is open to the claimants either to proceed to claim compensation under the W.C. Act or under the M.V. Act. Both these enactments are beneficial in nature. It is further seen that the W.C. Act does not make any provision either for payment of the claim by the insurance company or for the addition of the insurance company as a party to the proceedings before the Commissioner. Only when an option is exercised under Section 167 of the M.V. Act, Section 149 is attracted to proceedings before the Workmen's Compensation Commissioner.
12. In National Insurance Co. Ltd. v. Nicolletta Rohtagi , the Apex Court has held that the insurance company has no right to be a party to an action by the injured person or dependants of deceased against the insured. However, the provisions of Section 149 of M.V. Act, 1988, corresponding to Section 96 of the M.V. Act, 1939, gives the insurer the right to be made a party to the case and to defend it. After the insurer has been made a party to a case or the claim, it is clear from the plain, simple and unambiguous language of Section 149(2) read with provisions of Section 149(7) that the insurer is permitted to contest the claim only on the grounds mentioned in Section 149(2) of the M.V. Act, 1988, corresponding to Section 96(2) of the M.V. Act, 1939 and the insurance company cannot avoid its liability on any other grounds except those mentioned in the said Sub-section and further observed that right to file an appeal is a statutory right and in view of the provisions of Section 149(2) challenge in an appeal would confine only to those grounds. Their Lordships further observed that under the provisions of W.C. Act a statutory appeal is provided under Section 30 of the Act to the High Court on the orders enumerated therein. The proviso to that section makes it very clear that no appeal shall lie against any order unless a substantial question of law is involved in the appeal. Negligence or contributory negligence of the offending vehicle is not a ground to be considered at all while awarding compensation under the W.C. Act. Therefore, the insurer cannot prefer any appeal either challenging the quantum of compensation or on any grounds except the grounds available to it under Section 149(2) of the 1988 Act. When under W.C. Act the insurer has no right to take any defence disputing the claim of the claimants and its defence is only confined to avoid the liability under the insurance policy as contemplated under Section 149(2) of the Act and when the appeal is confined to substantial question of law under the Act, it cannot be said that the right of appeal of an insurance company against the award under W.C. Act is broader than that right which is conferred on them under the M.V. Act. Their Lordships thereafter observed that such a right is narrower than what is provided to them under the M.V. Act as under the W.C. Act, the appeal is only against a substantial question of law as opposed to when conditions under Section 170 of the M.V. Act, 1988 are satisfied the insurer gets a right to challenge the award on merits in appeal preferred under Section 173 of the M.V. Act, 1988.
13. In the appeals of the insurers no question under Section 149(2) of the M.V. Act or any defence under the terms of the policies being involved, these appeals by the insurers are not maintainable and the above questions sought to be adjudicated by this Court in appeals preferred by them are not required to be gone into. The grounds which the insurance companies have taken up in their two appeals under reference under Section 30(1) of the W.C. Act are other than those available to it under the terms of the policies and above provisions of the M.V. Act. Therefore, these appeals are liable to be dismissed as being not maintainable in view of National Insurance Co. Ltd. 2002 ACJ 1950 (SC).
14. Now coming to the appeal of the claimants, having heard the arguments, I have gone through the record. I find that the Workmen's Compensation Commissioner has based its finding sought to be questioned on proper appreciation of oral evidence as adduced before it and, therefore, this finding does not call for any interference in appeal under Section 30 of the W.C. Act. This appeal in my opinion does not raise any substantial question of law. For the sake of clarity and at the cost of repetition it is expressed that it is well defined principle or parameters provided in Section 30 of the W.C. Act that while deciding the appeal the court has to see whether it involves any substantial question of law. In other words it is only when the appeal preferred under Section 30 involves any question of law then this Court can interfere with the impugned award of the Commissioner passed under Section 10 of the W.C. Act. It is not a very well judged award of the Commissioner which can be interfered with in exercise of appellate powers conferred by Section 30 ibid. This Court can interfere in those findings of the Commissioner which are against any provisions of law or dehors to the pleading or/and evidence or are such that no judicial man can ever reach to such a conclusion. On the touchstone of the above well settled principles the appeal of the appellants has no force. This is an appeal which has been pursued through legal aid and, therefore, this Court admitted it in search of substantial legal question which on perusal of the record could not now be found.
15. In view of the above matter, all these three appeals have no merit and they deserve to be dismissed. Resultantly, these appeals are dismissed. However, in the circumstances of the case, I make no order as to costs.
16. The copy of this order be placed in each of the other connected appeal as particularised above.