The Branch Manager v. Mr.Sankaralingam

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19.07.2018

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU C.M.A(MD).No.1300 of 2016 and C.M.P.(MD).No.11173 of 2016 The Branch Manager, New India Assurance Company Limited, 41-B, Victoria Street, Thoothukudi - 628 001.

... Appellant / 2nd respondent Vs.

1.Sankaralingam .. 1st respondent / Petitioner/Claimant 2.Priya ... 2nd respondent / 1st respondent (Notice to the 2nd respondent dispensed with, as per the order of the Court dated 14.12.2017) PRAYER:- Appeal filed under Section 30 of the Workmen's Compensation Act, against the award, dated 30.11.2009, made in W.C.No.463 of 2006 on the file of the Workmen Compensation Commissioner (Deputy Commissioner of Labour), Tiruchirapalli. For appellant :

Mr.G.Prabhu Rajadurai For 1st respondent :

Mr.K.Sureshkumar

JUDGMENT

Heard the learned counsel appearing for the appellant / Insurance Company and the learned counsel appearing for the first respondent / claimant.

2. It is a case of injury. The manner of the accident is not in dispute. The Deputy Commissioner of Labour has awarded a sum of Rs.56,587/- as compensation. This appeal has been filed by the appellant / Insurance Company questioning the liability.

3. This appeal was admitted on the following substantial questions of law:

"(1) Whether the Workman / driver is disentitled from claiming any compensation as he carried passengers in violation of the Rules?

(2) Whether the Insurer can be called upon to honour its obligation under the contract of insurance, even in the case of breach of policy condition?"

4. The learned counsel appearing for the appellant / Insurance Company would submit that though the appellant / Insurance Company has disputed its liability in the counter affidavit by saying that about 20 persons were travelled in the vehicle in question as gratuitous passengers violating the policy condition, the Deputy Commissioner of Labour has failed to consider and discuss the same in the order. As the owner of the vehicle has violated the policy condition, the Deputy Commissioner of Labour ought to have fixed the entire liability on the owner of the vehicle and declared that the Insurance Company is not liable to indemnify the insured.

5. Admittedly, in this case, the claimant is the driver of the 2nd respondent's vehicle, which insured with the appellant / Insurance Company. According to the claimant, during the course of his employment, he has sustained injury in the accident and therefore, claimed compensation. It is seen that in the counter affidavit filed before the Deputy Commissioner of Labour, the Insurance Company has specifically stated that the vehicle carried more than 20 persons as gratuitous passengers and thereby, the owner of the vehicle had violated the policy condition. As rightly stated by the learned counsel for the appellant / Insurance Company, there is no discussion about the same in the order of the Deputy Commissioner of Labour.

6. The owner of the vehicle, viz., the second respondent herein did not appear before the Deputy Commissioner of Labour and therefore, he was set ex parte. When the liability is questioned, the second respondent herein ought to have appeared before the Court and disputed the same. But, here in this case, the owner of the vehicle did not appear before the Court, which would go to show that he has no interest in prosecuting the matter. At the same time, except making the said averments, the appellant / Insurance Company has not filed any oral and documentary evidence in order to substantiate its contention with regard to the liability. In view of the above, this Court is of the view that the Insurance Company may be directed to pay the compensation amount to the claimant and recover the same from the owner of the vehicle viz., the second respondent herein and accordingly, it is ordered. Thus, the first question of law is answered against the appellant and the second question is law is answered in favour of the appellant.

7. In the result, this Civil Miscellaneous Appeal is partly allowed. It is represented that the entire award amount has already been deposited. Hence, the claimant is permitted to withdraw the entire award amount with accrued interest and costs. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(CRL SIDE) // True Copy // Sub Assistant Registrar(CS) gcg To 1.The Workmen Compensation Commissioner, Deputy Commissioner of Labour, Tiruchirapalli.

Copy to The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

(2 copies) +1CC TO MR.G.PRABHU RAJADURAI, Advocate Sr. No.74235 +1CC TO MR.K.SURESH KUMAR, Advocate Sr. No. 74301 Judgment in C.M.A(MD).No.1300 of 2016 19.07.2018 KMK(CO) TR (18.06.2019) 4P 6C