By way of filing this appeal under Section 30 of the Workmen's Compensation Act, 1923 the appellant – original defendant No.2 has challenged the judgment and order dated 14.2.2008 passed by the Commissioner under the Workmen's Compensation Act, Ahmedabad below Exhibits 9, 15 and17 in Distribution Application No.45 of 2007. 2 The short facts of the present case are that the deceased – Shri Chhotalal Ansari was an employee of the appellant – company who died during the course of his employment in an accident that took place on 22nd August 2006. It is the case of the appellant that the appellant is holding Workmen Compensation Policy for the period from 23.2.2006 to 22.2.2007 and therefore the accident was covered in the aforesaid policy.
3 The appellant therefore addressed a letter dated 25.8.2006 to the insurance company informing it about the accident and requesting them to send claim form. The appellant, after supplying the necessary details to the insurance company on 29th September 2006 deposited an amount of Rs.2,39,793 with the Labour Court, Commissioner under the Workmen's Compensation Act on 3.10.2006 under Section 8 of the Workmen's Compensation Act, 1923 and informed the said fact to the insurance company vide letter dated 16th January 2007.
4 On 16th March 2007 insurance company addressed a letter to the appellant wherein it has been pointed out that the appellant company has failed to comply with conditions Nos.5, 6 and 9 of the policy.
5 The appellant company therefore filed application below Exhibit 9 with a prayer to join the insurance company as party respondent in Distribution Application No.45 of 2007. The appellant has also filed application below Exhibit 15 requesting the Commissioner to implead the insurance company as party and to direct it to make the payment of claim of the insured and thereby indemnify the present appellant herein. The learned Commissioner vide his impugned order dated 14.2.2008 rejected both the applications Exhibit 9 and 15 and ordered that the amount deposited by the appellant be disbursed to the claimants. Feeling aggrieved by the said order the appellant has filed the present appeal.
6. Mr Unwala, learned counsel for the appellant has submitted that this appeal is filed under clause (c) of subsection (1) of Section 30 of the Act which provides that an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependants.
He further contended that the appellant has deposited the amount under Section 8 of the Act and therefore it is the duty of the insurance company to make payment. Section 8 of the Act reads as under:-
“8. Distribution of compensation.-
(1) No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation:
Provided that, in the case of a deceased workman, an employer may make to any dependant advances on account of compensation not exceeding an aggregate of one hundred rupees, and so much of such aggregate as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such compensation and repaid to the employer.
(2) Any other sum amounting to not less than ten rupees which is payable as compensation may be deposited with the Commissioner on behalf of the person entitled thereto.
(3) The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.
(4) On the deposit of any money under sub-section (1) as compensation in respect of a deceased workman the Commissioner shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependants to appear before him on such date as he may fix for determining the distribution of the compensation. If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid. The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made.
(5) Compensation deposited in respect of a deceased workman shall, subject to any deduction made under sub- section (4), be apportioned among the dependants of the deceased workman or any of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one dependant.
(6) Where any compensation deposited with the Commissioner is payable to any person, the Commissioner shall, if the person to whom the compensation is payable is not a woman or a person under a legal disability, and may, in other cases, pay the money to the person entitled thereto.
(7) Where any lump sum deposited with the Commissioner is payable to a woman or a person under a legal disability, such sum may be invested, applied or otherwise dealt with for the benefit of the woman, or of such person during his disability, in such manner as the Commissioner may direct; and where a half-monthly payment is payable to any person under a legal disability, the Commissioner may, of his own motion or on an application made to him in this behalf, order that the payment be made during the disability to any dependant of the workman or to any other person, whom the Commissioner thinks best fitted to provide for the welfare of the workman.
(8) Where, on application made to him in this behalf or otherwise, the Commissioner is satisfied that, on account of neglect of children on the part of a parent or on account of the variation of the circumstances of any dependant or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be varied, the Commissioner may make such orders for the variation of the former order as he thinks just in the circumstances of the case:
Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made, or shall be made in any case in which it would involve the repayment by a dependant of any sum already paid to him.
(9) Where the Commissioner varies any order under sub- section (8) by reason of the fact that payment of compensation to any person has been obtained by fraud, impersonation or other improper means, any amount so paid to or on behalf of such person may be recovered in the manner hereinafter provided in section 31.”
7. Mr Unwala, learned counsel for the appellant has relied upon the decision of this Court in the case of The Northern India Motor Owners Insurance Co. Ltd. v. Magan Shanaji Solanki & Ors. reported in 22 GLR 921 and a decision of the Apex Court in the case of Gottumukkala Appala Narasimha Raju & Ors. v. National Insurance Company Ltd. reported in 2007 AIR SCW 5296 to contend that any question in regard to the liability of a person who is required to indemnify the employer must be determined in the proceeding under the Workmen's Compensation Act and not by way of a separate suit.
8. Mr Palak Thakker, learned advocate for the respondents submitted that these are not original proceedings, but are distribution proceedings and therefore against the order passed in distribution application appeal is not maintainable at the instance of an employer. He further submitted that an appeal can be filed under clause (c) of subsection (1) of Section 30 of the Act by the workman and not by an employer. He further contended that the appellant has deposited the amount before the Commissioner without there being any order passed by the Commissioner and therefore he cannot use the proceedings under the Workmen's Compensation Act for recovery of the said amount.
9. The appellant has filed applications Exhibit 9 and 15 in the distribution proceedings filed by the claimants for distribution of the amount. The Commissioner has observed in the impugned order that the appellant is entitled to file a separate application under Section 19(1) of the Workmen's Compensation Act before the concerned Commissioner under Workmen's Compensation Act and also held the appellant to be competent to seek the prayers as prayed for in application below Exhibit 15 against the insurance company. However, the appellant cannot file the application Exhibit 15 in the Distribution Application requesting the Commissioner to implead the insurance company as party and to direct it to make the payment of claim of the insured and thereby indemnify the present appellant herein. Moreover, Section 8 contemplates for Distribution Application to be filed by the workman or a representative of the workman and not by the employer and the employer has no right to file the Distribution Application.
10. Further, the dispute arises from the contract entered into by and between the appellant and insurance company and for deciding the said dispute the forum of Commissioner under Workmen's Compensation Act, 1923 could not have been used by the appellant.
11. In the result, the appeal is devoid of any merits and the same is dismissed. However, it will be open to the appellant to recover the same from the insurance company by way of appropriate proceedings.
(K.S.Jhaveri, J.) *mohd