This Civil Miscellaneous Appeal has been filed against the award, dated 30.03.2007, received by the appellant on 25.05.2007, made in W.C.No.89 of 2005 on the file of the Workmen's Compensation Commissioner & Deputy Commissioner of Labour, Tirunelveli.
2.The case of the claimant/first respondent, as averred int eh claim petition is as follows:-
On 24.05.2005 at about 7 a.m., when the claimant was driving the load Auto bearing Registration No.TN 74 H 9484, the load auto capsized and due to which, the claimant sustained grievous injuries and fractures and was admitted in the hospital as inpatient from 24.05.2005 to 07.06.2005. The police also registered the case in Crime No.203 of 2005 for the offences punishable under
Sections 279,337 and
338 of I.P.C. Due to the said accident, the claimant is not able to work as before and he suffered with 44% permanent disability. Hence, the claimant filed a petition in W.C.No.89 of 2005, on the file of the Workmen's Compensation Commissioner and Deputy Commissioner of Labour, Tirunelveli, claiming a sum of Rs.2,35,181/- as compensation.
3.A counter was filed by the National Insurance Company Limited/appellant herein denying all the averments stating that since the vehicle was over-loaded and several persons were allowed to travel unauthorizedly in a load auto, which was established by the F.I.R, the accident had happened and which amounts to violation of policy conditions and therefore, the Insurance Company is not liable to pay any compensation to the claimant. Age, income of the deceased and the disability are denied. The compensation claimed is exorbitant. Hence, the Insurance Company prayed for dismissal of the claim petition.
4.Before the Tribunal, on the side of the claimant, two witnesses viz., P.Ws.1 and 2 were examined and five documents viz., Exs.P.1 to P.5 were marked and on the side of the respondents, two witnesses viz., R.Ws.1 and 2 were examined and one document viz., Ex.R.1 was marked.
5.The Deputy Commissioner of Labour, after considering the oral and documentary evidences adduced, has directed the Insurance Company/appellant herein to deposit a sum of Rs.1,52,868/- as compensation to the claimant, in the Court deposit within a period of 30 days, failing which, the Insurance Company has to pay the said sum with interest at 12% from the date of accident ie., 24.05.2005. It is further ordered that since the policy conditions are violated, the Insurance Company is directed to file a separate proceedings for recovery of the same from the owner. Against which, the Insurance Company has filed this appeal, by raising various grounds.
6.The learned counsel for the appellant, apart from raising several grounds to assail the impugned judgment, submitted that there was violation of policy condition by the insured, who has permitted six persons to travel in the load auto, in violation of policy conditions and therefore there is no liability on the part of the appellant to pay the amount. However, the Commissioner has directed the Insurance Company to pay the amount first and thereafter initiate separate proceedings to recover the compensation amount from the insured, which has caused more hardship to the appellant. The learned counsel further submitted that the Commissioner ought to have give right of recovery from the insured. The compensation awarded is unsustainable in law and therefore, prayed this Court to set aside the award.
7.The learned counsel for the appellant submitted that the following substantial questions of law arose for consideration of this Court:
1.Whether the insurer can be made liable to indemnify the insured when there is a violation of terms of the policy by the insured?
2.Whether the commissioner is justified in not granting the right of recovery to the insurer after holding that there is a violation of policy conditions by the insurer?
3.Whether the commissioner is justified in awarding 12% default interest against the insurer when there is no contract of agreement for the payment of interest between the insurer and the insured.
4.Whether the determination of loss of earning capacity has to be by reference to work which workmen was performing at the time of accident or by reference to his capacity to do any other work after he sustained disability??
7(A). Heard the learned counsels for the appellant and the first respondent and perused the available materials on record.
8.It is seen that the Load Auto belongs to the 2nd respondent herein, under whom the petitioner worked as driver. It was clearly established before the Deputy Commissioner of Labour that the Auto was driven in violation of the policy conditions and therefore, it was held that the 2nd respondent, being the owner of the vehicle, is liable to pay the compensation to the claimant/1st respondent herein. However, since the insurance policy was in existence at the time of accident, the Deputy Commissioner of Labour had ordered the Insurance Company to pay the amount and then, file a separate proceedings to recover the same from the 2nd respondent herein. The said finding is under challenge in this appeal, on the ground that when the Insurance Company was ceased of the liability, the question of payment of compensation by the insurance company to the claimant/1st respondent herein does not arise at all.
9. Substantial Question of Law No.1 Even though there is violation of policy condition, the policy was in existence at the time of accident. The claimant, who is suffering, should not be made to suffer more. Hence, the Insurance Company can be directed to deposit the amount and then recover the same from the insured. Accordingly, this Substantial Question of Law is answered.
10. Substantial Question of Law No.2 As there is violation of policy condition, the Insurance Company is entitled to recover the compensation amount from the owner. Hence, the Insurance Company is directed to deposit the amount and then can recover the same from the owner by filing proper petition. This Substantial Question of Law is answered accordingly.
11. Substantial Question of Law No.3 It is general principle that the Court has got discretionary power to award interest and also to award default interest, if the amount is not deposited within the time granted by the Court. Hence, the Commissioner is justified in awarding 12% default interest against the insurer, even though there is no contract of agreement for the payment of interest between the insurer and the insured. Accordingly, this Substantial Question of Law is answered.
12. Substantial Question of Law No.4 The loss of earning capacity has to be taken in general as per the disability. In this case, the injured petitioner is a driver and after the accident, he cannot fold his legs and sit properly as earlier and it affects his avocation. This Substantial Question of Law is answered, accordingly.
13.In the result, this Civil Miscellaneous Appeal is dismissed. The award made in W.C.No.89 of 2005, dated 30.03.2007, on the file of the Workmen's Compensation Commissioner and Deputy Commissioner of Labour, Tirunelveli is hereby confirmed. The appellant/National Insurance Company is directed to deposit the entire award amount with accrued interest from 30 days after the date of accident till the date of realisation and costs, within a period of eight weeks from the date of receipt of a copy of this order, if not already deposited. On such deposit being made, the first respondent/claimant is entitled to withdraw the award amount with accrued interest and costs on filing formal petition before the Commissioner. It is needless to mention that the Insurance Company is at liberty to recover the said amount from the owner of the vehicle by filing proper petition before the Tribunal, in the manner known to law. No costs. Consequently, connected Miscellaneous Petition is closed.
To
1.The Workmen's Compensation Commissioner & Deputy Commissioner of Labour, Tirunelveli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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