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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
United India Insurance Company Ltd.
Vs.
Bhanwariya & Others
(S.B. Civil Misc. Appeal No.617/1997)
DATE OF JUDGMENT : April 12, 2010
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
__________________________________________
Mr. R.K. Mehta for the appellant.
Mr. S. Saruparia for the respondents.
Reportable
BY THE COURT :
Appellant United India Insurance Company has
preferred this appeal under Section 30 of the Workman
Compensation Act against judgment dated 31.03.1997
passed by the Commissioner, Workman Compensation,
Udaipur in Case No.44/93, whereby, the learned
Commissioner passed award in favour of respondent
No1 applicant and a sum of Rs.83,515/- was allowed as
compensation along with interest at the rate of 6% after
one month from the date of accident, which is
02.03.1991, till payment of the amount of
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compensation; and, further ordered to pay penalty of
Rs.20,878/-, 25% of the amount of compensation,
within 60 days.
First of all, with regard to imposition of penalty
upon the insurance company, learned counsel for the
appellant invited attention of the Court towards
judgment of this Bench rendered in the case of United
India Insurance Company Ltd. Vs. Smt. Kanwari Devi &
Others, reported in MACD 2010 (1) (Raj.) 196, in which,
while following the judgment of Hon’ble Supreme Court,
rendered in Kamla Chaturvedi’s case, (2009) 1 SCC
487, this Bench has held that liability of penalty against
the insurance company is not justified and it is to be
paid by the employer. Therefore, while following the
above judgment, the liability fastened upon the
insurance company vide impugned judgment dated
31.03.1997 with regard to penalty is hereby set aside
as against the insurance company and shifted upon the
employer. If the said amount has been paid to the
claimant the insurance company shall be entitled to
recover the said amount from the employer.
Learned counsel for the insurance company
vehemently argued that the Commissioner, Workman
Compensation has committed an error while awarding
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compensation in favour of the respondents because
while passing the award the learned Commissioner has
not considered the policy of tractor No.RJB 6360, upon
which, the accident took place. The insurance
company has covered the risk of driver only and risk of
cleaner was not covered by the appellant insurance
company, therefore, the award impugned deserves to
be quashed.
It is submitted in the appeal that the learned
Commissioner has erred in not considering the sitting
capacity of the tractor No.RJB 6360 which is evident
from the registration certificate of the tractor which was
on file, in which, it is clearly mentioned that the sitting
capacity, including the driver, is one; meaning thereby,
the insurance company has insured the driver only and
not other person because it is not permissible by the
registering authority. The net argument of learned
counsel for the appellant is that the learned
Commissioner has erred in holding the insurance
company liable for the risk of cleaner which is not
covered under the policy.
Learned counsel for the appellant, for the
aforesaid purpose, invited my attention towards
regulation 28 of the Rules of Road Regulations 1989, in
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which, it is provided that a driver while driving a tractor
shall not carry or allow any person to be carried on the
tractor and a driver of goods carriage shall not shall not
carry in the driver’s cabin more number of persons than
that is mentioned in the registration certificate and shall
not carry passengers for hire or reward. While referring
to Regulation 28, learned counsel for the appellant
invited my attention towards judgment reported in 2009
ACJ 1828 of the High Court of Chhattisgarh, rendered in
the case of Royal Sundaram Alliance Insurance Co. Ltd.
Vs. Eshwar & Others, in which, said regulation was
considered and it has been held that according to
Regulation 28 of the Rules of Road Regulations, the
driver is prohibited to be carried on a tractor.
Learned counsel appearing on behalf of
respondents submits that in this case conduct of the
appellant is required to be seen. Before the
Commissioner, Workman Compensation, no
documentary evidence whatsoever was produced by the
appellant insurance company, so also, no evidence
whatsoever has been produced by the insurance
company and, on the contrary, counsel for the appellant
is misleading this Court that in view of Regulation 28 of
the Rules of Road Regulations, 1989, the driver is
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prohibited to carry or allow any person to be carried on
a tractor.
While inviting my attention towards judgment
reported in 2006 ACJ 2212, New India Assurance Co.
Ltd. Vs. Sita & Others, it is submitted by learned
counsel appearing on behalf of the workman that as per
the said judgment the plea taken by the petitioner for
the first time before this Court cannot be considered.
I have considered the rival submissions made by
both the parties and perused the judgments cited by
both the parties and, so also, the facts of the present
case.
Admittedly, the insurance company is not
disputing the accident nor it is disputed that the
workman was cleaner upon the tractor in question. It
is also one of the important aspects of the matter that
no documentary evidence whatsoever was produced by
the insurance company which is evident from the
observation made by the workman in para 5 of the
judgment. It is also not disputed by the appellant
insurance company that the vehicle in question was
insured with the insurance company. Further, there is
no objection before the Commissioner, Workman
Compensation that the claimant was passenger upon
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the tractor. In this view of the matter, if no evidence
was produced by the insurance company before the
Workman Compensation Commissioner, then, in view of
the judgment reported in 2006 ACJ 2212, rendered in
the case of New India Assurance Co. Ltd. Vs. Sita &
Others (supra), at this stage, the appellant cannot be
permitted to raise any ground contrary to the plea
taken before the Commissioner, Workman
Compensation. Para 21 of the aforesaid judgment
reads as under :
“21. Therefore, in view of the above legal
position even if the more number of
persons were travelling in the truck then it
has no adverse affect on the claim of the
claimants and upon the claim of the
insured to claim reimbursement from the
insurance company. The judgments
relied upon by learned counsel for the
appellant which was delivered in the cases
of New India Assurance Co. Ltd. v. Asha
Rani, 2003 ACJ 1 (SC) and Oriental
Insurance Co. Ltd. v. Devireddy Konada
Reddy, 2003 ACJ 468 (SC), have no
application to the facts of this case in view
of the fact that the insurance company
itself specifically undertook liability of the
persons engaged in the work of unloading
of the fodder in this case, I do not find any
force in the submission of the learned
counsel for the appellant that the
appellant can take plea of limit of liability
at this stage on the plea that the
insurance company can be directed to pay
the compensation to the claimants only up
to the extent of the amount which can be
awarded to the employees under the
provisions of the Workmen’s
7Compensation Act, 1923. Neither it was
pleaded by the insurance company in the
reply nor it was argued before the
Tribunal and nor it has been raised as
ground in the memo of appeal.”
As a result of the foregoing, this appeal is partly
allowed. While upholding the award passed in favour
of the workman by the Commissioner, Workman
Compensation, impugned award is modified to the
extent that the liability fastened upon the insurance
company vide impugned judgment dated 31.03.1997
with regard to penalty is hereby set aside as against the
insurance company and shifted upon the employer. If
the said amount has been paid to the claimant the
insurance company shall be entitled to recover the said
amount from the employer.
(Gopal Krishan Vyas) J.
Ojha, a.