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Wednesday, February 18, 2015

The appellant has deposited Rs.3,25,365/- i.e. the principal amount with the Labour Court/Commissioner for Workmen's Compensation, Rajkot on 18.2.2014. The matter was listed before the Supreme Court Lok Adalat on 6.12.2014 wherein the appellant was directed to deposit the balance amount. The 1st respondent-insurance company shall deposit the balance compensation being 15% penalty and the interest at the rate of 12% after one month from the date when the compensation amount fell due and also 15% penalty with the Labour Court/Commissioner for Workmen's Compensation within a period of six weeks from today. On such deposit, the same shall be disbursed to respondents No.2 to 4. The amount of Rs.3,25,365/- already deposited by the appellant with the Commissioner for Workmen's Compensation shall also be disbursed to respondents No. 2 to 4 if not already disbursed. After disbursing the amount to the dependents No.2 to 4, the Commissioner for Workmen's Compensation, Rajkot shall submit a report to this Court regarding compliance at an early date preferably not exceeding four months from today. The 1st respondent-insurance company shall pay the amount of Rs.3,25,365/- to the appellant which it has already deposited towards compensation within a period of six weeks. The impugned judgment of the High Court is set aside and the appeal is allowed in terms of the above directions. In the facts and circumstances of the case, we make no order as to costs.

                                                                  REPORTABLE

                    IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1970 OF 2015
                   (Arising out of SLP(C) No. 28265/2014)


Praveenbhai                          S.                          Khambhayata
...Appellant

                                   Versus

  United India Insurance Company
  Ltd. & Ors.                                                ...Respondents


                               J U D G M E N T


R. BANUMATHI, J.


      Leave granted.
2.          This appeal is preferred against the judgment  dated  16.04.2014
passed  by  the  High  Court  of  Gujarat  at  Ahmedabad   dismissing    the
appellant's  First Appeal No.282 of  2014  observing   that  the   Insurance
Company was not liable to indemnify him, thereby confirming the order  dated
11.11.2013 passed by  the  Commissioner  for  Workmen's  Compensation/Labour
Court, Rajkot.
3.          The brief facts which led to the filing of this  appeal  are  as
follows:-  Proforma  respondents  2-4/claimants,  namely,  Lalmani    Yadav-
father, Dashmiya Lalmani yadav-mother and Janaki alias Babli  Ramesh  Yadav-
wife of the deceased, Ramesh Lalmani Yadav filed  a  claim  petition  before
Commissioner  for  Workmen's  Compensation/Labour  Court,  Rajkot,  claiming
compensation for the death of deceased Ramesh Lalmani  Yadav  on  20.05.2002
in the course  of  his  employment.   On  the  fateful  day  of  20.05.2002,
deceased Ramesh Lalmani Yadav was  working  as  a  cleaner  in  the  vehicle
bearing No.GJ-3V-7785, in the employment of  the  appellant  and  respondent
No.5.  In the afternoon at  about       12.30  p.m.,  deceased  was  filling
water in the radiator of  the  vehicle  when  suddenly  the  bonnet  of  the
vehicle fell down on the head of the deceased, as a result of which he  fell
down and died.  Stating that Ramesh Lalmani Yadav died in the course of  his
employment,  respondents  No.2  to  4  filed  the  claim  petition  claiming
compensation of  Rs.4,15,093/-  and  that  appellant  and  respondent  No.5-
Insurance Company are liable to pay the compensation of Rs.4,15,093/-.
4.           Before the Commissioner, both  the  parties  adduced  oral  and
documentary evidence.  Upon consideration of the records,  the  Commissioner
held that FIR dated 20.05.2002 was lodged  by  the  driver  of  the  vehicle
bearing No. GJ-3V-7785 in which it was mentioned that  on  the  fateful  day
while reversing the said vehicle  he  saw  deceased  putting  water  in  the
radiator of another vehicle bearing no. GJ-3U-5391 and that  he  slipped  on
the bonnet of vehicle, fell on his head and deceased  Ramesh  Lalmani  Yadav
sustained injuries and died.  The Labour Court/Commissioner  held  that  the
insurance policy produced before him was in respect of  the  vehicle  GJ-3V-
7785 which  was  not  involved  in  the  vehicular  accident  and  therefore
Insurance Company-first respondent is not liable to  pay  the  compensation.
However, the learned Commissioner held that  the  appellant  and  respondent
No.5 being the owner of the vehicle, were jointly and  severally  liable  to
pay the compensation of Rs.3,25,365/- along  with  10%  penalty  and  annual
interest at the rate of 6%.
5.          Being aggrieved, the appellant-owner of  the  vehicle  preferred
the  first  appeal  in  the  High  Court  of  Gujarat.   Vide  order   dated
16.04.2014, the High Court dismissed  the  appeal  filed  by  the  appellant
observing that since vehicle No.GJ-3V-7785 was not involved in the  accident
and that only vehicle No.GJ-3U-5391 was involved and since the deceased  was
employed as a cleaner was only in  vehicle  No.  GJ-3V-7785,  the  insurance
company is not liable to indemnify the appellant for the accident caused  by
the vehicle bearing No.GJ-3U-5391.  In this appeal, the appellant  seeks  to
assail the said judgment.
6.          Learned counsel  for  the  appellant  contended  that  both  the
vehicles,  namely,  GJ-3V-7785  and  GJ-3U-5391  were  duly  owned  by   the
appellant and both  the  vehicles  were  insured  with  the  same  insurance
company viz. the first respondent-United India Insurance company  and  while
so, the courts below are not justified in holding that the first respondent-
insurance company  is  not  liable  to  indemnify  the  appellant.   It  was
submitted that the deceased was an employee  of  the  appellant  in  vehicle
       No.GJ-3V-7785 and died during the course of  the  employment  and  as
such, the fact that he was employed in another vehicle cannot exonerate  the
insurance  company  from  indemnifying  the  appellant.   It   was   further
submitted that under Section 147 of the Motor Vehicles  Act  1988,  being  a
beneficial legislation and both the vehicles being insured  with  the  first
respondent, the courts below erred in observing that the  insurance  company
is not responsible for any liability even though under Section  147  of  the
Act.  The insurance company is bound to  indemnify  the  appellant  for  the
loss occurring on account of the death of  workman  in  the  course  of  his
employment.  In support of his contention,  reliance  was  placed  upon  Ved
Prakash Garg vs. Premi Devi & Ors.[1]
7.          Learned  counsel  for  the  first  respondent-insurance  company
submitted that the deceased-Ramesh Lalmani Yadav was employed as  a  cleaner
only in the vehicle GJ-3V-7785 and since only  GJ-3U-5391  was  involved  in
the accident, insurance company does not have any responsibility to pay  any
compensation and to indemnify the  insurer  and  the  courts  below  rightly
exonerated the insurance company from indemnifying the insurer.
8.          It is an admitted fact that  the  deceased  was  employed  as  a
cleaner in vehicle No.  GJ-3V-7785  and  on  perusal  of  the  statement  of
Ramlallu D. Patel, the driver of the above-said  vehicle,  it  emerged  that
the deceased was actually filling water  in  the  radiator  of  the  another
dumper bearing No. GJ-3U-5391 and met with an accident and died due  to  the
injuries sustained by him.   The same is substantiated by the  panchnama  of
the scene of the  accident.  From  the  written  statement  filed  by  fifth
respondent - Viraj Krishna Techtonics Pvt. Ltd. Vijayrath,  it  is  apparent
that the employer has admitted that the death of Ramesh  Lalmani  Yadav  was
caused while he was filling water in the radiator  of  the  vehicle  bearing
No. GJ-3U-5391 owned by him.  Taking into consideration  the  facts  of  the
case, it is  evident  that  vehicle  GJ-3V-7785  was  not  involved  in  the
accident.
9.          Vehicle No. GJ-3V-7785 was insured with  the  first  respondent-
insurance company under Section 147 of the Act.  The insurance policy  of  a
public service vehicle is deemed to cover an employee engaged  in  the  said
vehicle and the liability of the insurance company to pay  compensation  for
the death or injuries sustained by the  workman.   Payment  of  compensation
for the death of workman or injuries sustained by the workman is limited  to
the liability arising  in  the  Employers  Compensation  Act,  1923.   Since
vehicle No.GJ-3V-7785 was not involved in the  accident,  insurance  company
was  not  liable  to  indemnify  the  owner  of  the  vehicle  towards   the
compensation payable to  his  employee  -  deceased-cleaner  Ramesh  Lalmani
Yadav under Workmen's Compensation Act, 1923.
10.         As noticed earlier, only the dumper  bearing  No.GJ-3U-5391  was
involved in the accident.  The insurance policy  of  the  vehicle  No.GJ-3U-
5391 was not produced either before the  Commissioner  or  before  the  High
Court.  Insurance policy of the said vehicle No.GJ-3U-5391  for  the  period
from 13.09.2001 to 12.09.2002 was produced before this Court.  The  accident
was on 20.05.2002 during which period  the  vehicle  No.  GJ-3U-5391  had  a
valid insurance policy.
11.         The point falling for consideration is that even if the  vehicle
No. GJ-3U-5391 had a valid insurance policy, whether the  first  respondent-
insurance company is liable to indemnify the owner of the vehicle for  death
of a person who was employed by him in another vehicle.  Insofar as  vehicle
dumper                 No.GJ-3U-5391,  admittedly  deceased-Ramesh   Lalmani
Yadav was not an employee and he was only a third  party.  Onbehalf  of  the
appellant, an argument was  advanced  that  since  both  the  vehicles  were
insured with  the  same  insurance  company  viz.,  United  India  Insurance
Company and since Section 147 of the Motor  Vehicles  Act  is  a  beneficial
legislation, the insurance  company  ought  to  have  been  held  liable  to
indemnify the insured.  As contended by the  appellant,  both  the  vehicles
were insured with the respondent-insurance company  and  both  the  vehicles
are one and the same.  Considering the facts of the case, both the  vehicles
were parked in the same space and it can be safely stated that the  deceased
cleaner was filling the water in the radiator of vehicle no.GJ-3U-5391  only
on the direction of the employer and thus the   cleaner was working  in  the
course of employment.  The High Court rejected the claim  of  the  appellant
on the ground that the insurance policy of vehicle No.  GJ-3V-7785  was  not
produced but now since the  appellant  has  produced  the  insurance  policy
which covers  the  vehicle  involved  in  the  accident  which  provides  to
indemnify the owner of the vehicle in case of any  accident  caused  to  the
workman limited to the extent  of  liability  under  Workmen's  Compensation
Act.
12.         Both the  vehicles  were  insured  with  the  first  respondent-
insurance company and the owner  being  one  and  the  same  and  since  the
deceased being the cleaner and the claimants hailing from the lowest  strata
of society, in our  considered  view,  in  exercise  of  our  extra-ordinary
jurisdiction  under  Article  142  of  the  Constitution  of  India,  it  is
appropriate to direct the first respondent-insurance  company  to  indemnify
the appellant for the death of deceased.
13.         In a  situation  of  this  nature  for  doing  complete  justice
between the parties, this Court has always exercised the jurisdiction  under
Article 142 of the Constitution of India.   In  Oriental  Insurance  Company
Ltd. vs. Brij Mohan And Ors.[2], this Court has held as under:-
"13. However, Respondent 1 is a poor  labourer.  He  had  suffered  grievous
injuries.  He  had  become  disabled  to  a  great  extent.  The  amount  of
compensation awarded in his favour appears to be on a  lower  side.  In  the
aforementioned situation, although we reject the  other  contentions  of  Ms
Indu Malhotra, we are inclined to exercise  our  extraordinary  jurisdiction
under Article 142 of the Constitution of India so  as  to  direct  that  the
award may be satisfied by the appellant but it would be entitled to  realise
the same from the owner of the tractor and the  trolley  wherefor  it  would
not be necessary for it to initiate any separate  proceedings  for  recovery
of the amount as provided for under the Motor Vehicles Act.

14. It is well settled that in a situation of  this  nature  this  Court  in
exercise of its jurisdiction under Article 142 of the Constitution of  India
read with Article 136 thereof can issue suit directions for  doing  complete
justice to the parties".

14.       In Deddappa & Ors. vs. National  Insurance  Company  Ltd.[3],   it
was  observed as under:-
"26. However, as the appellant hails from the lowest strata of  society,  we
are of the opinion that in a case of this nature, we should, in exercise  of
our extraordinary jurisdiction under Article  142  of  the  Constitution  of
India, direct Respondent 1 to pay the amount  of  claim  to  the  appellants
herein and recover the same from the owner of the  vehicle  viz.  Respondent
2, particularly in view of the fact that no appeal was preferred by him.  We
direct accordingly".

15.         Labour Court awarded compensation of Rs.6,42,921/-  along   with
10% penalty and 6% interest per annum.  As per Section  4-A  (3)(a)  of  the
Workmen's Compensation Act,  where any employer commits  default  in  paying
the compensation due under the Act within one month from the  date  it  fell
due,  the Commissioner shall direct the employer   to  pay  simple  interest
thereon at the rate of 12% per annum  or at such higher  rate not  exceeding
maximum  of the  lending rates of any scheduled bank as may be specified  by
the Central Government.  As per Section  4-A (3)(b),   in  addition  to  the
amount of arrears and the interest thereon, the  Commissioner  shall  direct
the employer to pay further  sum  not exceeding 50% of such  amount  by  way
of penalty.  The legal representatives of the  deceased  employee  are  thus
entitled to the statutory interest at  the  rate  of  12%  and  penalty  not
exceeding  50%  of  the  amount  of  compensation.   The  Commissioner   for
Workmen's Compensation has awarded only  6%  interest  and  10%  penalty  as
against the  statutory   entitlement  of  the  dependents  of  the  deceased
employee in terms of Section  4-A(3) of the  Act.    Having  regard  to  the
passage of time and in the interest of  justice,  in  our  considered  view,
statutory rate of penalty i.e. 15% is to  be  ordered  in  addition  to  the
statutory interest  payable at the rate  of 12% per annum.
16.         The appellant has deposited  Rs.3,25,365/-  i.e.  the  principal
amount  with  the  Labour  Court/Commissioner  for  Workmen's  Compensation,
Rajkot  on 18.2.2014.  The matter was listed before the  Supreme  Court  Lok
Adalat on 6.12.2014 wherein  the  appellant  was  directed  to  deposit  the
balance amount.  The 1st  respondent-insurance  company  shall  deposit  the
balance compensation being 15% penalty and the interest at the rate  of  12%
after one month from the date when the  compensation  amount  fell  due  and
also  15%  penalty  with  the  Labour   Court/Commissioner   for   Workmen's
Compensation within a period of six weeks from  today.    On  such  deposit,
the same shall be  disbursed  to  respondents  No.2  to  4.  The  amount  of
Rs.3,25,365/- already deposited by the appellant with the  Commissioner  for
Workmen's Compensation shall also be disbursed to respondents No. 2 to 4  if
not already disbursed.  After disbursing the amount to the  dependents  No.2
to 4, the Commissioner for Workmen's Compensation,  Rajkot  shall  submit  a
report to this Court regarding compliance at an early  date  preferably  not
exceeding four months  from  today.  The  1st  respondent-insurance  company
shall pay the amount of Rs.3,25,365/- to the appellant which it has  already
deposited towards compensation within a period of six  weeks.  The  impugned
judgment of the High Court is set aside and the appeal is allowed  in  terms
of the above directions.  In the facts and circumstances of  the  case,   we
make no order as to costs.



                                           ...............................J.

                                                           (V. GOPALA GOWDA)


                                            ..............................J.

                                                           (R. BANUMATHI)


New Delhi;
February 17, 2015
-----------------------
[1]
      [2]    (1997) 8 SCC 1

[3]
      [4]     (2007) 7 SCC 56
[5]
      [6]     (2008) 2 SCC 595

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