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Judgment
Mridula Bhatkar, J.—This appeal is filed u/s 30 of the Workmen''s Compensation Act. The substantial question of law involved in the appeal is "Whether the Commissioner, Workmen''s Compensation/Labour Judge is justified in discharging respondent No. 2-Insurance Company from the liability on the ground of breach of the terms of the valid policy of the impugned vehicle?"
The applicants are father and mother of the deceased who was working as a cleaner on motor vehicle i.e. trailor bearing No. MH-06-AC-5037 owned by respondent No. 1. On 4.12.2007 deceased Abdul Bari Abdul Hamid Khan who was working as a cleaner and driver Ambikaprasad Yadav were on duty and they were taking the trailor and it was passing through Manpada Dombivli, Dist. Thane. It was loaded with steel tank of 12.5 feet in height. On the way, when the vehicle was passing under the electric wire crossing the road the tank touched the electric wire over the head. The steel tank caught the electric current which was passed over the entire vehicle and the cleaner and driver died due to electrocution. F.I.R. was not registered immediately, but there was delay and it was registered on 9.12.2007 at Manpada Police Station. The parents of the deceased thereafter filed a claim application under the Workmen''s Compensation Act before the Commissioner of Workmen''s Compensation and the Judge, Labour Court, Mumbai against the employer i.e. respondent No. 1. Respondent No. 1 in spite of service did not appear. So the application proceeded ex-parte against him. However, respondent No. 2, Insurance Company appeared and filed written statement contesting the application. The Insurance Company challenged the fact of accident and the fact of employment of the deceased with respondent No. 1 and denied the liability on the point that there is breach of policy.
The Labour Court framed the following issues.
The Commissioner allowed the application and granted compensation to the tune of Rs. 4,42,740/- with interest at the rate of 12 % per annum from the date of the accident till its realisation. The Commissioner saddled the entire liability on respondent No. 1 and absolved respondent No. 2, Insurance Company from the liability to pay compensation. This is an appeal u/s 30 or the Workmen''s Compensation Act. Thus, there is no question of proof of facts on the point of occurrence of accident and also on the point of employment of the deceased with respondent No. 1. It is proved that the deceased died in the accident which has taken place in the course of the employment, when he was employed as a cleaner with respondent No. 1. However, only on the point of discharging the Insurance Company from the liability, this appeal is preferred.
Learned Counsel for the appellant argued that, if the Insurance Company takes defence of breach of policy, the burden of proof lies on the Insurance Company to prove the breach. Learned Counsel for the appellants further submitted that the applicant-employee or dependent of employee have choice to select a forum to get the compensation either under the Workmen''s Compensation Act, 1923 or under the Motor Vehicles Act, 1988. If the application is made under the Workmen''s Compensation Act, 1923 then the Insurance Company cannot take defences available u/s 149(2) of the Motor Vehicles Act, 1988. He argued that the Insurance Company has to restrict its defences to the defence available under the Workmen''s Compensation Act only. He submitted that the Insurance Company cannot plead defence of contributory negligence/or negligence on the part of the employee when the application for compensation is made under the Workmen''s Compensation Act. Learned Counsel relied upon- Kamala Mangalal Vayani and Others Vs. United India Insurance Co. Ltd. and Others, , and National Insurance Co. Ltd. Vs. Mastan and Another, .
Learned Counsel for the Insurance Company argued that the vehicle was loaded with a steel tank having impermissible height. This amounts to violation of all safety measures which are required to be taken by the insured. Hence the Insurance Company is not liable to pay any amount. He relied on:
(1) National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, ,
(2) Anil Tukaram Patil Vs. Vishnu Tukaram Shinde (Patil) and Others, ,
AND
(3) Gottumukkala Appala Narasimha Raju and Others Vs. National Insurance Co. Ltd. and Another, .
In which it is held that the Tribunal was justified in holding that if the insured had breached the policy conditions then the Insurance Company can be exempted from liability. The unlimited defences are available to the insurer company in appeal filed u/s 30 of the Workmen''s Compensation Act.
u/s 149(2) of the Motor Vehicles Act, 1988 defence of breach of terms and conditions of the policy is available to the Insurance Company and it is a valid defence under the Workmen''s Compensation Act. In so far as the defence of negligence or contributory negligence available to the insured and insurer under the Motor Vehicles Act, 1988 is concerned, it is not available to them against the employee under the Workmen''s Compensation Act. In National Insurance Co. Ltd. v. Mastan and another (supra) it is observed that:
Right of appeal is a creature of statute. The scope and ambit of an appeal in terms of section 30 of the 1023 Act and section 173 of the 1988 Act are distinct and different. They arise under different situations. In a case falling under the 1923 Act, negligence on the part of the owner may not be required to be proved.
It is further observed that:-
A limited right to defend a claim petition arising under one statute cannot be held to be applicable in a claim petition arising under a different statute unless there exists express provision therefor.
Under the Workmen''s Compensation Act, the principal liability to compensate the workman is of the employer if the requirements u/s 3 of the Workmen''s Compensation Act are fulfilled. The employer is liable to compensate. The Insurance Company comes into picture due to the contractual liability therefore, the Insurance Company has to indemnify the employee. Therefore, the defence of negligence or contributory negligence is not available to the insured and the Insurance Company when the appeal is filed u/s 30 of the Workmen''s Compensation Act. However, the insurance company can take other defences available to it. In Gottumukkala Appala Narasimha Raju and Others Vs. National Insurance Co. Ltd. and Another, , it is observed that.
Only because sections 143 and 167 of the 1988 Act refer to the provisions of the 1923 Act, the same by itself would not mean that the provisions of the 1988 Act, proprio vigore would apply in regard to a proceeding for payment under the 1923 Act.
The burden to show and prove such breach of the policy or permit lies on the insurer. The Insurance Company has filed written statement which is marked at Exh. C-2. The Insurance Company has taken a specific defence that there is a breach of clause-10 of the permit of the vehicle. The applicant and the respondent have produced the documents viz. A copy of FIR, spot panchanama, inquest panchanama, post-mortem report, driving license, permit, R.C. Book and the insurance policy. The insurer has filed written argument which is taken on record and marked Exh. C-3. The Commissioner in paragraph 9 of the judgment has dealt with the point of breach of terms and conditions of the permit. The recitals of relevant clause No. 10 is as follows.
The permit is issued on condition mat the permit holder shall exercise such supervision over the work of his employees as is necessary to ensure that his vehicle is operated in conformity with the Motor Vehicles Act, 1988 and the Rules made thereunder and with due regard to the comfort, convenience and safety to the public.
The Commissioner has held that loading a steel tank of 12.5 feet in height shows that there was no proper supervision by the employer while carrying such steel tank. This issue requires proper assessment of the actual incident of the accident. The reason of the accident is not disputed. Thus, the only question is whether the loading of steel tank having height of 12.5 feet on the trailor and carrying the said steel tank on public road was against the norm of precaution and supervision? As per the permit it was the responsibility of the holder of the permit to exercise the supervision on the work of the employees. As per Motor Vehicles Act, 1988 and Rules thereunder the employer should take care of comfort, convenience and safety of the public. Thus, the condition is in respect of the comfort, convenience and safety of the public. The deceased who is referred as an employee in the term cannot be included in the public for the purpose of this condition. Thus, it is expected that the employee and employer should take all safety measures to avoid any accident which may harm the public. This does not refer to the safety measures taken by the insurer in respect of his employees.
Assuming that the steel tanker would have toppled or the vehicle would have lost the balance due to the heavy steel tank and a member of the public would have crushed and died, under the tank then loading and transporting the steel tank was definitely a breach of condition No. 10 of the permit. Similarly if any member of the public would have touched the vehicle when the steel tank/trailor got electrified due to its connection with the overhead electric wire and the members of the public would have electrocuted, then definitely it was a breach of condition No. 10 and the Labour Judge would have been justified in absolving the Insurance Company from the financial liability. In the present accident no harm or damage was caused to the public, therefore, there is no breach of condition No. 10 on which the Insurance Company has placed reliance. Thus, the Commissioner has committed an error in interpreting clause-10 of the policy and wrongly held that there is a breach of condition in the policy and the Insurance Company is not liable to pay any compensation.
The height of the steel tank was 12.5 feet. It was loaded on the trailor. Therefore, the height of the base of the trailor is also to be included in the total height which is generally 5'' and above from the road and thus, 12.5'' + 6'' = 18 feet. Thus, the total height was about 18 feet. It is not the case of the Insurance Company that after loading the steel tank, when the trailor proceeded on the road, as soon as it came across the first time in contact with cross electric wires it caught electric current. It appears that the trailor proceeded on the road for few kilometers.
It is a common experience that the electric wires are connected to the electric poles across the road. So it is a responsibility of the authority to give a proper height to the electric poles and such wires; especially when the wires are joined, crossing the road. The trucks, trailors are heavy goods carriers. Though the transportation of goods having height of 12.5 feet may not be frequent, it cannot be said that it is uncommon and illegal. Considering this position and also the interpretation of recitals of Clause 10, I am of the view that the order passed by the Labour Judge requires interference. Hence the impugned order deserves to be set aside only on the point of liability. The Insurance Company is held liable to pay compensation. Therefore, the appeal is allowed and the judgment and order dated 8.2.2010 passed by the Commissioner for Workmen''s Compensation & Judge, 11th Labour Court, Mumbai is set aside to the extent of holding the Insurance Company also liable to pay the compensation.
Rest of the order is maintained.