Akhatri Begum and others vs Vinod Kumar and others

K. Kannan, J

The application is for review of the judgment passed by this Court on 18.11.2010 on the ground that this Court while observing that it will exercise powers u/s 30 of the Workmen Compensation Act ought to have only applied the provisions of Section 4 of the Workmen''s Compensation Act and ascertained the quantum on the scale of compensation provided under the Act. The case was a claim for compensation for death of a husband of a young lady and the compensation awarded while affirming the award of the Tribunal, I had observed that even if the Motor Vehicles Act could not be invoked an award against the owner for death of the driver could be as per the provisions of the Workmen Compensation Act. The over all compensation at Rs. 2,16,000/-was already modest and if an order was passed affirming the decision, I was merely observing that the liability for an owner cannot be disputed and therefore it would not be justified to set aside such an award. If the scale of compensation under the Workmen Compensation Act was not applied it was a conscious decision and I do not find that there is any error apparent to the face of record.

Learned counsel states that in Amalendu Sahu Vs. Oriental Insurance Co.Ltd. reported in 2010 RCR Civil 635 the Court held that if the Insurance Company could not repudiate the claim in toto, it directed the Insurance Company to pay sum of consolidated amount of Rs. 2,50,000/-. The Supreme Court was dealing with a case of liability of Insurance Company under a comprehensive policy and a violation of terms of policy was found that the car had not been used for personal use but was being used for hire. The Supreme Court referred to a situation where the Insurance Company could repudiate a claim in a case where the vehicle carrying passengers and the driver did not have a proper driving license and it met with an accident. For the provision for settlement on non-standard basis, the National Commission for Consumer Disputes Redressal had set down the guidelines issued by the Insurance Company itself to undertake a liability of 75% as admissible claim. I would understand this direction only made possible for the Insurance Company to make a payment of 75% and did not exclude possibility of entitlement of the Insurance Company to recover against the owner. It is one thing to state that the Insurance Company cannot repudiate the claim in toto and quite another to say that the Insurance Company shall not be entitled to recover any amount from the owner even in a case of violation of terms of policy. There is nothing in the judgment of the Supreme Court to exclude such a right. Section 149(2) provides for a defence to the insurer to repudiate for any violation of terms of policy. If the provisions of the Workmen Compensation Act were to be invoked when the defences are even wider and even the principle to pay and recover may not subsequently apply. In this case, if at all, it should be Insurance Company who should be aggrieved by a direction for setting aside the claim in the first place. The owner cannot have such a contention. I find therefore no error for recalling the order.

Learned counsel states that he was not able to argue on that day because his name did not appear in the cause list. I am afraid I cannot help this situation. Since the case has been decided on merits even the absence of the counsel for the owner can not make any difference. In any event, the counsel has had his full say now and I find that his argument do not merit acceptance even on merits. The application is dismissed.