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Judgment
R. Jayasimha Babu, J.—The employer who has been found to be the Principal employer for the purpose of Workmen''s Compensation Act
has claimed indemnity with regard to the liability which it had to accept on account of the fatal accident in which a casual worker of its contractor
was involved. The insurance company has disputed the liability. That stand of the insurer was rejected by the Workmen''s Compensation
Commissioner but has been accepted by the learned single Judge.
We have perused the terms of the policy as also the proposal which the employer had given while taking out the policy. In the proposal there is
a schedule under which the employer is required to mention all persons employed. The relevant section of the policy is subdivided into clerical staff,
commercial travellers, employees engaged with wood working machinery including machinists and machinists labourers and other employees
including workmen, sub staff and drivers. The employer gave the total number under the head clerical as 18 and the other employees'' as 52. To a
specific query as to whether the employer wished to insure its liability to the workmen of sub contractors, the answer given in the proposal was
No"". To a further query in the questionnaire in the proposal the answer was that the numbers given by the employer against the clerical and other
employees did not include its sub contractors.
Learned counsel for the principal employer contended that in the insurance policy there is a specific statement that the indemnity is against the
legal liability to all employees whether or not coming within the term of Workmen''s Compensation Act and the subsequent amendment to the said
Act prior to issuance of the policy.
It is well settled that the right to claim indemnity is dependent on the terms of the policy and the payment of the premium. In this case, the policy
was issued pursuant to the proposal and the proposal itself made it abundantly clear that neither the sub contractor or the sub contractor''s
workmen were being insured under this policy. The premium paid was only for the workmen directly employed by the insured and not by the sub
contractor of the insured. Casual employees either of the employer or of the sub contractors were not included in the proposal pursuant to which
the policy was issued.
Having regard to these facts, particularly having regard to the fact that no premium had been paid by the insured for insuring any one other than
those of its own employees the right of the insured to indemnity is limited to the persons for whom the insurance proposal had been given and
pursuant to which the policy had been issued.
So far as the family of the deceased workmen are concerned they, however, are entitled to look to the terms R. JAYASIMHA BABU, J. and
A. KULASEKARAN, J. of the policy and claim the amount from the insurer. That will not preclude the insurer from reimbursing itself by making a
claim against the insured. In this case, the insurer had deposited the amount which was ordered to be paid over to the family of the deceased. The
family of the deceased the claimants before the Workmen''s Compensation Commissioner, are entitled to draw the money so deposited in full.
So far as the insurer is concerned it is entitled to reimbursement of the amount paid by the insurer to the claimants. If any amount has been
deposited by the insured in the Court that amount may be drawn by the insurer who may thereafter claim the balance if any that may be due to it
from the insured. The appeal is accordingly disposed of.