Divisional Manager, Oriental Insurance Co. Ltd. vs Saroj Kumar Swain and Others

M.M. Das, J.—This appeal by the insurer u/s 30 of the Workmen''s Compensation Act, 1923 (hereinafter referred to as ''the Act'') is directed against the judgment and award dated 18.10.2000 passed by the Commissioner for Workmen''s Compensation-cum-Asst. Labour Commissioner, Cuttack, in W.C. Case No. 862-D of 1998.

Respondent No. 1 -Saroj Kumar Swain sustained grievous injuries, such as, fracture of femur bone of his left leg, fracture of mandible bone and bleeding injuries on the face and other parts of the body in a motor vehicle accident, when he was traveling in a truck bearing Registration Number OR-05-B-4331 on 16.10.1995 in between Cuttack and Panikoili. He filed a claim for compensation under the Act, before the Commissioner for Workmen''s Compensation bearing W.C. Case No. 862-D of 1998. Respondent Nos. 2 and 3 and the appellant were the Opp. Parties in the said case. All the Opp. Parties filed their respective written statements. Respondent No. 2 M/s. Trupti Drinks Pvt. Ltd. filed the insurance policy showing that the truck was insured with the appellant and the policy was valid till 10.3.1996. Respondent No. 3-J. Behera admitted the accident and the injuries sustained by the claimant as well as the wage claimed by him as Rs. 1,000/- per month.

The Learned W.C. Commissioner framed as many as four issues and finding that the injuries sustained by the claimant amounts to loss of 100% earning capacity and also relying upon various case laws cited before him and applying the provisions of Section 4(1)(c)(i) of the Act, held that the claimant is entitled to compensation of Rs. 53,393/-

Though Learned Counsel for the appellant-insurer contended that the quantum of compensation awarded is not correct and has been arrived at basing on materials available on record but since the same is a question of fact and under the proviso to Section 30 of the Act, this appeal can only be entertained on a substantial question of law I am not inclined to go into the arena of disputed questions of fact with regard to assessment of quantum of compensation. The only other point raised by the insurer is that as the truck was delivered to Respondent No. 3 by Respondent No. 2 on a hire purchase agreement and the policy of insurance with respect to the vehicle in question has been issued in the name of Respondent No. 2 M/s. Trupty Drinks Pvt. Ltd. and as the claimant was working as a Coolie in the said truck under Respondent No. 3 who was not the insured, the appellant-insurer is not liable to pay the compensation and the Learned Commissioner has acted contrary to law in directing the appellant to pay the compensation as awarded. Mr. Dutta, Learned Counsel for the appellant strenuously urged that as per the definition of the word ''employer'' given in the Act, in the facts and circumstances of the case, it would be clear that Respondent No. 3 who was the hire purchaser of the truck, was the employer and as the said employer was not insured by the appellant, the appellant will not be liable to pay any compensation under the provisions of the Act.

A reading of the impugned judgment goes to show that along with the claimant, the helper-Sushanta Kumar Rout was also injured and the said helper also filed a case under the Act claiming compensation, in which the appellate-insurer was a party, but did not take the stand that it being not the insurer of the employer, is not liable to pay compensation. It appears that in the said W.C. Case No. 1 -D of 1996, the award was passed in favour of said Sushanta Kumar Rout by the judgment dated 27.11.1997 and the said workman has already been paid the compensation by the appellant-insurer.

Under the above facts of the case let me now examine if it is open for the appellant to take the stand that Respondent No. 3 being not insured, the appellant is not liable to pay the compensation as awarded to the claimant.

It is necessary for this purpose to deal with the principle of ''waiver''. ''Waiver'' may be express or implied. It may be intentional or due to inaction or gross carelessness or absence of diligence on the part of the party having the right or advantage in his favour. Even if there is any mandatory provision which confers any right or privilege or advantage to any of the party to the litigation, such right, privilege or advantage is waived by the party in whose favour the provisions stands if he fails to assert the same. Thus, ''waiver'' means abandonment of right and it may be express or implied from conduct, but its basic requirement is that it must be an intentional act with knowledge. See Bholanath Roy v. Secretary (1913) 17 CW.N. 64, Chotalal Shaw Vs. Ram Golam Shaw and Others, and Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others,

It would be found from the materials on record in the present case that the rights and the liability of the appellant emanates from the policy of insurance which is a contract. The appellant which is an insurance company being fully aware and having knowledge of its rights and liabilities under the said contract of insurance, by making payment of the award on accepting its liability to pay the same in the claim for compensation filed by Sushanta Kumar Rout, the helper, who was also injured in the same accident in which the present claimant was injured, the appellant waived its right which it possessed, if any, under the contract of insurance. Thus the appellant having waived its right, if any, which it had under the policy of insurance, in the case of the helper, it cannot now turn back and plead that it has no liability to pay the compensation to the claimant in this case, under the self same policy.

In view of the above position, this is a case where the principle of waiver will be squarely applicable. It also further appears from the record that even though the appellant filed its written statement, but when Jasobanta Behera, Respondent No. 3 was examined as O.P.W. No. 1, the appellant did not choose to cross-examine him and also did not take part in the argument of the case. It is, therefore, clear that the appellant though had an opportunity to plead in the previous claim case filed by the helper that it is not liable to pay compensation on the above ground, it failed to do so and therefore, this plea is not available to the appellant to be raised in the present case when the said Sushanta Kumar Rout was one of the injured in the self-same accident in which the present claimant was injured. Hence, I feel it unnecessary to enter into the question as to whether the appellant covers the liability of Respondent No. 3 as the employer since admittedly the appellant-insurer accepting such liability has already paid the awarded amount to Sushanta Kumar Rout the helper who was injured in the self-same accident.

I, therefore, find no merit in this appeal and the same is, accordingly, dismissed. Since the entire amount of compensation awarded has been deposited by the appellant before this Court, I direct that the same be disbursed in favour of the claimant-Saroj Kumar Swain along with accused interest, if any, on being properly identified.