National Insurance Company Limited vs Mohammad Ibrahim Suhail and others

National Insurance Company Limited (appellant) seeks setting aside of Award dated 25th September 2012 passed by the court of

Commissioner under Employees Compensation Act, 1923, Kashmir Division, Srinagar, (for short ""Commissioner"") in the case titled Mohammad

Ibrahim Suhail v. Ghulam Rasool Sheikh and others.

The case set up by appellant company is that respondent no.1 filed a claim petition before learned Commissioner alleging therein that on 20th

May 2004, he was employed in Stone Quarry no.12 at Athwajan, Srinagar, belonging to respondent no.2 and while loading the stones in the

Tipper no.JKS-6017, a heavy stone fell down from the Tipper, which touched him and caused injuries to his left hand. It is averred that objections

were filed, resisting the claim petition filed by respondent no.1. The learned Commissioner passed Award dated 25th September 2012, directing

appellant company to pay an amount of Rs.70721/- within a period of 30 days, failing which awarded amount together with interest and penalty

thereon shall be recovered from the defaulter as arrears of land revenue.

I have heard learned counsel for parties and gone through the record. I have considered the matter.

Learned counsel for appellant company states that under Employees Compensation Act, the Employer is liable to pay compensation to an

employee if he suffers an incidental injury resulting into death or permanent disability to him and that basis of law is relationship of employee and

employer. According to him, respondent no.1 at the relevant time was an employee of respondent no.2, who is neither insured nor owner of the

vehicle, as such, for the injury suffered in an accident, during the course of employment with respondent no.2, liability is of respondent no.2 and not

of owner of insured vehicle. Learned counsel pleads that under Employees Compensation Act, use of vehicle is irrelevant and only relevant point is

who was employer of respondent no.1 and under whom he was working. Learned counsel for appellant company has raised the question as to

whether learned Commissioner was right in fastening liability upon appellant company when respondent no.1 had suffered injuries during course of

employment of respondent no.2 to whom Quarry no.12 belongs and which is not insured with appellant company. To the saying of learned counsel

for appellant company, once learned Commissioner has misdirected itself on a question of law or a finding is recorded without any evidence

whatsoever or perverse finding is reached where no reasonable man may reach, it can be said that substantial question of law has arisen and once

there is total non-application of mind by learned Commissioner, resulting in erroneous finding, in that case a substantial question of law has also

arisen and can be set at right in an appeal.

A claim petition was filed by respondent no.1 before learned Commissioner on the ground that while working as labourer with respondent no.2,

he met with an accident on 20th May 2004 while loading tipper No.JKS-6017 belonging to respondent no.3 herein. Objections were filed by

other-side, including insurance company (appellant herein) in opposition to claim petition. In consultation with the parties, three issues were framed,

which are:

a) Whether the accident to the applicant has arisen out of and in the course of employment;

b) Whether the vehicle bearing registration no.6017-JKS was insured at the time of accident;

c) Whether applicant is entitled to any payment of compensation and if so from whom.

The parties were asked to lead evidence in support of their respective pleadings. Appellant company produced only one witness in support of

its case. It is an admitted position of parties and their witnesses before learned Commissioner that while loading the stones in the tipper bearing

Registration no.JKS-6017, a heavy stone fell down from the tipper and respondent no.1 came under this stone, causing injuries to his left hand.

Respondent no.1 was hospitalised and remained admitted in SKIMS from 20th May 2004 to 2nd June 2004. Learned Commissioner held

respondent no.1 entitled to payment of compensation for injuries sustained by him in accordance with provisions of the Employees Compensation

Act, 1923. As to who is liable to pay compensation, learned Commissioner made an eloquent discussion. In this regard it would be profitable to

reproduce apropos excerpt of Award hereunder:

Now there remains the question, as to who, out of four non-applicants is liable to make payment of compensation to the injured workman. In this

context a scrutiny of statements of the parties and the insurance policy of the vehicle concerned is essential. As per statements of the applicant and

those of non-applicants No.1 & 2 and of all the witnesses of the parties, it is established that applicant at the time of accident was loading the

stones in tipper. He was not engaged in excavating or breaking of stones which are exclusively the operations of the mine/quarry. The cause of

accident as per records available on file was that of falling down of a stone from the tipper, which has crushed the left hand of the applicant. The

circumstances attending to occurrence of accident establishes a direct connection between the accident and the tipper No.JKS-6017, which

makes the tipper owner liable for compensation as the tipper at the time of accident was insured with non-applicant No.3. The copy of insurance

policy filed by the non-applicants in court reveal that vehicle has been insured on the 10.05.2004 to the mid night of 09.05.05. The accident has

taken place on 20.05.2004 i.e. during the currency of the insurance cover.

Besides what has been said above a reference is necessary to be made to the report of the Wular Investigators Pvt. Ltd. Srinagar dt. 06.07.2005

in the matter. The non-applicant No.3 appears to have appointed the Wular Investigators Pvt. Ltd. Srinagar for conducting investigation with

regard to claim under reference. The investigating agency after thorough and detailed probe of the case has submitted a detailed report to the non-

applicant No.3. Apart from the other things, the Investigating Agency has given its opinion about the claim under reference as well. For

convenience an extract of relevant portion of the opinion is reproduced below:-

Thorough investigations conducted by us in respect of the claim under reference from the claimant, his neighbours and relatives, the hospital

authorities, the insured and the driver of the insured vehicle, besides the employer quarry owner, his other employees and some neighbouring

quarry owners confirm the information carried by us in the above report. as per our enquiries the injury to the claimant stands confirmed to have

caused on 20.05.2004 due to the fall of heavy stone on his left hand while loading stones in the insured vehicle in the quarry No.12 at Athwajan"".

Since the tipper involved in the accident, stands insured against compensation with non-applicant No.3 and the non-applicant NO.3 is as such

liable to make payment of compensation to the applicant.

From above quoted text extracted from impugned Award, it is profusely manifest and evident that appellant insurance company has put into

motion all its tools for naysaying and contradicting the claim of respondent no.1/claimant, but all those pretexts paled into insignificance. Appellant

insurance company, of its own accord, had appointed Wular Investigators Private Limited aiming at to conduct investigation qua claim of

respondent no.1/claimant. The report submitted by aforesaid Investigators has substantiated claim of respondent no.1/claimant. Having said so,

there is nothing in the appeal on hand to warrant that Award granted by learned Commissioner does not suffer and is not pregnant with any legal

infirmity.

Learned counsel for appellant insurance company, during course of arguments as a last limb of lash out on impugned Award, has also raised a

contention that claim petition was not maintainable because respondent no.1/claimant could have fall back upon the provisions of the Motor

Vehicles Act, to implore compensation. This contention of learned counsel is specious. It is obvious that certain accidents may give rise to the

workman or his dependent to make claim both under the Employees Compensation Act and Motor Vehicles Act. The law only says that in such

an event, claimant will not be entitled to claim compensation under both the Acts. He has to choose one of them. In such circumstances,

respondent no.1/ claimant was not excluded to approach learned Commissioner for seeking compensation under Employees Compensation Act.

Based on the aforesaid discussion and reasons, the appeal fails and is, accordingly, dismissed. Interim direction, if any, shall stand vacated.

Record be sent down.