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2019 Supreme(Bom) 1628
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
Vibha Kankanwadi, J.
Associated Cargo Movers and Packers Private Limited, Pune – Appellant
Versus
Hanumant – Respondent
First Appeal No. 1349 of 2014
Decided On : 04-09-2019
Amit Savale, Adv., A.S. More, Adv., S.G. Chapalgaonkar, Adv.
Headnote:
Compensation Act - Section 4 - Workmen Compensation Act - Section 4 A – Employment ad service – Claim of compensation - Respondents No.1 and 2 filed written statement at Exhibit 11. It was denied that, the applicant was the employee of the respondents. It is stated that, there was no employer employee relationship and therefore there is no liability to them to pay compensation. They have denied that the applicant had gone to Bangalore along with their truck for unloading marbles and then met with the accident. Special defence has been taken that, the applicant is not the labour and alternatively it was contended that, if it is found that the applicant is the labour then they had taken Insurance and the policy with respondent No.3 covered reimbursement of the amount to be paid towards labour - Insurance Company had also filed written statement at Exhibit 32 denying all the allegations in the petition. It is stated that, intimation of the accident was not given to its office – Held, On a conjoint operation of the relevant schemes of the aforesaid twin Acts, in our view, there is no escape from the conclusion that the insurance companies will be liable to make good not only the principal amounts of compensation payable by insured employers but also interest thereon, if ordered by the Commissioner to be paid by the insured employers - Thus the principal amount as well as the interest made payable thereon would remain part and parcel of the legal liability of the insured to be discharged under the Compensation Act and not dehors it. It, therefore, cannot be said by the insurance company that when it is statutorily and even contractually liable to reimburse the employer qua his statutory liability to pay compensation to the claimants in case of such motor accidents to his workmen, the interest on the principal amount which almost automatically gets foisted upon him once the compensation amount is not paid within one month from the date it fell due, would not be a part f the insured liability of the employer. No question of justification by the insured employer for the delay in such circumstances would arise for consideration. It is of course true that one months period as contemplated under Section 4A (3) of the Act may start running for the purpose of attracting interest under sub-clause (a) thereof in case where provisional payment becomes due. But when the employer does not accept his liability as a whole under circumstances enumerated by us earlier then Section 4A (2) of the Act would not get attracted and one months period would start running from the date on which due compensation payable by the employer is adjudicated upon by the Commissioner and in either case the Commissioner would be justified in directing payment of interest in such contingencies not only from the date of the award but also from the date of the accident concerned. Such an order passed by the Commissioner would remain perfectly justified on the scheme of Section 4 A (3) (a) of the Compensation Act – Appeal allowed
JUDGMENT :
Vibha Kankanwadi, J.
Present appeal has been filed by the original respondent No.1. Before turning to other aspects of the matter, it will not be out of place to mention here that, the present appeal was heard and decided by this Court on 27-07-2015 and it stood dismissed. Thereafter, the present appellant filed Special Leave to Appeal (Civil) No.3040 of 2016 before Hon'ble Apex Court, however that was withdrawn with liberty to approach this Court by way of review petition after impleading the Insurance Company. After that decision, Review application (Civil) No.196 of 2016 was filed and the said review came to be allowed by this Court. The judgment delivered on 27-07-2015 dismissing the first appeal was set aside. The Insurance Company was then added as respondent No.2 to the appeal.
2. With the above said background it is to be noted that, the present respondent No.1 had filed petition for compensation under Workmen's Compensation Act. He had come with a case that, he was working as a labour. He went to Bangalore with Truck bearing No.MH-14/A-7825 on 10-09-2007. The said truck belonged to present appellant-original respondent No.1. He was taken along with the truck for unloading the marbles and there were other labours also along with him at that time. All the labours were unloading the said truck at Bangalore as per the direction of the original respondents No.1 and 2, however unfortunately some marbles fell on the body of the applicant, as a result of which he sustained grievous injuries in the nature of fracture to his right hand, left leg and injury to head. Original respondent No.2 admitted him to hospital at Bangalore for treatment, where he was treated as indoor patient till 18-09-2007. Thereafter, the respondent No.2 shifted him to Sasoon Hospital, Pune for further treatment and he was in the said hospital from 19-09-2007 to 09-10-2007. It is stated that, though he has been discharged from the hospital yet he is still taking treatment as outdoor patient with Nagar Accident Hospital, Osmanabad. It is stated that, the said accident had taken place when he was on duty and under the employment of respondents No.1 and 2. He was 21 years old at that time and was getting Rs.150/- per day. He therefore, prayed for compensation. The Insurance Company was then respondent No.3 to the main petition and it was stated that, even the Insurance Company is liable to pay the compensation to the applicant along with the respondents No.1 and 2. It has been also contended that, respondents No.1 and 2 were bound to pay compensation to him as per the Workmen's Compensation Act, however when they did not give him compensation, he issued notice to respondent No.1 on 24-03-2008 through advocate. It returned back with endorsements that the address is not sufficient, and therefore, another notice was issued to respondent No.2 on 09-09-2008, which was refused. Under such circumstance, the applicant has claimed 50 % penalty in view of Section 4 A (3) (a) (b) of the Workmen Compensation Act.
3. Respondents No.1 and 2 filed written statement at Exhibit 11. It was denied that, the applicant was the employee of the respondents. It is stated that, there was no employer employee relationship and therefore there is no liability to them to pay compensation. They have denied that the applicant had gone to Bangalore along with their truck for unloading marbles and then met with the accident. Special defence has been taken that, the applicant is not the labour and alternatively it was contended that, if it is found that the applicant is the labour then they had taken Insurance and the policy with respondent No.3 covered reimbursement of the amount to be paid towards labour.
4. The Insurance Company had also filed written statement at Exhibit 32 denying all the allegations in the petition. It is stated that, intimation of the accident was not given to its office. The applicant has not suffered any permanent disability, and therefore, the Insurance Comp
