The primary liability to pay compensation under the Workmen's Compensation Act, 1923 lies on the employer, and the insurance company is not liable to pay compensation to the heirs of the deceased employee.

ASHIM KUMAR BANERJEE, J.

1. VICTIM was a driver driving vehicle no.NL-05/A-8283 belonged to one Sangeet Kumar Mishra, the respondent no.2 above named. He died in the accident on February 10, 2000 at the age of thirty-seven years 2 while driving the said vehicle. He was drawing a salary of rupees three thousand five hundred per month. The Insurance Company contested the claim by filing written statement. According to them, the policy of insurance did not conclusively prove that the vehicle had been insured. The chesis and engine numbers were mentioned, however vehicle number was not given and in absence of Blue Book, chesis and engine number could not be tallied. Moreover there had been interpolation on the policy of insurance that raised doubt and suspicion. The Tribunal rejected such contention and held the claim application maintainable. The Tribunal awarded rupees one lakh ninety-two thousand one hundred and forty as lumpsum compensation. The Tribunal held the owner being the employer primarily and solely liable to pay the compensation. The owner accepted the decision and did not prefer any appeal. So was the Insurance Company. The claimants however were not happy with the award. The claimants filed the appeal on the ground that the insurance policy did cover the vehicle in question and the Insurance Company was liable to pay the compensation. The 3 claimants were also unhappy as the Tribunal did not award any interest.

2. WE have heard Mr. Krishanu Banik, learned counsel appearing for the appellant and Mr. Parimal Pahari, learned counsel appearing for the Insurance Company. Mr. Pahari produced the office copy of the insurance policy that would tally the vehicle number. Hence, the Insurance Company was not entitled to avoid the liability. However, in view of the fact that the owner did not prefer any appeal from the decision of the Tribunal that question is superfluous. Mr. Banik contended that Insurance Company could not avoid the liability as by the policy of insurance it indemnified the owner from any unforeseen liability including the one caused by any accident. The subject vehicle was admittedly responsible for the accident that caused death of the victim. Hence, the Insurance Company was obliged to make payment of the compensation. To support his contention he relied on the following decisions :

i) 1998 Accidents Claims Journal Page-1 (Ved Prakash Garg VS- Premi Devi and Ors.)

ii) 2000 Accident and Compensation Cases Page-326 (Supreme Court) (M/s. L.R. Ferror Alloys Ltd. VS- Mahavir Mahto and Anr.)

iii) 2009 Accidents Claims Journal Page-115 (Kamla Chaturvedi VS- National Insurance Co. Ltd. and Ors.)

Mr. Pahari learned counsel appearing for the Insurance Company on the other hand relied on the following decisions:-

i) 2006 Volume-V Supreme Court Cases Page-192 (New India Assurance Co. Ltd. VS- Harshadbhai Amrutbhai Modhiya and Anr.)

ii) 2006 Volume-V Supreme Court Cases Page-200 (P.J. Narayan VS- Union of India and Ors.)

Mr. Pahari also relied on Division Bench decision of this Court in the case of Sukro Munda Vs. National Insurance Company Ltd. and Anr. reported in 2011 Volume-III West Bengal Law Reporter (Calcutta) Page-594 where the Division Bench considered the earlier decisions on the issue and came to conclusion that in a case under Workmen's Compensation Act, 1923 the primary responsibility to pay compensation would lie on the owner. The policy of insurance being an agreement between the insurer and the insured, would only help the owner to recover and/or get reimbursed the compensation amount from the Insurance Company. Their Lordships considered the decision in the case of Ved Prakash Garg (Supra), L.R. Ferror Alloys Ltd.(Supra), Harshadbhai Amrutbhai Modhiya (Supra). We have carefully perused the decision of the Division Bench referred to above. We do not find any scope of disagreement.

3. UNDER the Workmen's Compensation Act, 1923 in case any employee sustains any injury in course of employment he is entitl