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2011 Supreme(Cal) 809
High Court of Calcutta
Amit Talukdar, Shukla Kabir Sinha, JJ.
Sukro Munda – Appellant
Versus
National Insurance Company Ltd – Respondent
F.M.A.T. No. 1107 of 2010(C.A.N. No. 8283 Of 2010)
Decided on : Jun 20, 2011
The provisions of the Workmen's Compensation Act, 1923 and the Motor Vehicles Act, 1988 are mutually exclusive and the Insurance Company has no primary liability to meet the award of compensation in a case under the Workmen's Compensation Act, 1923.
Headnote:
WORKMEN'S COMPENSATION - LIABILITY OF INSURANCE COMPANY - INSURANCE COMPANY HAS NO PRIMARY LIABILITY TO MEET THE AWARD OF COMPENSATION IN A CASE UNDER THE WORKMEN'S COMPENSATION ACT, 1923.
Fact of the Case:
In a bunch of appeals against various orders passed by different Commissioners under the Workmen's Compensation Act, 1923, the issue arose whether the Insurance Company had any primary liability to meet the award of compensation.
Finding of the Court:
The Court held that in a case under the Workmen's Compensation Act, 1923, the Insurance Company has no primary liability. It is the lis between the employer and the workmen and the Insurance Company is nothing but a hidden agenda in the entire scheme of things.
Issues: 1. Whether the Insurance Company has any primary liability to meet the award of compensation in a case under the Workmen's Compensation Act, 1923? 2. Whether the provisions of the Workmen's Compensation Act, 1923 and the Motor Vehicles Act, 1988 are mutually exclusive?
Ratio Decidendi: 1. The Court relied on the maxim "expressum facit cessare taciturn" to hold that when there is no mention of the role of the Insurance Company in the whole scheme of the Workmen's Compensation Act, 1923, the question of liability of the Company does not arise. 2. The Court also relied on Section 167 of the Motor Vehicles Act, 1988 to hold that a person cannot claim compensation under both the Workmen's Compensation Act, 1923 and the Motor Vehicles Act, 1988.
Final Decision: The Court set aside all the awards that had carved the fortune of these appeals wherein the Insurance Companies were made liable to pay.
Talukdar, J.
1. "EXPRESSUM tacit cessare taciturn" (when there is express mention of certain things, then anything not mentioned is excluded) is a maxim, which has been inducted with approval by at least two Constitution Bench decisions in B. Shankar Rao Badamiv. State of Mysore, (1969)3 SCC 637 and Union of India v. Tulshi Ram Patel and Ors., (1985)3 SCC 398.
2. THIS well-known maxim, is a principle of logic and common sense and not merely a technical rule of construction. In the quagmire of the same, we would be required to demystify the situation, which has centred around these appeals, which have been amalgamated together, as a single point of some legal importance sprouts therefrom.
3. ALL these appeals related to different orders passed by the Commissioners of the Workmen's Compensation Act. Some have been filed on ground of interest, some on the ground of apportionment of disability. What binds all these appeals in a common string, is an offshoot of points raised by Shri Rajesh Singh for one of the Respondents in this bunch of appeals. It is of great importance.
4. HE has pointed out that the Commissioners have awarded the compensation, which was directed to be payable by the Insurance Company at the first instance. His view was that under the Workmen's Compensation Act (hereinafter referred to as the 'said Act'), it is the employer, who shares the initial burden to meet the claim. Thereafter, question of indemnification by the Insurance Company will arise. He also raised the point with regard to the period from which the question of payment of interest would arise and he has also touched the decision of the Supreme Court in Pal flay v. Divisional Controller, NEKRTC reported in (2010)4 TAC 79 (SC).
5. AFTER the previous Division Bench had fixed the Matter for hearing and keeping in mind the question involved, which would have far-reaching impact on matters of similar nature, Shri Soumya Majumdar, learned Counsel was requested by the Division Bench to act as Amicus Curiae. It is thereafter we are in seizin of the entire issue.
6. AS the questions that have been formulated by the Division Bench on 10.03.2011 would touch on all the appeals - they have been clubbed together and are being disposed of by this common judgment after having been heard analogously, which will govern the fate of all of these appeals. At the Bar, several decisions have been cited mainly on the question of interest and the liability of the Insurance Company to pay the amount when the accident occurs, as the liability of the Company, after it extends the cover of the Insurance Company cannot be avoided.
7. ON the contrary, Shri Singh has based the following points :- He was of the view that according to Section 167 of the said Act, when a person opts for relief under either of the said Act, or the Motor Vehicles Act (hereinafter referred to as 'Act for Short'), he cannot chose both. It has been very seriously contended by him that once the applicant has chosen to be guided by the Workmen's Compensation Act, he is required to abide by the conditions of the same.
8. ACCORDING to Shri Singh, the liability in a claim for compensation under the said Act lies solely on the employer and not at the first instance on the insurer. For this purpose Shri Singh has referred to Section 146 and 147 of the Act for Short. He was of the view that the Insurance Company is mandatorily liable to pay compensation in respect of a claim under the Act for Short, whereas in the said Act, no liability of the Insurance Company or any mention thereof has been made. According to Shri Singh, there is some amount of mandatory element with regard to the payment of compensation in respect of the provisions of Act for Short. For this purpose he has referred to Sections 145,146 and 149 of the Act for Short.
9. SHRI Singh was of the view that in the said Act, there is no liability on the insurer to pay the compensation as the employer cannot be treated as a third party. It is his
