IMPORTANT POINT
Industrial insurance cover cannot be repudiated on the ground that number of workmen employed was more than number of workmen insured.

Arun Kumar Goel (Retd.), President—While impugning the order passed by District Forum, Sirmour at Nahan in Complaint No.07/2007, on 17.12.2008, Mr. Bagga, learned Counsel for the appellant submitted that the impugned order in no circumstances can be sustained. Per him, respondent had insured 35 workmen employed in his factory whereas it had come to the notice of his client that number of workmen actually working in the factory at times was 66, 59 and 49. Thus according to Mr. Bagga, policy of insurance stood violated and the appellant has wrongly been held liable to indemnify the respondent.

2. Further plea urged by Mr. Bagga was that the complaint was not maintainable because the respondent was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986, and his client was not providing any service so as to hold it as a service provider within the meaning of Section 2(1) (o) of the said Act of 1986. Mr. Bagga also drew our attention to the provisions of Section 53 of the Employees State Insurance Act, 1948 and urged that in the light of this Section also the respondent was not liable to get the benefit of the policy that was obtained from the appellant. He thus prayed for allowing this appeal on all these grounds.

3. All these pleas were seriously contested on behalf of the respondent by its learned Counsel Mr. A.S. Shah. Per him, power of receiving or recovery of compensation or damages as per Section 53 of the Employees State Insurance Act, 1948 is not attracted to the present case, because prohibition is only against receiving or recovery of compensation or damages under any other law where the person is covered under this Act of 1948.

4. Before dealing with the submissions urged on behalf of the parties, we may notice that the respondent had deposited a sum of Rs.2,44,705/- with the Commissioner, Workmen’s Compensation (SDM), Nahan, as per copy of dated 16.3.2005, Annexure P.3. What is its effect, we shall deal with it hereinafter.

5. We specifically called upon the learned Counsel for the Insurance Company-appellant, that with a view to invoke the defence based on Section 53 of the Employees’ State Insurance Act, 1948, whether his client has placed any material on record that the deceased workman was insured under the said Act, none could be pointed out from the complaint file. As such, submission based on this Section is hereby rejected.

6. Now coming to the stand of the appellant that it had only insured 35 workmen, whereas as at times number of workmen employed by the respondent was 66, 59 and 49. In this behalf Mr. Shah drew our attention to the copies of the Muster Rolls placed on record. These are Annexures P.9 to P.11. In Annexure P.9, deceased Darshan Lal figures at S. No.30. In both P.10 and P.11, he is shown at Sr. No.22. All these Muster Rolls pertain to the relevant period when policy was admittedly in force.

7. Mr. Bagga at this stage wanted us to rely on the copies of the, Muster Rolls filed by his client being Annexures R.1 to R.3. It appears that respondent was called upon to admit or deny these documents during the course of proceedings by the District Forum below. These were not admitted. Their source, existence or otherwise was disputed by Mr. Shah. Wherefrom Annexures R.1 to R.3 came, learned Counsel was not in a position to explain. Even there is no affidavit of the person who had collected these. As such, no benefit can be derived from these Annexures by the appellant-insurance Company.

8. We asked Mr. Bagga to point out from the complaint file in case while obtaining insurance policy the respondent had given the names of 35 insured employees who were covered under the said policy. As according to us, .situation would have been totally different in case the appellant had covered risk of 35 named employees and deceased Darshan Lal was not one of them. That is admittedly not the case of the appellant. In these circumstances, according to us, if the submissio