JUDGMENT :

1. Heard Ms. R.D. Mozumdar, learned counsel for the appellant. Also heard Mr. M. Khan, learned counsel for the respondents.

2. This appeal has been preferred by the appellant insurance company u/s 30 of the Employees Compensation Act, 1923 against the judgment and award dated 25/11/2014 passed by the Commissioner Workmen’s Compensation, Abhayapuri, Bongaigaon in EC case no 115/2013 awarding compensation of Rs. 1,79,371/- in favor of the claimant/respondent no 1.

3. The brief facts of the case is that the claimant/respondent no. 1 filed a case before Workmen’s Compensation Commissioner Abhayapuri, stating inter alia that on 03/10/2012 at about 10.25 P.M. as a driver of a vehicle bearing no AS-19E-0486 (Maruti Swift) while proceeding from Guwahati towards Chalantapara and when reached near Delhicacy Dhaba over 37 National Highway suddenly one unknown vehicle ( truck) coming in a rash and negligent manner knocked down the said Maruti Swift from backside as a result of which, the driver of the vehicle/claimant Omar Ali sustained grievous injuries on his person. Immediately after the accident the injured was taken to the Arya Hospital Guwahati and admitted there and treated as an indoor patient from 03/10/2012 to 5/10/2012 and later on, injured was shifted to Rahman Hospital, Guwahati wherein he also had undergone treatment for some period.

4. The owner of the vehicle has admitted in his written statement about the accident, employment of the injured Omar Ali as a driver of his vehicle. After considering the evidence of the witnesses as well as the documents available on the record, the Commissioner Workmen’s Compensation awarded compensation as aforesaid in favor of the claimant/ respondent no 1.

5. Being highly aggrieved and dissatisfied with the judgment and award passed by the Commissioner, Workmen’s Compensation dated 25/11/2014, the appellant has filed this appeal.

6. It is submitted by the learned counsel for the appellant that the learned Commissioner has failed to appreciate that in view of the specific provision of the Workmen’s Compensation Act, 1923 insurance company is not liable to satisfy the award at the first instance and if at all it accrues any liability out of the contract of insurance, it is only to indemnify the owner of the involved vehicle/ insured and not to pay the award on behalf of the owner/insured as held. Thus the judgment deserves to be set aside.

7. It is also the submission of the Learned counsel for the appellant that under Workmen’s Compensation Act (now Employees Compensation Act) the employee is not the third party therefore, the said employee or his representative once chosen the provision of E.C. Act is entitled to receive the compensation and /or awarded amount from the insured/ employer at the first instance and not the insurance company as wrongly held. Thus the judgment deserves to be set aside.

8. Learned counsel for the appellant has also contended that as per the E.C. Act, 1923 it is the employer who has to pay the compensation to the employer if any personal injury is caused to the employee in the course of his employment. Thus, as the petitioner was not an employee of the appellant company, in the first instance, the appellant company cannot be directed to pay the compensation to the claimant. It is also submitted that just after the accident it is the employer who has to make the payment and later on he can be indemnified by the appellant company. Thus, the Commissioner was wrong in directing the appellant to make the payment of compensation to the claimant/respondent no 1.

9. In support of his submission, learned counsel has placed reliance on the following case laws –

i. GHC case no MFA 186/2017 (Oriental Insurance Company Ltd vs. Rupchan Ali.

ii. AIR 2016 SC 5382 (Golla Rajanna etc vs. Divisional Manager and Another etc)

iii. 2001 ACJ 1690 (New India Assurance Company Ltd vs. Sanjit Kumar)

iv. (2009) 1 GLT 370 (National Insurance Company ltd vs. Bimal Nath and others)

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