Compensation for work-related injuries may be awarded despite unauthorized travel, establishing that insurers must indemnify first and recover from the employer, reinforcing precedents in similar contexts.

JUDGMENT :

SUNDER MOHAN, J.

The instant appeal has been filed by the Insurance Company challenging the compensation awarded by the Commissioner for Workmen's Compensation, Madurai, to the first to fifth respondents/claimants.

2. The first to fifth respondents filed a claim petition before the Commissioner for Workmen's Compensation, Madurai, stating that on 18.02.2005, when the deceased was travelling as a loadman in the Tractor bearing Registration No.TN-59-Q-2745 belonging to the sixth respondent herein, the driver drove the Tractor in a rash and negligent manner and applied a break suddenly, as a result of which the deceased was thrown out of the Tractor and sustained fatal injuries.

3. The sixth respondent remained ex parte before the Commissioner. The appellant, Insurance Company, filed a counter before the Commissioner, stating that the deceased was an unauthorized passenger and that the insurance policy does not cover the claim made by such an unauthorized passenger, and prayed for dismissal of the claim petition.

4. Before the Commissioner, the first to fifth respondents/claimants examined P.W.1 and marked Exs.A1 to A7. The appellant, Insurance Company, examined two witnesses and marked three documents on their side.

5. The Commissioner, after taking into consideration the oral and documentary evidence, held that the first to fifth respondents/claimants had established that the deceased was employed under the sixth respondent and therefore, the sixth respondent was liable to pay compensation; and that the appellant, being the insurer, is liable to indemnify the sixth respondent, the owner of the tractor, for the award amount of Rs.3,61,989/-.

6. M/s.Sasiprabha, the learned counsel for the appellant, Insurance Company, seriously contended that the finding of the Commissioner holding that the appellant is liable to indemnify the sixth respondent is not in accordance with law and is contrary to the terms of the contract of insurance; and that since the deceased was an unauthorized passenger who was allowed by its employer to travel unauthorizely on the mudguard, the appellant is not liable to indemnify the owner.

7. The learned counsel for the appellant, Insurance Company, also submitted that since the first to fifth respondents/claimants are under the Workmen's Compensation Act, 1923, the question of pay and recover does not arise and relied on the decision of the Hon'ble Supreme Court in the case of Beli Ram Vs. Rajinder Kumar and another , reported in (2022) 15 SCC 572 .

8. Mr.S.Srinivasaraghavan, the learned counsel for the first to fifth respondents/claimants, per contra, submitted that the deceased was working as a loadman under the sixth respondent, and even assuming that there is a violation of terms of the contract of insurance, the appellant would be liable to pay and recover the compensation from the sixth respondent, and hence, the award of compensation cannot thus be modified to that extent.

9. The learned counsel for the first to fifth respondents/claimants relied on the decision of the Hon'ble Supreme Court, in the case of Shivaraj Vs. Rajendra and another , reported in 2018 (2) TN MAC 273 (SC), the decision of the Hon'ble Supreme Court, in the case of V.Renganathan and another Vs. Branch Manager, United India Insurance Co. Ltd. and another, reported in 2023 ACJ 623, and the decision of this Court, in the case of Arumugam Vs. K.Arumugam and another, dated 27.06.2023 passed in C.M.A.(MD) No.1292 of 2016.

10. The instant appeal was admitted on the following questions of law:

i. Whether the Commissio