An insurer is liable to compensate a claimant under the Workmen's Compensation Act, even if policy conditions are breached, while retaining the right to recover from the employer.

JUDGMENT :

The Appellant / 2nd Respondent / Insurance Company has filed this Civil Miscellaneous Appeal against the award dated 29.01.2009 passed in W.C.No.35 of 2007 by the learned Workmen's Compensation Commissioner-cum-Deputy Commissioner of Labour, Tirunelveli.

2. Brief facts of the petition filed by the petitioner before the Tribunal are as follows:

(a) The petitioner was employed with the 1st respondent as a driver of an auto bearing Registration No.TN 57 J 3538 belonging to the 1^st respondent and received a salary of Rs.4500/- and batta Rs.50/- per day. On 15.01.2006, while he was driving the auto carrying material for hire plying, the vehicle capsized at Dindigul-Batlagundu bye-pass road near roundana. As a result of the accident the petitioner sustained grievous injuries on his head and sustained bone fracture on his head and suffered a blood clot to the skull.

(b) A case was registered before Dindigul Taluk Police Station in Crime No.39 of 2006 and the same is pending. At the time of accident, he was aged about 28 years. Since the accident occurred during the course of employment, the petitioner was admitted as inpatient in the Government Hospital, Dindigul and underwent treatment from 15.01.2006 to 24.01.2006. He has therefore claimed a sum of Rs.6,00,000/- towards compensation.

3. Brief averments contained in the counter filed by the second respondent, are as follows :

(i) The 2nd respondent denied all the averments contained in the petition contending that it is for the petitioner to prove that the vehicle was insured with the 2nd respondent, to establish his employment and income and to prove the injuries were sustained during the course of employment with the 1st respondent. On the date of accident the petitioner was carrying 15 passengers in the mini auto and lost control of the vehicle, resulting in the accident which occurred due to his negligence. The 2nd respondent is not liable to pay any compensation for the said accident arising out of the petitioner’s carelessness.

4. During the trial, on the side of the petitioner, the petitioner was examined as P.W.1 and Ex.P1 to Ex.P5 were marked and one Dr.Vijayakumaran was examined as P.W.2 and through him Ex.P.6 and Ex.P.7 were marked. On the side of the 2nd respondent, R.W.1 was examined and Ex.R1 was marked.

5. After hearing the parties, the Tribunal allowed the petition and awarded a sum of Rs.1,12,162/- towards compensation. The Tribunal directed the appellant/2nd respondent/Insurance Company to pay the entire award amount within a period of thirty days.

6. Aggrieved by the said order, the present Civil Miscellaneous Appeal has been filed by the Insurance Company, who is the 2nd respondent before the Tribunal against the negligence and quantum on the following among other grounds :

a) The learned Commissioner failed to note that the Insured/owner of the vehicle has allowed the goods carriage to be used as a passenger vehicle by allowing 15 persons to travel, thereby violated the statutory provisions as well as the policy conditions.

b) The learned Commissioner failed to note that the Hon'ble Apex Court in National Insurance Company Ltd., Vs. Mastan & another reported in 2006 (2) SCC 461 has held that a person who has chosen to file a claim under the workmen's compensation act cannot fall back under the provisions of the Motor Vehicles Act to contend that the defences available to the insurer is not available to them. The Apex Court has categorically held that the defences available under the workmen's compensation claim are subject to the limitation of the workmen compensation Act.

c) The learned Commissioner has failed to note that there is no restriction in the Workmen's Compensation Ac