The insurance company is liable to satisfy the award passed against the employer under the Workmen's Compensation Act, even though the primary liability to compensate is that of the employer.

JUDGMENT :

Misra, C.J. - This appeal by the employer u/s 30 of the Workmen's Compensation Act calls in question the order dated September 9, 1980, passed by the Workmen's Compensation Commissioner, Puri, in a claim laid by respondent No. 1.

2. One Pramod Kumar Mohanty, aged about 22 years, was employed by the appellant, a bus operator, as a cleaner in a stage carriage bus bearing No. ORP 3215 of which he was the owner. The said bus was operating between Puri and Konark and had been duly insured with the National Insurance Co. Ltd. (respondent No. 2). On June 4, 1977, Promod was travelling in the said bus and was performing the duties of a cleaner. Immediately following a jerk of the vehicle on the road, the side door of the bus opened and the cleaner was thrown out. He sustained severe injuries, became unconscious and, ultimately, succumbed to the injuries in the afternoon of that day. Claim was laid by respondent No. 1, the widowed mother of the deceased, impleading the employer as also the insurer.

3. The employer did not dispute that the workman was engaged as cleaner at the relevant time, nor was there any dispute that death occurred in the course of employment. It was, however, pleaded that the driver was neither rash nor negligent; the deceased had, without informing the driver to stop the vehicle, opened the door to enable him to spit outside when he fell down. The insurer in a six-paragraphed written statement, without denying any factual averment, took the stand that the claimant had no right to implead the insurer before the Workmen's Compensation Commissioner and it should be deleted from the dispute.

4. The Commissioner framed five issues and issue No. 5 was for the determination of the liability of the insurer. The Commissioner found :

"AS regards the liability of National Insurance Company, opposite party No. 2, it is contended that there is no cause of action against the insurance company and the court has no jurisdiction to determine any liability between opposite party No. 2 and the applicant since there never existed any relationship of employer and servant between them. The learned advocate for the applicant, however, contends that it has already been decided in several cases that the insurance company can be impleaded as party in cases under the Workmen's Compensation Act and they can be held liable to satisfy the award passed against the employer. The learned advocate cites cases reported in [1972] ACJ 433 (Hindustan Ideal Insurance Co. Ltd. v. Papptt Poojary) and Northern India Insurance Co. Branch Indore Vs. Commissioner for Workmens Compensation and Others, It has been decided in the said cases that there is no bar to impleading the insurance company and in declaring its liability to satisfy the award passed against the employer. It is also held that though the primary liability is that of the employer yet the insurance company is also liable to discharge the claim as if it was a judgment-debtor. In the present case, although the applicant claims that the vehicle ORP 3215 was insured with the National Insurance Company Ltd., no document in support of the insurance has been produced. Opposite party No. 1, the bus operator, has also not produced the policy or any oral evidence to prove that the vehicle was insured with opposite party No. 2. In absence of any evidence regarding insurance of the vehicle, it is not possible to fix up any liability on opposite party No. 2."

5. The Compensation Commissioner determined the liability at Rs. 16,800 but called upon the employer to pay the amount. The employer is in appeal. Several grounds have been taken, but at the hearing, the only ground pressed is that the liability was of the insurer and the Compensation Commissioner went wrong in exonerating it. Section 95 of the Motor Vehicles Act provides what the requirements of policies under that Act should be and also prescribes the limits of the liability. It has been clearly provided in Section 95(2)(b)(i) of the M.V. Act