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2010 Supreme(P&H) 2243
PUNJAB & HARYANA HIGH COURT
K.Kannan, J.
United India Insurance Co.Ltd.
Versus
Santra Devi
First Appeal from the Order No. 15 of 1998,
Decided On : AUGUST 5, 2010
The employer's liability for the death of a workman and the insurer's right of recovery against the insured in cases of negligence are established principles under the Workmen's Compensation Act.
Headnote:
Workmen's Compensation Act - Employer's Liability - Death of Workman - Mud-guard - Tractor
Fact of the Case:
The deceased workman was traveling on a tractor sitting on a mud-guard and died due to the overturning of the tractor. The insurer contended that the workman could not have traveled on the mud-guard.
Finding of the Court:
The court held that even if the workman's act of traveling on the mud-guard was negligent, the employer's liability is compulsorily covered under Section 147(2) proviso and Section 3 of the Workmen's Compensation Act. The court also noted that the claim should have been filed before the Workmen's Compensation Commissioner.
Issues: The issues involved the liability of the employer and the insurer in the death of the workman, as well as the validity of the driver's license to drive the tractor.
Ratio Decidendi: The court emphasized the employer's liability under the Workmen's Compensation Act and the insurer's right of recovery against the insured in cases of negligence. The court also highlighted the requirement to file claims before the appropriate authority.
Final Decision: The court allowed the appeal to the extent that the insurer has the right of recovery against the insured, but did not modify the compensation awarded to the claimants.
K.Kannan, J.
1. The insurer is in appeal contending that the deceased was travelling on the tractor sitting on a mud-guard and the claim arose out of the death caused by the over-turning of the tractor and the death resulting therefrom. It was brought out in evidence that the deceased was a workman under the owner of the vehicle.
2. While I would hold in favour of the insurer that the workman could not have travelled on the mud-guard still if it ultimately results in death, the risk to the workman and the corresponding liability of the employer would require to be compulsorily covered by virtue of the provisions of Section 147(2) proviso. For a negligent act done by the workman, if it results in death, the employer shall still be liable under Section 3 of the Workmen s Compensation Act. The application should have been filed only before the Workmens Compensation Commissioner and this Court being a Court of Appeal could still, therefore, consider the claimants entitlement to compensation for the death of the workman. The amount has been assessed by the Tribunal as Rs. 1,68,000/-. The deceased was 35 years of age and the relevant factor that would be applicable would be 197.96. The Tribunal assessed the monthly income of the deceased as Rs. 15,00/-. The total amount of compensation worked out by the formula provided under Section 4 of the Workmens Compensation would still be not less than the amount awarded by the Tribunal. I do not, therefore, propose to miake any modification of the award.
3. The insurer still urges for a point that the driver did not have a requisite licence to drive the tractor. He had a heavy transport vehicle licence endorsement and he was driving a tractor, which did not conform to the particular category. The learned counsel refers to a decision of the Honble Supreme Court in Oriental Insurance Co. Ltd. v. Zaharulnisha and others, 2008 A.C.J. 1928 that a licence for higher category will not amount to a valid and effective driving licence. The insurer shall have, therefore, a right of recovery against the insured.
4. The liability of the insurer shall be to satisfy the claim of the claimants and recover the same against the insured. The appeal is allowed to the above extent only.
