CMA(MD).No.464 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated 24.03.2023

CORAM

THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

C.M.A(MD)No.464 of 2017

and CMP(MD).No.4983 of 2017

The United India Insurance Company Ltd.,

West Veli Street

Madurai 625 001

... Appellant

vs.

1.Rajaram

2.Minor R.Pushpavalli

3.Minor R.Selvakumar

4.M.Pojarajan

….Respondents

(Minor 2^nd & 3^rd respondents

represented by their father

and guardian 1^st respondent)

PRAYER:- Civil Miscellaneous Appeal filed under Section 30 of the

Workmen's Compensation Act, 1923, to set aside the order dated

17.11.2016 of the Commissioner for Workmen's Compensation, Madurai

passed in W.C.No.87 of 2012 and allow this appeal with costs.

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CMA(MD).No.464 of 2017

For Appellant

: Mr.C.Jawahar Ravindran

For R1 to R3

:Mr.N.V.Sureshkumar

For R4

: Mr.T.Ponramkumar

JUDGMENT

The present appeal has been filed by the Insurance Company

challenging the order of pay and recovery passed by the Commissioner

under Workmen Compensation Act.

2.The first respondent in the claim petition is a contractor who has

taken a group insurance with the second respondent namely United India

Insurance Company Limited. As per the said policy condition, he has

taken a policy for 8 female helpers with an information that the total

salary paid to the 8 female helpers would amount to Rs.1,44,000/-.

3.In the claim petition, it has been mentioned that the wife of the

first claimant and the mother of the claimants 2 and 3, was working as

female helper in the first respondent construction company. At that time,

she had fallen down from the third floor and she had died on the way to

the hospital. According to the claimants, she was earning a sum of

Rs.8,000/- per month including batta. Hence, they sought for a sum of

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CMA(MD).No.464 of 2017

Rs.10,00,000/- towards compensation.

4.The employer namely the construction company had remained

exparte and the Insurance Company had filed a counter contending that

the quantum prayed for is excessive in nature and she is a female helper

and the amount could be disbursed only as per the policy condition.

5.The Commissioner for Workmen Compensation after considering

the evidence and records filed on either side, arrived at a finding that the

deceased is entitled to a compensation of Rs.5,89,717/-.

6.The insurance company had pointed out the terms of the

insurance policy and contended that as per policy condition, the wages

for a worker for every month is just Rs.1,500/- and they will be liable to

idemnify the employer only to the said extent and any amount which is

awarded beyond Rs.1,500/- per month has to be paid only by the

employer. The Commissioner after accepting the said condition had

directed the insurance company to pay the entire award amount and

thereafter, recover the same from the employer. This award is under

challenge in the present appeal.

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CMA(MD).No.464 of 2017

7.The learned counsel for the appellant/insurance company had

contended that as per the policy condition, the monthly salary of a female

helper is Rs.1,500/-. Any quantum of compensation could be only up to

the level of Rs.1,500/- and it cannot exceed the said quantum. If any

excess amount is awarded by the Commissioner under the Workmen

Compensation Act and the same has to be paid only by the employer.

There is no provision under the Workmen Compensation Act for

directing the insurance company to satisfy the award and thereafter,

recover the same from the employer. When there is no separate provision

for pay and recovery order, the order of the Commissioner for Workmen

Compensation is illegal and the same is liable to be set aside.

8.The learned counsel for the respondents/claimants had contended

that already a sum of Rs.1,00,000/- has been paid by the insurance

company