UNITED INDIA INSURANCE CO LTD Vs. ALPHONSA

JUDGEMENT

(1.) The 2nd respondent in W.C.C. 29/1982 on the file of the Commissioner for Workmen's Compensation, Kottayam, is the appellant in this appeal. The 1st respondent herein filed an application under S.22 of the Workmen's Compensation Act alleging that her husband, a workman employed by the 2nd respondent herein received personal injury by accident arising out of and in the course of employment which resulted in his death. While he was driving the bus bearing Registration No. KRE 8715 he had a chest pain and was admitted in the Government Hospital, Munnar, but he died at the hospital. In the application bis monthly salary was shown as Rs. 693/-. The applicant widow claimed a lump sum amount of Rs. 24,000/-as compensation. The 2nd respondent herein who is the owner of the vehicle contended that the vehicle was covered by valid insurance policy with the appellant on the date of death and therefore the appellant alone was liable under S.96 of the Motor Vehicles Act, and it is necessary to implead the insurer as a party to the proceedings Accordingly, the appellant was impleaded as a party. The appellant contended that the deceased had not received any personal injury as a result of any accident and the death on 27-9-1981 was as a result of a sudden heart attack. It was also contended that he was only a casual labourer.

(2.) Commissioner for Workmen's Compensation found that death was due to chest pain while the deceased workman was driving the vehicle and therefore the death was during the course of employment. The compensation was fixed at Rs. 23,100/- and the appellant was directed to pay this amount.

(3.) It was fairly conceded by the learned counsel for the appellant that though the death was not due to injury sustained in an accident, since the chest pain which resulted in death developed while he was driving the vehicle and in the course of his employment, the employer was liable to pay compensation. He however, vehemently contended that in view of S.14 of the Workmen's Compensation Act the insurer was liable to pay compensation only in the event of the employer becoming insolvent or making a composition or scheme of arrangement with bis creditors or, if the employer is a company, in the event of the company having commenced to be wound up, and since in the instant case these circumstances were not present, no liability was fastened on the part of the insurer to pay the compensation under Workmen's Compensation Act though policy had covered the risk. The learned counsel for the appellant invited our attention to the decisions in The New India Assurance Co. Ltd. v. Parsmeswari Amma and Others ( ILR 1976 Ker. 237 ) and United India Fire & General Insurance Co. Ltd. v. Joseph Mariam and another (1979 ACJ 349). In both these decisions this Court took the view that it was only in the event of the employer becoming insolvent or making a compensation or scheme of arrangement with his creditors or, if the employer is a company, in the event of the Company having commenced to be wound up, the provisions contained in S.14 of the Workmen's Compensation Act are attracted and in this view of the matter in both the cases it was held that the Workmen's Compensation Commissioner bad no jurisdiction to issue any direction to the insurer to pay the amount of compensation due from employer to the employee under Workmen's Compensation Act. A different view has been taken by a Division Bench of this court in United India Insurance Co. Ltd. v. Gangadharan ( 1986 KLT 1034 ) to which one of us (Sivaraman Nair, J.) is a party. In that decision this court held: