NEW INDIA ASSURANCE CO LTD Vs. GUDDI

JUDGEMENT

(1.) ONE Ram Niwas Rathore, husband of respondent No. 1 and father of respondent No. 2 and son of respondent No. 3, was employed as a driver on truck No. MKH 7948. On October 10, 1990 he met with an accident and lost his life Respondent Nos. 1 to 3 moved a petition under the Workmen's Compensation Act, 1923, which was allowed and a sum of Rs. 86,764/- together with 50 per cent penalty and interest at the rate of 8 per cent was awarded by order dated November 17, 1992 passed by the Commissioner, Workmen's Compensation No. 1 Gwalior, against the insurance company. Feeling aggrieved the insurance company has preferred this appeal under the Workmen's Compensation Act.

(2.) THE learned counsel for the appellant raised three submissions before me. Firstly, he argued that under Section 4-A (3) of the Workmen's Compensation Act the appellant is not covered within the meaning of 'employer' and as such he cannot be fastened with the liability to pay compensation and penalty provided in this clause. The next argument of the learned counsel is that the rate of interest provided for compensation under the said clause is also not payable. Lastly, he contended that the amount calculated 1 by the learned Commissioner is not correct. According to the learned counsel, the correct amount which could have been awarded was Rs. 85,428/- and not Rs. 86,764/ -. The learned counsel for the respondents contended that the liability of the insurance company flows from the contract entered into by the appellant on the one hand and the employer on the other, A perusal of condition No. 17 shows that the insurance company is liable for all legal liability of the employer. Consequently, the first contention of the learned counsel for the appellant is not correct. He relied on Om Parkash v. Ramkali, 1987 ACJ 803 (MP ). As regards the second contention relating to interest, he also relied on the said authority. Regarding the last contention about calculation, the learned counsel frankly conceded that there is a mistake in calculation of the amount and accepted the amount as contended by the learned counsel for the appellant. In view of the submissions made before me by the learned counsel for the parties the most important point which is to be determined is as to whether the appellant is liable under Section 4-A (3) or not and whether he is covered within the meaning of 'employer' used in this clause. In order to dispose of this point, we have to look to the provisions of the contract entered into between the insurance company, on the one hand, and the employer, on the other, which is Exh. D-1 on record. The relevant portion of this condition reads as follows:

(3.) THE learned counsel for the parties inform that the amount has been deposited in the shape of F. D. R. The appellant shall be entitled to a refund of Rs. 1,336/- with proportionate interest and penalty.