NATIONAL INSURANCE CO LTD Vs. GOMTI DEVI

JUDGEMENT

(1.) The question of law referred to the Full Bench by a Division Bench is whether the appeal by the insurance company under section 30 of Workmen's Compensation Act, 1923 (for short 'the Act') is maintainable without depositing the award amount and unless the memorandum of appeal is accompanied by a certificate by the Commissioner under the Act to the effect that the appellant had deposited with him the amount payable under the order appealed against. This appeal under section 30 of the Act has been filed by National Insurance Co. Ltd., being an insurer of a vehicle bearing registration No. HP 11-3842 which was the subject- matter of the accident on 14.3.2001. In the said accident the son of the claimant- respondent No. 1 herein had died. The deceased was cleaner of the vehicle involved in the accident and the claimant had filed an application for compensation under the Act. In the application, the appellant insurance company being the insurer of the vehicle was the respondent No. 1 and the award was passed by the Commissioner against the appellant insurance company because of the insurer of the vehicle. The appeal under section 30 of the Act has been preferred by the insurer along with the application under section 5 of the Limitation Act for condonation of delay in filing the appeal. The application came up for consideration before the Division Bench of this court on 22.4.2003. During the hearing of the application, the question which arose for consideration is with respect to the maintainability of the appeal because admittedly, the appellant insurance company has not filed along with memorandum of appeal a certificate by the Commissioner to the effect that appellant has deposited with him the amount payable under the order appealed against.

(2.) The learned counsel for the appellant insurance company contended before the Division Bench that the appellant being the insurer is not liable to deposit the amount because according to the learned counsel, the requirement of such deposit is restricted only if the appeal is filed by the 'employer' as provided in third proviso to section 30 (1) of the Act and as the insurer is not an 'employer' the appeal filed by it is maintainable. In support of his submission, reliance was placed on the judgment of the Division Bench of this court in F.A.O. No. 18 of 1993 dated 26.8.1993.

(3.) The learned counsel for the claimant on the other hand relied upon a Division Bench judgment of Kerala High Court and a single Bench judgment of Jammu and Kashmir High Court in New India Assurance Co. Ltd. v. M. Jayarama Naik, 1982 ACJ 3 (Kerala) and in United India Insurance Co. Ltd. v. Ghulam Qadir Dar, 1993 ACJ 288 (J&K), wherein a contrary view has been taken by interpreting the third proviso to mean that the expression 'employer' as used in the third proviso includes within its ambit and purview an insurer of vehicle as well, inasmuch as by the factum of the insurance as well as the requirement of the insurance policy, also based on the relevant proviso contained in the Motor Vehicles Act, the insurer steps into the shoes of the 'employer' and, therefore, the liability to deposit the amount with the Commissioner under the third proviso is attracted. In that view of the matter, the issue was referred by the Division Bench to a Full Bench for reconsideration.