RANDHIR VERMA Vs. NATIONAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) This is a very very unfortunate case where statutory authority, namely, the Commissioner, under the Workmens Compensation Act, at Shimla, while deciding and disposing of a petition filed before him for compensation under section 22 of the Act did not decide a vital and an important issue refating to the liability of the insurance company with which the vehicle in question was admittedly insured at the time of accident. His omission to decide the question of the liability of the insurance company to pay the award amount has led the petitioner, owner of the vehicle, to this avoidable litigation. This in the face of a clear averment in the claim application filed by claimants that the vehicle was insured with the insurance company, (respondent No. 1 herein) and also in the face of clear, categorical and specific averment in reply filed by the petitioner hereinbefore the Commissioner that the vehicle was not only insured with respondent No. 1 but also it was furnishing in its reply all the particulars of the insurance policy. It is by now commonly and too well-known that every motor vehicle in this country is compulsorily required to be insured against third party risks and whenever the particulars of the insurance are furnished, the court, Tribunal or a forum, such as the Commissioner under the Workmen s Compensation Act is enjoined upon to decide whether, in the facts and circumstances of the case before it, the insurance company is or is not liable to indemnify the owner-insured and thus to pay the award amount to the claimants. With a view to arrive at such a decision, the only material consideration always is the factum of insurance and when in a given case, claimants plead that the vehicle was insured, the insurance company is made a party respondent in the claim petition and the insured-owner also pleads and avers about the factum of the insurance and furnishes the particulars of the insurance policy, the Commissioner should have no difficulty in deciding the issue about the liability of the insurance company. In the present case, despite the existence of all the aforesaid facts and the required information, Commissioner because of total non-application of mind and owing to his own carelessness and callousness, omitted to decide this vital issue and notwithstanding the factum of the vehicle being insured, went on to fasten the liability of paying the award amount, as also the interest thereupon, upon the insured-owner of the vehicle. We were amazed to go through the contents of the reply-affidavit filed by the Commissioner (who has been impleaded as the respondent No. 4 in this writ petition) because we found from a careful reading of this lengthy reply-affidavit that not one word by way of an explanation has been offered therein as to why did the Commissioner not decide the question of the liability of the insurance company, despite the fact that the insurance company was a party respondent before him and despite the relevant information being available on record.

(2.) We have two options before us; either to remit this matter for decision on the aforesaid issue to the Commissioner or to decide this question ourselves. We have opted in favour of the latter course of action because before us is the material which establishes the undisputed fact that as on the relevant date and time the vehicle was in fact insured with respondent No. 1 and that the respondent No. 1 has also not pleaded any fact whereby it claims that its liability is in any manner absolved. Under law the liability to pay the award amount squarely rests with the respondent No. 1. Therefore, fastening this liability upon the petitioner would be a patent violation of not only the law, but also the contract of insurance between the petitioner and the respondent No. 1.

(3.) In para 3 of the writ petition there is a clear and categorical averment about the insurance of the vehicle in question with respondent No. 1. Respondent No. 1 in its reply filed in answer to the writ petition has not denied this clear and categorical factual averment. It has not disputed the factum of the insurance. The only defence put forth by respondent No. 1 is about the factum of the accident as also the cause of the accident, proximate or otherwise. We quote hereinbelow the following averment of respondent No. 1 in its reply to the writ petition: