GAWARI Vs. PRATAP SINGH

JUDGEMENT

(1.) BY this reference Under Section 27 of the Workmen's Compensation Act, 1923, the following questions have been referred for decision of this Court by the Workmen's Compensation Commissioner, Jodhpur (for short 'the Commissioner'):

(2.) THE facts necessary to be noticed for the disposal of this reference briefly stated are : that one Raju Umedsingh while working in the employment of one Pratap Singh Thekedar, a registered owner of the truck bearing No. RJQ 9513 met his death in a truck accident. He himself was the driver of the truck. The second driver of the truck was one Jagdish who at the relevant time was driving the truck which met with an accident and caused the death of Raju. An application for workman compensation was filed by the legal heirs of Raju Umedsingh against the owner of the truck Pratap Singh and driver of the truck Jagdish as also against the National Insurance Company Ltd., (non -petitioner No. 2), which has insured the truck for third party risk. A notice of this application filed in Form 'G' was issued to the non -petitioner No. 2. In pursuance of that, it filed a reply and submitted that it does not come under the definition of an employer and, therefore, for determination of the compensation under the Workmen's Compensation Act, the National Insurance Co. Ltd. is not a proper and necessary party. The averments made in paras 1 to 6 of the application were, however, denied and it was alternatively pleaded that the insurance policy only covered one driver and not two drivers. It so appears that in view of these submissions, the petitioner requested for the deletion of the name of non -petitioner No. 2 and that request was accepted by the court. However, while deleting the name of non -petitioner No. 2, the court ordered that the claim of the petitioner against non -petitioner No. 2 is dismissed as withdrawn. Be that as it may, after holding the enquiry, the Commissioner came to the conclusion that the death was occurred during the course of employment and, therefore, it decreed the claim of the petitioners against Pratap Singh for a sum of Rs. 16,800/ -. The compensation was not deposited by the owner of the truck and, therefore, an application was filed that proceedings for recovery of this amount be initiated against the owner of the truck. The learned Commissioner, therefore, issued a certificate to the Collector, Jodhpur for the recovery of Rs. 16,800/ - from the owner of the truck Pratap Singh. In the execution proceedings pending before the Collector, an application was filed by Pratap Singh that this amount should be deposited by non -petitioner No. 2 because it is liable to pay this amount as a judgment -debtor. On this, a notice was issued to the non -petitioner No. 2. It failed to appear before the execution court on a number of hearings but later, when it was asked to deposit the amount, it filed certain applications which were decided by the Commissioner and in deciding those applications, these questions have been raised by the learned Commissioner for being referred to this Court for decision.

(3.) SECTION 96(1) of the Motor Vehicles Act provides that if after a certificate of insurance has been issued Under Sub -section (4) of Section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub -section (1) of Section 95 being a liability covered by the terms of the policy is obtained against any person insured by the policy then notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy the insurer shall subject to the provisions of this section pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder as if he were the judgment -debtor, in respect of the liability together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. It is, therefore, clear that any claim which has been decreed against an employer and if that claim relates to a policy issued by the insurance company then the insurance company is liable to pay that amount as a judgment -debtor to the extent aforesaid. Section 96(2) of the Act provides that no sum shall be payable by an insurer Under Sub -section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made party thereto and to defend the action on any of the statutory grounds mentioned in Clauses (a) to (c) of Section 96(2) of the Act, The insurance company, however, did not prefer to do so.