P.S. Narayana, J
1. The short controversy involved in this Appeal is recovery of amount by way of reimbursement paid by the appellant/A.P. State Road Transport Corporation, hereinafter referred to as 'Corporation' to the legal representatives of the deceased drivers and injured persons and conductor in relation to a motor accident from the 2nd respondent-Oriental Fire and General Insurance Company, hereinafter referred to as 'Insurance Company' in short.
2. The 1st respondent/1st defendant was set ex parte in the suit itself. The Corporation filed O.S. No. 137/83 on the file of Subordinate Judge, Nizamabad against Bhupender Singh Alak - 1st defendant, and the Oriental Fire and General Insurance Company - 2nd defendant, for recovery of Rs. 2,09,665-93 towards damages to the bus and Rs. 49,200/- towards compensation paid to the legal representatives of the bus drivers under Workmen's Compensation Act, 1923, hereinafter referred to as 'Act' in short and ex-gratia amount paid to the passengers due to the accident caused by the driver of the 1st defendant/1st respondent due to rash and negligent driving of the lorry by the said driver. The learned Subordinate Judge, Nizamabad decreed the suit for Rs. 74,570/- only towards damages caused to the bus, but negatived the relief for Rs. 48,600/- on the question of jurisdiction of Civil Court to entertain such a claim. The Corporation, aggrieved by the said judgment and decree dated 7-10-1988 made by the learned Subordinate Judge, Nizamabad preferred the present Appeal as against the disallowed portion and also in relation to interest.
Submissions of Sri Harinath:
3. The learned Counsel representing the Corporation had maintained that the view expressed by the learned Subordinate Judge, Nizamabad that the Civil Court cannot entertain the suit in view of the provisions of the Motor Vehicles Act, 1939, hereinafter referred to as 'M.V. Act' in short for the purpose of convenience, is totally erroneous in view of the nature of the claim and in the light of Section 13 of the Act. Strong reliance was placed on The Oriental Fire and General Insurance Company Limited v. Union of India, : AIR1975AP222 (DB), G. Sreedharan v. Hindustan Ideal Insurance Corporation, 1975 (1) APLJ 313, Port Trust, Madras v. Bombay Company, AIR 1967 Mad, Sharada Prasad Singh v. Maharashtra State Road Transport Corporation and Ors., 1984 ACJ 240. The learned Counsel while elaborating his submissions had taken this Court through the findings recorded by the learned Subordinate Judge, Nizamabad and commented that the learned Subordinate Judge had not appreciated the provisions of the Act and the M.V. Act in proper perspective. The learned Counsel further commented that the right to institute a suit is an inherent right of the suitor and when a civil right is infringed, inasmuch as the same is not either expressly or impliedly barred, it cannot be said that the Civil Court has no jurisdiction to entertain the suit. The learned Counsel had drawn the attention of this Court to Section 9 of the Code of Civil Procedure, the different provisions of the Act and also the different provisions of the M.V. Act as well. Attention also was drawn to the respective pleadings of the parties, Issues settled and the findings recorded thereon. It was further contended that the right to institute the suit is well recognized by Section 13 of the Act and hence the Appeal has to be allowed as prayed for.
Submissions of Sri Kota Subba Rao:
4. Sri Subba Rao, the learned Counsel for the Insurance Company had drawn our attention to the judgments in O.P. No. 127/ 84 and CMA Nos. 76 and 1387 of 1989 and also O.P.Nos. 70 and 72 of 1981 and O.P. No. 80 of 1982. The learned Counsel with all emphasis had submitted that in view of the provisions of Sections 110-B and 110-F of the M.V. Act, the civil suit is not maintainable. The learned Counsel also had drawn our attention to Section 110 of the Act. Strong reliance was placed on A.P.S.R.T.C. v. Chandra Reddy, : 1996(3)ALT1029 (DB). The decision in National Insurance Company Limited v. Union of India, 1989 ACJ 307, also had been referred to. The meaning of the word 'refer' and the option given to the claimant had been elaborately explained. The corresponding provisions of 1939 Act and the present Act also had been relied upon. Reliance also had been placed on M. Ayyappan v. Moktar Singh, 1969 ACJ 439. The learned Counsel also had drawn our attention to Sections 8, 12, 13, 19, 28 and 32 of the Act and Rule 39 of the Workmen's Compensation Rules, 1924. The learned Counsel further maintained that ex-gratia is a voluntary payment and hence Section 13 of the Act is not attracted at all. Reliance was placed on New India Assurance Co. Ltd. v. Mahebubanbibi, : (2001)4GLR2950 , T.Balaiah v. Abdul Majeed and Anr., : AIR1994AP354 , Trustees of Port of Madras v. Messrs. Bombay Company, 1966 ACJ 351. The learned Counsel also explained that to attract Section 13 of the Act, payment should be in accordance with the provisions of the Act and since it is a voluntary and direct payment, Section 13 of the Act will not come to the aid of the Corporation. The scope and ambit of Section 12 of the Act also was well explained. Reliance was placed on Divisional Engineer, MPEB v. Mentobai, 1990 (1) LLJ 25, K. Koodalingam v. Superintending Engineer, 1995 (1) LLJ 334, B. Issac Prabhakar and E. Lokendranath v. Government of A.P., : 1995(3)ALT695 and State of U.P. v. Vijay Anand, : [1962]45ITR414(SC) .
5. Heard the Counsel at length.
6. The respective pleadings of the parties are as hereunder:
7. The Corporation pleaded in O.S. No. 137/83, on the file of Subordinate Judge, Nizamabad, as follows:
8. The 1st defendant is the owner of the lorry bearing No. MHG 8182 and the 2nd defendant is the Insurance Company with which the said lorry of the 1st defendant was insured, vide Policy No. 858195. It was pleaded that on 18-7-1981, the bus bearing No. AAZ 2582 belonging to the plaintiff left Hyderabad Bus Stand at 9 p.m., to Amaravathi in Maharashtra State. The bus was being driven by the driver of the plaintiff by name Omar Dharaj Khan. The said bus was having one spare driver of the plaintiff by name Mohd.Yousuf. The bus of the plaintiff was being driven by its driver Omar Dharaj Khan at slow speed since it was night time by keeping his vehicle to the left side of the road, and when the bus passed Biknoor Village of Kamareddy Taluq, at 11-30 p.m., and was entering the road bend (curve to the left side), at the same time the lorry bearing No. MHG 8182 belonging to the 1st defendant being driven by its driver Satam Singh, came in the opposite direction with high speed in a rash and negligent manner and dashed against the bus due to loss of control on the steering. The driver of the said lorry while negotiating the road bend turned the vehicle excessively in high speed, resulting in loss of control of the vehicle and it collided with the bus which was just entering the road bend. The driver of the bus of the plaintiff applied brakes and swerved the bus to extreme left side of the road to avoid the accident but the lorry driver of the 1st defendant without applying brakes hit the bus directly causing serious damage to the bus. Apart from serious damages to the bus, the driver of the lorry of the 1st defendant and driver and spare driver of the bus of the plaintiff along with three passengers in the lorry died and 9 passengers in the bus and the conductor of the bus received injuries due to the accident which was due to the rash and negligent driving of the driver of the lorry of the 1st defendant. It was further pleaded that due to the accident, the bus of the plaintiff was completely damaged and became incapable of repair. The bus was purchased by the plaintiff in the year 1980 for an amount of Rs. 2,73,895-63 ps., and after deducting the depreciation upto 18-7-1981 the value of the bus was Rs. 2,09,665-63 ps., on the date of the accident caused by the driver of the 1st defendant. The depreciation had been valued at Rs. 64,230/-. Due to the said accident, the plaintiff sustained a loss of Rs. 2,09,665-03 ps., towards damages to the bus. Apart from damages to the bus, the plaintiff paid compensation to his both deceased drivers under the Workmen's Compensation Act and ex-gratia payments drivers under the Workmen's Compensation Act and ex-gratia payments to the injured passengers in the bus which amounted to Rs. 49,200/- as shown in detail below and which the defendants are liable to reimburse to the plaintiff.
1.Omar Dharaj Khan Driverof the bus (died)Rs.1,000/-
Rs.21,000/-Forex-gratia
Compensationunder Workmen's Compensation Act2.Mohd. fousuf. Spare driver of the bus (died)Rs.1,500/-
Rs.23,100/-Ex-gratia
Workmen'sCompensation Act3.SA Baffar, Passenger injuredRs.200/-Ex-gratia4.S. K. Ahmed, Passenger injuredRs.100/--do-5.Karunakaran, Passenger injuredRs.500/--do-6.D.Kashinath RaoPassenger/injuredRs.150/--do-7.Hajan, Passenger/ injuredRs.150/--do-8.Smt. Nirmala Verma Passenger/ injuredRs.150/--do-9.O.K. too, Conductor/ injuredRs.750/-
-do- TotalRs.49,200/-
It was pleaded that the plaintiff sustained total loss of Rs. 2,58,865-63 ps. (Rs. 2,09,665-63) towards damages to the bus, Rs. 49,200/-towards compensation paid to the bus drivers under Workmen's Compensation Act and ex-gratia amounts paid to the passengers) due to the accident caused by the driver of the 1st defendant due to rash and negligent driving of the lorry. As such, the plaintiff is entitled to recover the said amount of Rs. 2,58,865-63 ps., which is the suit amount. The plaintiff also issued notices to the defendants on 9-3-1982 demanding the defendants to pay the suit amount. But having received the said notices, the defendants neither paid the amount nor gave any reply to the notice. The office copy of the notice and the postal acknowledgement are filed herewith. Thus the plaintiff is entitled to sue and the defendants are liable.
9. The Insurance Company filed written statement denying all the allegations. It was pleaded in Paras 4, 5 and 6 of the written statement as hereunder:
10. The contents of Para-4 of the plaint are denied. It has come to the knowledge of the defendant-company that the driver of the plaintiff's bus bearing No. AAZ 2582 was driving the bus in rash and negligent manner and due to this it has met with head on collusion with the lorry No. MHZ 8182. The deceased driver did not reduce the speed even though it was night driving and more so when he was driving on the road bend near Bhiknoor Village. It was due to the negligence of the driver of the bus there was heavy impact of the collusion and due to which death and injuries have taken place. The other facts which are not expressly admitted are denied. The contents of Para-5 of the plaint are denied. The calculation of yearly depreciation is self created by the plaintiff to suit his own needs. The plaintiff had not submitted the original invoice showing the details particularly of the bus as chasis number, engine number etc., and the basis on which the depreciation was arrived. The value of the bus shown is not correct and the same is denied. Assuming without admitting, it was rather abnormal and unbelievable to say that by collusion of the bus and some damage to the body, the whole bus No. AAZ 2582 involved in the accident became a total scrap as not to get a single paise as compensation of sale. The plaintiff is put to strict proof of the value of the salvaged bus in the accident. The bus involved in the accident can be well repaired with nominal expenses. Even if the damaged bus is sold in the auction, it will fetch huge amount. Therefore the claim is false, hypothetical and not maintainable. Furthermore the defendant-company is not liable in any manner for the workmen compensation and ex-gratia payment said to have been made by the plaintiff-Corporation. The plaintiff cannot fasten the defendant- company with any claim which has been voluntarily done by the plaintiff for their exigencies. The payment of the amount shown in the 5th para is denied. It was further pleaded that the contents of Para 6 of the plaint are denied. As per the details given supra, the plaintiff is not entitled to claim the suit amount. The plaintiff has no cause of action against the defendant. If at all the claim is proved, it is the 1st defendant who is responsible for negligent driving of the lorry No. MHG 8182. It was also submitted that the plaintiff has no cause of action and the suit is barred by limitation.
11. The following Issues and additional Issues were settled on the respective pleadings of the parties:
Issues:
1. Whether the accident took place due to the rash and negligent driving of the driver of the lorry MHG 8182 ?
2. Whether the plaintiff is entitled to the damages. If so, to what amount ?
3. Whether the suit is barred by limitation ?
4. To what relief?
Additional Issues:
1. Whether the value of the bus No. AAZ 2582 on the date of accident is Rs. 2,09,665-63 and there was a total loss due to the accident to the plaintiff?
2. Whether this Court has jurisdiction to entertain the claim of injured passengers in motor accident ?
3. Whether the Defendant No. 2 is liable to reimburse the payment by plaintiff to the deceased driver and injured passengers ?
The Corporation examined PW-1 to PW-3 and marked Exs.A-1 to A-13. The Insurance Company examined DW-1 and marked Exs.B-1 and B-2. Ex.A-1 is the sale invoice dated 19-11-1980; Ex.A-2 is the Bill for body building dated 19-12-1980; Ex.A-3 is the office copy of letter of Depot Manager, Mahaboobnagar, dated 19-3-1984; Ex.A-4 is the office copy of letter of Depot Manager, Hyderabad dated 23-11-1981; Ex.A-5 is the office copy of letter dated 19-3-1988; Ex.A-6 is the Revised estimation of repairs of the bus prepared by PW-2; Ex.A-7 is the office copy of legal notice dated 9-3-1982; Ex.A-8 and A-9 are the Acknowledgements; Ex.A-10 is a certified copy of the judgment and decree in O.P. Nos. 70/81, 72/81 and 80/82 on the file of Motor Accidents Claims Tribunal; Ex.A-11 is the original R.C. Book; Ex.A-12 is the Log book and Ex.-13 is the Report. Likewise, Ex.B-1 is the Surveyor's Report and Ex.B-2 is a certified copy of the judgment in O.P. No. 26/82, dated 8-4-1985 on the file of Motor Accidents Claims Tribunal, Nizamabad. On appreciation of the oral and documentary evidence at length, the learned Subordinate Judge had decreed the suit for an amount of Rs. 74,570/- by way of damages to the bus only and the judgment and decree to that extent became final since the Insurance Company had not questioned the same.
12. The Points which arises for consideration in this Appeal are as hereunder:
1. Whether the Civil Court can entertain suit for recovery of amount paid by the Corporation to the legal representatives of the deceased drivers and injured passengers in the light of the provisions of the M.V. Act and the Workmen's Compensation Act, 1923 ?
2. Whether the Corporation is entitled to interest as claimed in the Appeal ?
3. If so, to what relief the parties are entitled to ?
13. Points 1 and 2: In the light of the rival contentions made by both the parties, there is no serious factual controversy. The controversy between the Corporation and the Insurance Company is that the amount of Rs. 48,600/- paid by the Corporation also can be recovered from the Insurance Company in view, of Section 13 of the Act and the Insurance Company taking a stand that such amounts paid as ex-gratia directly will not fall within the meaning of compensation under the Act and hence Section 13 of the Act is not applicable.
14. The factual matrix had been already narrated supra. At the outset, we may state that none of the contentions advanced before this Court had been advanced before the learned Subordinate Judge, Nizamabad, but since these are all questions of law arising out of admitted facts, we have permitted the respective Counsel to advance the arguments. Though there is no specific Issue relating to the right of Corporation to recover the amount aforesaid, in Para-4 of the written statement it was pleaded:
'Furthermore the defendant company is not liable in any manner for the workman compensation and ex-gratia payment said to have been made by the plaintiff Corporation. The plaintiff cannot fasten the defendant company with any claim which has been voluntarily done by the plaintiff for their exigencies.'
Section 110F of the M.V.Act dealing with Bar of jurisdiction of Civil Court, reads:
'Where any Claims Tribunal has been constituted for any area, no civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken or before the Claims Tribunal in respect of the claims for compensation shall be granted by the Civil Court.'
Section 110(1) and the proviso of the M.V. Act read:
'A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for the compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising or both:
Provided that where such claim includes a claim for compensation, in respect of damage to property exceeding rupees two thousand, the claimant may, at his opinion, refer the claim to a civil Court for adjudication and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain to any question relating to such claim.'
Section 110-A of the said Act deals with Application for compensation. Section 110-C of the said Act deals with Procedure and powers of Claims Tribunals. In the decision referred in A.P.S.R.T.C. v. Chandra Reddy (supra), it was held by the Division Bench of this Court:
'When once it is held that the Tribunal has jurisdiction under Section 110-F of the Act, the jurisdiction of the Civil Court is automatically ousted. What the proviso to Section 110 contemplates is only mat where the claim of damages to property exceeds Rs. 2,000/-, the claimant can ask the Tribunal to refer the claim to Civil Court for adjudication. The words used are 'refer the claim to a Civil Court for adjudication'. Reference to Civil Court is not same as filing suit in Civil Court. The words 'reference is so made' found in the proviso indicate that the Tribunal has to make such a reference. If the Legislature intended that the claimant can straight-away file a suit in the Civil Court it would have used the words 'may file suit in the Civil Court'. Thus the Legislature contemplated that the claimant can opt to get the matter decided by Civil Court by making reference to it through the Tribunal. It is also to be seen that if the claimant has to file directly suit, he has to pay higher Court fee than what he could have paid in the Tribunal. Further the period of limitation also is different. For example, in the instant case the appellant had paid Court fee of Rs. 2,326/- on Rs. 47,428/-whereas, if temporary injunction had filed O.P. before the Tribunal the fee would have been Rs. 119/- under Rule 533 of the A.P. Motor Vehicles Rules, 1964. Similarly, the period of limitation will be different. For suit, the limitation is 3 years, under Article 91 of Schedule to Limitation Act whereas under Section 110-A the limitation is six months.
The expression 'refer the claim to a Civil Court cannot be equated with 'file a suit in Civil Court'. The meaning of the priviso, therefore, is that the application even where damage to property exceeds Rs. 2,000/- has to be initially filed before the Tribunal and then on an application being made, the matter has to be referred to the Civil Court. In accordance with the proviso to Sub-section (1) of Section 110 of the Act, a claim for compensation in respect of damage to property alone even exceeding Rs. 2,000/-has to be made initially before the Tribunal and the claimant can get the matter referred to the Civil Court for adjudication at his option. The Civil Court gets jurisdiction only when the matter is so referred to it under proviso to Sub-section (1) of Section 110 of the Act.'
In the aforesaid decision, the Division Bench had placed reliance on C.R.T. Corporation Limited v. O.S.C.T. Corporation, : AIR1985Ori256 , and also had referred to the decisions in Karnataka State Road Transport Corporation v. Jyothi Constructions, AIR 1979 Karn. 1029, Haryana State v. Pusa Ram, AIR 1978 P&H; 171, Vamana Raju v. A.P.S.R.T.C., 1983 (2) ALT 111, General Manager, APSRTC v. D. Neelappa and Ors., 1986 (2) ALT 65, New India Assurance Company Ltd. v. Gujarat Electricity Board, 1987 ACJ 953, Jagdish Goods Trans.Co v. United Insurance Co. Ltd., 1989 ACJ 307. In the decision referred in The Oriental Fire and General Insurance Company Limited v. Union of India, (supra), a Division Bench of this Court had an occasion to consider a similar question wherein it was held:
'The contention is that the suit is barred by reason of the provisions of the Motor Vehicles Act. Under Section 110 of the Motor Vehicles Act a State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles. Section 110-B provides that the Tribunal shall after holding an enquiry make an award determining the amount of compensation. Section 110-D provides for appeal to the High Court from the award of a Claims Tribunal. Section 110-F provides that where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for the area. It is argued that the claim of the plaintiffs is a claim for compensation in respect of an accident involving the death of or bodily injury to persons arising out of the use of motor vehicles within the meaning of Section 110. Hence, such a claim is within the jurisdiction of the Claims Tribunal constituted under the Claims Tribunal constituted under the Motor Vehicles Act and the jurisdiction of the Civil Court to entertain any question relating to any claim for such compensation is barred under Section 110-F of the Act. This contention appears to be attractive at first sight, but on closer-scrutiny, we do not find it acceptable. It is true that the jurisdiction of the Claims Tribunal under Section 110 is stated to be to adjudicate upon claims in respect of accidents involving the death, of or bodily injury to, persons arising out of the use of motor vehicles. It is therefore submitted that it would include a claim against any person provided that the accident arose out of the use of a motor vehicle. But if we have regard to the scheme of the Act and the context in which Section 110 appears, it is clear that the claim referred to in the Section can have reference only to claims against the owner or the driver of the motor vehicle concerned in the accident. It could not have been the intention of the framers of the Act to include claim against other persons as well. The Motor Vehicles Act is an Act to consolidate and amend the law relating to motor vehicles. This Section occurs in the chapter dealing with insurance of motor vehicles against third party risks. The object behind this Section is to provide for a speedy and effective machinery for persons injured in accidents arising out of the use of the motor vehicles against the owners and drivers and insurers of motor vehicles. To accept the contention of the learned Counsel for the respondent that it would include claims against all persons, would lead, in our view, to consequences which were never contemplated by the framers of the Motor Vehicles Act. For instance, a person proceeding in a motor vehicle may be injured by an accident resulting from the fall of a tree or the collapse of a building. It cannot be said that the occupants can lay a claim in the Tribunal constituted under the Motor Vehicles Act against the owners of the building or of the tree, if it was due to the negligence of such owner mat such accident occurred. Similarly in this case, we do not think the provisions of the Motor Vehicles Act were intended to enable the parties injured or the owner of the lorry to make a claim against the railway, simply because the accident arose out of the use of a motor vehicle. In our view, the claims referred to in Section 110 are applicable only to cases of claims against the owner or the driver of the motor vehicle or the insurer as the case maybe and not as against strangers. The proper forum for adjudicating the claim against strangers is a Civil Court. The jurisdiction of the Civil Court is not in our view barred by Section 110-F of the Act.'
In the decision referred in G. Sreedharan v. Hindustan Ideal Insurance Corporation, (supra), it was held :
'Section 12 of the Workmen's Compensation Act is enacted only to provide for cases where there are contractors or intermediaries between the principal and the injured or deceased workman in the execution of the work of the principal. Where there is no contractor or sub-contractor working under the principal, Section 12 has no application at all. The injured workman or dependants of a deceased workman can claim compensation against the employer as per the provisions of Section 3. The question of paying indemnity by the Insurance Company to the assured does not arise under Section 12(2) of the Act and therefore an application by the employer seeking indemnification against the insurer is not maintainable under Section 12 of the Workmen's Compensation Act.
The provisions of Section 19 of the Workmen's Compensation Act do not authorize the Commissioner or make it obligatory on his part to decide the claim of the employer-assured to obtain indemnity from the Insurance Company. Any amount that would be realized by the employer or the assured from insurer by virtue of the terms of the policy cannot be termed to be compensation within the meaning of the Act. Nor can it be said that the liability of the insurer to pay damages to the assured under a policy arises under the provisions of the Workmen's Compensation Act.
On a reading of the provisions of Sections 94, 95, 96 and 97 of the Motor Vehicles Act, no judgment or decree can be passed against the insurer for the recovery of the damages at the instance of an injured third party. The injured third - party or the dependants of a deceased cannot secure a judgment or decree against the insurer on the basis of the insurance policy. The right of the injured third party or the dependants of a deceased is only to sue for damages against the owner of the motor vehicle and obtain a judgment or decree against the assured. However, by virtue of the provisions of Section 96, the sum specified in the judgment or decree obtained against the assured is recoverable from the insurer after affording a reasonable opportunity as contemplated by Sub-section (2) to Section 96.
The Commissioner for Workmen's Compensation has no jurisdiction to pass an award against the Insurance Company directly in an application filed by the injured workman or the dependants of a deceased workman. They have to first obtain an award against the employer and thereafter proceed either against the employer-judgment debtor or the insurer for recovery of the amount of compensation awarded. By no stretch of imagination, the employer can file an application under Section 12 of the Workmen's Compensation Act or under any provision of the Motor Vehicles Act for indemnification of the sum directed to be paid by the Commissioner in his award.
The Commissioner has no jurisdiction to pass an award or order against the insurer in an application under the provisions of the Workmen's Compensation Act for awarding compensation to the claimant. The insurer is not a necessary party to an application by the claimant. The claimant can certainly obtain an award or order against the employer alone if he so desires. It cannot be said that no award or order Can be passed against the employer without the presence of the insurer in such an application. There can be an effective adjudication even without the presence of the insurer. Where the injured workman or the dependants or legal heirs of the deceased workman chooses or choose to make both the employer and the insurer party respondents in an application for compensation, the insurer may be considered to be a proper party, though not a necessary party. The volition or choice is given to the applicant or the claimant. If the applicant or claimant does not choose to implead the insurer as party respondent or where he feels satisfied if he can obtain an award or order against the employer alone, the Insurance Company cannot be compelled to be a party respondent at the instance of the employer. The employer can have no relief against the insurer in that application. After obtaining an award or order for compensation against the employer, the claimant or the injured workman may proceed to recover the sum awarded against the insurer directly on the strength of the provisions of Section 96 of the Motor Vehicles Act, or he may choose to recover the amount only from the employer. He cannot be compelled to proceed against the insurer if he insists upon the realization of the compensation amount only from the employer. The employer in such circumstances, has to file a suit in a Civil Court against the insurer for damages and recover the amount of compensation paid by him to the injured workman or the claimant but he cannot resort to the provisions of Section 12 or any other provision of the Workmen's Compensation Act for indemnification from the insurer.'
In the decision referred in Port Trust, Madras v. Bombay Company (supra), it was held by the Madras High Court :
'No procedure is prescribed under the Rules framed under the Workmen's Compensation Act, 1923 for determination of any indemnity that may be claimed under Section 13. No provision is made for notice to a stranger against whom the indemnity could be claimed under Section 13. There is one other indication in the Act itself that the jurisdiction of the Civil Court is not ousted for the determination of any right claimed under Section 13: absence of any provisions for an appeal on any determination under Section 13. Section 30 of the Act provides for an appeal to the High Court inter alia against an order allowing or disallowing any claim on the amount of indemnity under the provisions of Sub-section (2) of Section 12. The absence of any provision for appeal on a determination under Section 13, while providing for an appeal in regard to indemnity claims under Section 12 is significant and clearly indicative of the fact that no determination by the Commissioner under Section 13 is contemplated by the Act.
Even taking that right of indemnity provided under Section 13 does not exist outside the Act and is a right specifically conferred by the Act, this will be a case where the statute, while giving a right, has not provided any particular form of remedy. The party affected can, therefore, have recourse to the ordinary Civil Court and have his rights determined.
Even outside Section 13, the employer could claim reimbursement against the tort-feasor of the amount he had been compelled to pay under the Act. By the payment the tort-feasor is relieved of his liability to the injured workman and the reimbursement claimed is only of a pecuniary demand the employer had to meet as a consequence of the tort, besides suffering loss of service. Of course, the employer have to establish against the third party the tort which resulted in the injury and the connection and reasonableness of his claim as in any action in tort. Even otherwise the employer's suit could clearly be rested on the ground that neither expressly nor by implication the right of suit for a claim under Section 13 of the Act has been taken away.'
In New India Assurance Co, Ltd. v. Shanti Misra, 1976 ACJ 128, the Apex Court observed:
'On the plain language of Sections 110-A and 110-F the change in law was merely a change of forum i.e., change of adjectival or procedural law and not of substantive law. Such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum. The jurisdiction, of Civil Court is ousted as soon as the Claims Tribunal is constituted and filing of the application before the Tribunal is the only remedy available to the claimant.'
In the decision referred in M. Ayyappan v. Moktar Singh (supra), it was held that the provisions of Section 110-F of the M.V. Act are applicable even for recovery of damages because the term 'compensation' is a comprehensive one and it includes a claim for damages. In the decision referred in Trustees of Port of Madras v. Messrs. Bombay Company (supra), a workman employed by the appellant therein sustained injuries due to the negligence and carelessness of the respondent. The appellant paid compensation to the workman as required by the Workmen's Compensation Act, 1923 and filed a suit against the respondent claiming indemnification by virtue of the provisions of Section 13 of the Act and it was contended in defence that the Civil Court had no jurisdiction to entertain and try the suit because in terms of the provisions of Section 19 of the Act, the matter was in the exclusive jurisdiction of the Workmen's Compensation Commissioner. In those circumstances, it was held that the Workmen's Compensation Act had given a right for obtaining indemnification from the stranger but had not provided any particular form of remedy for the determination and enforcement of the right and a third party affected could, therefore, have recourse to the ordinary Civil Court and have his right determined. It was also held in the said decision that liability incurred can only refer to a liability determined after the Commissioner has settled, decided or dealt with a matter under the Act and not a matter yet to be determined. In the decision referred in Sharada Prasad Singh v. Maharashtra State Road Transport Corporation and Ors. (supra), wherein a composite civil suit for recovery was filed against the owner/driver of the tanker and the Insurance Company claiming damages to property exceeding Rs. 2,000/- plus the compensation amount paid, it was held that Civil Court has jurisdiction to try such suit. In the decision referred in Divisional Engineer, MPEB v. Mentobai, (supra), it was held that the Workmen's Compensation Commissioner or the High Court cannot give any credit for any direct payment of any nature made to the dependents and payment in the nature of ex-gratia compensation, whether made under any contract or statutory provision, cannot be deducted from the amount of compensation.
15. In the light of the decision of a Division Bench of this Court referred in The Oriental Fire and General Insurance Company Limited v. Union of India (supra), there can be no doubt that the Civil Court can entertain the suit provided the conditions specified under Section 13 of the Act are satisfied. The relevant provisions of the Act may be appropriately referred to in this regard.
16. Section 2(c) of the Act defines 'compensation' as 'compensation' means compensation as provided for by this Act. Section 3 of the Act defines Employer's liability for compensation. Section 8 of the Act defines Distribution of Compensation and Sub-section (1) says :
'No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lumpsum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation:
Provided that, in the case of a deceased workman, an employer may make to any dependant advances on account of compensation of an amount equal to three months' wages of such workman and so much of such amount as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such compensation and repaid to the employer.'
Section 12 of the Act dealing with Contracting, reads :
'(1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed.
(2) Where the principal is liable to pay compensation under the Section, he shall be entitled to be indemnified by the contractor, or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation and all questions as to the right to and the amount of any such indemnity shall, in default of the agreement, be settled by the Commissioner.
(3) Nothing in this section shall be construed as prevening a workman from recovering compensation from the contractor instead of the principal.
(4) This section shall not apply in any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management.'
In the decision referred in K. Koodalingam v. E. Superintending Engineer (supra), it was held :
'Interpreting the provisions of Section 12 of the Act, this Court has held in the decision reported in Vijayaraghavan v. Velu, 1973 Lab.IC 1520, that four essential conditions have to be satisfied before Section 12 can be applied. The four conditions are thus :
(i) That the person (called the principal) is carrying on a trade or business and, in the course of or for the purpose of that trade of business, engages a contractor to execute the work.
(ii) The work is ordinarily a part of the trade or business of the principal.
(iii) The accident which gives rise to the liability for compensation must have occurred on, in or about the premises on which the principal has undertaken, or usually undertakes to execute the work of which is in his control or management.
(iv) The accident must have occurred while the workman was in the course of his employment in executing the work.'
Section 13 of the Act deals with Remedies of employer against stranger and the same reads as hereunder:
'Where a workman has recovered compensation in respect of any injury caused under circumstances creating a legal liability of some person other than the person by whom the compensation was paid to pay damages in respect thereof, the person by whom the compensation was paid and any person who has been called on to pay an indemnity under Section 12 shall be entitled to be indemnified by the person so liable to pay damages as aforesaid.'
Section 13 of the Act is in two parts and the stand of the Corporation is that the case on hand falls under the former part. There cannot be any doubt that the Civil Court has jurisdiction to entertain this claim provided the conditions specified in Section 13 of the Act are satisfied. Section 19 of the Act, dealing with Reference to Commissioner reads :
'(1) If any question arises in any proceeding under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by a Commissioner.
(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.'
Section 28 of the Act deals with Registration of agreements; Section 32 of the Act deals with Rule making power. Rule 39 of the Workmen's Compensation Rules, 1924 deal with Procedure where indemnity is claimed under Section 12 of the Act Section 12 of the Act had been referred to supra and none of the ingredients are satisfied and hence this Rule cannot come to the aid of the Insurance Company. In the decision referred in T. Balaiah v, Abdul Majeed and Anr. (supra), it was held at Para 15 :
'The earliest decision on this aspect is the decision of this Court in G.D.M. Rao v. Ranga Panaiah and Bros., AIR 1957 AP 13. The issue directly arose under the Rent Control Act and the question for consideration was whether Section 5 of the Limitation Act is applicable to the proceedings before the Rent Controller, exercising the powers under the Rent Control Act. The facts of the case are that there was an ex pane order of eviction against the tenant, and possession was taken over by evicting the tenant. The tenant filed I.A.No. 4518/72 under Section 5 of the Limitation Act. On 15-9-1972 for condoning the delay in filing the application for setting aside the ex parte order of eviction. The landlord raised an objection to the proceedings before the Rent Controller. The matter came up before the High Court in a revision. Ramcahandra Rao, J. (as he then was) after considering the judgment of the Supreme Court in Jugal Kishore v. Sitamarhi Central Co-operative Bank, : 1967CriLJ1380a and the judgment of this Court in K. Chalapathi Rao v. B.N. Reddy, 1968 (2) An.W.R. 587 (DB) held that the Rent Controller acting under the Rent Control Act is a Court and the provisions of the Limitation Act are applicable to proceedings before the Rent Controller under the said Act. The learned Judge distinguished the decision in Nidyanand v. Life Insurance Corporation of India : (1969)IILLJ711SC observing that it was a case dealing with the Labour Court exercising the powers under the Industrial Disputes Act.'
In the decision referred in New India Assurance Company Limited v. Mahebubanbibi (supra), it was held at Para 10.2 :
'Even if the amount of Rs. 30,000/- were directly paid as compensation in respect of the personal injury that resulted in death of the workman, no payment of a lump sum as compensation to a workman or a person under a legal disability, e.g., a minor shall be made otherwise than by depositing with the Commissioner and no such payment made directly by an employer shall be deemed to be a payment of compensation, as laid down in Section 8 of the Workmen's Compensation Act which provides for distribution of compensation. The receipt of the Commissioner shall be sufficient discharge in respect of any compensation deposited with him, as provided by Section 8(3) of the Act. No such deposit or payment of compensation is proved in the present case and, therefore, also, no question arises of adjusting Rs. 30,000/-towards the amount awarded by the Tribunal, which has rightly negatived such contention of the appellant.'
Reliance also was placed on the decision referred in B. Issac Prabhakar and E. Lokendranath v. Government of A.P. (supra) wherein a Division Bench of this Court held at Para 12 :
'We now come to construction of Section 8(2). The power conferred is not hedged in by any limitations; it is unconditional and express. Is it open for us to read into this statutory provision any limitations when none has been specified Where the language is plain and unambiguous no additional aids are required to understand the meaning of the words, nor is it open to embark upon an enquiry into the intention of the law-making body. This is an accepted principle of statutory interpretation (see State of U.P. v. Vijayananda Maharaj, : [1962]45ITR414(SC) ). 'When language is plain and unambiguous and admits of only one meaning, no question of construction of statute arises, for the Act speaks for itself: was the view of the Supreme Court in that case.'
Strong reliance had been placed on the decision of the Apex Court referred in State of U.P. v. Vijay Anand (supra).
17. In view of the foregoing discussion, it is clear that cx-gratia or compensation paid by the Corporation otherwise than in accordance with the provisions of the Act will not fall under 'compensation' within the meaning of the Act so as to attract the benefits specified under Section 13 of the Act. The very plea and also the nature of the evidence let in by the respective parties from the material available on record shows that these payments were made directly and not in accordance with the provisions of the Act and certain payments arc said to be ex-gratia payments and certain payments are said to be the payments by way of workmen's compensation. The mere fact that the term or expression 'compensation' or 'workman compensation' is applied, is not sufficient by itself to say that the ingredients of Section 13 or the benefits under Section 13 of the Act are automatically attracted. The payments made directly by the Corporation without following the procedure specified under the Act cannot be styled to be workmen's compensation so as to attract the benefits conferred under Section 13 of the Act. The view expressed by the Madras High Court in the decision referred in Port Trust, Madras v. Bombay Company (supra), in our considered opinion, is too a liberal view and hence we are not inclined to accept the said view that de hors the applicability of Section 13 of the Act, a civil suit for recovery of the amount referred to supra can be maintained in the Civil Court. In this view of the matter, though these aspects were not raised and argued before the Court of first instance, we are inclined to accept the submissions made by the learned Counsel representing the Insurance Company and hence the Corporation cannot succeed in recovering the aforesaid amount. As far as interest is concerned, it is within the discretion of the learned Subordinate Judge, Nizamabad and hence this Court is not inclined to disturb the findings in this regard.
18. Point No. 3 : In the light of the foregoing discussion, the Corporation is not entitled to recover the amount paid as ex-gratia or by way of compensation under the Act and hence the Corporation is bound to fail and accordingly the Appeal shall stand dismissed being devoid of merits. Inasmuch as the controvery is between UK Corporation and the Insurance Company, this Court makes no order as to costs.