Nishita Mhatre, J.
1. This appeal arises from the judgment and order of the Commissioner for Workmen's Compensation disallowing the appellant's claim to be indemnified by the insurance company.
2. The facts giving rise to the present appeal are as follows:
The deceased Shivram Dhondi Kumbhar was working as a driver with the appellant who was the owner of the truck No. MHL-3931. The truck was engaged by Respondent No. hereinafter referred as 'Karkhana') for transporting sugarcane. On 3.12.1991, while the truck was being loaded with sugarcane in the premises of Respondent No. 1, the deceased met with an accident in the premises of the Karkhana resulting in his death. On 31.1.1992, the Karkhana being the principal employer deposited the amount of compensation in the Court of the Commissioner for Workmen's Compensation, Sangli. This amount was distributed to the legal heirs of the deceased on 22.5.1992. The Karkhana filed an application before the Commissioner for Workmen's Compensation for being indemnified under Section 13 of the Workmen's Compensation Act. This application for indemnification was filed both against the appellant as well as the insurance company with which the truck was insured, i.e, Respondent No. 2 herein. The defence taken by the insurance company was that they were not liable to indemnify the appellant since the Karkhana as a principal employer had already deposited the amount. In the meanwhile, the Karkhana deducted the amount from the amounts payable by them to the appellant on account of the transportation charges. Before an entire amount could be deducted, the appellant filed an application being Miscellaneous Application No. 41 of 1992 on 25.8.1992 for an injunction and declaration against the Karkhana. Both the application filed under Section 13 by the Karkhana and the Miscellaneous Application fled by the appellant were heard together by the Commissioner.
3. The Commissioner came to the conclusion that the Karkhana is entitled to be indemnified by both the contractor, that is the Appellant herein, and the insurance company and that the insurance company were jointly and severally liable to indemnify the Karkhana. The Commissioner also directed them to deposit the amount of Rs. 62,588/- alongwith 9% simple interest from 1.4.1992 till the deposit. The Commissioner dismissed the Miscellaneous Application filed by the appellant.
4. The main grievance made in the appeal is that when admittedly the truck was insured and the policy covered the driver, the Karkhana ought to have been indemnified only by the insurance company and not by the appellant. According to Mr. Ingale, learned Advocate for the appellant, if the vehicle is insured, the liability and responsibility is cast on the insurance company to indemnify the Karkhana. He submits that undisputedly, the appellant had informed the insurance company that the accident had occurred and, therefore, had discharged his duty of informing the insurance company on that day.
The learned Advocate urges that in such circumstances, the Commissioner ought to have held that the Karkhana ought to have been indemnified by the insurance company. He further submits that there is no dispute that the appellant had already indemnified the Karkhana to the extent of Rs. 45,000/- as the Karkhana had deducted this amount from the transportation charges payable to the appellant. He submits that the insurance company be directed to indemnify the appellant to the extent of Rs. 45,000/- which has already been paid by the appellant to the Karkhana and further the insurance company be directed to pay the balance amount of Rs. 17,588/- to the Karkhana. He relies on the judgments in Sikkim Ayurvedic (Pvt) Ltd. v. Smt. Pyari Tamangani and Ors., 1995 L.I.C. 1845; New India Assurance Co. Ltd. and Bagdibai, 1985 L.I.C. 1622; Umesh Chandra v. Union of India, 1985 L.I.C. 1625; New India Assurance Co. v. Jasbir Kaur and Ors., 1996 L.I.C. 2382 in support of his propositions.
5. On a perusal of the judgment and order of the Commissioner, I find that the Commissioner has rightly concluded that the Karkhana is entitled to recover the compensation paid by them to the deceased as principal employer from the insurance company. Although the primary liability of paying compensation is that of the employer the Commissioner can decide the liability of the Insurer. The judgments cited by the learned Advocate for the Appellant endorse the view that I have taken.
6. However, the Commissioner has erred in coming to the conclusion that the contractor could not be indemnified as he had not discharged the basic requirement and duty cast under the provisions of the Act. This finding of the Commissioner discloses non-application of mind on the part of the Commissioner. Undisputedly, the Karkhana during the pendency of the indemnification application filed under Section 13, has recovered Rs. 45,000/- from the appellant. This amount was recovered by the Karkhana from the transportation charges payable by them to the appellant. Therefore, it is obvious that the amount of Rs.45,000/- was advanced by the appellant, Karkhana having subsequently this amount. Obviously, when the truck is insured, it is the liability of the insurance company to pay this amount.
The appellant having advanced the amount of Rs. 45,000/-to the Karkhana, the insurance company Mould have to indemnify the appellant to this extent. There is already a finding of the Industrial Court that the compensation can be recovered from the insurance company who would have to indemnify the Karkhana as the truck is insured. Accordingly, the balance of Rs.17388/- shall be paid by the insurance company to the Karkhana directly.
7. The Insurance company shall pay to the appellant Rs. 45,000/-. The balance amount of Rs. 17,588/- shall be paid by the insurance company to the Karkhana. The insurance company shall also pay interest as awarded by the Commissioner to the Karkhana as there is nothing on record to indicate that the insurance policy did not cover the liability towards payment of interest. The appellant is, therefore, not liable to make payments in view of the insurance policy existing at the time of the accident.
8. Appeal is allowed accordingly.