Judgment:
1. This appeal is against the order passed by the Deputy Commissioner of Labour in Workmen's Compensation Petition No. 97 of 1994.
2. The petitioner's case is as follows :
The petitioner was working as a polisher under the first opposite party on a salary of Rs. 1000/- per month for the past six years. On October 26, 1993 during the course of his employment the petitioner sustained an injury on his right hand. The permanent disability caused to the petitioner on account of this employment injury is 40%. The petitioner has therefore made a claim of Rs. 49,850/-.
3. The first opposite party in their objection statement have not admitted the employment of the petitioner. They have also contended that the accident was due to the negligence on the part of the petitioner and it was a simple injury. He has further contended that a sum of Rs. 1331/- was paid for medical expenses and that the petitioner has not sustained any employment injury to be paid as compensation claimed by him.
4. The second opposite party has contended that the petitioner has been insured with a 'Janatha Personal Accident Assurance Policy' and, therefore, the claim of the petitioner would not come under the Workmen's Compensation Act and, therefore, the petitioner is not entitled to any compensation payable by the 2nd respondent. They have also contended that no notice was issued within one month of the accident and the injury sustained by him is not covered by the policy issued by the 2nd respondent.
5. On the above pleadings the Commissioner for Workmen's Compensation gave a finding that the injury sustained by the petitioner is an employment injury and he had suffered a permanent disability of 32 % and loss of earning capacity is also 32% and on that basis passed the impugned order directing the 2nd respondent to pay a sum of Rs. 25,000/- and the 1st respondent a sum of Rs. 6904/- to the petitioner within 30 days failing which the amount payable would also carry 6% interest.
6. Aggrieved over the same the second opposite party has come forward with this appeal.
7. The appellant is the second opposite party in the petition filed by the workman under the first respondent seeking compensation for the employment injury sustained by him in the accident arising out of and in the course of employment on October 26, 1993, when he was working as a Polisher under the first Opposite Party. The petitioner was working as a Polisher under the Opposite Party on a salary of Rs. 1,000/- per month and on October 26, 1993, in the accident arising out of and in the course of employment, he had sustained injuries on his right hand is not disputed. The petitioner has filed the petition before the Deputy Commissioner of Labour, under the Workmen's Compensation Act, seeking compensation in accordance with the salary drawn by him. In the said application, he has impleaded the second Opposite Party on the ground that he had taken a Janatha Personal Accident Assurance Policy, under the Second Opposite Party. The Deputy Commissioner of Labour has held that the petitioner is entitled to compensation as per clause (d) of the policy issued to him and apportioned the compensation payable between the Opposite Parties 1 and 2. It is against this order, under which the second Opposite Party was also directed to pay a sum of Rs. 25,000/- to the petitioner, within 30 days of the order, the second Opposite Party has come forward with this appeal.
8. The learned counsel appearing for the appellant would argue that the policy taken by worker is a Janatha Personal Accident Assurance Policy, under which the insurance company is liable to pay compensation to the policy-holder of the insured in certain contingencies enumerated in clauses (a), (b), (c) and (d) and it is not a policy indemnifying the employer of the petitioner under the Workmen's Compensation Act and therefore, direction given by the Deputy Commissioner for Workmen's Compensation to the second Opposite Party to pay a sum of Rs. 25,000/- is beyond the jurisdiction and he has no jurisdiction at all to give such a direction. According to the learned counsel appearing for the appellant, there is no insurance cover to the injuries sustained by the petitioner under the Workmen's Compensation Act as per the policy issued and therefore the Commissioner for Workmen's Compensation has committed an error in giving a direction as per his order. The learned counsel appearing to for the petitioner has stated that the policy provides for payment of compensation to the insured viz., the petitioner in clause (d) if the injury caused within six calendar months of the occurrence is the sole and direct cause for the permanent, absolute disability suffered by the petitioner and therefore, the order passed by the Commissioner for Workmen's Compensation is correct.
9. The learned counsel appearing for the first respondent would contend that the policy issued to the petitioner covers the injuries sustained by him, but, he would contend that the question raised by the appellant is whether the Deputy Commissioner has got jurisdiction to give the direction as given by him regarding the policy which is not issued under the Workmen's Compensation Act. When we read clause (d) of the policy and the injuries sustained by the petitioner in the light of the evidence of the doctor to the effect that the permanent disability suffered by the petitioner is 32%, and he cannot use his right hand as before and he cannot even hold small articles, we can come to the conclusion that the policy issued to the petitioner covers the injuries sustained by him. But, whether the Commissioner for Workmen's Compensation is entitled to give a direction to the second Opposite Party is the only question that has to be considered by us. This policy under Ex. R-1 is not a policy issued under the Workmen's Compensation Act. Therefore, it cannot be stated that it covers the employment injury sustained by the worker viz., the petitioner. There is no clause in the policy which indemnifies the employer viz., the first Opposite Party for any compensation paid by him to the worker. Neither of these two Opposite Parties could be made liable under the Workmen's Compensation Act in pursuance of the policy even though the injuries sustained by the worker is an employment injury. Ex. R-1, the policy, creates only a contractual liability between the petitioner and the second Opposite Party viz., the insurance company under which the petitioner is entitled for compensation payable by the insurance company under clause (d). But, at the same time, it does not indemnify the first respondent for any compensation which might be paid by him or becomes payable by the first Opposite Party to the petitioner. If the second Opposite Party is to be made liable, there must be a clause in the policy indemnifying the first Opposite Party for any compensation that he may pay or become payable to the petitioner. But, no such clause is found in the policy. The stand taken by the appellant-second Opposite Party is therefore a valid one which would absolve any liability for the second Opposite Party to the petitioner. Whatever amount is payable for the employment injuries sustained by the petitioner, it has to be paid only by the first Opposite Party viz., the employer under the Workmen's Compensation Act.
10. The next question that arises for consideration is what is the consequence of not making the second Opposite Party liable. I have already observed that Ex. R-1 policy only creates a contractual liability for the insurance company to pay the sum assured under the policy to the petitioner. If they fail to honour the contractual liability, the remedy open to the petitioner can only be before the Civil Court or before the Consumer Forum. Before concluding, I only wish to give an illustration which would clarify, the position. Suppose 'A' takes a life insurance policy for certain amount and nominates 'B' to have the insured amount payable to 'B' in case of any untoward incident, 'B' cannot be deprived of a right to make a claim under the Motor Vehicles Act if the death of 'A' is caused in a Motor accident and if 'B' is the dependent of the deceased 'A' viz., wife, or minor son or minor daughter, 'B' as the dependent of 'A', is certainly entitled to compensation under the Motor Vehicles Act before a Motor Accidents Claims Tribunal when the death of 'A' is caused in a motor accident. At the same time, 'B' is entitled to the sum assured under the policy issued by the Life Insurance Corporation of India to 'A' where 'B' is nominated as the nominee by 'A'. Similarly, the petitioner is entitled to compensation for the employment injury sustained by him from the Opposite Party before the Commissioner for Workmen's Compensation and at the same time, he is also entitled to the sum assured under the policy by the Second Opposite Party, in a separate proceeding, if the second Opposite Party fails to honour their contractual liability. This right of the petitioner is an independent right of the petitioner to proceed against the employer under the Workmen's Compensation Act and the Deputy Commissioner of Labour has no jurisdiction to give a direction to the Second Opposite Party to honour their commitments under the policy. In that view, I am of opinion that the appeal has got to be allowed absolving the appellant of any liability to the petitioner and giving liberty to the petitioner to proceed against the second Opposite Party under his contract so viz., insurance policy.
11. In the result, the appeal is allowed setting aside the order passed by the Commissioner for Workmen's Compensation and absolving the appellant of any liability and directing the first Opposite Party to pay the entire compensation fixed by the Commissioner for Workmen's Compensation to the petitioner. No costs.