Dismissed

D.M.,Oriental Insurance Co.Ltd v. Marhu Lohra And Ors.

Jharkhand HC2 Apr 2019MA/63/2005

Case brief

AI extract

What is this about?

Four insurer appeals against awards under the Employee's Compensation Act, 1923 from a common truck accident. The court rejected pleas that the policy was not in force, that interest could not be fastened on the insurer, that the doctrine of election barred the claim, and that employer-employee relationship was unproved; no substantial question of law arose.

What the court decided

AI extract

D.M.,Oriental Insurance Co.Ltd Vs Marhu Lohra And Ors. — Insurance | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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M. A. No. 62 of 2005

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The Divisional Manager, Oriental Insurance Co. Ltd. DO-II, Raj Hotel Complex, Main Road, Ranchi.

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… … Opp. Party No. 2/Appellant

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Versus

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Kario Oraoin Wife of Late Mahindra Munda

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(Applicant No. 1)

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Ramjee Kumari D/O Late Mahindra Munda (Applicant No. 2)

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Both residing at Village Gahan Gutwa P.S. Bishunpur, Dist. Gumla.

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3. Qumarujama Quarasi, son of late Ayub Quarasi, resident of Amlatoli, P.O. /P.S. – Lohardaga, Distt. – Lohardaga … … (Opposite Party No. – 1) Respondents

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With

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M. A. No. 63 of 2005

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The Divisional Manager, Oriental Insurance Co. Ltd. DO-II, Raj Hotel Complex, Main Road, Ranchi.

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… … Opp. Party No. 2/Appellant

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Versus

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Marhu Lohara, son of Bishnu Lohara, resident of village Bagru, Jumman Toli, P.S. –Kisko Distt. – Lohardaga.

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… … (Appellant No. 1)

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Bishnu Lohara father’s name not known to the appellant resident of village – Bagru, Jumman Toli, P.S. – Kisko, Distt. – Lohardaga (Appellant No. 2)

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Qumarujama Quarasi, son of late Ayub Quarasi, resident of Amlatoli P.O./P.S. – Lohardaga, Distt. – Lohardaga. … … (Opposite Party No. – 1)

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With

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M. A. No. 64 of 2005

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The Divisional Manager, Oriental Insurance Co. Ltd. PO-2, Raj Hotel Complex, Main Road, Ranchi.

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… … Opp. Party No. 2/Appellant

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Versus

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Khirapatia Orain, widow of late Dilbodh Oraon, resident of village – Jahan, P.O.- Bishunpur, P.S.- Bishunpur, Distt. – Gumla … … (Applicant)

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Qumarujama Quarasi, son of late Ayub Quarasi, resident of Amlatoli, P.O./P.S. – Lohardaga, Distt. – Lohardaga. … … (Opposite Party No. -1)

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With

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M. A. No. 65 of 2005

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The Divisional Manager, Oriental Insurance Co. Ltd. DO-II, Raj Hotel Complex, Main Road, Ranchi.

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… … Opp. Party No. 2/Appellant Versus

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Enamul Ansari Son of late Serajuddin Ansari, resident of village – Chitri Dado, P.O. & P.S. Senha, Distt. – Lohardaga … … (Applicant)

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Qumarujama Quarasi, son of late Ayub Quarasi, resident of Amlatoli, P.O./P.S. – Lohardaga, Distt. – Lohardaga (Owner) … … (Opposite Party No. -1) Respondents

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mr. Alok Lal, Advocate For the Resp.-Claimants : Mr. Ashutosh Anand, Advocate For the Owner of : Ms. Nehala Sharmin, Advocate of the vehicle

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18 /02.04.2019

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1. Heard Mr. Alok Lal, counsel appearing on behalf of the appellant in all these cases.

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2. Heard Mr. Ashutosh Anand, counsel appearing on behalf of the claimants in all these cases.

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3. Heard Ms. Nehala Sharmin, counsel appearing on behalf of owner of the vehicle in all these cases.

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4. Counsel for the appellant submits that all these appeals arise out of common accident caused by the truck bearing Registration No. BR-14H-9642 on 18.12.1999 at 7.00 am.

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5. Arising out of the same accident, different claimants had instituted different cases under Employee’s Compensation Act, 1923 which are as follows:-

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SI. No. M.A. Case Number W. C. Case Number

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1.	M.A. 62 of 2005	W.C. Case No. 05 of 2003
2.	M.A. 63 of 2005	W.C. Case No. 04 of 2003
3.	M.A. 64 of 2005	W.C. Case No. 03 of 2003
4.	M.A. 65 of 2005	W.C. Case No. 02 of 2003

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6. The counsel submits that so far as all these Workmen Compensation Cases are concerned, they were taken up

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together by the learned court below and all the evidences in connection with these Workmen Compensation Cases were recorded in W. C. Case No. 02 of 2003 (corresponding appealM.A. No. 65 of 2005).

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Arguments of the appellant

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7. The counsel for the appellant submits that several persons were travelling on the truck and suddenly the driver of the truck lost his control and dashed the tree on the side of the road and turned turtle. The truck was loaded with Bauxite. Some persons were sitting inside the truck and other were sitting outside on bauxite loaded in the truck. All the persons were thrown away and sustained grievous injury. Thereafter, the injured were taken to the Hospital by another truck. All the injured persons were unconscious and one of the injured died on the spot. On the basis of fardbayan of the informant Basant Lohara, Ghagra P.S. Case No. 95 of 1999 dated 18.12.1999 under Section 279, 337, 338 and 304-A of the Indian Penal Code was registered.

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8. The counsel for the appellant, while assailing the impugned order passed in all these cases submits that before the learned court below, upon being noticed, the appellant insurance company appeared and took a specific plea that the truck was not insured on the date of the accident i.e. on 18.12.1999 .The truck was initially insured vide Policy No. 1131 for the period 16.10.1998 to 15.10.1999 and the said policy upon its expiry was not renewed. However, on 20.12.1999, fresh policy was taken by the insured which was effective till 19.12.2000 vide Policy No. 6659. He also submits that upon payment of premium on 20.12.1999 through cheque dated 17.12.1999, money receipt dated 20.12.1999 was issued which was ultimately collected and the insurance policy was made effective from 20.12.1999. Counsel for the appellant further submits that when a specific date has been mentioned in the policy itself, making it effective

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from 20.12.1999, there was no question of it being made effective from the date of cheque dated 17.12.1999. He further submits that the owner of the truck had produced his copy of the policy which contained certain cuttings in connection with the date of effectiveness of the policy, and accordingly the said document could not have been relied upon by the learned court below to hold that the policy was effective from 17.12.1999 and was accordingly effective on the date of accident, in view of the specific evidence, which was led by the insurance company who had produced a duly certified copy of the policy by the Branch Manager, Sri Suman Kullu, which is the true copy of the original policy and the signature of Sri Suman Kullu was marked as exhibit 1, though marked with objection.

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9. He further submits that one interlocutory application being I.A. No. 1732 of 2009 has been filed in one of the cases being Misc. Appeal No. 62 of 2005 to bring on record, the documents to show that the cheque dated 17.12.1999, which was issued by the owner of the truck, was in fact received and processed by the Insurance Company on and after 20.12.1999. He submits that the receipt regarding the cheque dated 17.12.1999 was also issued only on 20.12.1999. This goes to show that the cheque dated 17.12.1999 was received by the Insurance Company only on 20.12.1999. Accordingly, he submits that when the money receipt of the policy bears the particular date of effective date of policy i.e. 20.12.1999, there is no scope to hold that the policy became effective from an earlier date i.e. on 17.12.1999 which is the date of cheque as according to Section 64VB of Insurance Act, 1938, insurance becomes effective only when premium is paid in advance. The counsel submits that on the basis of aforesaid, first questions of law which is required to be decided in the instant case is, as to whether the accident involved in this case was covered by the insurance policy or not.

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10. The counsel for the appellant submits that the second question of law which arise for consideration is with respect to one of the cases i.e. M.A. Case No. 64 of 2005 , relating to doctrine of election. He submits that one Basmatiya Devi , who claimed herself to be the widow of Ramesh Oraon, had filed two separate applications under Section 140 of Motor Vehicles Act, 1988 before the Claim Tribunals, Gumla, one for death of her son and another for death of her husband in the same accident and the learned Tribunal had allowed both the applications under Section 140 of Motor Vehicles Act, 1988 with a direction to the insurer to satisfy the entire award. Against the awards, the insurance company had preferred appeals before this Court challenging the liability on the ground that the truck was not insured, but both the appeals were dismissed by this Court. Thereafter, the present claimant in M.A. Case No. 64 of 2005 claiming herself to be the mother of Ramesh Oraon, had filed the case under the provisions of Employee’s Compensation Act, 1923. Counsel for the appellant submits that in judgment passed by Hon’ble Supreme Court reported in (2006) 2 SCC 441 (National Insurance Co. Ltd. vs. Mastan and Another), it has been held that when two remedies are available for the same relief, the aggrieved party has the option to select either of them, but not both of them. He submits that in M.A. Case No. 64 of 2005, the aggrieved party had the option to apply for compensation under the Employee’s Compensation Act, 1923 or under Motor Vehicles Act, 1988 and as Basmatiya Devi had already applied for compensation under Section 140 of Motor Vehicles Act, 1988, therefore, the claimants of W. C. Case No. 03 of 2003 (corresponding appeal -M. A. No. 64 of 2005) could not have filed the Workmen Compensation Case and they ought to have proceeded under the Motor Vehicles Act, 1988 and accordingly ,the W. C. Case No. 03 of 2003 was

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itself not maintainable by applying the principles of doctrine of election applying the ratio of the aforesaid judgment.

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11. Counsel for the appellant submits that the third question of law is relating to the relationship of employer and employee between the truck owner and the deceased. He submits that so far as relationship of employer and employee is concerned, the owner of the truck had filed a written statement denying the relationship of employer and employee and the claimants did not produce any documentary evidence before the learned court below to establish the relationship of employer and employee between the owner of the vehicle and deceased. Accordingly, the finding of employer -employee relating, as given by the learned court below is perverse and is fit to be setaside.

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12. The counsel for the appellant submits that the fourth question of law which is required to be considered in this appeal is as to whether the appellant Insurance Company is liable to pay interest on the amount determined by the learned court below right from the date of the accident, in as much as, under the provisions of Employee’s Compensation Act, 1923, the liability to pay compensation is upon the employer and the Insurance Company has to only reimburse the employer, when the liability is determined. Counsel submits that the Insurance Company could not have been saddled with the liability to pay the interest as has been awarded by the learned court below. He has referred to a judgment passed by the Hon’ble Supreme Court reported in (2014) ACJ 1527 (The Oriental Insurance Co. Ltd. vs. Smt. Badami Devi and Others) to submit that the point regarding payment of interest and penalty by the Insurance Company had been discussed in Para-7 onwards in this judgment and in view of this judgment, the Insurance Company could not have been saddled with the liability for payment of interest as has been done in the instant case.

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Arguments of the respondents /claimants

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13. Counsel appearing on behalf of the respondents, on the other hand, submits that so far as the doctrine of election , which has been argued only in relation to one of the appeals i.e. M.A. Case No. 64 of 2005 (arising out of W. C. Case No. 03 of 2003) is concerned, it is the case of the appellant that one Basmatiya Devi claiming herself to be the widow of Ramesh Oraon, deceased in W. C. Case No. 03 of 2003 ,filed two separate cases, one on account of death of Ramesh Oraon and other on account of death of her son under section 140 of Motor Vehicles Act, 1988 but said Basmatiya Devi is not a party or claimant in W.C. Case No. 03 of 2003. He further submits that the appellant Insurance Company did not lead any evidence in connection with the corresponding case numbers filed under Section 140 of Motor Vehicles Act, 1988 said to have been instituted by Basmatiya Devi and as to when the said cases were instituted. Accordingly, he submits that the doctrine of election would apply, only if the parties were the same and further the cases filed under Employee’s Compensation Act, 1923 were instituted subsequent to Motor Vehicles Act, 1988. Counsel for the appellant further submits that admittedly the parties were not same and the date of institution of the case under Section 140 of Motor Vehicles Act, 1988, has not been brought on record by the appellant Insurance Company, it could also be possible that the proceeding under Section 140 of Motor Vehicles Act, 1988, which was alleged to be instituted by Basmatiya Devi was itself barred on account of application of the principles of doctrine of election. He submits that the basic facts to attract the principle of doctrine of election were not brought on record by the appellant Insurance Company before the learned court below. Therefore, the judgment passed by the Hon’ble Supreme Court, as relied upon by the counsel for the appellant, does not apply to the facts and circumstances of this

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case. He further submits that in the judgment passed by this Hon’ble Court challenging the liability under Section 140 of Motor Vehicles Act, 1988, it was observed that the payment of interim compensation will be subject to final determination under Section 166 of Motor Vehicles Act, 1988, but the Insurance Company has not brought on record any subsequent determination under Section 166 of Motor Vehicles Act, 1988. Accordingly, it is not known as to what ultimately happened in the so-called proceeding under Motor Vehicles Act, 1988, after the determination of the interim compensation under Section 140 of the Motor Vehicles Act, 1988. He submits that on account of absence of basis pleadings and evidences regarding doctrine of election no such question of law arise for consideration by this court. He further submits that these cases under the Employee’s Compensation Act, 1923 were initiated as back as in the year 2000 and subsequently re-numbered in the year 2003.

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14. So far as the relationship of employer and employee is concerned, the counsel for the respondents submits that the owner of the truck had filed a written statement before the learned court below that the deceased were not the employee of the owner of the truck, but , there was sufficient oral evidence which was led by the claimants to satisfy the learned court below on the point of relationship of employer and employee. The truck was loaded with bauxite and the deceased were on the truck as labourer and in this background, the learned court below, after considering all the materials on record has found that there was a relationship of employer and employee. The point regarding employer-employee relationship is pure question of facts on which finding has been recorded by learned court below by appreciating evidences accordingly no substantial question of law arise for consideration by this court on this point.

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15. So far as the liability of interest under Employee’s Compensation Act, 1923 is concerned, he submits that the liability to pay the principal sum and the interest falls upon the Insurance Company and no liability for payment of penalty can be fastened upon the insurance company under the facts and circumstances of this case. He further submits that in the judgment passed by Hon’ble Supreme Court reported in (2016) 11 SCC 201 (Jaya Biswal and Ors. Vs. Branch Manager, IFFCO Tokio General Insurance Company Limited and Another) , the Hon’ble Supreme Court has also been pleased to hold that the interest on the awarded amount was payable over and above the awarded amount @ 12% per annum from the date of the accident. He further submits that the interest @ 12% per annum is statutory interest prescribed under the Employee’s Compensation Act, 1923.

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16. So far as the validity of insurance policy on the date of the accident is concerned, the counsel for the respondents submits that the insurance policy which was provided to the owner of the vehicle was duly produced and the learned court below considered the same along with the certified copy of the policy by the branch manager, Sri Suman Kullu, claimed to be the true copy of the original policy. By referring to the insurance policy, he submits that as per the original printing, it was valid from 20.12.1999 to 19.12.2000, but there is a cutting in the insurance policy and it was made valid from 17.12.1999 to 16.12.2000. He further submits that at the bottom, the collection number has been shown as 7227 of 20.12.1999. Counsel for the respondents further submits that admittedly, in the instant case, the premium was paid through cheque and the cheque was dated 17.12.1999 and the policy only shows the date of collection of the premium. The counsel submits that in the insurance policy which has been produced by the Insurance Company it has been mentioned that it is the attested copy and certified to be

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true and it has also been indicated that original copy was duly stamped. He further refers to the evidence of the sole witness on behalf of Insurance Company who has also stated that the Insurance policy is prepared in three copies through carbon and if there is any cutting in the original copy, the same cutting is carried on in all the carbon copies and further the carbon copies of the insurance policy have also not been produced. Counsel for the respondents also submits that it is not the case of the Insurance Company that the necessary cuttings are never made in the insurance policy. The specific evidence of the insurance company is, if any cuttings was made, it would have been carried out in all the carbon copies also. He further submits that admittedly the cover note has not been produced by the Insurance Company in spite of repeated orders passed by the learned court below and it is not the case of the Insurance Company in the evidence that the carbon copies of tjhe insurance policy or the cover note of the insurance policy have been misplaced. Counsel for the respondent-claimants has also submitted that the officer of the insurance company had put his signature on the insurance policy produced by the owner of the truck at two places on the policy. Considering the entire materials on record, the learned court below has rejected the plea of the Insurance Company that the insurance policy was effective only from 20.12.1999 and not from 17.12.1999 on the basis of the insurance policy filed by the owner of the vehicle although it had some cuttings. He submits that no substantial question of law is involved on this point also.

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17. He further submits that the additional evidence/additional documents, which is sought to be adduced on behalf of the appellant by way of interlocutory application are not admissible at this stage and there is no explanation on the part of the insurance company as to why these documents were not produced before the learned court below. He further

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submits that otherwise also the documents sought to be produced by way of additional evidence only shows as to the dates when the Insurance Company processed the cheque for payment. He submits that there is no bar under law giving effect to insurance policy that from the date of issuance of cheque, although certainly it cannot be given effect to from any date prior to issuance of cheque. This is in consonance with the provisions of Section 64VB of the Insurance Act, 1938. He further submits that the learned court below after considering the materials on record has come to a definite finding that the insurance policy was valid on the date of accident by referring to the date of effectiveness of the insurance policy produced by the owner of the vehicle.

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18. He has further referred to another Judgment passed by this Court reported in ( 2007) SCC Online Jhar 378 (Naveen Transport Company vs. Presiding Officer, Labour Court, Bokaro and Others) to submit that this Hon’ble Court by referring to Section 30 of the Employee’s Compensation Act, 1923 has held that Section 30 of the aforesaid act of 1923 very clearly contemplates that appeal against the award under Employee’s Compensation Act, 1923 shall be entertained only when substantial question of law is involved. He submits that there are no substantial questions of law involved in these cases.

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Rejoinder arguments of the counsel for the appellant

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19. In response, counsel for the appellant has submitted that the specific case of the appellant was that the copy of the insurance policy, which was produced by the owner of the vehicle was itself forged and fabricated document. There were two signatures of the authorized signatory on the policy and one was near the cuttings and the signature near the cuttings was forged and accordingly the cuttings on the policy amounted to forgery and there was no expert opinion in

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connection with the signature of the person who had signed at the place of cutting.

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Findings of the Court

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20. After hearing the counsel for the parties and after considering the materials on record, this Court finds as follows:-

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(a) So far as the relationship of employer and employee is concerned, the learned court below after considering the materials on record has returned a finding that there existed a relationship of employer and employee between the owner of the vehicle and the deceased/injured persons in the accident. This Court is of the considered view that Section 30 of the Employee’s Compensation Act, 1923 contemplates that an appeal against the award is to be entertained only when substantial question of law is involved. This Court finds that although there is no documentary evidence to prove the relationship of employer and employee, but the learned court below has returned a finding of relationship of employer and employee considering the oral evidences of the parties and also considering the fact that the truck was fully loaded with bauxite and the labours who were victims of the accident were sitting on the truck. Accordingly, finding regarding relationship of employer and employee does not call for any interference as no substantial question of law arise for consideration on this point.

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(b)So far as the point regarding payment of interest by the Insurance Company is concerned, this Court finds that in the judgment passed by Hon’ble Supreme Court reported in (2014) ACJ 1527 (The Oriental Insurance Co. Ltd. vs. Smt. Badami Devi and Others) , the Hon’ble Supreme Court while considering the point of interest

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has referred to another judgment of the Hon’ble Supreme Court which is reported in (2006) 5 SCC 192 ( New India Assurance Co. Ltd. Vs. Harshadbhai Amrutbhai Modhiya) where in the law on the point has been laid down. The Hon’ble Supreme Court in (2006) 5 SCC 192 (Supra) has considered that the contract of insurance which was involved in the said case, had clearly excluded the liability for payment of interest and penalty and there was specific clause to that effect. The Hon’ble Supreme Court in Para 24 of the said judgment held as under:- (2006) 5 SCC 192

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“24. Section 17 of the Workmen’s Compensation Act voids only a contract or agreement whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment and insofar as it purports to remove or reduce the liability of any person to pay compensation under the Act. As my learned Brother has noticed, in the Workmen’s Compensation Act, there are no provisions corresponding to those in the Motor Vehicles Act, insisting on the insurer covering the entire liability arising out of an award towards compensation to a third party arising out of a motor accident. It is not brought to our notice that there is any other law enacted which stands in the way of an insurance company and the insured entering into a contract confining the obligation of the insurance company to indemnify to a particular head or to a particular amount when it relates to a claim for compensation to a third party arising under the Workmen’s Compensation Act. In this situation, the obligation of the insurance company clearly stands limited and the relevant proviso providing for exclusion of liability for interest or penalty has to be given effect to. Unlike the scheme of the Motor Vehicles Act the Workmen’s Compensation Act does not confer a right on the claimant for compensation under that Act to claim the payment of compensation in its entirety from the insurer himself. The entitlement of the claimant under the

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Workmen’s Compensation Act is to claim the compensation from the employer. As between the employer and the insurer, the rights and obligations would depend upon the terms of the insurance contract. Construing the contract involved here it is clear that the insurer has specifically excluded any liability for interest or penalty under the Workmen’s Compensation Act and confined its liability to indemnify the employer only against the amount of compensation ordered to be paid under the Workmen’s Compensation Act. The High Court was, therefore, not correct in holding that the appellant Insurance Company, is also liable to pay the interest on the amount of compensation awarded by the Commissioner. The workman has to recover it from the employer.”

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This Court further finds that neither any such argument has been advanced by the counsel appearing on behalf of the appellant nor there is anything on record to suggest that the liability for payment of interest has been excluded by virtue of any clause of the contract of insurance which is involved in this case. This Court further finds that in the judgment passed by Hon’ble Supreme Court reported in AIR 1997 SC 3854 (Ved Prakash Garg vs. Premi Devi & Ors.) the Hon’ble Supreme Court held in Para-14 that the liability of payment of interest is upon the Insurance Company, although the Insurance Company does not have the liability for payment of penalty under Section 4-A of the Employee’s Compensation Act, 1923. The Hon’ble Supreme Court in Para 24 of the said judgment held as under: - (AIR 1997 SC 3854)

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“ 14. On a conjoint operation of the relevant schemes of the aforesaid twin Acts, in our view, there is no escape from the conclusion that the insurance companies will be liable to make good not only the principal amounts of compensation payable by insured employers but also interest thereon, if ordered by the Commissioner to be paid

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by the insured employers. Reason for this conclusion is obvious. As we have noted earlier the liability to pay compensation under the Workmen's Compensation Act gets foisted on the employer provided it is shown that the workman concerned suffered from personal injury, fatal or otherwise, by any motor accident arising out of and in the course of his employment. Such an accident is also covered by the statutory coverage contemplated by Section 147 of the Motor Vehicles Act read with the identical provisions under the very contracts of insurance reflected by the Policy which would make the insurance company liable to cover all such claims for compensation for which statutory liability is imposed on the employer under Section 3 read with Section 4A of the Compensation Act. All these provisions represent a well-knit scheme for computing the statutory liability of the employers in cases of such accidents to their workmen. As we have seen earlier while discussing the scheme of Section 4A of the Compensation Act the legislative intent is clearly discernible that once compensation falls due and within one month it is not paid by the employer then as per Section 4A(3)(a) interest at the permissible rate gets added to the said principal amount of compensation as the claimants would stand deprived of their legally due compensation for a period beyond one month which is statutorily granted to the employer concerned to make good his liability for the benefit of the claimants whose bread-winner might have either been seriously injured or might have lost his life. Thus so far as interest is concerned it is almost automatic once default, on the part of the employer in paying the compensation due, takes place beyond the permissible limit of one month. No element of penalty is involved therein. It is a statutory elongation of the liability of the employer to make good the principal amount of compensation within permissible time limit during which interest may not run not otherwise liability of paying interest on delayed compensation will ipso facto follows. Even though the Commissioner under these circumstances can impose a further liability on the employer under circumstances and within limits contemplated by Section 4A (3)(a) still the liability to pay interest on the principal amount under the said provision remains a part and parcel of the statutory liability which is legally liable to be discharged by the insured employer. Consequently such imposition of interest on the principal amount

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would certainly partake the character of the legal liability of the insured employer to pay the compensation amount with due interest as imposed upon him under the Compensation Act. Thus the principal amount as well as the interest made payable thereon would remain part and parcel of the legal liability of the insured to be discharged under the Compensation Act and not de hors it. It, therefore, cannot be said by the insurance company that when it is statutorily and even contractually liable to reimburse the employer qua his statutory liability to pay compensation to the claimants in case of such motor accidents to his workmen, the interest on the principal amount which almost automatically gets foisted upon him once the compensation amount is not paid within one month from the date it fell due, would not be a part of the insured liability of the employer. No question of justification by the insured employer for the delay in such circumstances would arise for consideration. It is of course true that one month's period as contemplated under Section 4A(3) may start running for the purpose of attracting interest under sub-clause (a) thereof in case where provisional payment has to be made by the insured employer as per Section 4A(2) of the Compensation Act from the date such provisional payment becomes due. But when the employer does not accept his liability as a whole under circumstances enumerated by us earlier then Section 4A(2) would not get attracted and one month's period would start running from the date on which due compensation payable by the employer is adjudicated upon by the Commissioner and in either case the Commissioner would be justified in directing payment of interest in such contingencies not only from the date of the award but also from the date of the accident concerned. Such an order passed by the Commissioner would remain perfectly justified on the scheme of Section 4A(3)(a) of the Compensation Act. But similar consequence will not follow in case where additional amount is added to the principal amount of compensation by way of penalty to be levied on the employer under circumstances contemplated by Section 4A(3)(b) of the Compensation Act after issuing show cause notice to the employer concerned who will have reasonable opportunity to show cause why on account of some justification on his part for the delay in payment of the compensation amount he is not liable for this penalty. However, if ultimately

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the Commissioner after giving reasonable opportunity to the employer to show cause takes the view that there is no justification for such delay on the part of the insured employer and because of his unjustified delay and due to his own personal fault he is held responsible for the delay, then the penalty would get imposed on him. That would add a further sum up to 50% on the principal amount by way of penalty to be made good by the defaulting employer. So far as his penalty amount is concerned it cannot be said that it automatically flows from the main liability incurred by the insured employer under the Workmen's Compensation Act. To that extent such penalty amount as imposed upon the insured employer would get out of the sweep of the term 'liability incurred' by the insured employer as contemplated by the proviso to Section 147(1)(b) of the Motor Vehicles Act as well as by the terms of the Insurance Policy found in provisos (b) and (c) to sub-section (1) of Section II thereof. On the aforesaid interpretation of these two statutory schemes, therefore, the conclusion becomes inevitable that when an employee suffers from a motor accident injury while on duty on the motor vehicle belonging to the insured employer, the claim for compensation payable under the Compensation Act along with interest thereon, if any, as imposed by the Commissioner Sections 3 and 4A(3)(a) of the Compensation Act will have to be made good by the insurance company jointly with the insured employer. But so far as the amount of penalty imposed on the insured employer under contingencies contemplated by Section 4A(3)(b) is concerned as that is on account of personal fault of the insured not backed up by any justifiable cause, the insurance company cannot be made liable to reimburse that part of the penalty amount imposed on the employer. The latter because of his own fault and negligence will have to bear the entire burden of the said penalty amount with proportionate interest thereon if imposed by the Workmen's Commissioner.”

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Accordingly, this Court finds that the contention of the counsel for the appellant that the liability to pay interest cannot be fastened upon the Insurance Company, till the liability is determined is hereby rejected. Admittedly, in the instance case, the learned lower court below has not imposed any penalty. This Court

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finds that no substantial question of law is involved on the point of interest.

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(c) So far as the doctrine of election, which has been argued by the counsel for the appellant in connection with M.A. Case No. 64 of 2005 is concerned, although the order of this Court which arose out of judgment passed under Section 140 of Motor Vehicles Act, 1988 by one Basmatiya Devi has been filed in the appeal, but from the perusal of that order, it is not clear that as to when the case under Section 140 of Motor Vehicles Act, 1988 was filed by Basmatiya Devi. Further, admittedly Basmatiya Devi is not one of the claimants involved in this case. This Court further finds that the Insurance Company has not brought on record, either the number of the case or the date of filing of the case filed under Section 140 of Motor Vehicles Act, 1988. Thus, this Court finds that neither the parties are the same nor the date of filing of the case under Section 140 of the aforesaid Act, 1988 is on record, so as to hold that the proceedings under the Employee’s Compensation Act, 1923 which was initiated as back as in the year 2000, could not have been entertained by applying the principles of doctrine of election. Although, the point regarding applicability of doctrine of election is certainly an important point, but for the purposes of holding that the instant proceeding was barred by applying principles of doctrine of election, the foundational facts are totally absent in the instant case. Further, admittedly in the instant case, neither the parties are the same nor the date of the filing of the case under Section 140 of Motor Vehicles Act, 1988 has been brought on record. Accordingly, this point regarding principle of doctrine of election has no applicability so

¶100

¶101

far as the facts and circumstances of the instant case are concerned and no substantial question of law arises on this point.

¶102

(d)So far as the point regarding effective date of the insurance policy is concerned, admittedly there are two documents on record relating to the insurance coverage;

¶103

one, filed by the owner of the vehicle which contains cutting, giving the date of effectiveness of the insurance policy from 17.12.1999 having two signatures of the authorized representative of the appellant, out of which one signature is admitted and the signature near the cutting is disputed by the appellant;

¶104

and the other produced by the Insurance Company which is the attested copy and certified to be true and gives the date of effectiveness of the policy from 20.12.1999. This Court finds that admittedly the cheque was dated 17.12.1999 and under no circumstances, the insurance policy could be given effect prior to 17.12.1999. From the deposition of the sole witness of the Insurance Company, this Court finds that the witness had deposed that the insurance policy was prepared with three carbon copies and if there is any cutting is made in the original copy (which is handed over to the owner of the vehicle) the same cutting is carried on in all the carbon copies as well. But, in the instant case, the carbon copy of the insurance policy has not been produced by the Insurance Company. Even the cover note of the insurance policy has not been produced in spite of repeated orders by the learned court below upon the insurance company for the production of the cover note of the insurance policy. There is no explanation on behalf of Insurance

¶105

¶106

Company in the deposition, as to why the carbon copy of the insurance policy and as to why the cover note of the insurance policy has not been produced by the Insurance Company. This Court finds that these aspects of the matter have been duly considered by the learned court below and merely the claim of the Insurance Company that the insurance policy which was produced by the owner of the vehicle was the forged and fabricated document was not sufficient in absence of the production of the carbon copy, which is part of the official record maintained by the Insurance Company or even the cover note which could have shown the date of effectiveness of the policy. This Court further finds that as per the provisions of Section 64VB of the Insurance Act, 1938, there cannot be any date of effectiveness of insurance policy prior to the date of issuance of the cheque and this aspect of the matter has also been considered by the learned court below. This Court further finds that the learned court below after appreciating the materials on record held that the date of effectiveness of insurance policy as mentioned in the policy produced by the owner of the vehicle i.e. 17.12.1999 to 16.12.2000 was the correct date and rejected the attested copy and certified to be true of the insurance policy produced by the Insurance Company which showed the date of effectiveness of policy as 20.12.1999 to 19.12.2000 by a well-reasoned order. This Court finds that in the judgment reported in (2007) 7 SCC 786 (National Insurance Company vs. Sobina Iakai and Ors.) it has been held that effectiveness of insurance policy would start from the time and date as may be specifically incorporated in the policy. Accordingly, this Court does not find any illegality or

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¶108

perversity in the impugned judgment on this point and no substantial question of law is involved on this point under the facts and circumstances of this case.

¶109

(e) So far as the additional evidence which is sought to be brought on record by the appellant by filing interlocutory application being I.A. No. 1732 of 2009 in Misc. Appeal No. 62 of 2005 is concerned, the same are to show that the cheque was actually processed by the insurance company on or after 20.12.1999 and they have also sought to bring on record one receipt of the cheque which was issued only on 20.12.1999. This Court finds that the additional evidence which is sought to be produced does not cut any ice in favor of the appellant particularly, in view of the fact that the date on which the insurance company actually processed and collected the amount deposited through cheque has no relevance in the matter, as the date of effectiveness of the policy was specifically mentioned in the insurance policy itself and the learned court below after considering the materials on record had relied upon the original policy produced by the owner of the vehicle, through the same had some cutting, by a well-reasoned order. So far as the receipt is concerned, the same is an additional document and does not contain any signature of the owner of the vehicle and the stamp on the said document indicates the date on which the cheque was deposited with the concerned bank for collection. This Court further finds that there is no explanation on the part of the appellant as to why these documents which are sought to be adduced by way of additional evidence were not produced before the learned court below except that they were unable to trace these documents in their own office.

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In view of the aforesaid facts and circumstances, I.A. No. 1732 of 2009 filed for adducing additional evidence at this stage, is hereby rejected.

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21. As a cumulative effect of the aforesaid findings, this Court is of the considered view that there is no substantial question of law involved in these cases and accordingly, these appeals are hereby dismissed.

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(Anubha Rawat Choudhary, J.)

¶114

Mukul

D.M.,Oriental Insurance Co.Ltd v. Marhu Lohra And Ors.

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D.M.,Oriental Insurance Co.Ltd v. Marhu Lohra And Ors.

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