AT HYDERABAD.

C.D.  46/2004

Between:

M/s. Patel Engineering Ltd.

Rep. by its Manager (Admn)

K. Divakaran Nair

S/o. K. K. Pillai

Office at 6-3-635 & 637

IV Floor, Akash Ganga,

Khairatabad, Hyderabad-4                         ***                         Complainant

                                                                   And

1. The Branch Manager

The New India Assurance Company Ltd.

3/51/3, Raghavendra Mansion

Opp: HAL Gate, Balanagar

Hyderabad-500 042.

2.  The Divisional Manager

The New India Assurance Company Ltd.

5-33-2A, 1^st Floor, Kukatpally X Roads

Hyderabad.

3.  The New India Assurance Company Ltd.

Rep. by is Regional Manager

V Floor, Surya Towers, R.P. Road

Secunderabad.

4.  The Chairman

The New India Assurance Company Ltd.

New India Assurance Building

87, M.G. Road, Fort

Mumbai-400 001.                                                  ***              Opposite Parties 

C.D.  49/2004

Between:

M/s. Patel Engineering Ltd.

Rep. by its Manager (Admn)

K. Divakaran Nair

S/o. K. K. Pillai

Office at 6-3-635 & 637

IV Floor, Akash Ganga,

Khairatabad, Hyderabad-4                         ***                         Complainant

                                                                   And

1. The Branch Manager

The New India Assurance Company Ltd.

3/51/3, Raghavendra Mansion

Opp: HAL Gate, Balanagar

Hyderabad-500 042.

2.  The Divisional Manager

The New India Assurance Company Ltd.

5-33-2A, 1^st Floor, Kukatpally X Roads

Hyderabad.

3.  The New India Assurance Company Ltd.

Rep. by is Regional Manager

V Floor, Surya Towers, R.P. Road

Secunderabad.

4.  The Chairman

The New India Assurance Company Ltd.

New India Assurance Building

87, M.G. Road, Fort

Mumbai-400 001.                                                  ***              Opposite Parties 

C.D.  55/2004

Between:

M/s. Patel Engineering Ltd.

Rep. by its Manager (Admn)

K. Divakaran Nair

S/o. K. K. Pillai

Office at 6-3-635 & 637

IV Floor, Akash Ganga,

Khairatabad, Hyderabad-4                         ***                         Complainant

                                                                   And

1. The Branch Manager

The New India Assurance Company Ltd.

3/51/3, Raghavendra Mansion

Opp: HAL Gate, Balanagar

Hyderabad-500 042.

2.  The Divisional Manager

The New India Assurance Company Ltd.

5-33-2A, 1^st Floor, Kukatpally X Roads

Hyderabad.

3.  The New India Assurance Company Ltd.

Rep. by is Regional Manager

V Floor, Surya Towers, R.P. Road

Secunderabad.

4.  The Chairman

The New India Assurance Company Ltd.

New India Assurance Building

87, M.G. Road, Fort

Mumbai-400 001.                                                  ***              Opposite Parties 

C.D.  56/2004

Between:

M/s. Patel Engineering Ltd.

Rep. by its Manager (Admn)

K. Divakaran Nair

S/o. K. K. Pillai

Office at 6-3-635 & 637

IV Floor, Akash Ganga,

Khairatabad, Hyderabad-4                         ***                         Complainant

                                                                   And

1. The Branch Manager

The New India Assurance Company Ltd.

3/51/3, Raghavendra Mansion

Opp: HAL Gate, Balanagar

Hyderabad-500 042.

2.  The Divisional Manager

The New India Assurance Company Ltd.

5-33-2A, 1^st Floor, Kukatpally X Roads

Hyderabad.

3.  The New India Assurance Company Ltd.

Rep. by is Regional Manager

V Floor, Surya Towers, R.P. Road

Secunderabad.

4.  The Chairman

The New India Assurance Company Ltd.

New India Assurance Building

87, M.G. Road, Fort

Mumbai-400 001.                                                  ***              Opposite Parties 

F.A. 179/2006 against C.D. 109/2004, Dist. Forum, Ranga Reddy

Between:

M/s. Patel Engineering Ltd.

Rep. by its Manager (Admn)

K. Divakaran Nair

S/o. K. K. Pillai

Office at 6-3-635 & 637

IV Floor, Akash Ganga,

Khairatabad, Hyderabad-4                         ***                         Complainant

                                                                   And

1. The Branch Manager

The New India Assurance Company Ltd.

3/51/3, Raghavendra Mansion

Opp: HAL Gate, Balanagar

Hyderabad-500 042.

2.  The Divisional Manager

The New India Assurance Company Ltd.

5-33-2A, 1^st Floor, Kukatpally X Roads

Hyderabad.

3.  The New India Assurance Company Ltd.

Rep. by is Regional Manager

V Floor, Surya Towers, R.P. Road

Secunderabad.

4.  The Chairman

The New India Assurance Company Ltd.

New India Assurance Building

87, M.G. Road, Fort

Mumbai-400 001.                                                  ***              Opposite Parties 

Counsel for the  Complainants:                  M/s. P. Sri Raghuram

Counsel for the OPs:                                   M/s. Kota Subba Rao.

CORAM:                  

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

SMT. M. SHREESHA, MEMBER

THURSDAY, THIS THE NINETH DAY OF SEPTEMBER TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          ***

1)                These complaints and  appeal F.A. No. 179/2006  involve various  claims of various workmen viz., skilled, semi-skilled and unskilled against accidents for various periods under insurance policies issued by the opposite party   the New India Assurance company Ltd.

2)                Both parties have filed a memo to club all these matters,  since they pertain to the very same claim between the same parties. 

3)                Before adverting to the facts, at the outset, we may state that  the National Consumer Disputes Redressal Commission  in R.P. No. 4265/2009 against  F.A. No. 179/2006  and  F.A. Nos. 535, 536, 537 and 538/2007  against  C.D. Nos. 46, 49, 55 and 56/2004 by its order dt. 14.1.2010 remitted the matters to this Commission to decide the complaints according to law ‘after permitting the parties to complete their pleadings and the evidence.’  Despite the said orders neither of the party had sought for amendment of pleadings.  However, additional counter was filed by the insurance company.  Both parties  filed affidavits evidence and got Exs. A106 to A109 were marked on behalf of the complainant and Ex. B2 photostat copies of policies on behalf of  the opposite party.

4)                The case of the complainant  M/s. Patel Engineering  Ltd.  is that it is a company registered under the Companies Act, 1956  and  had taken  contract work of  APGENCO  formerly  APSEB  for execution of civil works  at  Srisailam  Left  Bank Hydro Electric project, Srisailam dam at Mahaboobnagar  in the year 1991.    It had appointed several skilled, semi-skilled and un-skilled workers for execution of above contract work.  It had taken  insurance policies against  the coverage of  accidents for the above said workmen for various periods from the  opposite party insurance company.  During the course of  execution of works  fatal and non-fatal accidents had occurred at worksite.    As far as  non-fatal accidents  the site-in-charge  was immediately informing the accident to the project manager who in turn was informing  the  Executive Engineer, APGENCO (APSEB)  and  the company in turn  has been paying compensation to the workmen  in the presence of officials of  APGENCO  basing on the final medical report  issued by the  Deputy Civil  Surgeon, Srisailam as per the memorandum of agreement.  In case of fatal accidents  the project manager  was informing the  Executive Engineer, APGENCO (APSEB) and also  the Assistant Commissioner of Labour, Mahaboobnagar  and the company  has been depositing the amount  with the Assistant Commissioner of Labour who in turn disbursing  the amount to the legal heirs.    As per the terms of the policy  when they had directed the insurance company to reimburse the compensation  they were assuring by informing that they had already passed instructions to the branch office to process the claims  and reimburse the amounts to it.    Since they did not pay as promised which  would amount to deficiency in service claimed the amounts together with interest, compensation and costs by filing following complaints.  

C.C. 46/2004:              This is a claim for Rs. 23,44,573/- for the amount paid to 89 workmen  who were involved in non-fatal accidents for whom  they paid the above amount for the accidents  during the years 1997-1998.    The list of workmen was enclosed to the complaint alleging that though the insurance company  had promised to settle the claim  by its letter Dt. 31.3.2004 it did not choose to do so and therefore claimed Rs. 23,44,573/-  with interest  @ 12% p.a., from the date of payment together with compensation of Rs. 10 lakhs and costs.

C.C. 49/2004:              This is a claim for Rs. 24,04,952/- for the amount paid to 89 workmen  who were involved in non-fatal accidents  and 2  fatal accidents for whom  they paid the above amount for the accidents during the years 1998-1999.    The list of workmen was enclosed to the complaint alleging that though the insurance company  had promised to settle the claim  by its letter Dt. 31.3.2004 it did not choose to do so and therefore claimed Rs. 24,04,952/-  with interest  @ 12% p.a., from the date of payment together with compensation of Rs. 10 lakhs and costs.

C.C. 55/2004:              This is a claim for Rs. 46,78,949/-  for the amount paid to 198 workmen  who were involved in non-fatal accidents  and 3  fatal accidents for whom  they paid the above amount for the accidents during the years 1999-2000.    The list of workmen was enclosed to the complaint alleging that though the insurance company  had promised to settle the claim  by its letter Dt. 31.3.2004 it did not choose to do so and therefore claimed Rs. 46,78,949/-   with interest  @ 12% p.a., from the date of payment together with compensation of Rs. 15 lakhs and costs.

C.C. 56/2004:              This is a claim for Rs. 32,92,732/- for the amount paid to 106  workmen  who were involved in non-fatal accidents  and 7  fatal accidents for whom  they paid the above amount for the accidents during the years 2000-2001.    The list of workmen was enclosed to the complaint alleging that though the insurance company had promised to settle the claim  by its letter Dt. 31.3.2004 it did not choose to do so and therefore claimed Rs. 32,92,732/-  with interest  @ 12% p.a., from the date of payment together with compensation of Rs. 10 lakhs and costs.

F.A. 179/2006:             This is an appeal preferred by the complainant against the order of the Dist. Forum, Ranga Reddy  in dismissing the complaint.  This is a claim for Rs. 12,03,880/- for the amount paid to 6 workmen  who were involved in non-fatal accidents for whom  they paid the above amount for the accidents during the years 1996-1997.    The list of workmen was enclosed to the complaint alleging that though the insurance company  had promised to settle the claim  by its letter Dt. 31.3.2004 it did not choose to do so and therefore claimed Rs. 12,03,880/-  with interest  @ 12% p.a., from the date of payment together with compensation of Rs. 5  lakhs and costs.

5)                The  insurance company resisted the cases.   While admitting issuance of policies  it alleged that it was not liable to satisfy the claim.  The complaints were  barred by limitation besides was not maintainable.   There was no intimation about the employment details of the personnel in dispute and various facts mentioned in the complaint.   They were not aware of the incidents referred to in the complaint, and the orders passed thereon by the Assistant Commissioner of Labour.   The complainant did not follow the procedure  as required under the rules.  It was never informed about  any complaint being filed  before the  Commissioner of Labour under  Workmen’s Compensation  Act  (herein after called W.C. Act)  or the award  that was passed  or the various deposits made by it.    They were kept in dark about the alleged claims and the awards that were made.   Though they had promised to consider the claims, on verification it was found that  the complainant was never bothered to inform nor  submitted  the claim forms.    They were not made a party before the Commissioner under  W.C.  Act.   They were deprived of participating  in the enquiry before the  Commissioner under the  W.C.  Act.    The orders of the Labour Commissioner were not binding  on them.   They were not liable to pay any of the amounts claimed much less  compensation and costs.    The orders passed by the  Commissioner were not even filed.   At any rate, in case of any accident whether it was death or disability to the workmen  it should inform  to it by filing claim form.  On such information it  would enquire into the matter and

after receiving the required documents like FIR, wages register etc.,   settle the claim.    At least the complainant could have informed  that the matter was pending before the Commissioner under the W.C. Act in order to enable them to implead as proper and necessary party and contest the claim.    The claims were  made  after  five years  without any  documents  and  proper  information.    They approached this Commission  with exaggerated amounts  without filing any documents in support of their claim.    The complaints were barred by limitation under article  44 of the Limitation Act.  They were to be filed within three years from the date of death of the deceased.  Since no claim was made  the question of denial does not arise.    The registers with postal receipts  that were filed pertaining  to the claims that were made were not addressed to it.   Without filing postal acknowledgement, no inference could be drawn that the claims were  intimated to them.   Each of the claim  shall be treated as a  single  complaint.  If all these cases are clubbed together  it would exceed more  than Rs. 1 crore  beyond the jurisdiction of this Commission.   All the employees  cannot be brought under one umbrella as there are different categories viz., skilled, semi-skilled and unskilled  employees etc.   In fact as per the terms of the policy the information as to the death or accident  to be given within 24 hours along with required documents  within a period of one month from the date of occurrence.    Section 19 of the W.C.  Act  ousts the jurisdiction of the civil court.  Without consent of the  insurer the complainant was not liable to pay the amount  to the workmen and seek reimbursement.   In C.C. No. 46/2004 for the claims relating to the year 1999  it had received a letter  on 6.2.2004.   Intimation on 30.5.2001  in respect of claims from Sl. No. 22 onwards was reclaimed.   In C.C. 49/2004 the complainant did not file affidavit in respect of workmen,   their wages etc.   There was no intimation about their claim.    Equally in regard to  C.C. No. 55/2004.    There is a lot of difference between the amount claimed and received.     In regard to C.C. No. 56/2004  no intimation was made with regard to alleged workmen except  the workmen mentioned  at Sl. No. 32, 54 and 84 to 106.  Their  intimations were received  on  26.6.2002.    In  regard to F.A. No. 179/2006  the

accident took place  outside the  employment but not during the course of employment.  They were travelling in a tipper as passengers to attend a function.    In fact Sri Naga  Raju was not the actual driver of the tipper and he was not having valid driving license.  There was no deficiency in service on its  part, and therefore prayed for dismissal of the complaints with costs. 

6)                The complainant in proof of  its case filed the affidavit evidence of its  Manager (Administration)  reiterating the facts mentioned in the complaints  and also affidavit evidence after remand and got Exs. A1 to A109 marked.  While the insurance company filed the affidavit evidence of its Manager and got Exs.  B1 & B2 marked. 

7)                The points that arise for consideration are :

i)        Whether the complainant had paid the compensation to various employees viz., skilled, semi-skilled and un-skilled workmen under the W.C. Act?

ii)       Whether the insurance company was liable to reimburse  the  amounts paid by the complainant?

iii)              Whether this Commission has jurisdiction to try these  matters?

iv)                Whether the claims are barred by limitation?

v)                  To what relief?

8)                It is an undisputed fact that  the complainant  M/s. Patel Engineering  Ltd. a company registered under the Companies Act, 1956 had taken  contract work of  APGENCO  formerly  APSEB  for execution of civil works  at  Srisailam  Left  Bank Hydro Electric project, Srisailam dam at Mahaboobnagar  in the year 1991.    It had appointed several skilled, semi-skilled and un-skilled workers for execution of above contract work.  It had taken  the following  insurance policies against  the coverage of  accidents for the above said workmen for various periods from the  opposite party insurance company vide Ex. A1. 

While so during the course of  execution of works  fatal and non-fatal accidents had occurred at worksite for which according to the complainant it  had paid Rs.  23,44,573/-  (C.C. No. 46/2004), Rs. 24,04,952/-  (C.C. No. 49/2004), Rs. 46,78,949/- (C.C. No. 55/2004), Rs. 32,92,732/- (C.C.No. 56/2004) and Rs. 12,03,880/- (F.A. No. 179/2006).    On payment it has claimed the amounts by its letter dt. 10.1.2002 addressed to  Op1, letter dt. 28.1.2003 and 4.2.2003  addressed to Op2, letter dt. 16.4.2004 addressed to Op3, letter dt. 30.12.2003  and 6.2.2004 addressed to Op4 to settle the claims.    The request was repeated by letter dt.  9.2.2004  addressed to  Op2, letter dt. 25.2.2004 and 22.3.2004 addressed to OP4,  letter dt. 31.3.2004  and 24.5.2004 addressed to Op3, letter dt. 14.8.2004 addressed to Op4, and  when there was no settlement  they had filed the complaints. 

9)                At the outset, we may state that  the complainant for the reasons best known did not choose to mention as to various claims made by the complainant or the awards that were passed by the  Commissioner of Labour under the W.C.  Act directing the complainant  to pay compensation to various workmen as narrated  by it in various complaints.    Instead it had filed  Exs. A17 to A105 copies of claim forms along with medical reports and initial report and site engineers report of injured workers.    It has also filed Exs. A4 to A16  various letters addressed by the complainant to the opposite parties for settlement of claims.  It looks as though  in some cases they have paid  these amounts  without  recoursing to any proceedings before  the Commissioner of labour as ordained under W.C. Act.  Admittedly  some cases were filed  under  W.C. Act  claiming compensation. 

10)              In  Ex. B2  Workmen’s Compensation Policy schedule there is a categorical mention  “that the  W.C.  Act, 1923 and subsequent amendments to  the said Act  prior to the date of the issue of policy and the Fatal Accidents Act, 1855 and subsequent amendments to the said acts  are deemed to be added to the laws set out in the schedule to the policy.”    It  is also provided that the insurance granted is not extended to include (i)  any interest and/or penalty imposed on the insured on account of his/their failure  to comply with the  requirements laid down  under the W.C. Act, 1923 and (ii)   any compensation payable  on account of occupational  diseases listed in part-C  of schedule-III  of the W.C. Act, 1923.  

11)              Even assuming without admitting that the complainant  a company incorporated under the  Companies Act  filed complaints  under  W.C. Act  it  did not implead the insurance company while claiming compensation under the W.C. Act.  Except the affidavit evidence  and  the allegation that in some of the cases they settled with the victims while in other cases they obtained awards  by recoursing to  W.C. Act  they did not file any record in order to enable the insurance company to verify whether  a particular workman  sustained injury/death during the course of employment.   

12)              In one of the cases F.A. 179/2006  the defence of the insurance company is that while the employees were attending to a private function they sustained  injuries/death  and they are not liable to compensate.   

13)              The  W.C. Act postulates that every claim  either fatal or non-fatal  shall be processed under the W.C. Act.   We do not want to explore  the philosophy  behind such  provision.    Evidently the employer  may exploit the workmen by settling for small amounts,    as no such workmen be literate.    At any rate the employer cannot contract out  the provisions of the W.C. Act  by settling with the employees straight and claim the amounts with the insurance company on the ground that it had to reimburse whatever the amount  it had paid to the workmen. 

14)              The complainant  had filed Ex. A106 to A109   to prove that they had intimated each and every claim of the  employees whenever accident took place.  The complainant could not prove that a particular claim was made  under a particular Dis. Number.  No acknowledgement  whatsoever was filed from the insurance company.    It is important to prove that the intimation that was made under a particular exhibit relates to the claim of  a particular workman.  Assuming without admitting  that the insurance company  had intimated all the claims, the fact remains that the complainant whenever  filed claims  under W.C. Act   did not implead  the insurance company.   

15)              At the cost of repetition, we may state that  the complainant did not  file the awards that were passed by the Commissioner under W.C. Act  in order to find out the amounts that were ordered to be paid  by the complainant to each of the workman  in order to claim reimbursement  from the insurance company.    Be that as it may  Section 3 of the W.C. Act postulates the following requirement  to be established to succeed in an application for getting compensation. 

(i)                                         that the accident must arise out of and in the course  of the workman’s employment.

(ii)                                      there must be casual connection between the injury and the accident and the work done  in the course of the employment.

(iii)                                    the workman  has to say that while doing a part of his duty or incidental thereto it has resulted into an accident.

It is necessary that  the workman  must be actually working at the time of the inquiry or the accident.   Therefore, the three factors, that there must be injury, it must be  caused in an accident, it must be caused  in the course of and out of the employment  must be established

16)              Section 8 of the W.C. Act makes it clear  that no compensation has to be paid in respect of a workman whose injury has resulted in death except by deposit with the Commissioner and no such payment  made directly by an employer shall be deemed to be a payment of compensation; the employer should not make any payment of compensation directly to the deceased’s heirs and legal representatives or to any of them;    (i)  Section 8 of the Act is designed to protect the heirs and legal representatives of the deceased workman against any kind of exploitation or fraud likely to be practiced on them by or on behalf of the employer or any third party;   (ii) Section 8 of the Act lays down the format for quantum of compensation  payable by an employer when an employee meets with an accident. Its object is that unscrupulous employer should not take advantage of the ignorance of the employee in making payment of a paltry sum. Therefore the Act  safeguards the interest of the workers and any private payment will not discharge the statutory obligation. 

17)               In the light of admitted fact that the complainant did not implead the  insurance company to the proceedings  before the Commissioner under W.C. Act whether the complainant could recover  the amount recoursing to the provisions under the Consumer Protection Act.   This question has been considered  in a decision in   Rajak Haji Jumma  Vs. United India Insurance Company Ltd. reported in  1995 (1) LLJ 168 (Bombay).   It was a case where  the employer had deposited a sum of Rs. 27,000/-  with the Court of  Commissioner for  Workmen Compensation.  However the insurance company was not liable to indemnify when the insurer  was not impleaded  when a claim was made referring to  Section 19 (1) of the  W.C. Act  which reads as under :

19.   Reference to  Commissioners:   (1)   If any question arises  in any proceedings  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 or compensation (including any question as to  the nature or extent of disablement) the question shall, in default  of agreement, be settled by a commissioner. 

Liability of the employer:    The liability of the employer arises as soon as the injury is caused and at any subsequent occasion.  It cannot be suspended. 

Liability of the  insurance company:   If the insurance company  has agreed to discharge the liability  of the employer under  the Workmen’s  Compensation Act  the  liability of the insurance company  to indemnify  the insurer shall  have to be determined by the Commissioner for Workmen’s  Compensation  in the very same proceedings  by virtue of  the provisions  contained  in Section 19(1)  of the Act. 

Scope of  expression “any person” :   The insurer  also will come  within the scope of  “any person”  contemplated in Section 19 of the Act and thus within the jurisdiction of the Workmen’s Compensation  Commissioner. 

18)              In fact in the above decision, it had relied yet another decision  of   High Court of Rajasthan  in  Madan Gopal Vs. Anandi Lal reported in (1992) ACJ 543  referring to the expression ‘any person’  it was held  that  “includes  the insurance company  concerned.  It is therefore  obvious  that  if  the insurance company has  agreed to discharge  the liability of the employer under  Workmen’s  Compensation Act, the liability of insurance  company to indemnify the insurer shall  have to be determined by the Commissioner for  Workmen’s Compensation  in the very same proceedings  by virtue  of provisions contained  in Section  19(1) of the Act.   In that case since the   primary  liability being  on the employer  and the amount was determined the High Court obviously  by invoking its jurisdiction directed the Commissioner for Workmen’s Compensation  to determine afresh .....  after giving due  opportunity to the appellant and respondent to file supplementary  pleadings and lead  such evidence  as they wish to lead.    It was also mentioned that  notice had to be issued to the insurance company  in Form-J under rule 39 of  the Workmen’s  Compensation Rules, 1924.   

19)              The complainant for the reasons best known did not implead the insurance company to the proceedings before the  Commissioner for Workmen’s Compensation in order to determine the liability  of the insurance company  to indemnify the insurer.    This would enable the  Commissioner to determine  whether the liability could be  mulcted  against the insurance company and  whether liability arises  as per the terms of the policy  being injury  or death occasioned during the course of employment.    This the complainant did not let in any evidence to show for each of the case that the injury or death  of each workman  had occasioned  during the course of the employment.    It is not known as to the claim that was made before the Commissioner for Workmen’s Compensation.    It is equally not known  as to how the compensation that was determined by the  Commissioner  for each of the workman.   It is not known  why the complainant did not  file any of the orders that were passed by the  Commissioner showing quantum of compensation  that was awarded.    Obviously without proving any of these facts it intends to  claim the amounts  by circumventing  the proceedings before the Commissioner for Workmen’s Compensation to lay the claims.    It is obvious that the complainant having  known about its mistake  in not impleading the insurance company  must have resorted to  this procedure by filing   complaints  before the Dist.  Forum or this Commission  as though the claims  could be processed under the Consumer Protection Act.    Having clutched the jurisdiction of the  Commissioner under the W.C. Act  by virtue of Section 19(1) of the W.C. Act   the complainant is debarred  from prosecuting  this case before this Commission.   Since we hold lack of jurisdiction and more so when the claims were already  adjudicated by the Commissioner  the question of  this Commission fixing liability  on the insurance company  under  the terms of the policies cannot be entertained. 

20)              Learned counsel for the insurance company contended that  under the terms of the policy more so  under clause No. 1  the liability of contractors of the insured is not covered.   Admittedly  the persons who claimed compensation  were the employees  of the contractor.    The learned counsel further contended that  under condition No. 4   of the policy in the event of any occurrence  which may arise  to claim under the policy the insured  shall give notice thereon to the insurance company with full  particulars immediately.    In case of claim, summons and process shall be notified  or forwarded to the company immediately on receipt of the same.   The said condition was never followed by the complainant.   Under condition No. 5  of the policy the employer/insured shall not promise  or make payment  without the prior consent of the insurance company  and without giving the information  and assistance for any claim  of indemnity, if it is required  the insurance company  has got powers  to take over  and participate  even during  the settlement.  Not only that  there is specific condition No. 9  in the policy under  which the strict observance and fulfilment  of the conditions is insisted.   The complainant has never followed the said conditions and simply filed some inward register.  It is not at all  fulfilment of the conditions of the policy.   Under condition No. 4 & 5  the complainant cannot make any payment  without the consent and knowledge of the insurer.   To cover up their latches, they have filed some inward registers.  It is not suffice or enough to say that the conditions are fulfilled.  Even otherwise the fact remains that the claims of the year 1996  onwards  were  intimated to the insurance company  in 2001. 

21)              The learned counsel for the insurance company further contended that the conditions of the policy were not fulfilled.   Under condition No. 2  clause-A of the policy any consequential  losses was exempted.   Under section 2 clause B of  exceptions any legal liability  whatsoever  in nature, the policy does not cover.    Under condition No. 1 of the policy, the schedule of  the policy should be read  as part of the policy and under schedule-II  three categories of workmen are covered.   The claims  in respect of which category is not known.    Under

condition No. 2 every notice or communication to be given  or made under the policy shall be  delivered in writing  to the company which was never followed.   Under condition No. 4  any summons, process or any claim shall be intimated immediately to the company on receipt.   But in this case there is no  such intimation and the complainant was sitting calmly  for years together.   Condition No. 4  of the policy was not followed.  Likewise condition No. 5 was not followed as liability was admitted without  knowledge and consent of the insurance company.    Hence the complainant cannot ask for reimbursement of any amount. 

22)              Learned counsel for the complainant contended  that a  reply given by the insurance company that  it was enquiring  into  and  would itself amount to admission of the claims.  We do not agree with the said submission.    Under Section 22 of the W.C. Act  the compensation application has to be preferred to the Commissioner for Workmen’s Compensation.   If any amount is paid in view of the  agreement by way of settlement thereon it shall be sent by the employer to the Commissioner and the learned Commissioner  after satisfying  about the genuineness  should record it.    If there is no such  agreement made by the employer it has  no legal sanctity  for the amounts paid.    Even in cases of injuries  the Commissioner  while granting  the compensation has to follow the procedure  prescribed  under schedule part-I  and if it is non-schedule injuries  he should decide it basing upon the loss of earning capacity  fixed by the qualified medical practitioner  as detailed in Section 4 explanation-II of the W.C. Act.   Under  rule -23  the Commissioner  has to examine the applicant and should hold enquiry  under rule 25  after framing of issues.  The complainant did not follow  any procedure  prescribed under the W.C. Act including the rules prescribed for indemnification.  Therefore it  cannot approach this Commission.    Necessarily if   insurance company was  impleaded, the Commissioner would also determine the liability of the insurance company to reimburse the amount. 

23)              Learned counsel for the insurance company contended that  article 44A & B  of the Limitation Act stipulates three years either from the date of death of the employee  or  from the date of denial of claim.    It is contended by the complainant that several letters were addressed to the insurance company till 2004 evidenced by despatch registers and since there was no repudiation  of the claims  the complaints are within time.    It is also contended that  they could prove  that they had intimated  the date of accident by  filing despatch registers and therefore  presumption under  114(g) of the Evidence Act had to be invoked that the insurance company had  received the intimation.    Evidently  in C.D. 46/2004  the accidents took place  in 1997-98;   in C.D. 49/2004  the accidents  took place in 1998-99;   in C.D. 55/2004  the accidents took place in 1999-2000;  in C.D. 56/2000 the accidents took place in 2000-2001 and in F.A. 179/2006 the accidents took place in  1996-97.    For the first time they made claim by way of letters in 2002 regarding settlement of claims and release of payments.    Obviously this is contrary to  the W.C. Act. which we have already mentioned above.    By the time they made the claims  they were hopelessly barred by limitation.    By just intimating  the claim, which were settled contrary to the provisions of the W.C. Act it would not revive  the cause of action  for the complainant to file the complaints. 

24)              The learned counsel for the insurance company  relied  a decision  of Supreme Court in Chairman  Thiruvallur Transport Corporation  Vs. Consumer  Protection Council reported in  AIR 1995 SC 1384.    The  Hon’ble Supreme Court had  observed  in the context of  claim for compensation  arising out  of motor accident,   the consumer fora cannot adjudicate.  The claim arising out of accident cannot be said to be in relation to  any service hired  or availed by consumer.   More over the provisions  of M.V. Act which  is a special law  would prevail over the Consumer Protection Act.  Applying it equally the very same concept could be said for the  cases arising out of  W.C. Act.  The provisions of W.C. Act  would prevail over the Consumer Protection Act.    When special provisions are prescribed  under the W.C. Act  for resolving the disputes between the workmen, employer and the insurance company  by virtue of Section 19 of the W.C. Act  to resolve the matter by impleading all the parties  this Commission cannot adjudicate  such claims under the Consumer Protection Act.    The Commissioner for Workmen’s Compensation  had to adjudicate  the claims  including the defence taken by the insurance company in this regard.   Section 3 of the Consumer Protection Act  makes it clear that the provisions of the  Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.  It should be in consonance with other laws which are in force.  By invoking the provisions of the Consumer Protection Act,   the complainant cannot by-pass  the proceedings   before the Commissioner  under W.C. Act. 

25)              To sum up, the complainant  while proceeding before the Commissioner for Workmen’s Compensation  for settlement of  claims of the workmen  did not implead the insurance company the opposite party herein as a party to the proceedings  as contemplated u/s 19(1)  of the W.C. Act.    It did not choose to file the orders  that were obtained  in regard to each of the workman to find out  the liability of the insurance company to indemnify.  The insurance company had no occasion  to contest the claims that they do not attract  the terms of the policy.  We have no evidence to show that these accidents  had taken place during the course of the employment, if we may say so,  it is beyond our jurisdiction.    The complaints were hopelessly barred by limitation.    This Commission has no jurisdiction to try the cases. 

26)              In the result  the complaints  in C.D. 46/2004, C.D. 49/2004, C.D. 55/2004, C.D. 56/2004 and the complaint in F.A. 179/2006  are all dismissed with costs.  The insurance company is entitled to costs of Rs. 10,000/-  in each of the complaint. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

COMPLAINANT:                                                    OPPOSITE PARTIES

          None                                                                     None.

                                                          C. C. 46/2004

Documents marked for complainant:

Ex.A1           Insurance policy

Ex.A2           Certificate of incorporation

Ex.A3           Certificate dated 01.09.2004

Ex.A4           Letter dated 10.01.2002 addressed by the complainant company

                   to opposite party no.1

Ex.A5           Letter dated          09.01.2004 addressed by the complainant company to opposite party no.2 to settle all their claims.

Ex.A6           Letter dated          22.03.2004 addressed by the complainant company to opposite party no.4 to settle all their claims.

Ex.A7           Letter dated          28.01.2003 addressed by the complainant company to opposite party no.2 for settlement of the claims.

Ex.A8           Letter dated          04.02.2003 addressed by the complainant company to opposite party no.2 for settlement of the claims.

Ex.A9           Letter dated          16.04.2003 addressed by the complainant company to opposite party no.3 for settlement of claims.

Ex.A10         Letter dated          30.12.2003 addressed by the complainant company to opposite party no.4

Ex.A11         Letter dated          06.02.2004 addressed by the complainant company to opposite party no.4

Ex.A12         Letter dated          14.08.2004 addressed by the complainant company to opposite party no.4

Ex.A13         Letter dated          24.05.2004 addressed by the complainant company to opposite party no.3

Ex.A14         Letter addressed by the opposite party no.4, dated 25.02.2004 to the complainant regarding receipt of letter dated. 06.02.2004.

Ex.A15         Letter addressed by the opposite party no.3, dated 31.03.2004

to the complainant.

Ex.A16         Letter addressed by opposite Party No.4, dated 26.08.2004 to the complainant.

Ex.A17         copies of claim forms along with medical reports, memorandum of

To A105       agreement, C&D Forms, covering letters with initial report and site Engineers report of injured workers.

Ex.A106       outward Register from 04/07/1997 to 11/04/1998.

Ex.A107       Outward Register From 11.04.98 to 05.12.1998

Ex.A108       Outward Register From 01.01.2000 to 30.09.2000

Ex.A109       Outward Register From 03.10.2000 to 01.03.2004  

DOCUMENTS MARKED FOR OPPOSITE PARTIES :

Ex.B1           Copy of order passed by the District Forum Ranga Reddy

in C.D.No. 109 of 2004, dated 21.10.2005.

Ex.B2           Terms and conditions of Policy.

C. C. 49/2004

Documents marked for complainant:

Ex.A1           Insurance policy

Ex.A2           Certificate of incorporation

Ex.A3           Certificate dated 01.09.2004

Ex.A4           Letter dated 10.01.2002 addressed by the complainant company

                   to opposite party no.1

Ex.A5           Letter dated          09.02.2004 addressed by the complainant company to opposite party no.2

Ex.A6           Letter dated          22.03.2004 addressed by the complainant company to opposite party no.4

Ex.A7           Letter dated          28.01.2003 addressed by the complainant company to opposite party no.2

Ex.A8           Letter dated          04.02.2003 addressed by the complainant company to opposite party no.2

Ex.A9           Letter dated          16.04.2003 addressed by the complainant company to opposite party no.3

Ex.A10         Letter dated          30.12.2003 addressed by the complainant company to opposite party no.4

Ex.A11         Letter dated          06.02.2004 addressed by the complainant company to opposite party no.4

Ex.A12         Letter dated          14.08.2004 addressed by the complainant company to opposite party no.4

Ex.A13         Letter dated          24.05.2004 addressed by the complainant company to opposite party no.3

Ex.A14         Letter addressed by the opposite party no.4, dated 25.02.2004.

Ex.A15         Letter addressed by the opposite party no.3, dated 31.03.2004

to the complainant.

Ex.A16         Letter addressed by opposite Party No.4, dated 26.08.2004 to the complainant.

Ex.A17         Letter dated 10.11.1999 addressed by the  complainant to the  Commissioner for Workmen Compensation & Asst. Commissioner of Labour.

Ex.A18         Letter dated 10.11.1999 addressed by the complainant to the Commissioner for Workmen Compensation & Asst . Commissioner of Labour.

Ex.A19         Letter dated 10.11.1999 addressed by the complainant to the Commissioner for Workmen Compensation & Asst . Commissioner of Labour.

Ex.A20         Letters dated 18.02.2000 addressed by the complainant to the

To                Commissioner for Workmen Compensation & Asst . Commissioner

A22              of Labour

Ex.A23         Letters dated 18.02.2000 addressed by the complainant to the

To                Commissioner for Workmen Compensation & Asst . Commissioner

A25              of Labour

Ex.A26         Letters dated 18.02.2000 addressed by the complainant to the

To                Commissioner for Workmen Compensation & Asst . Commissioner

A28                of Labour.

Ex.A29         Letter dated 05.01.1998 addressed by the complainant to the Commissioner for Workmen Compensation & Asst . Commissioner of Labour.

Ex.A30.        Letter dated 18.07.2000 addressed by the complainant to the opposite party.

Ex.A31         Letter dated 27.03.2000 addressed by the complainant to the opposite party.

Ex.A32         claim forms along with receipt issued by the Commissioner for W.C

To A122       Covering letter with Form A submitted to the Commissioner for W.C, Award, Letter received from the Commissioner for Workmen Compensation , covering letter with initial report and Site Engineers Report of the deceased / injured workers.

DOCUMENTS MARKED FOR OPPOSITE PARTIES:

Ex.B1           Copy of order passed by the District Forum Ranga Reddy in C.D.No. 109 of 2004, dated 21.10.2005.

Ex.B2           Terms and conditions of Policy.

C. C. 55/2004

Documents marked for complainant:

Ex.A1           Insurance policy

Ex.A2           Certificate of incorporation

Ex.A3           Certificate dated 01.09.2004

Ex.A4           Letter dated 10.01.2002 addressed by the complainant company

                   to opposite party no.1

Ex.A5           Letter dated          09.02.2004 addressed by the complainant company to opposite party no.2 to settle all their claims.

Ex.A6           Letter dated          22.03.2004 addressed by the complainant company to opposite party no.4 to settle all their claims.

Ex.A7           Letter dated          28.01.2003 addressed by the complainant company to opposite party no.2 for settlement of the claims.

Ex.A8           Letter dated          04.02.2003 addressed by the complainant company to opposite party no.2 for settlement of the claims

Ex.A9           Letter dated          16.04.2003 addressed by the complainant company to opposite party no.3 for settlement of the claims.

Ex.A10         Letter dated          30.12.2003 addressed by the complainant company to opposite party no.4 for settlement of claims.

Ex.A11         Letter dated          06.02.2004 addressed by the complainant company to opposite party no.4 requesting to take action to arrange to settle the claims of complainant company.

Ex.A12         Letter dated          14.08.2004 addressed by the complainant company to opposite party no.4

Ex.A13         Letter dated          24.05.2004 addressed by the complainant company to opposite party no.3

Ex.A14         Letter addressed by the opposite party no.4, dated 25.02.2004 to the complainant.

Ex.A15         Letter addressed by the opposite party no.3, dated 31.03.2004

to the complainant.

Ex.A16         Letter addressed by opposite Party No.4, dated 26.08.2004 to the complainant regarding receipt of letter dated 14.08.2004.

Ex.A17         Letter addressed by the complainant to the Commissioner for Workmen Compensation & Asst. Commissioner of Labour dated 5.01.1998.

Ex.A18         Letter addressed by the complainant to the Commissioner for Workmen Compensation & Asst. Commissioner of Labour dated 30.12.2000

Ex.A19         Letters addressed by the complainant to the Commissioner for

To                 Workmen Compensation & Asst. Commissioner of Labour ,

A21               dated 16.06.2000

Ex.A22         Letters addressed by the complainant to the Commissioner for

To                 Workmen Compensation & Asst. Commissioner of Labour dated

A25              23.10.2010

Ex.A26         Letters addressed by the complainant to the  Commissioner for

And               Workmen Compensation & Asst. Commissioner of Labour dated

A 27             23.10.2000.

Ex .A28        Letters addressed by the complainant to the Commissioner for

And               Workmen Compensation & Asst. Commissioner of Labour dated

A 29              04.04.2001

Ex.A30         Letter dated 9.9.1998 addressed by the opposite party to the complainant enclosing six claim vouchers.

Ex.A31         Covering letter dated 30.09.2008 addressed by the opposite party to the complainant.

Ex.A32         Settlement intimation vouchers.

To 40

Exs.A41       Copies of claim forms along with medical reports, memorandum of

To A240       agreement , C&D Forms, covering letters with initial report and site Engineers report of injured workers.

DOCUMENTS MARKED FOR OPPOSITE PARTIES:

Ex.B1           Copy of order passed by the District Forum Ranga Reddy in C.D.No. 109 of 2004, dated 21.10.2005.

Ex.B2           Terms and conditions of Policy.

C. C. 56/2004

Documents marked for complainant:

Ex.A1           Insurance policy

Ex.A2           Certificate of incorporation

Ex.A3           Certificate dated 01.09.2004

Ex.A4           Letter dated 10.01.2002 addressed by the complainant company

                   to opposite party no.1

Ex.A5           Letter dated          09.02.2004 addressed by the complainant company to opposite party no.2

Ex.A6           Letter dated          22.03.2004 addressed by the complainant company to opposite party no.4

Ex.A7           Letter dated          28.01.2003 addressed by the complainant company to opposite party no.2.

Ex.A8           Letter dated          04.02.2003 addressed by the complainant company to opposite party no.2

Ex.A9           Letter dated          16.04.2003 addressed by the complainant company to opposite party no.3.

Ex.A10         Letter dated          30.12.2003 addressed by the complainant company to opposite party no.4

Ex.A11         Letter dated          06.02.2004 addressed by the complainant company to opposite party no.4

Ex.A12         Letter dated          14.08.2004 addressed by the complainant company to opposite party no.4

Ex.A13         Letter dated          24.05.2004 addressed by the complainant company to opposite party no.3

Ex.A14         Letter addressed by the opposite party no.4, dated 25.02.2004 to the complainant.

Ex.A15         Letter addressed by the opposite party no.3, dated 31.03.2004

to the complainant.

Ex.A16         Letter addressed by opposite Party No.4, dated 26.08.2004 to the complainant.

Ex.A17         Letters dated 04.04.2001 addressed by the  Patel Engineering

To                 Limited to the Commissioner for Workmen Compensation &Asst.

Ex.A18           Commissioner of labour to return the copy of memorandum of agreement

                   .        

Ex.A19         Letter dated 15.12.2001 addressed by the complainant to the Commissioner for Workmen Compensation &Asst. Commissioner of Labour requesting to return the copy of Memorandum of agreement.

Ex.A20         Letters dated 30.11.2001 addressed by the complainant to the

To                 Commissioner for  Workmen Compensation & Asst . Commissioner

A21              of Labour  requesting to return the copy of memorandum of agreement.

Ex.A22         Letters  dated 05.01.1998 addressed by the complainant to the  Commissioner for  Workmen Compensation & Asst . Commissioner of Labour to return the copy  of memorandum of agreement.

Ex.A31         Letters  dated 27.03.2000 addressed by the complainant to the  opposite party enclosing the cheques for settlement of claims.

Ex.A32         claim forms along with receipt issued by the Commissioner for W.C.

To                 Covering letter with Form A submitted to the Commissioner for

A122             W.C .Award letter received from the Commissioner for Workmen compensation , covering letter with initial report and Site Engineers Report of the deceased / injured workers.

DOCUMENTS MARKED FOR OPPOSITE PARTIES:

Ex.B1           Copy of order passed by the District Forum Ranga Reddy in C.D.No. 109 of 2004, dated 21.10.2005.

Ex.B2           Terms and conditions of Policy.

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

                                                                                      Dt. 09. 09. 2010.

*pnr