JUDGEMENT
Date - 10.10.2013
(Through Shri.Vinayak Raoji Londhe, President )
The complainant filed the present compliant for reimbursement of compensation of Rs.4,89,708/- as the respondent committed deficiency in the service and adopted Unfair Trade Practice.
Following are the brief facts given arise to the decision of complaint.
Complainant is the Class-I Government Contractor. Complainant is carried various construction works in the name & style of “Mall Enterprises Engineers and Contractors ” through out Maharashtra and other parts of the country. The complainant was doing the said business for the purpose of earning his livelihood by means of self employement.
One McNally Bharat Engineering Company Limited Kolkata has been given a contract to the complainant for completion of construction work within the premises of ideal energy project Ltd. village Bela Tq.Umred Dist.Nagpur (Bela Power Station situated at Nagpur)
The complainant has started construction work through its employees, workers and labours etc. The complainant has taken precaution for the safety of the employees. The complainant had obtained the comprehensive policy of its employees, workers, labours from the respondent insurance company, covering all risk against accident, fire, damages etc. The respondent insurance company had accepted the requisite premium and issued the policy bearing no. 161904/48/2012/516. The period and risk coverage under the policy was from 11.08.2011 to 09.11.2011. In pursuance of the policy the insurance company has undertaken to indemnify the complainant from all loss arising out of the risk covered under the policy.
It is the contention of the complainant that, one Ajay Prayag Choudhari was in the employment of the complainant, as a labour at Bela Power Station. The muster roll cum wages register was maintained by complainant. That, on 18.09.2011 at about 11.00 A.M. the said labour Ajay while performing his duties suddenly fell down while moving the centring plates from the ladder. The said Ajay has sustained grivious injuries and he sucuumb to death. The accident was reported to Police Station Bela. The accident was registered as 29/2011.
The complainant immediately gave information to the respondent by telephone as well as through Fax. The complainant has submitted the requisite claim papers and all necessary documents to the respondent.
It is the contention of the complainant that, deceased Ajay was age about 23 years. He was getting salary of Rs.3680/-per month. The alleged accident took place in the course of employment. The complainant was under duty to deposit the compensation to the dependents of deceased, as per the provisions of workmens compensation Act. The respondent company has not taken any action promptly. The complainant has deposited the compensation of Rs.4,04,708/-., in the court of Workmens Commissioner, Labour Court at Nagpur. After depositing the said compensation the dependents of the deceased has filed an application U/sec.8 of Workkmens Compensation Act for withdrawal of the said amount. The said application was registered at Misc.Appli.No. (W.C.A.) 89/2011. The Labour Commissioner, Nagpur disbursed the compensation amounts to the legal heirs. The complainant has intimated entire facts to the respondent and called the respondent to settle the claim. The respondent did not follow the rules and regulations in relation to the service. In spite of the furnishing all papers by making representation on several times, the respondent did not settle the claim. The complainant personally approached the respondent but the respondent avoided to settle the claim. The respondent issued pre-repudiation letter from 04.12.2012 and called the explanation about labour payment. The complainant has offered the explanation about contractual work and labour payment and requested the respondent reconsider the claim of complainant. The respondent has repudiated the claim of complainant, on the ground that, the complainant has obtaining insurance of Bela and various sites all over Maharashtra for Rs.58,44,000/- Whereas the total labour charges incurred by complainant for financial year is Rs.1,45,08,904/-. It was informed that, the complainant has conceal the material fact of labour payment and no declaration had been furnished. The respondent has repudiated the claim. The repudiated of claim is against the principle of natural justice rule and regulations. Complainant has neither contravened nor committed breach of the policy. The respondent has committed deficiency in the service and adopted Unfair Trade Practice in settling the claim and making payment to the complainant,. Which the complainant had paid under workmens Compensation Act. On above stated facts, the complainant as claim the sum of Rs.4,04,708/- with interest @ Rs.18 % p.a. in relation to the reimbursement to the compensation Rs.25,000/- towards the cost of litigation, the amount of Rs.50,000/- on account of the loss Rs.10,000/- the harrashment and Mental torture.
The respondent oriental Insurance company appeared before this Forum and contested the claim by filing Written Version at Exh.9. The respondent has submitted that, the complainant has obtained policy of employees from the respondent. The respondent has shown ignorance of death of one Ajay. The respondent further submitted that, respondent did not received any claim notice from Honble Workmens Compensation, Labour Court at Nagpur. The respondent did not received information from the complainant that he has deposited the compensation of Rs.4.04.708/-. It is further contended that, the complainant did not filed requisite documents though called repeatedly. It is further contended that, the respondent has rightly repudiated the claim due to suppression of material fact. There is no deficiency in the service. The respondent has submitted that, M/s Mall Enterprises has obtained policy from respondent for employees working in the premises of Bela Power Station and various sites located all over Maharashtra and construction work at Bigapur. The said policy was for Rs.58,44,000/-. It is further contended that, the complainant has incurred a labour charges for the financial year for Rs.1,45,08.904/- The complainant has concealed and suppressed material fact of the labour payment. Complainant did not give declaration and thus, the respondent has rightly repudiated the claim. The respondent was not party before Workmens Labour Commissoner. There is no deficiency in the service and thus, the insurance company urged the rejection of complaint.
The complainant in support of complaint filed Affidacit of Kisanlal Radhakisan Mall at Exh.12, Affidavit of Shrilal Kisanlal Mall at Exh.13, The complainant produced the documents with Exh.5. The respondent filed the affidavit of Deepak Bhima Sonwane at Exh.11. The respondent has produced documents with Exh.10. We have carefully gone through the evidence as documents relied by the parties. We have heard the argument of learned counsel of Shri.A.P.Palsokar for complainant and learned counsel of Shri.A.P.Kulkarni for the respondent.
Following points arise for determination, the same are answered against it for the reasons to follow,
POINT ANSWER
1. Whether the complainant proved that, the
Respondent has wrongly repudiated the claim and
Thereby committed deficiency in the service ? Yes.
2. Whether complainant is entitled for compensation
Prayed ? Yes.
3. What order ? As per final order.
REASONS
POINT NO.1 TO 3 :-
Following facts are admitted between the parties. It is admitted that, complainant has obtained the policy of the employee from the respondent. It is the admitted that, the Bela Power Station has given contract to the complaiant for Civil Fabrication Construction work in the premises of Bela Power Station. The complainant has obtained the policy from the respondent for the period from 11.08.2011 to 11.09.2011 for the workers working in the premises of Bela Power Station.
The learned counsel Shri.Kulkarni on behalf of respondent has vehemently argued that, insurance company was not party before the Commissioner of Labour when the compensation under Worksmen Compensation Act was paid. The learned counsel further urged that, the complainant has suppressed the material fact. Complainant has not made proper calculation regarding the wages of workers. The learned counsel urged that, the complainant has obtained the insurance for Rs.58.44.000/- whereas the complainant informed the respondent on dated 04.12.2012 that the total labour charges incurred by the complainant for financial year of Rs.1,45,08,904/-. It is urged that, the complainant has deliberately and knowingly concealed the material fact of labour payment at the time of submitting proposal. The complainant do not give declaration. It is urged that, complainant has contravene the condition of policy and thus, the respondent has rightly rejected the claim.
Per Conra, on behalf of complainant, the learned counsel of Shri.Palsokar has urged that, there is no suppression of material facts. The worker who died in the accident was insured with the respondent. After, the death of deceased it was statutory obligation of the employer to deposit the amount under Workmens Compensation Act within stipulated time. The legal heirs of the deceased had not instituted any proceeding. The employer had suo-moto deposited the amount. The complainant is entitled to recover the said amount from respondent because the liability is covered under the policy. The learned counsel further urged that, what declaration, the complainant has made with the respondent has no relation with the amount recoverable under Workmens Compensation Act. The term of suppressed does not apply in the instant case. The learned counsel urged that, the complainant has obtained an insurance policy against compensation for their workers. And thus, the complainant is entitled for the sum insurer from the respondent. On behalf of the complainant, the reliance is placed on following authority.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BOMBAY, CPR 1993 (2) page no.208, M/s Wadhel Water Proofing Company Vs. The United India Insurance Co. in the cited case it has been observed that, the claim was rejected by insurance company on the ground that, complainant contravened Rule 73 (F) (a) of Maharashtra Factories Rules, 1963 under such condition was mentioned in the policy. It is a deficiency in the service insurer is liabale to compensate complainant for loss.
Another case relied it repoted in UNION TERRITORY CONSUMER DISPUTES REDRESSAL COMMISSION, CHANDIGARH , III (2003) CPJ page no.40 CALCUTTA CONTRUCTION COMPANY Vs. SENIOR DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD. & ANR. Their Lordship has observed that, Workmen died during the course of employement while the award was made. The claimant was eligible for compensation and a direction was in the first place, issued to the complainant – Company to make payment alongwith the interest and thereafter, the complainant company would be entitled to make the claim before insurance company.
The learned counsel for the complainant urged that, liability to pay compensation under Workmens Compensation Act arises as soon as the accident has occurred for that purpose reliance is placed of authority reported in AIR 1976 SUPREME COURT 222.
The Honble Apex Court has held that in case of personal injury caused to workmen by an accident which arises out of and in the course of employement, unless the right to compensation is taken away under sub section (5) of section 3, the employer becomes liable to pay the compensation as soon as the aforesaid personal injury caused to the workmen.
On carefully condition the oral evidence and the documents filed by complainant and the respondent it appears that, the deceased Ajay Chaoudhari was in employment of the complainant as a labour at Bela Construction. The muster role was maintained. The complainant has obtained the policy of the Workmens working at Bela project. The policy was enforced when the deceased Ajay died in the course of the employment. Though the respondent has pleaded that, the complainant has suppressed the material fact. We do not found any substance in the said submission. Mere omission to informed the certain fact does not constitute breach of condition of policy. Respondent ought not to have rejected the claim under policy.
In case of Workmen died in the course of the employement. It is the statutory duty of the employer to make the necessary payment under Workmens Compensation Act. In the instant case in the hand the employer has promptly deposited the compensation under Workmens Compensation Act. No proceeding was initiated on behalf of deceased. It was after payment was deposited before the Commissioner under the Workmens Compensation Act.Labour Court at Nagpur an application was filed by the parents of the deceased U/sec.8 of Workmens Compensation Act for withdrawal of said amount. The Commissioner under Workmens Compensation Act was merely disbursed the said compensation by passing order in Misc.Appl. (W.C.A.) 89/2011. It is true that, before the Labour Commissioner insurance company was not made party, however, it was not necessary to have the insurance company as a party, because the employer who was bound by law to make the payment has deposited the said amount. The employer has obtained policy covering the risk of worker is entitled to recoverable the said amount from Insurance company.
We have gone through the stand taken by the insurance company. We find that, there was no legal justifiable in rejecting the claim made by complainant. The insurance company is bound to pay the compensation to the complainant. The risk of the Workmen was duly covered under the policy. And thus, we hold that, complainant is entitled to recover the amount of Rs.4,04,708/- from the insurance company. In addition to that, the complainant is entitled for the sum of Rs.5,000/- towards Mental agony and harrashment and Rs.3,000/- towards cost of litigation.
Accordingly, we answered point no.1 to 3 in affirmative and passed following order.
ORDER
1. The complaint is allowed.
2. The respondent is hereby order to pay the complainant sum of Rs.4,04,708/- (Rupees Four Lacks four thousand seven Hundred eight only) towards deficiency in service within 30 days of this order, failing which the complainant is entitled to recover the said amount with interest @ Rs.9% p.a. from the date of filing of complaint till realization of entire amount.
3. The respondent shall pay the sum of Rs.5,000/- towards Mental Agony and sum of Rs.3,000/- towards Cost of litigation.
4. The Complainant be returned the complaint set as per section 20 (3) Consumer Protection Act,.1986.
Smt.Manjusha Chitalange Shri.Vinayak Londhe
Member President
District Consumer Disputes Redressal Forum,Beed.
