c'^^ IN THE HIGH COUKT OF CHHATTE GABH i¥ BIL/SPUR. R . F !fH)iH!i!SS H^^^ siiiijayiis .ygtiiiiaiig F.A.NO..I.;.'...OF 2003. -^^^^ "Vimal chand Naha Roy, l<^i^^ir&r'1 '^s ;^ RESP01TOENTS DEFENDANTS S/o. late Shri Manindra Nath _Naha Roy> aged absut 58 yrsa R/Oo Haldi Badi.pollce Statien 3~ Chirmiri, Distt, Koriya (C.G.) VE RS U S 1. New Xndia Insurance co^.ltd. _? New India Insurance Building 87, Mahatma Road, Bombay - 400023. ^ ,<^' i^/ /<^^!f ^^ _<<" sP ^ / ^.<. '^>' 2.^ New Indla Insurance co.ltd. Transport Nagar, KORBA, Oistt. Bilaspur (C.G.). 3. •7 4 ?- General Manager, South;, Eastem osal Pield Itd, Ohirmlri Area> chirmirii Distt. Koriya (C.G.). sub Area Manager, Chirmiri colliery» Teh, Manendragarh, Distt. Koriya, °, 5» smt. Mabago Bai, D/o. iate Nanram, 6. smt. Dhaneshwari Bai> D/o. late Nanram» Res« no. 5 & 6 R/o. Jainagar Teh, Surajpur, Distt. Sarguja, FIRST APPEAL U/s. 96 OF THE CODE OF CIVIL PROCEDU'RE Clalm in appeal ;RS. 76,332.00 ^••: Csurt Fee Paid ;Rs. 6420.00 contd.,. 2.. . •\ rj A ^^v~ IN THE HIGH COUKT OF CHHATTE GAKH 5' BILASPUR. ^moi" RBin'iR s agaijiyt F.A.NO..l.:r...OF 2003. APPELLANT 'h.^UlcA.li'—- _ 1. Prabir Kumar Naharoy, S/o Late Shri M.N, PLAINTIFF ^'•^^^ 'i^V^"" Ul-'^ib'll ,£: 81" lite.. ^ ;;-'';i^' ,-2<C^2. Ashim Naharoy, S/o Shri M.N. Roy, aged ^^^'^ I- m -\ ": , \ :'!S, 9. ^: ^ J'IJ g^ /\^ .i HIGH COURT OF CHHATTISGARH, BILASPUR FIRST APPEAL No. 145 OF 2003 ^ APPELLANTS PLAINTIFFS Prabir Kumar Naharoy and another -Versus RESPONDENTS BEFENDANTS New India Insurance Co. Ltd. and others. JUDGMENT Post for pronouncement ofJudgnient '>" -9-2011 Sd/- N.K.Agrawal Judge ^-9-2011 Y HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANTS PLAINTIFFS First Appeal No. 145 of 2003 : Prabir Kumar Naharoy and another. RESPONDENTS DEFENDANTS Versus New India Insurance Co. Ltd. and others. !V/ SB:- HON. SHRI N.K. AGARWAL. J. PRESENT:- Shri Prafulla N. Bharat, counsel for the appellants. Shri Shree Kumar Agrawal, Senior Counsel with Shri A.K.Gupta, counsel for respondent No.2. Shri H.B.Agrawal, Senior Counsel with Mrs. Meera Jaiswal, Counsel for respondents No. 3 85 4. JUDGMENT (5'-9-2011) 1. The instant appeal filed under Section 96 of Code of Civil Procedure (for short 'the Code') is directed against the judgment and decree dated 28.03.2003 passed by the Additional District Judge, Manindragarh, District Koriya in Civil Suit No. 4-B/1996 whereby and whereunder the plaintiffs'-suit for recovery of Rs.76,332/- along with interest has been dismissed. 2. Facts of the case in brief are as under :- (i) Plaintiff was a transport contractor engaged by respondents No.3 & 4 vide agreement dated 31st March, 1992 to transport coal from 'O' seam Chirimiri Colliery underground mine to Chirimiri Railway siding. (ii) During transportation of coal, one of the tippers bearing registration No. M.P. 23B/4392 owned by the plaintiff met with an accident on 01.01.1993, in which, one Nanha Ram died on account of the injuries sustained by him in the said accident. (iii) Admittedly, the deceased Nanha Ram was working under the employment of defendants No.3 & 4 at the time of accident. (iv) It is also not in dispute, the tipper in question was insured with respondent No.l - the New India Insurance Company Limited w.e.f. 22.02.1993 upto 21.02.1994 vide policy No. 31121400 33236. (v) Vide letter dated 02.11.1993 (Ex.P.26), Sub Area Manager, Chirimiri Colliery, respondent/defendant No.4 directed plaintiff to pay compensation to the legal representatives of the deceased in order to avoid stopping of movement of the vehicle as fellow workers of the deceased become very much aggrieved and have blocked the road and there is also chance of stoppage ofwork at mine site. (vi) Vide letter dated 28/29.01.1994 (Ex.p.23), defendant No.4 directed the Finance Manager, Chirimiri Colliery to deposit Rs.51,332/- deducted from plaintiffs first on account bill with the Commissioner for Workmen's Compensation. (vii) Vide letter dated 12.03.1994 (Ex.P.18), defendant No.4 informed plaintiff regarding deduction of Rs.51,332/- from his bill towards payment of compensation to the legal heirs of the deceased and regarding its decision to deduct further amount of Rs.25,000/- from his bill towards LCS and Ex- gratia, payment to be made to the legal representatives of the deceased - Nanha Ram. l^v\ (viii) Vide letter dated 24/25.04.1994, defendant No.4 informed plaintiff regarding deduction of further amount of Rs.25,000/- from his running bill. (ix) Vide Ex.D-2, the final bill was paid to the plaintiff. (x) The above deducted amount of Rs.76,332/- was demanded by the plaintiff by sending demand notice (EX.P-2). (xi) In reply to above notice (Ex.P.2) sent by the plaintiff, defendant No.4 denied the claim of plaintiff and stated, the amount in dispute was deducted from plaintiffs bill for the purpose of depositing the same with the Commissioner for Workmen's Compensation as defendant No.4, being principal employer, was duty bound to deposit the same with the Workmen's Compensation Commissioner. It was further stated, defendant No.4 has legal right to deduct the amount from the bill of the contractor and deposit the same with the Commissioner for Workmen's Compensation in case of death of any person. Hence, the suit in question was filed by the plaintiff for recovery of Rs.76,332/- along with interest at the rate of 18% per annum. (xii) Defendants No. 3 SE 4, by filing written statement, denied the plaintiff's claim and pleaded, plaintiff can recover the above amount from the insurer of the tipper i.e. the New India Insurance Company Limited. 3. The learned trial Court framed issues. Plaintiff examined himself and no evidence was adduced by the defendants. 4. The learned trial Court dismissed the suit finding inter alia: defendants No. 3 & 4 deducted Rs.76,332/- from s plaintiffs bill with his consent and plaintiff is estopped from claiming above amount. 5. During pendency of the above suit, the claim petition preferred by the legal representatives of the deceased - Nanha Ram by filing claim petition under Section 166 of the Motor Vehicles Act before the Additional Motor Accidents Claims Tribunal, Surguja, was allowed vide award dated 30.10.1999 and a sum of Rs.7,59,880/- has been awarded to the legal representatives of the deceased - Nanha Ram as compensation for his death in the said motor accident on 01.11.1993 holding plaintiff, his driver and respondent/the New India Insurance Company Limited jointly and severally liable for payraent of compensation. 6. During pendency of the appeal, original plaintiff i.e. Vimal Chand Naha Roy died and his legal representatives were substituted in his place. 7. Shri Prafulla N. Bharat, learned counsel appearing for the appellants would submit: on the face, the amount deducted by defendants No.3 & 4 was not legally deductible from plaintiff's bill inasmuch as the deceased Nanha Ram was not the employee of the plaintiff but indisputably was employee of defendant No. 4; plaintiffs consent for deducting the above amount from his bill was obtained by applying undue pressure upon him; the conduct of defendants is not equitable; and the learned trial Court has fallen in error in dismissing the plaintiff's suit. 8. On the other hand, Shri H.B.Agrawal, learned Senior Advocate appearing with Mrs. Meera Jaiswal for respondents No. 3 & 4 would submit: the learned trial Court, in the facts and circumstances of the case, has rightly held, the plaintiff % v^^! ''^assaf' is estopped from challenging the above recovery and has rightly dismissed the suit. 9. I have heard learned counsel for the parties and perused the record of the trial Court including the judgment and decree impugned. 10. A bare perusal of pleadings of the parties and the evidence led would reveal: the deceased Nanha Ram was a workman working under the employment of respondent No.4 at the time of accident. Under Section 3 of Workmen's Compensation Act, the liability to deposit compensation with the Commissioner for Workmen Compensation is of the employer. Therefore, so far as Workmen's Compensation Act is concerned, the liability to deposit the amount of compensation, if at all, was of respondent No.4 and not of the plaintiff. 11. The legal representatives of the deceased Nanha Ram had recovered compensation from the insurer of the tipper in question vide award dated 30.10.1999. 12. Only because the plaintiff has accepted final bill, the same would not mean that he was not entitled to raise any claim. The defendants have neither led any evidence nor have asked any question that plaintiff has accepted the final bill Ex.D.2 with the unequivocal statement that he would not raise any further claim. In the absence of above, the plaintiff is not estopped or precluded from raising any claim.. 13. Estoppel is based on the principle that it would be most inequitable and unjust that if one person, by a representation made, or by conduct amounting to a representation, had induced another to act as he would not otherwise have done, the person who made the representation could not be allowed to deny or repudiate the effect of his former statement, to the loss and injury of the person who acted on it. Section 115 of the Evidence Act is based on equity and good conscience the object being to prevent fraud and secure justice between the parties by proraoting honesty and good faith. The principle of estoppel is not raeant to take benefit of ones own wrong. Admittedly, the deceased was workraan working under the employment of respondents No.3 8s 4. If there was any duty to deposit the amount with the Commissioner for Workmen's Compensation, then it was of respondents No.3 8s 4 and not of the plaintiff. By taking undue advantage of plaintiffs position, the respondents have deducted the amount from his bill not only of the compensation but towards life insurance scheme and ex-gratia payraent, for which, the only employer can be held responsible to deposit the compensation under Workmen's Compensation Act and not the third person. The respondents have neither led any evidence nor have asked any question that plaintiff has accepted the final bill Ex.D.2 with the unequivocal statement that he would not raise any further claim. 14. The deduction of amount of Rs.76,332/-, when examined in the context of above broad features of the case, in the considered opinion of this Court, the above amount has been illegally deducted by respondents No. 3 85 4 from the bills of plaintiff. This matter can be looked from another angle also. The vehicle was insured with the New India Insurance Company Limited and for any third party claim, the plaintiff was well secured under the third party policy issued by respondent No.l i.e. insurance company. The plaintiff, not being the employer of deceased Nanha Ram, was not liable to deposit the amount of compensation before the Commissioner for Workmen's Compensation. 15. For the reasons mentioned herein above, in the considered opinion of this Court, the trial Court went wrong in holding, plaintiff is estopped from clairaing the above amount, illegally recovered from plaintiff's bill by respondents No. 3 8s 4 and respondents No.3 85 4 are liable for payment of above amount to the plaintiff. 16. In view of the above, the appeal is allowed. The suit filed by the plaintiff is decreed against respondents/defendants No. 3 & 4. The respondents No.3 & 4 shall pay Rs.76,332/- to the plaintiff. The above amount of decree shall carry interest at the rate of 12% per annum from the date of suit till its recovery. 17. The respondents No.3 65 4 are granted two.months time for payment of above amount to the plaintiff. Costs of the suit as well as appeal shall be borne by respondents No. 3 & 4. 18. A decree be drawn accordingly. Sd/- N.K. Agrawal Judge