FAO No. 623 of 1994 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 623 of 1994 Date of decision February 15 , 2011 The New India Insurance Company Ltd. ....... Appellant Versus Smt. Sudesh Rani and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. L. M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. Mr. D. S. Ganeriwala , Advocate for respondent Nos. 1 to 3 and Mr. B. S. Mittal, Advocate None for respondent Nos. 4 and 5. **** 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? K. Kannan, J (oral). 1. The question of law raised in this appeal filed by the insurer under the Workmen Compensation Act is the issue of liability to indemnify the transferor from the insured. In the instant case, the insured Mohan Lal had transferred the vehicle to Satya Bhushan. At the time of the accident the deceased was an employee under Satya Bhushan and the claim petition was filed before the Workmen Compensation Commissioner against the Satya Bhushan and sought for enforcement of the claim against the insurer as well. 2. It is contended on behalf of the Insurance Company by the learned Senior Counsel that the liability to indemnify will arise only to the insured if he was also the employer of the deceased. Admittedly in this case, the employer was Satya Bhushan and the policy of FAO No. 623 of 1994 2 insurance had itself not been transferred. If that is the accepted position then the law that would make the insurer liable and provide for a right of recovery under Section 149 (4) proviso and 149 (5) under the Motor Vehicles Act cannot apply in proceedings before the Workmen Compensation Commissioner. The liability for an insurer at the instance of the claimant before the Workmen Compensation Commissioner is a liability to indemnify the insured. If the insured had transferred the vehicle to another person and the deceased is under the employment of the transferee then the right of claimant shall properly be done only against his own employer and not the insurer of employer's transferor. Under the Workmen Compensation Act, the liability can be only under the terms of the policy and in terms of what the law would provide under the Act. The legal fiction created under Section 149(4) or 149 (5) or deemed transfer created under Section 157 of the Motor Vehicles Act will not apply. In National Insurance Company Ltd. Vs. Martan (2006) 2 SCC 641 and Guttuarukkala Appala Narasibuha Raju Vs. National Insurance Company Ltd. (2007) 13 SCC 46, the Supreme Court held that the restricted grounds under the MV Act shall not limit he grounds of defence for the insurer under the Workmen Compensation Act. 3. The award of the Commissioner is modified to allow for right of enforcement of the claim for the claimants against his employer namely Satya Bhushan who is arrayed as respondent No.4 in appeal. I notice from the record that fourth respondent has been served but despite service none has put in appearance. Counsel for the claimant states that there had been an interim order passed on 18.1.2006 permitting the claimant to obtain withdrawal of the amount deposited by the appellant before the Commissioner at the time of preferring the appeal. The counsel for the claimant states that the amount has already been withdrawn. Under the circumstances, the Insurance Company will enforce its right of recovery FAO No. 623 of 1994 3 against the fourth respondent and not against the claimant. 4. The appeal is allowed to the above extent. (K. KANNAN) JUDGE February 15 , 2011 archana