IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F . A O . N o . 4 7 7 o f 1 9 8 2 Date of Decision : November 18, 2008 Oriental Fire and General Insurance Company Limited, Karnal .....Appellant Versus Smt. Kesar Devi and another .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. Nishant Akshay Singh, Advocate for Mr. Vinod Chaudhri, Advocate for the appellant. None for respondent No 1. T.P.S. MANN, J. Shri Jage Ram was employed as a Coollie with Panipat Cooperative Sugar Mills, Panipat since the year 1967. On 21.4.1976, he was on duty in the Cane Department from 10.00 A.M. to 6.00 P.M. While on duty, he suffered heart attack and died due to the same at 5.15 P.M. Smt. Kesar Devi-respondent, widow of said Jage Ram, filed a petition under Workmen's Compensation Act, 1923 (for short 'the Act') claiming therein that the deceased was drawing a monthly salary of Rs. 340/- per month and, therefore, she was entitled to receive a sum of F.AO. No. 477 of 1982 -2- Rs. 9,000/- as compensation. Her claim petition was opposed by Managing Director of the Sugar Mill and so also by the Insurance Company. Smt. Kesar Devi-claimant also filed her rejoinder. On the basis of the pleadings, learned Commissioner framed the following issues :- 1. Whether the accident arose out of or in the course of employment of the respondent. (O.P.A.). 2. Whether it is the liability of the Insurance Company to pay the amount of compensation and respondent No. 1 is competent to realise the amount from respondent No. 2. 3. Relief. After going through the evidence led by the parties and hearing the arguments, learned Commissioner held that the death of Jage Ram occurred while he was on duty and Smt. Kesar Devi, along with her minor daughter aged five years, was entitled to receive an amount of Rs. 19,200/- as compensation, besides Rs. 2000/- as costs and interest. The appellant and respondent No. 2 were directed to deposit the entire amount within 30 days for payment to Smt. Kesar Devi and her minor daughter. Aggrieved of the said order, the Insurance Company filed the present appeal, which was admitted on October 19, 1982 and a direction was issued that the amount of compensation be released in favour of the F.AO. No. 477 of 1982 -3- claimant on her furnishing adequate security for its return in the event of the success of the appeal. Inspite of service, no one has appeared on behalf of either of the two respondents. Learned counsel for the appellant submitted that Jage Ram deceased died on account of heart failure, while he was taking water in the bath, therefore, the claimant-respondent failed to prove that the death was in connection with the duties. Undisputedly, Jage Ram deceased was working on weigh- bridge (Kanta) on 21.4.1976. According to Smt. Kesar Devi-AW1, her husband died at about 4/5 P.M., while he was on duty in Sugar Mills, Panipat. In her cross-examination, she feigned ignorance as to whether her husband died on account of heart attack or due to some other cause. She, however, admitted that her husband did not receive any injury. She also denied that her husband was not keeping good health. Further that her husband did not receive any injury while working on the machine, but she had learnt that her husband went to take water, when he collapsed and died. RW1-Nem Chand Goyal, General Assistant of the Sugar Mills admitted the fact that the deceased was an employee in the Mill and used to work at the weigh-bridge. According to him, the death of Jage Ram was on account of stoppage of his heart beat. He brought on F.AO. No. 477 of 1982 -4- record copy of post mortem report Ex. R-1. He then went on to state that the Mill was insured with the Insurance Company in view of the provisions of the Act and proved insurance policy Ex. R.2. According to him, the Insurance Company was liable to pay the amount of compensation in respect of every accident in the mill premises. There is no evidence that Jage Ram, since deceased, was not keeping good health or was a known case of heart problem. While on duty, he appeared to have suffered a heart attack and died on account thereof. This is clear from the post mortem report. It is not denied by any of the parties that the death of Jage Ram had taken place during the time when he was on duty in the Sugar Mills. Apparently, he suffered heart attack on account of stress and strain of the official duty, as he was not otherwise shown to be suffering from any other problem. Even otherwise, there is no material available on the file from which it could be even inferred that the death of Jage Ram was not the result of performance of duties. Learned counsel for the appellant then submitted that the liability of the Insurance Company to indemnify the insured in respect of any liability under this Act could only arise in case the employer was insolvent or making a composition or scheme of arrangement with his creditors or if the employer is a company, in the event of the company having commenced to be wound up. No such circumstances had arisen F.AO. No. 477 of 1982 -5- and, therefore, the Insurance Company was not liable to indemnify the insured, i.e. Respondent No. 2. Section 14 (1) of the Act reads as under :- “Section 14. Insolvency of employer – (1) Where any employer has entered into a contract with any insurers in respect of any liability under this Act to any workman, then in the event of the employer becoming insolvent or making a composition or scheme of arrangement with his creditors or, if the employer is a company, in the event of the company having commenced to be wound up, the rights of the employer against the insurers as respects that liability shall, notwithstanding anything in any law for the time being in force relating to insolvency or the winding up of companies, be transferred to and vest in the workman, and upon any such transfer the insurers shall have the same rights and remedies and be subject to the same liabilities as if they were the employer, so, however, that the insurers shall not be under any greater liability to the workman than they would have been under the employer.” Policy of Insurance Ex. R.2 is available on the record. It was clearly stipulated therein by the appellant-Insurance Company that if at any time during the period of insurance, any employee in the insured's immediate service sustained personal injury by accident or disease arising out of and in the course of his employment by the insured in the F.AO. No. 477 of 1982 -6- business and if the insured was liable to pay compensation for such injury either under the law(s) set out in the schedule or at common law, then the Insurance Company would indemnify the insured against all sums for which the insured was liable. Schedule to the insurance policy contained the mention of Workmen’s Compensation Act, 1923, including its amending Act as well as the Indian Fatal Accident Act, 1855. There was no requirement of the insurance policy that the Insurance Company was to indemnify the liability of the insured only if the insured had become insolvent or the company had commenced to be wound up. The only exceptions contained in the insurance policy, as noted therein, are as under :- “Exceptions The Company shall not be liable under this Policy in respect of - (a) any injury by accident or disease directly attributable to war, invasion, act of foreign enemy hostilities (whether war be declared or not ) civil war, mutiny, insurrection, rebellion, revolution or military or usurped power (b) the Insured's liability to employees of contractors to the Insured (c) any employee who is not a “workman” within the meaning of the Law(s) F.AO. No. 477 of 1982 -7- (d) any liability of the Insured which attaches by virtue of an agreement but which would not have attached in the absence of such agreement (e) any sum which the Insured would have been entitled to recover from any party but for an agreement between the Insured and such party (f) any compensation for diseases mentioned in Part “C” of Schedule III of the Workmen's Compensation Act, 1923, which have been brought within the scope of that Act by the Workmen's Compensation (Amendment) Act, 1959.” Nowhere in the Exception Clause any stipulation was made that the liability of the Insurance Company would arise only in the event of the employer/insured becoming insolvent or the Sugar Mill itself was to be wound up. In such a situation, provisions of Section 14(1) of the Act were not applicable to the facts and circumstances of the case. Even otherwise, Section 14(1) of the Act does not absolve the Insurance Company of its liability to pay the compensation amount. Instead, it only enables the Insurance Company to step into the shoes of the insured in the event of the employer becoming insolvent or making a composition or scheme of arangement with his creditors or, if the employer is a Company, in the event of the Company having F.AO. No. 477 of 1982 -8- commenced to be wound up. Under any of these situations, the rights of the employer against the insurance Company gets transferred to and vests in the workman. Considered from this angle, the argument submitted on behalf of the appellant that the Insurance Company was not liable to indemnify the insured unless and until the employer became insolvent cannot be accepted. No other point has been urged on behalf of the appellant. The impugned order passed by the learned Commissioner under Workmen's Compensation Act, 1923 was based upon proper appreciation of the pleadings submitted by the parties and the evidence led by them on all the three issues. No case is made out for interference in the impugned order. The appeal, being without any merit, is, resultantly, dismissed. No order as to costs. ( T.P.S. MANN ) November 18, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO