PRAVEENBHAI S. KHAMBHAYATAversusUNITED INDIA INSURANCE COMPANY LTD. & ORS.

                      [2015) 2 S.C.R. 436


A             PRAVEENBHAI S. KHAMBHAYATA

                               v.

    UNITED INDIA INSURANCE COMPANY LTD. & ORS.

B               (Civil Appeal No. 1970 of 2015)

                     FEBRUARY 17, 2015

       [V. GOPALA GOWDA AND R. BANUMATHl,JJ.)
c      Workmen's Compensation Act, 1923 - s. 147 - Death
  of workman in the course of employment - Insurance
  company to indemnify the owner of the vehicle for death
  of a person who was employed by him in another vehicle
  - Liability of - Deceased employed as cleaner of one
0
  vehicle and while filling water in the radiator of another
  dumper, met with an accident resulting in fatal injuries -
  Labour court holding that the owners of the vehicle, jointly
  and severally liable to pay compensation along with 10%
E penalty and 6 % interest p.a. and insurance company not
  liable - High Court upheld the order - On appeal, held:
  Cleaner filled water in the radiator of vehicle only on the
  direction of the employer and thus, was working in the
  course of employment - The owner produced the insurance
F policy which covered the vehicle involved in the accident
  - Both the vehicles were parked in the same space, both
  were insured with the insurance company and the owner
  was one and the same and since the deceased being the
  cleaner and the claimants hailing from the lowest strata of
G society, insurance company directed to indemnify the owner
  for the death of deceased - Statutory rate of penalty is
  awarded at the rate of 15% and interest is awarded at the
  rate of 12% p.a. - s. 4-A (3)(a) and (b) - Constitution of

H                             436
  PRAVEENBHAI S. KHAMBHAYATA v. UNITED INDIA 437
          INSURANCE COMPANY LTD.

India, 1950 -Art. 142.                                     A
    Allowing the appeal, the Court

    HELD: 1.1 The insurance policy of a public
service vehicle is deemed to cover an employee
                                                     8
engaged in the said vehicle and the liability of the
insurance company to pay compensation for the death
or injuries sustained by the workman. Payment of
compensation for the death of workman or injuries
sustained by the workman is limited to the liability C
arising in the Employees Compensation Act, 1923.
[Para 9] [442-E-F]

     1.2 Considering the facts of the case, both the
vehicles were parked in the same space and it can be D
safely stated that the deceased cleaner was filling the
water in the radiator of vehicle no.GJ-3U-5391 only on
the direction of the employer and thus, the cleaner was
working in the course of employment. The High Court E
rejected the claim of the appellant on the ground that
the insurance policy of vehicle No. GJ-3V-7785 was not
produced but now since the appellant has produced
the insurance policy which covers the vehicle involved
in the accident which provides to indemnify the owner F
of the vehicle in case of any accident caused to the
workman limited to the extent of liability under
Workmen's Compensation Act. [Para 11] (443-E-H]

     1.3 Both the vehicles were insured with the first G
 respondent-insurance company and the owner being
.one and the same and since the deceased being the
 cleaner and the claimants hailing from the lowest strata
 of society, in exercise of our extra-ordinary jurisdiction H
438        SUPREME COURT REPORTS             [2015] 2 S.C.R.


A under Article 142 of the Constitution of India, it is
  appropriate to direct the first respondent-insurance
  company to indemnify the appellant for the death of
  deceased. [Para 12] [444-A-B]

 B     1.4 Having regard to the passage of time and in
   the interest of justice, statutory rate of penalty i.e.
   15% is to be ordered in addition to the statutory
   interest payable at the rate of 12% per annum. The
   1st respondent-insurance company shall pay the
 C amount of Rs. 3,25,365/- to the appellant which it
   has already deposited towards compensation. The
   impugned judgment of the High Court is set aside.
   [Paras 15 and 16] [446-C; 447-A-B]

D Ved Prakash Garg vs. Premi Devi & Ors. (1997) 8 SCC 1:
  1997 (4) Suppl. SCR 250; Oriental Insurance Company
  Ltd. vs. Brij Mohan And Ors. (2007) 7 SCC 56: 2007 (6)
  SCR 843; Deddappa & Ors. vs. National Insurance
  Company Ltd. (2008) 2 SCC 595: 2007 (13) SCR 287
E - referred to.

                      Case Law Reference

       1997 (4) Suppl. SCR 250       referred to.   Para 6

F      2007 (6 ) SCR 843             referred to.   Para 13

       2007 (13) SCR 287             referred to.   Para 14

     CIVIL APPELLATE JURISDICTION: Civil Appeal No.
G 1970 of 2015                              '

          From the Judgment and Order dated 16.04.2014 of
      the High Court of Gujarat at Ahmedabad in First Appeal
      No. 282 of 2014.

H         Jayant Mohan, Karan Mathur for the Appellant.
  PRAVEENBHAI S. KHAMBHAYATA v. UNITED INDIA 439
          INSURANCE COMPANY LTD.

    Maibam N. Singh, Himanshu Singh, Pramod Dayal for       A
the Respondents.

    The Judgment of the Court was delivered by

    R. BANUMATHI, J. 1. Leave granted.
                                                            B
     2. This appeal is preferred against the judgment dated
16. 04.2014 passed by the High Court of Gujarat at
Ahmedabad dismissing the appellant's First Appeal No.282
of 2014 observing that the Insurance Company was not
liable to indemnify him, thereby confirming the order dated C
11.11.2013 passed by the Commissioner for Workmen's
Compensation/Labour Court, Rajkot.

     3. The brief facts which led to the filing of this appeal
are as follows:- Proforma respondents 2-4/claimants, D
namely, Lalmani Yadav-father, Dashmiya Lalmani yadav-
mother and Janaki alias Babli Ramesh Yadav-wife of the
deceased, Ramesh Lalmani Yadav filed a claim petition
before Commissioner for Workmen's Compensation/Labour
Court, Rajkot, claiming compensation for the death of E
deceased Ramesh Lalmani Yadav on 20.05.2002 in the
course of his employment. On the fateful day of 20.05.2002,
deceased Ramesh Lalmani Yadav was working as a cleaner
in the vehicle bearing No.GJ-3V-7785, in the employment F
of the appellant and respondent No.5. In the afternoon at
about 12.30 p.m., deceased was filling water in the radiator
of the vehicle when suddenly the bonnet of the vehicle fell
down on the head of the deceased, as a result of which
he fell down and died. Stating that Ramesh Lalmani Yadav G
died in the course of his employment, respondents No.2 to
4 filed the claim petition claiming compensation of
Rs.4, 15,093/- and that appellant and respondent No.5-
lnsurance Company are liable to pay the compensation of
                                                            H
440         SUPREME COURT REPORTS               [2015] 2 S.C.R.


A     Rs.4, 15,093/-.

           4. Before the Commissioner, both the parties adduced
      oral and documentary evidence. Upon consideration of
      the records, the Commissioner held that FIR dated
B     20.05.2002 was lodged by the driver of the vehicle bearing
      No. GJ-3V-7785 in which it- was mentioned that on the
      fateful day while reversing the said vehicle he saw
      deceased putting water in the radiator of another vehicle
      bearing no. GJ-3U-5391 and that he slipped on the bonnet
C     of vehicle, fell on his head and deceased Ramesh Lalmani
      Yadav sustained injuries and died. The Labour Court/
      Commissioner held that the insurance policy produced
      before him was in respect of the vehicle GJ-3V-7785 which
      was not involved in the vehicular accident and therefore
D     Insurance Company-first respondent is not liable to pay
      the compensation. However, the learned Commissioner
      held that the appellant and respondent No.5 being the
      owner of the vehicle, were jointly and severally liable to
      pay the compensation of Rs.3,25,365/- along with 10%
E     penalty and annual interest at the rate of 6%.

       5. Being aggrieved, the appellant-owner of the vehicle
  preferred the first appeal in the High Court of Gujarat.
  Vide order dated 16.04.2014, the High Court dismissed
F the appeal filed by the appellant observing that since vehicle
  No.GJ-3V-7785 was not involved in the accident and that
  only vehicle No.GJ-3U-5391 was involved and since the
  deceased was employed as a cleaner was only in vehicle
  No. GJ-3V-7785, the insurance company is not liable to
G indemnify the appellant for the accident caused by the
  vehicle bearing No.GJ-3U-5391. In this appeal, the
  appellant seeks to assail the said judgment.

      6. Learned counsel for the appellant contended that
H both the vehicles, namely, GJ-3V-7785 and GJ-3U-5391
  PRAVEENBHAI S. KHAMBHAYATA v. UNITED INDIA 441
   INSURANCE COMPANY LTD. [R. BANUMATHI, J.]

were duly owned by the appellant and both the vehicles        A
were insured with the same insurance company viz. the
first respondent-United India Insurance company and while
so, the courts below are not justified in holding that the
first respondent-insurance company is not liable to
indemnify the appellant. It was submitted that the deceased   B
was an employee of the appellant in vehicle No.GJ-3V-
7785 and died during the course of the employment and
as such, the fact that he was employed in another vehicle
cannot exonerate the insurance company from indemnifying
the appellant. It was further submitted that under Section    C
147 of the Motor Vehicles Act 1988, being a beneficial
legislation and both the vehicles being insured with the
first respondent, the courts below erred in observing that
the insurance company is not responsible for any liability    D
even though under Section 147 of the Act. The insurance
company is bound to indemnify the appellant for the loss
occurring on account of the death of workman in the course
of his employment. In support of his contention, reliance
was placed upon Ved Prakash Garg vs. Premi Devi &             E
Ors. 1

    7. Learned counsel for the first respondent-insurance
company submitted that the deceased-Ramesh Lalmani
Yadav was employed as a cleaner only in the vehicle GJ- F
3V-7785 and since only GJ-3U-5391 was involved in the
accident, insurance company does not have any
responsibility to pay any compensation and to indemnify
the insurer and the courts below rightly exonerated the
insurance company from indemnifying the insurer.          G

   8. It is an admitted fact that the deceased was
employed as a cleaner in vehicle No. GJ-3V-7785 and on

1 (1997) s sec 1                                              H
442       SUPREME COURT REPORTS               [2015] 2 S.C.R.


A  perusal of the statement of Ramlallu D. Patel, the driver of
  the above-said vehicle, it emerged that the deceased was
   actually filling water in the radiator of the another dumper
   bearing No. GJ-3U-5391 and met with an accident and
  died due to the injuries sustained by him. The same is
B substantiated by the panchnama of the scene of the
  accident. From the written statement filed by fifth
  respondent - Viraj Krishna Techtonics Pvt. Ltd. Vijayrath,
  it is apparent that the employer has admitted that the death
  of Ramesh Lalmani Yadav was caused while he was filling
C water in the radiator of the vehicle bearing No. GJ-3U-
  5391 owned by him. Taking into consideration the facts of
  the case, it is evident that vehicle GJ-3V-7785 was not
  involved in the accident.

D      9. Vehicle No. GJ-3V-7785 was insured with the first
   respondent-insurance company under Section 147 of the
  Act. The insurance policy of a public service vehicle is
  deemed to cover an employee engaged in the said vehicle
  and the liability of the insurance company to pay
E compensation for the death or injuries sustained by the
  workman. Payment of compensation for the death of
  workman or injuries sustained by the workman is limited to
  the liability arising in the Employers Compensation Act,
F 1923. Since vehicle No.GJ-3V-7785 was not involved in
  the accident, insurance company was not liable to indemnify
  the owner of the vehicle towards the compensation payable
  to his employee - deceased-cleaner Ramesh Lalmani Yadav
  under Workmen's Compensation Act, 1923.
G      10. As noticed earlier, only the dumper bearing No.GJ-
  3U-5391 was involved in the accident. The insurance
  policy of the vehicle No.GJ-3U-5391 was not produced
  either before the Commissioner or before the High Court.
H Insurance policy of the said vehicle No.GJ-3U-5391 for the
  PRAVEENBHAI S. KHAMBHAYATA v. UNITED INDIA 443
   INSURANCE COMPANY LTD. [R. BANUMATHI, J.]

period from 13.09.2001to12.09.2002 was produced before         A
this Court. The accident was on 20.05.2002 during which
period the vehicle No. GJ-3U-5391 had a valid insurance
policy.

     11. The point falling for consideration is that even if B
the vehicle No. GJ-3U-5391 had a valid insurance policy,
whether the first respondent-insurance company is liable
to indemnify the owner of the vehicle for death of a person
who was employed by him in another vehicle. Insofar as
vehicle dumper        No.GJ-3U-5391, admittedly deceased- C
Ramesh Lalmani Yadav was not an employee and he was
only a third party. Onbehalf of the appellant, an argument
was advanced that since both the vehicles were insured
with the same insurance company viz., United India
Insurance Company and since Section 147 of the Motor D
Vehicles Act is a beneficial legislation, the insurance
company ought to have been held liable to indemnify the
insured. As contended by the appellant, both the vehicles
were insured with the respondent-insurance company and
both the vehicles are one and the same. Considering the E
facts of the case, bo~h the vehicles were parked in the
same space and it can be safely stated that the deceased ·
cleaner was filling the water in the radiator of vehicle no.GJ-
3U-5391 only on the direction of the employer and thus F
the cleaner was working in the course of employment.
The High Court rejected the claim of the appellant or1 the
ground that the insurance policy of vehicle No. GJ-3V-
7785 was not produced but now since the appellant has
produced the insurance policy which covers the vehicle G
involved in the accident which provides to indemnify the
owner of the vehicle in case of any accident caused to the
workman limited to the extent of liability under Workmen's
Compensation Act.
                                                                H
444         SUPREME COURT REPORTS                    [2015] 2 S.C.R.


A      12. Both the vehicles were insured with the first
   respondent-insurance company and the owner being one
  and the same and since the deceased being the cleaner
  and the claimants hailing from the lowest strata of society,
  in our considered view, in exercise of our extra-ordinary
B jurisdiction under Article 142 of the Constitution of India, it
  is appropriate to direct the first respondent-insurance
  company to indemnify the appellant for the death of
  deceased.

C          13. In a situation of this nature for doing complete
      justice between the parties, this Court has always exercised
      the jurisdiction under Article 142 of the Constitution of India.
      In Oriental Insurance Company Ltd. vs. Brij Mohan And
      Ors. 2 , this Court has held as under:-
D
          "13. However, Respondent 1 is a poor labourer.
          He had suffered grievous injuries. He had become
          disabled to a great extent. The amount of
          compensation awarded in his favour appears to
E         be on a lower side. In the aforementioned situation,
          although we reject the other contentions of Ms
          lndu Malhotra, we are inclined to exercise our
          extraordinary jurisdiction under Article 142 of the
          Constitution of India so as to direct that the award
F         may be satisfied by the appellant but it would be
          entitled to realise the same from the owner of the
          tractor and the trolley wherefor it would not be
          necessary for it to initiate any separate proceedings
          for recovery of the amount as provided for under
G         the Motor Vehicles Act.

          14. It is well settled that in a situation of this nature


H     2 (2007) 7 sec 56
  PRAVEENBHAI S. KHAMBHAYATA v. UNITED INDIA 445
   INSURANCE COMPANY LTD. [R. BANUMATHI, J.]

     this Court in exercise of its jurisdiction under Article   A
     142 of the Constitution of India read with Article
     136 thereof can issue suit directions for doing
     complete justice to the parties".

   14. In Deddappa & Ors. vs. National Insurance                B
Company Ltd. 3, it was observed as under:-

     "26. However, as the appellant hails from the lowest
     strata of society, we are of the opinion that in a
     case of this nature, we should, in exercise of our         c
     extraordinary jurisdiction under Article 142 of the
     Constitution of India, direct Respondent 1 to pay
     the amount of claim to the appellants herein and
     recover the same from the owner of the vehicle viz.
     Respondent 2, particularly in view of the fact that        D
     no appeal was preferred by him. We direct
     accordingly".

     15. Labour Court awarded compensation of
Rs.6,42,921/- along with 10% penalty and 6% interest E
per annum.      As per Section 4-A (3)(a) of the
Workmen's Compensation Act, where any employer
commits default in paying the compensation due
under the Act within one month from the date it fell
due, the Commissioner shall direct the employer to F
pay simple interest thereon at the rate of 12% per
annum or at such higher rate not exceeding maximum
of the lending rates of any scheduled bank as may
be specified by the Central Government. As per
Section 4-A (3)(b), in addition to the amount of G
arrears and the interest thereon, the Commissioner
shall direct the employer to pay further sum not
exceeding 50% of such amount by way of penalty.
3 c2ooai 2 sec 595                                              H
446        SUPREME COURT REPORTS                [2015] 2 S.C.R.


A     The legal representatives of the deceased employee
      are thus entitled to the statutory interest at the rate of
      12% and penalty not exceeding 50% of the amount of
      compensation. The Commissioner for Workmen's
      Compensation has awarded only 6% interest and 10%
8
      penalty as against the statutory entitlement of the
      dependents of the ueceased employee in terms of
      Section 4-A(3) of the Act.        Having regard to the
      passage of time and in the interest of justice, in our
c     considered view, statutory rate of penalty i.e. 15% is
      to be ordered in addition to the statutory interest
      payable at the rate of 12% per annum.

      16. The appellant has deposited Rs.3,25,365/- i.e.
0 the principal amount with the Labour Court/
  Commissioner for Workmen's Compensation, Rajkot •
  on 18.2.2014. The matter was listed before the Supreme
  Court Lok Adalat on 6.12.2014 wherein the appellant
  was directed to deposit the balance amount. The 1st
E respondent-insurance company shall deposit the balance
  compensation being 15% penalty and the interest at
  the rate of 12% after one month from the date when
  the compensation amount fell due and also 15% penalty
  with the Labour Court/Commissioner for Workmen's
F Compensation within a period of six weeks from today.
  On such deposit, the same shall be disbursed to
  respondents No.2 to 4. The amount of Rs.3,25,365/-
  already deposited by the appellant with the Commissioner
G for Workmen's Compensation shall also be disbursed
  to respondents No. 2 to 4 if not already disbursed.
  After disbursing the amount to the dependents No.2 to
  4, the Commissioner for Workmen's Compensation,
  Rajkot shall submit a report to this Court regarding
H
  PRAVEENBHAI S. KHAMBHAYATA v. UNITED INDIA 447
   INSURANCE COMPANY LTD. [R. BANUMATHI, J.]

compliance at an early date preferably not exceeding A
four months from today. The 1st respondent-insurance
company shall pay the amount of Rs.3,25,365/- to
the appellant which it has already deposited towards
compensation within a period of six weeks. The
impugned judgment of the High Court is set aside B
and the appeal is allowed in terms of the above
directions. In the facts and circumstances of the
case, we make no order as to costs.
Nidhi Jain                            Appeal allowed.   C