First Appeal No.230 of 2013

11th June, 2014

Petitioner Counsel: Shri. PRAMOD C. MAYURE
Respondent Counsel: Shri. P.S. AGARWAL, Shri. M.S. KULKARNI

Cases Cited:
United India Insurance Company Ltd. Vs. Kamla Behan, ACJ-2008-0-1076 [Para 7]
Vikram Greentech (I) Ltd. Vs. New Ind Assurance Co. Ltd., 2009 ALL SCR 1796 =(2009) 5 SCC 599 [Para 7]
Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Company Ltd., 2011(1) ALL MR 453 (S.C.) =2010 BCJ 254 [Para 8]

JUDGMENT

JUDGMENT :- Admit.

2. Notice after admission made returnable forthwith by consent. Heard all the sides.

3. The appeal is filed against judgment and order of WCFA No.5/2010 which was pending before the Ex-officio Commissioner for Employee's Compensation at Parbhani (Civil Judge, Senior Division, Parbhani, working as Ex-official Commissioner). In the proceeding filed by the present appellants for compensation in respect of the death of their son, Laxman, compensation of Rs.3,29,925/- with interest at the rate of 12% per annum is granted and a direction is also given to pay penalty of Rs.1,64,963/- to the present appellants. However, this order is made only against respondent No.1, the employer of the deceased and as the order is not made against respondent No.2, Insurance Company, the decision is challenged.

4. The accident took place in the premises of Agricultural Produce Market Basmat where the deceased was doing work of loading cotton bales in truck. Deceased came under the cotton bales, sustained severe injuries and he died due to those injuries. The Insurance Company defended the matter by contending that as per the contract of insurance, the place where the accident took place was not covered and the insurance policy was purchased by the employer only in respect of Hingoli Tahsil. The Commissioner has accepted this defence and has held that the Insurance Company is not bound to indemnify the employer.

5. The employer, respondent No.1, filed Written Statement and claimed that risk of his labour working at that place was covered under the policy. Both the employer and the Insurance Company produced copies of policies. In the copy of policy it is mentioned that the employees of respondent No.1 working at Hingoli Tahsil will be covered under the policy. Respondent No.1, employer, has admitted in the evidence that there is such specific mention in the policy though he has contended that he had requested to give policy in respect of entire Hingoli District. His evidence shows that the policy document at Exhibit 23 was not the first policy but it was a renewal policy and the previous policy was having the same terms and conditions.

6. The Insurance Company has examined its Branch Officer from Parbhani Branch and he has given evidence that the policy was in respect of the employees of the respondent No.1 working only in Hingoli Tahsil and so in the present matter, the Insurance Company is not bound to indemnify the respondent No.1. His evidence in the cross-examination shows that all the terms and conditions of the previous policy were continued in the subsequent document i.e. the policy in question.

7. Learned counsel for the appellants and the employer submitted that the circumstance that the proposal form was not produced by the insurance company before the Commissioner needs to be used against the Insurance Company. It was submitted that on the basis of the proposal form it can be ascertained as to whether the insurance was given in respect of the entire Hingoli District. In support of the contention reliance was placed on some reported cases like ACJ-2008-0-1076 (United India Insurance Company Ltd. v. Kamla Behan) (Delhi High Court); and, (2009) 5 SCC 599 : [2009 ALL SCR 1796] (Vikram Greentech (I) Ltd. v. New Ind Assurance Co. Ltd.). In the second case, in view of the facts of that case, the Apex Court had observed that document like proposal form is a commercial document and being an integral part of policy, reference to proposal form may not be only be proper but rather essential. To ascertain as to whether there is inconsistency in the proposal form and in the terms and conditions of the policy, the two documents were compared by the Apex Court. In the first case, the Delhi High Court has observed that generally proposal form is the foundation of the contract of insurance and when required, the Insurance Company needs to produce that form before Court for consideration. There cannot be any dispute over the proposition made in these two reported cases.

8. In the present case the document of policy and the aforesaid evidence show that it was renewed policy and the previous terms and conditions of the policy were continued in the policy in question. Further, the terms and conditions of contract are embodied in the policy document and if there is inconsistency in the policy, contract and the document of proposal, preference needs to given to the terms and conditions of the contract, policy. In view of this circumstance, the case of the appellant and the employer is not acceptable. Learned counsel for the respondent-Insurance Company placed reliance on the case reported as 2010 BCJ 254 : [2011(1) ALL MR 453 (S.C.)] (Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Company Ltd.) (Supreme Court). In this case, the Apex Court has discussed similar situation and it is observed that rights and obligations are strictly governed by the terms of policy. There cannot be any dispute over this proposition. When as per the terms and conditions of the contract of insurance, only the Hingoli Tahsil was covered, Insurance Company cannot be made to pay compensation and indemnify the employer as the accident took place at other place. This Court holds that no interference is possible in the decision given by the Commissioner.

9. In the result, the appeal stands dismissed.

Appeal dismissed.