- (1.)THIS is a Writ Petition under Articles 226/227 of the Constitution of India. The petitioner is a Private Ltd. Company registered under No. SKM 5787 wherein, one Tirtha Tamang was employed as a cleaner. The said vehicle met with an accident on March 7, 1990 as a result of which Tirtha Tamang died. Respondent No. 1, being the widow of late Tirtha Tamang, filed a claim for compensation before the Commissioner for Workmen's Compensation and against the present petitioner and Respondent No. 2, the National Insurance Company Ltd. , where the said vehicle was insured. Both the petitioner and Respondent No. 2 filed their replies and contested the petition. Learned Commissioner after hearing the parties passed an award on July 22, 1993 holding that the dependents of the deceased workmen are entitled to an amount of Rs. 35,581/- as compensation and directed the petitioner to deposit the said amount with the Commissioner and further held that the Insurance Company cannot be made to pay the amount directly. He also observed that it was open to the employer to recover the amount by filing a suit in a competent Court if he so desires. It is against this order of the learned Commissioner that the present writ petition has been filed and the only prayer made therein is that the award should be modified to the extent that instead of the petitioner, Respondent No. 2 should be directed to deposit the compensation amount awarded by the Commissioner. Notices were issued to the respondents. Respondent No. 2 has filed a counter contesting the writ petition on the ground that the writ petition is not maintainable in the present form as well as in law and that the petitioner ought to have resorted to the remedy of appeal provided under Section 30 of the Workmen's Compensation Act (herein referred to as the Act of 1923 ). Respondent No. 2 has also asserted that the said vehicle did not belong to the petitioner as the registration is in the name of one J. K. Pradhan. It has further been submitted that the deceased Tirtha Tamang was not employed as a cleaner in the said vehicle.
(2.)I have heard learned counsel for the parties and also perused the records of the case.
(3.)LEARNED counsel for the petitioner has very vehemently submitted that the learned Commissioner seriously erred in law in not making the Insurance Company liable to pay the compensation. In this connection he drew my attention to Section 149 of the Motor Vehicles Act, 1988 which is similar to Section 96 (1) of the old Motor Vehicles Act of 1939. It provides that "if, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section. 147 (being a liability covered by the terms of the policy) is obtained any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable : thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgment. " In this connection, he drew my attention to Northern I. G. Insurance Co. v. Kanwarjit Singh, AIR 1973 All 357 and Kamala Devi v. Navin Kumar, (1972-II-LLJ-585) (Raj ). He has further submitted that since the petitioner is not challenging the amount of the : award, it was not necessary for him to file the appeal under the Workmen's Compensation Act as it is an admitted fact that the said vehicle was insured with Respondent No. 2. It was the Insurance Company who is liable to pay the compensation amount and since the Insurance Company was a party before the commissioner and it has not preferred any appeal against the award given by the Commissioner, this became final and the Insurance Company cannot challenge the same either on merits or on the quantum of the award and escape from liability.