I love
elephants ! I simply adored ‘Azhwan’ the affable elephant at Thiruvallikkeni. The
passing away of the gentle giant in 1977
(14th Feb 1977) was indeed a very sad
event. Many of us wept. The mortal remains were kept for public viewing and
thousands came to pay floral homage to it. Triplicane cried on that day and thousands
accompanied the funeral cart. Have seen
the exhibition of relationship between temple at KachiVaradarajaperumal temple
and aSrivaishnavaite called ‘aanaikannan’ both enjoying a mutually great
relationship – there are legends of the elephant once turning wild, running
amok inside the temple, none able to enter for a day or so, collector issuing a shooting order but this Kannan
bringing the elephant under control, without any equipment or hurting the
pachyderm.
~a majestic tusker of Thrissur Vadakkunathar temple.
Misfortunes
can occur at any workplace harming those at work. Duty is cast on
the Employer to pay compensation arising out of personal
injury / death caused to a workman at such
workplace. Employees Compensation
Act [Workmen Compensation Act 1923
earlier] – provides for payment of compensation by the employer to his
employees (or their dependents in the event of fatal accidents) in respect of
personal injury due to accidents arising out of and in the course of their
employment. The beneficialenactment aims not at compensating the workmen the
wages, but provides for compensation for the injury or death. The amount of compensation depends on the
nature of the injury and the average monthly wages and age of workmen.
Here
is an interesting case decided by High Court of Kerala that dealt on various
aspects of WC – on who would fall within the purview of the act, what
constitutes workplace and how liability passes on to the Insurer. First the desktop Underwriter needs to come
out of the stereotype – the workplace need not be a posh Office or a factory –
it can be elsewhere too. It was an
appeal filed by a PSU Insurer against the victim and his employer, who was the
policy holder.
The appellant (Insurer) challenged the jurisdiction of the
Commissioner for Workmen's Compensation to pass an order allowing recovery from
the appellant, the compensation awarded to the workman, the first respondent. The fact of the case was the respondent here
(applicant before labourcommissioner) was
working as a mahout of the elephant by name "Dhananjaya" owned by the
second respondent. On 28.3.1998, while the applicant was engaged
in his work as a mahout at a festival of Maniyoor Temple, he fell down while he
was getting down from the top of the elephant as he was kicked by the
elephant.The applicant sustained injuries and was treated as an inpatient in
the Medical College Hospital, Kozhikode. He had to undergo a surgery, as he
sustained fracture of his right femur. Medical College Hospital, Kozhikode
certified that the applicant sustained disablement and it was assessed at 30%.
A sum of Rs.2 lakhs was claimed by the applicant as compensation. The employer,
who is the owner of the elephant, as well as the insurance company were made
opposite parties before the Commissioner. The Commissioner found, on evidence,
that the applicant is entitled to compensation of Rs.45,494.40.
The insurance
company was arraigned as one of the opposite parties on the ground of Insurance
Policy. The insurance company contended in the written statement that since no
policy was issued indemnifying the employer under the Workmen's Compensation
Act, the insurance company is not liable to pay compensation.The Commissioner
found that policy (exhibit) covers the claim for compensation by the mahout
under the Workmen's Compensation Act and, therefore, held that insurance company is liable to pay the
amount of compensation.Learned counsel for the appellant contended that the
Commissioner has no jurisdiction to fix the liability on the insurance company.
In WC Insurance
(Policy coverage) there exists no such denial – a policy in force covering the
employer, employer becoming liable arising out of an accident during and in the
course of employment – certain liability – but the difference here was it was
not a WC Policy but a Policy intended
for the protection of the elephant. The Policy did not provide coverage against
claim for compensation for the injury
sustained by the employee during the course of employment. It was also brought on record that WC policies
would not have a sum insured but the policy covering the elephant had one. It was contended by the Insurer that remedy,
if any, of the mahout is to approach the civil court.
The Counsel for 1st
respondent (victim mahout) contended that there is no such distinction in the
policy. The employer is liable and so,
the Insurer too. He also relied on the
decisions in New India Assurance Co. Ltd. V. R.Shridhara and another (1991
ACJ204) and United India Insurance Co. Ltd. V.Vasudevan (1989(1) KLT
366(F.B.)).
The policy filed as
exhibit shows that the certificate of
insurance is issued "for the insurance of elephant for the members of All
Kerala Elephant Owners' Association". As against the column "Name of
the insured", it is mentioned as "All Kerala Elephant Owner's
Association" and "K.GovindanChettiar". The period of insurance
is from 19.6.1997 to 18.6.1998.Name of the elephant and the description of the elephant are shown in the policy. As against
the column "purpose for which used", it is recorded as "temple
and timber". The total sum assured is Rs.4 lakhs. Under the head
"third party liability cover", there is a column as "mahout
coverage" and under the head "name of the mahout", it is
recorded as "2 unnamed mahouts".
The policy followed an agreement
executed between All Kerala Elephant Owners' Association and the insurance
company, termed as "master policy agreement for group elephant insurance
scheme. It specifies "third party
liability" and there is "mahout cover" as well. The Assistant
Divisional Manager of the Company, who was examined as RW1, admitted in
evidence that the policy was given for covering personal accident injury and
death of two mahouts employed by GovindanChettiar and that the mahouts are
insured for a sum of Rs.2 lakhs each. He also stated in evidence that the
policy in question covers injuries sustained by mahouts due to attack made by
the elephant.
Section
2(1)(n) of the Workmen's Compensation Act defines `workman'. Sub-clause (ii)
therein is relevant, which is extracted below:
"2.
Definitions: (1) .............
(n)
"workman" means any person who is -- ..........
(ii)
employed in any such capacity as is specified in Schedule II, whether the
contract of employment was made before or after the passing of this Act and
whether such contract is expressed or implied, oral or in writing; but does not
include any person working in the capacity of a member of the Armed Forces of
the Union; and any reference to a workman who has been injured shall, where the
workman is dead, include a reference to his dependants or any of them."
Schedule
II of the Workmen's Compensation Act contains the "list of persons who,
subject to the provisions of Section 2(1) (n), are included in the definition
of workmen". Entry (xxii) therein reads thus:
"The
following persons are workmen within the meaning of section 2(1)(n) and subject
to the provisions of that section, that is to say, any person who is --
.........
(xxii)
employed in the training, keeping or working of elephants or wild
animals;"A mahout is certainly a person who comes under the category
mentioned in entry (xxii) of Schedule II of
the Act. The Chambers Dictionary defines mahout as "the keeper and
driver of an elephant". Webster's New Dictionary and Thesaurus gives the
meaning of mahout as "elephant driver".
The scheme of the Act is that the Commissioner
has to decide the question as to the liability of any person to pay
compensation and no civil court shall have jurisdiction to settle, decide or
deal with any question which is required to be settled, decided or dealt with
by the Commissioner. If the workman institutes a suit for damages, he is not
entitled to file an application under the Workmen's Compensation Act. If a
workman has instituted a claim for compensation before the Commissioner, he is
not entitled to institute a suit for damages. This provision provides for the
election of the forum by the workman. It does not provide for a defence for the
employer to contend that the workman should have resorted to the remedy which
he has not resorted to. The option lies with the workman and not with the
employer.
It was held by the
Honble High Court that the contention of the Insurer that the Commissioner has no jurisdiction to
direct recovery of the amount of compensation from the insurer, was not
accepted. The Court further held that
the contention of the appellant that their policy does not cover the claim for
compensation by mahout and also that a group insurance policy cannot be availed
of by an individual workman in respect of the injury sustained by him, is also
without substance. It was held that
going by the terms of the policy read along with the agreement – it was clear
that the Insurer is liable to compensate
the insured in respect of the personal injury sustained by the mahout in the
course of his employment under the insured as a mahout.
Whether it is a
group insurance or individual insurance, it does not affect the coverage and
the insurer is not entitled to dispute its liability on the ground that it is a
group insurance. The purpose of insurance is clear from the agreement. Whether
the All Kerala Elephant Owners' Association approached the insurance Company or
whether the individual owner of the elephant approached the insurance Company
for insurance coverage is not at all relevant in fixing the liability of the
insurance company as an insurer. The question is whether insurance company is
liable at all, in terms of the policy. Such liability is not dependent on
whether it is individual policy or group policy. The
nomenclature of an insurance policy is not always decisive and the rights
conferred on the workmen under the Workmen's Compensation Act cannot be taken
away by the nomenclature of an insurance policy.In New India Assurance
Co. Ltd. V. R.Shridhara and another : 1991 ACJ 204, the Karnataka High Court
considered a similar question and held thus:"That the insurance company
has different types of policies including the one under the provisions of the
Workmen's Compensation Act, is not a defence to absolve itself from paying
under the miscellaneous group insurance as in the instant case. That will be
helping technical defence which this Court will not countenance."
The
Kerala Court held that they are in agreement with the view taken by the
Karnataka High Court and held that the contention of the appellant that impugned
policy is not sufficient to cover the claim for compensation for the injury
sustained by the mahout in the course of his employment, is unsustainable. The appeal was dismissed with costs.
Not
sure whether Insurers agitated further or accepted liability as the quantum was
not big enough to challenge though it might appear that they have been called
upon to pay under a Policy intended to cover elephant and additionally injuries
to mahout. This policy certainly was not
intended to cover the employer’s liability, yet, the Insurers lost their cause
– may be for reasons that their defence was not strong or the facts were not
well – presented.
Interesting
indeed and offers so much learning for the Insurer as also others who read this
judgement.
With
regards – S. Sampathkumar
Citation : MFA No. 810 of 2002(B) ~ High Court of
Kerala, The Oriental Insurance Co.Ltd vs Kuttan Nair on 9 January, 2007
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