Concept of 'Workman' Under the Workmen's Compensation Act, 1923

(By Valsamma Paul, M.A., LLM., Applied Economics, University of Cochin)

The Workmen's Compensation Act, 1923 is an Act, which provides for the payment of compensation by employer to his workman for injury by accident. It is a legislation, beneficial to workman and hence, the question. 'who is a workman?' assumes significance. In common parlance, a ‘workman' means a person who does manual work. 'Workman' under the Workmen's Compensation Act, 1923, however, has a wider connotation.

The use of the words 'employment' and 'employed' in the definition [1] suggests the existence of a master and servant relationship. This relationship is characterised by a contract of service. The indicia of contract of service are the master's power of selection of his servant, payment of wages or other remuneration, the master's right to control the method of doing the work and the master's right of suspension of dismissal [2].The prima facie test to decide the existence of master and servant relationship could be the master's right to supervise and control the work done by the servant not only in the matter of directing what work the servant was to do, but also the manner, in which it was to be done. The nature or extent of the control might vary from business to business and is by its nature incapable of precise definition [3].

It is the master's right to control the work of the servant that makes the latter a workman and distinguishes him from an independent contractor. In Hasbannessa v. Zahiruddin [4], the Calcutta High Court applied the test of control to the case of drivers. The court admitted that a driver can be a workman. But all drivers cannot be categorized as workmen. The driver, who hires out a car and has complete freedom during the period of hire to use the car for purposes and routes, as he may think best, with no control from the owner, is not a workman. This is because there is no employment and he does not have an employer. He is only a bailee of the taxi.

A contractor is a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons. But he will not submit himself to their control in respect of the details of work [5]. There is a clear-cut distinction between a contractor and a workman. An independent contractor is charged with a work, and has to produce a particular result. But the manner, in which the result is to be achieved, is left to him. A workman, on the other hand, may also be charged with a work and asked to produce a particular result. But he is subject to the directions of the master as to the manner, in which the result is to be achieved [6].

But the language of the definition of workman [7] does not import in the contract of employment powers of dismissal or power of direct superintendence or control. A coolie employed by a mistry for a specified remuneration on behalf of the principal to do the work of the principal is, therefore, a ‘workman’ under the Act. His employment by the mistry is a contract of service within the meaning of the definition [8].

The criterion of control came before the Supreme Court in Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments[9]. The Court laid down that for deciding the question of relationship of master and servant, the test of control over the manner of work is unrealistic. In its application to skilled and particularly, the professional work, the control test, in its traditional form, has really broken down.

The main chunk of the definition of 'workman' under the Workmen's Compensation Act focuses on a 'railway servant', who can be said to fall within the concept of 'workman' under the Act [10]. As per the definition, any person, who is a railway servant as defined in S.3 of the Indian Railways Act, 1890 [11], is a workman. But he must not be permanently employed in any administrative, district or sub-divisional office of a railway. Moreover, he must not be employed in any such capacity as is specified in Schedule II [12]. Accordingly, a person employed on a railway, in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle, is not a workman [13].

The definition excludes a railway servant, who has to work habitually and continuously in the office. If it can be established that the person concerned has to perform out-door duties in addition to his duties in the railway office, he would be a workman. This is manifest from the expression 'not permanently employed' in any administrative, district or sub-divisional office of a railway [14].

In order that a person may claim to be a workman within the meaning of the Act, he must, unless he is a railway servant and is covered under clause (i) of S.2(1)(n), prove that he comes under one or other of the clauses set out in Schedule II [15]. This Schedule gives a list of persons who are workmen within the meaning of clause (ii) of S.2(1)(n) of the Act. The words 'in any such capacity as is specified in Schedule IF clearly indicate that the list given in Schedule II is completely exhaustive and not illustrative. If the employment is one that would not come under any of the categories mentioned in Schedule II, the definition of 'workman' in S.2(1)(n) cannot be applied to that person [16]. It is worth noting that Schedule II excludes persons employed in clerical capacity from the concept of 'workman’ under the Act.

To make a person a 'workman', it is not necessary that his contract of employment must be in writing. It is immaterial whether the contract of employment is express or implied, oral or in writing.

Definition of "workman' includes dependants of a workman also. The need for the inclusion of dependants within the purview of the definition arises, when an injured workman dies. This enables legal proceedings being continued even after the death of the workman.

Any person, working in the capacity of a member of the Armed Forces of the Union, falls outside the purview of S.2(1)(n) of the Act. Therefore, such a person is not a 'workman', entitled to enjoy the protection afforded by the Act.

One of the grounds, on which a person is excluded from being considered a workman under the Act, is that his employment is of a casual nature. The word 'casual' has not been defined in the Act. It may not be possible to define exactly what casual employment is. There are some cases, in which employment is obviously not casual and other cases, in which employment is obviously casual. But there are a number of debatable cases in between. Thus, the question, whether an employment is of a casual nature or not, depends on the circumstances of each particular case. An employment is not of casual nature, if there is regularity or periodicity of employment [17]. When the owner of a coconut garden engaged professional climbers for plucking coconuts from time to time and once in 50 days or so, the climber had to be engaged, it was held that it cannot be said that he was employed casually [18]. Casualness, in the context in which it is used in Act, indicates employment by chance.

The transient or protracted nature of an employment can be the criterion for deciding its casualness or regularity. If an employment is reasonably and normally spread over sometime, how can it be 'casual'? On the other hand, if it is very brief and transitory, it may be a casual employment [19]. But from the mere fact that a person worked for two days only, before he died in an accident, it would not automatically follow that his employment was of a casual nature. The reason is that even a regular employee may meet with an injury immediately after he joined duty [20].

Is the mode or the time of payment conclusive on the question of the casualness of an employment? It cannot determine the question of the casualness of an employment. The mode or the time of payment is only a matter of convenience and mutual adjustment. Merely because a workman is paid on daily basis, his employment cannot be casual [21].

The burden of proof of the casual nature of employment is on the employer [22]. If an employer does not produce the muster roll, the issue as to the employment being casual must go against the employer [23].

But if a person is employed casually, he would be a 'workman' under the Act, if he is employed for the purpose of the employer's trade or business. Trade means exchange of goods for goods or goods for money. It may be any business carried on with a view to making profit. Such business may be manual or mercantile as distinguished from the liberal arts or learned professions [24]. 'Business' is taken to mean anything that occupies the time, attention, and labour of men for the purpose of livelihood or profit [25]. Though the word 'business' is ordinarily more comprehensive than the word 'trade', quite often 'business' is used as synonymous with trade [26].

An agriculturist started boring operations in his well so as to make it fit for purposes of irrigation. A person was employed by him as a labourer for the purpose. It may be true that the labourer in this case is a casual worker. But the agriculturist engaged him for the purpose of his agricultural business. So, he was held to be a ‘workman' [27].

The fact that a person is employed for the purposes of his employer's subsidiary and not principal business cannot affect his claim to be a workman. A person, though working as clerk, was letting out houses to others and deriving benefit therefrom. Letting out of houses was only his subsidiary business. Still, it cannot be denied that his employment of workmen, in the construction of houses to be let out, was for the purposes of his trade or business [28].

In order to exclude a person from the category of 'workman', both the conditions, that is to say (1) that his employment is of a casual nature and (2) that he is not employed for the purpose of employer's trade or business, have to be satisfied [29]. Both these qualifications must be present together [30]. This is because the word 'and' occurring between the above mentioned conditions has been used conjunctively [31].

In view of the Apprentices Act, 1961 [32], the definition of ‘workman' under the Workmen's Compensation Act, 1923 stands modified. Now the definition of ‘workman' includes any person who is engaged as an apprentice as defined in the Apprentices Act, 1961 and who in the course of his apprenticeship training is employed in any such capacity as is specified in Schedule II to the Workmen's Compensation Act [33].

Under the Workmen's Compensation Act, the exercise and performance of the powers and duties of a Government Department are considered to be trade and business of such Department [34]. Therefore, a person engaged for driving a jeep of the Central Excise Department is a workman [35].

Are railway porters workmen? A licensed railway porter has to work under the overall supervision of the officers of the railway according to the roster drawn by the authorities. He is under the disciplinary control of railway. His licence is liable to be cancelled for misconduct, disobedience and inefficient working. There is, therefore, the relationship of employer and employee between the railway and the porter. Hence, a railway porter was held to be a 'workman' [36].

The question, whether workmen employed by contractors are 'workmen' for the purpose of the Workmen's Compensation Act, 1923, has provoked judicial analysis [37]. A building contractor appointed a person to do white washing work on piece-rate basis. He was doing white washing as part of parcel of the contract undertaken by the contractor. The appointee was expected to use the material supplied only under the supervision of the contractor. Because of this control, he was held [37a] to be not an independent contractor, but a workman paid on job basis.

Suppose an agent of a contractor appoints a person to help him in performing the work undertaken by the contractor. Is a person appointed by the agent a 'workman'? If he is, of whom? This question has also come for examination by courts. A contractor had a contract to unload wagons. He employed a maistri who worked under him with the assistance of coolies. One of the coolies met with an accident, while engaged in unloading a wagon and died. The question arose whether the cooly was a workman of the contractor. At the time of the accident, the cooly was employed for the purpose of unloading the wagon, which was the business of the contractor. It is true that the cooly was employed by the maistri and not by the contractor. But he was employed for executing the purpose of the business of the contractor. Therefore, he was held to be a workman of the contractor [38].

Another issue analysed by courts was whether a 'contractor' and his 'coolies' are workmen of the person, whose work the former executes. The work in the coal department of a mill was carried through a contractor. He was paid a fixed monthly sum as per a contract. Out of it, he paid to persons employed as coolies for the work. The contractor and his coolies were granted bonus and annual leave with wages just like the other employees of the mill. This led the court to conclude that the so-called 'contractor and his coolies' were workmen of the employer of the mil [39].

Entries in Schedule II to the Workmen's Compensation Act, in fact, form the fulcrum, around which the broadness of the concept of "workman' under the Workmen's Compensation Act revolves. These entries have also been subject to judicial interpretation, which led to the widening of the concept. A person was employed to operate a tractor. When an accident occurred, the said vehicle was not in operation but was merely loaded on a truck for being sent to another place. Still the operator has to be treated as a person employed in connection with the operation of the said vehicle. This was because the expression "employed.........................in connection with the operation" [40] of the vehicle cannot be construed to be confined to its actual mechanical operation. It extends to other activities connected with it. The emphasis appears to be on the factum of employment, which has to be in connection with the operation or maintenance of a vehicle [41].

A traffic controller had to see that the bus arrived at and departed from the bus-stand at the proper time. He was to count the number of passengers in the bus and verify it with the tickets, and make an endorsement on the way-bill and also make a note in the register maintained in the bus-stand. He was also required to report to the Divisional Manager in the event of any breakdown. These functions were not held to be clerical, in spite of the argument to that effect. The words 'in connection' [42] were held quite wide as to include employees not merely operating the vehicle but also in connection with it otherwise. In view of the fact that the traffic controller was expected to report in the event of any breakdown, his duty was connected with maintenance of the vehicle. Similarly his duties were also connected with the loading of the vehicle, as he was to check the number of passengers in each vehicle. Hence it was held, he would come within the meaning of the term 'workmen' [43].

A watch man was expected to preserve a building against unwarranted interferences from unauthorised persons and cattle. He was to keep it clean by sweeping the premises and dusting it. He was thus engaged in the upkeep of the office for the purpose of keeping it in an efficient state. His services were held to be for the maintenance [44] of the office and building and that he was a 'workman' [45].

A person employed by a farmer for crushing sugarcane on a power driven charkhi was held to be a workman', since 'farming' [46] is not confined to cultivation, but would also mean raising of crops, poultry, sale of chicken and eggs and takes in all operations which a farmer necessarily engages in including crushing of sugarcane. [47].

The condition that to be a 'workman', one's employment should not be of a casual nature and that one should not be employed otherwise than for the employer's trade or business, may appear to curtail the broadening concept of 'workman'. But in fact, the curtailing effect is not so serious. This is because only when a person is both casually employed and employed otherwise than for the purposes of the employer's trade or business, he will fall outside the ambit of the definition of 'workman'. But the requirement for the simultaneous assembling of the two conditions for excluding a person from the category of 'workman' makes the concept play round the expression 'trade or business'. Suppose the work of the employer, for the execution of which a person is employed cannot be labelled as 'trade or business', will the person employed by the employer be a 'workman'? It appears he will not be. This lacunae in the law affects adversely domestic servants, who will be helpful if they sustain injury in the course of their employment. The definition of workman' deprives the clerical staff of a business establishment of the benefits under the Workmen's Compensation Act. All persons employed for the purposes of the employer's trade or business, should be considered as his ‘workmen' entitled to the protection of the Act. A widening of the concept of 'workman' under the Workmen's Compensation Act is called for.

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Footnotes:

1. S.2(1)(n) of the Workmen's Compensation Act, 1923 defines a 'workman' to mean "any person (other than a person, whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is --

(i) a railway servant as defined in S.3 of the Indian Railways Act, 1890, not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(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".

2. Short v. J.W. Henderson Ltd., (1946) AC. 24 (H.L.): 1946 62 T.L.R.427.

3. Dharangadhara Chemicals Ltd. v. State of Saurashtra, AIR 1957 S.C.264; (1957) 1 LLJ.477.

4. AIR 1964 Cal.61: (1963) 1 LLJ.593.

5. Chintaman Rao v. State of Madhya Pradesh, AIR 1958 S.C. 388 :(1958) 2 LLJ. 252.

6. State of Kerala v. V.M. Patel (1961) 1 LLJ.549 (S.C).

7. Supra, n.1.

8. Armugham v. Nagammal, AIR 1949 Mad.462.

9. (1974) 3 SCC.498.

10. Supra, n.1.

11. S.3(7) of the Indian Railways Act 1890defines a 'railway servant' as any person employed by a railway administration in connection with the service of a railway.

12. Supra, n.1.

13. See Schedule II to the Workmen's Compensation Act, 1923.

14. See Supra, n.1

15. See Ibid.

16. Pattammal v. Janakirama Kounder, 1975 Lab.I.C.984.

17. Kochappan v. Krishnan, (1987) 2 LLJ. 174 (176) (Ker.), per Kochu Thommen,J.

18. Kochu Velu v. Joseph, 1980 Lab.LC.902 (Ker.).

19. Mahmoodv. Balwant Singh, 1980 Lab.I.C.300 (AIl). The question before the Court was whether a person employed by agriculturists for thrashing wheat by instrument operated by tractor was a 'workman' as per S.2(1)(n) and Schedule II, Clause (xxix). The act of thrashing with the aid of a device worked by means of a tractor driven by mechanical power was ancillary to farming or agriculture making the case fall under clause (xxix). Hence the person employed for the purpose was held to be a "workman'.

20. Patel Engg. Co. Ltd. v. Commr. For W.C. 1978 Lab.I.C. 1279 (1281) (AP.). The point in dispute here was whether workman employed by contractors, availing themselves of the facility of the Government lorry for coming to the workspot, can claim workmen's compensation, if an accident occurs while availing themselves of the facility. The court held that it is not necessary that the workmen concerned should either travel in a conveyance provided by the employer or that it would be obligatory on their part to do so in order to conclude that they were in the course of employment while travelling in that conveyance. The contractors had no lorry belonging to them for carrying the workers employed by them. Hence they used to avail themselves of the Government lorry. This practice was in force for about four years before the accident. It could be inferred from the circumstances that the contractors expected the workers to avail themselves of the facility of the Government lorry for arriving at the workspot. It could therefore, be concluded that the accident arose out of and in the course of employment, entitling the workmen to compensation.

21. Mahmood v. Balwant Singh, Op. Cit.,

22. Madanlal v. Mangali, AIR 1961 Raj. 45 (47).

23. Ladi Jagannadham v. Smt. Padmabati Baurani, AIR 1962 Orissa 7 (8).

24. The Secretary, Madras Gymkhana Club Employees' Union v. Management, AIR 1968 SC.554 (562,563) : 1968 Lab.LC. 547.

25. S. Mohan Lai v. R. Kondiah, AIR 1979 S.C 1132 (1133): (1979) 2 SCJ. 362.

26. Krishna Kumar v. J. & K. State, AIR 1967 S.C. 1368 (1371): (1967) 2 SCJ. 373.

27. Popatal v. Bai Lakhu, AIR 1952 Sau.72.

28. Madan Lai v. Mangali, Op. cit.

29. Kamala Devi v. Bengal National Textile Mills Ltd. (1975), 2 LLJ. 81, see also Kochappan v. Krishnan, (1987) 2 LLJ. 174 (Ker.) pp. 175-176.

30. Periyakkal v. S.I. Railway, AIR 1935 Mad. 721 (722): Huseinbhai Ahamedbhai Memon v. Mangiben, AIR 1985 (N.O.C) 73 (Guj): 1984 AC.J.701 (705) (DB) (Guj.).

31. Vijay Ram v. Chander Prakash, 1981 Lab. I.C. 359.

32. The Apprentices Act, 1961 is an Act to provide for the regulation and control of training of apprentices and for matters connected therewith.

33. Vide item (l)(d) of the Schedule to the Apprentices Act, 1961, read with S.16 thereof.

34. S.2(2) of the Workmen's Compensation Act, 1923 provides: "The exercise and performance of the powers and duties of a local authority or of any department (acting on behalf of the-Government) shall, for the purposes of this Act, unless a contrary intention appears, be deemed to be the trade or business of such authority or department".

35. Union of India v. Mohd. Wasi, 1980 Lab. I.C. (NOC) 57 (All.): (1980) 40 Fac. L.R. 17 (All.).

36. K. Narayanan v. Divisional Supdt. Southern Railway 1980 Lab. I.C. 776. The issue to be decided was whether master and servant relationship existed between railway administration and licensed railway porters. The latter being railway servants within S.3(7) of Railways Act, were held to be workmen under S.2(1)(n).

37. S.B. Gurbax Singh v. Dhani Devi, 1981 Lab. I.C. (NOC).

37a. Ibid.

38. Armugam v. Nagammal, Op. cit.

39. Kanpur Mill Mazdoor Union v. Muir Mills Co. Ltd. (1955) 2 LLJ. 537.

40. See Workmen's Compensation Act, 1923, Sch. II, Clause (1).

41. New India Assurance Co. Ltd. v. Smt. Fatmabai, 1982 Lab. I.C. 732.

42  Supra, n.40.

43. Malatibai v. Mysore SRTC, (1968) 2 LLJ.443.

44. See Workmen's Compensation Act, 1923, Sch. II, Clause (viii).

45. Smt. Satiya v. Sub-Divisional Officer, P.W.D. (1974) Lab. I.C. 1516.

On a Contract of Insurance

(Thomas P. Joseph, Advovate, Kottayam)

Insurance is a contract of indemnity whereby, the promisor - called the insurer - undertakes to indemnify the promisee - called the insured - against all sums the later is held liable to pay in respect of risks covered by the policy of insurance. The rights and liabilities of the parties to such a contract has mainly to be decided in accordance with the terms and conditions in the policy of insurance. The provisions of Chapter VIII of the Motor Vehicles Act, 1939, make it obligatory on the part of the owner of a motor vehicle to insure his vehicle against death or bodily injury to third parties. The Certificate of insurance is to be issued in Form A set out in the schedule to the Motor Vehicles (Third party Insurance) Rules, 1946. Chapter VIII of the Act also prescribes the minimum requirements a policy should necessarily contain.

A Division Bench of the Kerala High Court in 'Oriental Insurance Co. Ltd. v. Sivan' reported in 1989 (2) KLT 897 has held that the word 'date of commencement' appearing in form A referred above is synonimous with 'day of commencement' and holding that the word, 'day' means 'the whole or any part of period of 24 hours from midnight to midnight'; has taken the view that even if the policy contains a clause that the risk under it would commence with effect from 11 a.m. on 15-7-1985, the risk would commence from the midnight of 14-7-1985.

True, that Form A contains the words, 'date of commencement' and 'date of expiry'. But there is nothing in the Motor Vehicles Act or the Motor Vehicles (Third -party-Insurance) Rules, which prescribes a minimum period for a contract of insurance. As in the case of ordinary contracts, the parties to a contract of insurance are also free to incorporate in the contract, terms and conditions mutually agreed to by them concerning their respective rights and liabilities, subject of course to the minimum requirements which a policy should have as per the provisions of the Motor Vehicles Act. If so, is it not possible for the contracting parties to specify in the policy of insurance  that the rights and liabilities they have under the policy would commence from a specified time on a particular day? If the view of a Division Bench is accepted, the contracting parties would not be able to do so, even though they wish to do so. This, so far as such specification of time of commencement of risk is not repugnant to any of the provisions of law, will in effect, curtail the rights of the contracting parties. In 'Oriental Insurance Co. Ltd. v. Sivan', the policy did contain a clause that the risk under the policy of insurance would commence with effect from 11 A.M. on 15-7-1985. In this connection, it is useful to refer to a few decisions on the point.

In 'United India Fire & General Insurance Co. Ltd. v. Srinivasan & Others' (reported in 1980 ACJ 413), a Division Bench of the Madras High Court, holding the insurer liable under the policy, in respect of an accident that occurred a few hours before the actual issuance of the policy, said: ".......we are, therefore of the opinion that the appellant, insurance company is liable under the Contract of lnsurance and that it is not possible to accept the contention that the risk in this case has commenced only from the time of issue of the policy of insurance.........". The Supreme Court of India, in a recently reported decision (1990 (1) KLT 817) has also held that the policy taken during any part of the day becomes operative from the commencement of that day. The Supreme Court has also relied on the decision of the Allahabad High Court reported in AIR 1983 All. 87. where again it was not a case where the time of commencement of risk was mentioned in the policy. It has however to be remembered, going through the facts of those cases that the policies in question did not contain any specification concerning the time of commencement of the risk. As such, it was open to the Court to interpret the words 'date of commencement' and hold that the insurer is liable to cover the risk involved in that case.

In 'Jaikishandas v. Chiruthai Ammal and others' (reported in 1984 ACJ 530) where the accident had occurred "at or about 10 a.m. on 30-9-1976", and where also the policy did not contain any specification as to the time of commencement of risk, the Division Bench of the Madras High Court, relying on 1980 ACJ 413, held in para.3 of the Judgment thus: ".........Therefore, we will proceed to consider the legal question on the basis that the proposal form was sent on 30th September, 1976, sometime after 10-30 a.m. and the acceptance was also subsequent to the accident. But, as seen from the original insurance policy produced, which does not mention anything about the time, the period of insurance covered is from 30th September 1976 to 29th September, 1977. Clearly, therefore, the policy shall be deemed to cover from the midnight of 29/30th September, 1976, which will cover the time of accident, also......" (underline supplied). It has to be noted that the Division Bench held so, because the policy had not contained anything about the time from which the risk covered by it commenced. Commenting on similar facts, the Madras High Court in 'Srinivasan v. Rajalakshmi & Others' reported in AIR 1975 Mad. 263, held in para.5 of its Judgment; "...........It is open to the Company to have stated that the contract would be effective from 11a.m. on 6-6-1969 upto 11 a.m. on 6-6-1970, in which case it could certainly escape liability for an accident which had taken place a few hours before the conclusion of the contract..........". In para.6 A of the judgment, the Court again held: ".........It was open to the Insurance Company to have stipulated that the contract would come into force only from 11 a.m. on that day. Instead of doing so, the insurance company has undertaken to cover any risk for the entirety of the year.........".The observations above referred make it clear that it is open to the insurer to specify in the policy of insurance the time from which the risk under it would commence and that in that case, the insurer cannot be held liable with respect to an accident that occurred prior to such time specified in the policy. In short, if the parties to a contract of insurance have chosen to contract between them that the risk under it shall commence from a specified time on a particular day, there is no real scope for entering into an interpretation of the Form of the certificate and then hold that the policy would be effective not merely from the time specified, but from the previous midnight of that day. This is so because, it is not for courts to interpret and make a new contract for the parties which they might not even have thought of. The Supreme Court in "General lnsurance Society Ltd. v. Chandmull Jain" (AIR 1966 SC 1644) said thus:.............In interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however reasonable, if the parties have not made it themselves........The incipient terms and conditions of the contract later merge in the policy and the terms and conditions become express.......". The view adopted may create anomalies also. A contract of insurance requires utmost good faith from the contracting parties. Assume a situation where immediately after an accident, the owner, whether or not aware of the accident - and probably even before a criminal case is registered, concerning the accident -- gets his vehicle insured and the insurer on its part specifies the time from which the risk covered under the policy is to commence which is after the time of accident, should in that case also the insurer be held liable? When the policy contains the time of commencement of risk, the words "effective date of commencement" used in 'Form A' can only mean the effective time from which the risk covered under the policy is to commence. The shorter Oxford English Dictionary (Vol.1) defines the word, 'date' thus: "1. The specification of time (and often place) of execution of a writing or inscription, affixed to it: 2. The precise time at which anything takes place or is to take place". In Venkata Ramaiya's 'Law Lexicon', 2nd Edn., Vol.1, defining word 'day', it is thus stated: "The term 'day' is used in more senses than one. A day is strictly the period of time which begins with one midnight and ends with the next. It may also denote any period of 24 hours and it may denote the period of time between sunrise and sunset. (Halsbury's Laws of England, 3rd Edn., Vol. 37 at P.84)". The above decisions, it appears, were not brought to the notice of the Division Bench, while deciding "Oriental Insurance Co. Ltd. v. Sivan'. The words, "Effective date of commencement....." in form A does not, therefore, in any way derogate from the intention of the parties to a contract of insurance, as expressed in the policy, specifying the time of commencement of risk covered under the policy. The correctness of the decision in Sivan's case was challenged in "United India Insurance Co. Ltd. v. Gopinathan" (reported in 1990 (1) KLT 713) also on the ground that the interpretation of the Division Bench in "Sivan's case' would deprive the vehicle owners of the incentive to insure their vehicles against third party risks. The Division Bench (see para.4 of 1990 (1) KLT 713) though was of the view that the argument required consideration, did not refer those cases to a larger bench as they could be disposed of without that point. A decision by a larger bench, in the circumstances, would be useful to settle the controversy.

Note on 'Editor's Note' (1990 (1) KLT 903)

(Thomas P. Joseph, Advocate, Kottayam)

The Editor of the Kerala Law Times, while reporting the decision of the Supreme Court in 'Unni v. Nirmala Industries' (reported in 1990(1) KLT 903) has made a note that in the light of the decision of the Supreme Court, the decision of the Kerala High Court reported in 1990(1) KLT 596 is not good law. The Supreme Court, in the reported decision has held that the time for making the deposit for setting aside the sale at the instance of the judgment debtor, is 30 days from the date of sale as provided under Order 21 Rule 92(2) of the Code of Civil Procedure, though the time limit for making such an application is 60 days in view of Article 127 of the Limitation Act, 1963, as amended by C.P.C. (Amendment) Act 1976 (104 of 1976). The Division Bench decision of the Kerala High Court-1990(1) KLT 596-- is to the effect that the deposit made after 30 days but within 60 days of the sale is valid and that the Amendment to Rule 92(2) is retrospective. The editor of the KLT says that in the light of the Supreme Court decision 1990 (1) KLT 596 is not good law.

A close study of the above decisions as well as the concerned provisions would show that the editor's note is incorrect. The decision in 1990 (1) KLT 596 is not at all affected by the decision of the Supreme Court.

It has to be noted that the decision of the Supreme Court was made on an appeal that arose from the judgment of the Madras High Court (reported in 1987 (2) MLJ 3V The Supreme Court was considering the provisions of Article 127 of the Limitation Act, 1963, as amended by Act 104 of 1976 (whereby the period of "Thirty days" prescribed for making application to set aside the sale including an application by the J.D. was substituted by the period of "Sixty days".) and Order 21 Rule 92(2), CPC, amended by the High Court of Madras. The time provided by the said Rule as applicable to the High Court of Madras was 'thirty days' from the date of sale. Construing the provisions, the Supreme Court has held -rejecting the argument that the two provision are inconsistent as the two provisions prescribe different periods of limitation -- that there is no inconsistency between the two provisions, and that since the legislative intent is clear from the explicit and unambiguous words, there is little scope for any interpretation. The Supreme Court has also given its approval to the decision reported in AIR 1982 Ker. 126.

The time limit for deposit of the amount in the case of an application under Rule 89, as far as we are concerned, is 60 days from the date of sale, in view of the Kerala Amendment to Order 21 Rule 92(2) (Amendment dated 8.10.1987 and published Kerala Gazette No.6 dated 9.2.1988). The amendment was made to make the time for deposit, corresponding to the time for making the application under Art.127 of the Limitation Act (by the amendment made to that article as per Act 104 of 1976). In 1990 (1) KLT 596, the Kerala High Court was considering effect of the Kerala Amendment to Rule 92 (2). The Court held that the amendment made is only declaratory and therefore the same would take effect retrospectively. In holding so, the Court also held that AIR 1982 Ker. 126 (which has been approved by the Supreme Court in 1990 (1) KLT 903) is not good law. It has however to be noted that the decision in AIR 1982 Ker. 126 related to the unamended provision in Rule 92(2) which provided for 'Thirty days time for deposit. The Court also noticed (See para.1 of AIR 1982 Ker. 126) that "it is a very clear case of omission on the part of the Legislature to notice that a period corresponding to the period specified in Article 127 had to be stipulated as a period within which deposit is to be made in the provision in Order 21, Rule 92(2) of the Code......" As the function of the Court was to interpret law as it is made, the Court held that the time for deposit was 'thirty days'. The Supreme Court has approved the said decision because, in the case it was deciding also, the time for deposit was only thirty days as provided under Rule 92(2). In other words, the Supreme Court was not at all considering the Kerala Amendment to Rule 92(2) of the Code and whether the said amendment is retrospective.

As far as the provisions of Rule 92(2) of the Code as amended by C.P.C. Amendment dated 8.10.87 as applicable to Kerala is concerned, the decision in 1990 (1) KLT596 stands good and there is no conflict with the decision of the Supreme Court reported in 1990 (1) KLT 903.

Order for Maintenance u/S. 125 Cr. P.C

(P. Rajan, Advocate, Tellicherry)

Courts allowing applications under Section 125 of the Code of Criminal Procedure of wives, children and parents, could direct the amount payable by the opposite party either from the date of the order or from the date of application. Monthly allowance from the date of presentation of the petition had been the rule considering the object behind Chapter IX of the Code. By making radical changes to S.488 of the old Code, S.125 Cr. P.C. has been introduced as a speedy measure of social justice to protect the cause and interests of destitute who are the neglected class. It has the seal of constitutional empathy; so also the express consent of the apex court for open exhibition of judicial sympathy to protect the weaker group. Supreme Court even went to the extent of saying that Courts could even be choosy and selective while arriving at judicial conclusions under the above section in order to serve the purpose of the derelicts (AIR 1978 S.C. 1807).

Trial courts have a free hand in giving direction at the time of disposal of petitions, to pay the allowance from the date of application. Often petitions u/S.125 Cr. P.C. takes years for the final verdict, especially if the opposite party decides to take time-consuming contentions or approaches higher Courts with different requests for causing maximum delay and even in such cases rarely courts resort to S.126(3) of the Code to award costs. Hence claimant had sigh of relief by getting the allowance from the date of institution of the petition. This view has been fortified further by His Lordship Bhat's decision reported in 1980 KLT 969.

But later decision of our High Court reported in 1989 (2) KLT 503, even though reaffirms judicial discretion vested with trial courts, says' ordinarily the allowance shall be from the date of the order'. It is pertinent to note even now Chapter IX needs timely changes in order to achieve desired results. Rs.500/- is the maximum one could get per mensem whatever may be his or her need. Affluence of the husband coupled with claimant's pressing needs, educational or medical expenses, house rent etc. are no reasons since maximum is fixed by the Statute. Luxury is not the intention of the law makers - so goes the reply to this. Process is really cumbersome to execute the order duly passed for realisation of the amount, even though procedure contemplated is just like levying of fine as contemplated u/S.421 Cr. P.C. In spite of express provision, pendency of execution petitions is on its escalation. Our High Court was constrained to exhibit its displeasure considering the sad state of affairs relating to pendency of realisation petitions and gave its worth-considering opinions for insertion in the Section. (1980 (1) KLT 654). Then only realisation of the arrears could be made at the earliest.

Supreme Court in AIR 1986 S.C. 984 held that to deserving parties, interim maintenance even could be granted u/S.125 Cr. P.C. So, in short, it goes without saying that Statute, as it stands, and judicial pronouncements which are plethora, raise the voice to protect the interests of the neglected class who come within the purview of S.125 Cr. P.C. But now the Courts, even Sessions Courts exercising revisional powers, are tempted to follow 1989 (2) KLT 503 and direct payment from the date of the order. This being the later decision of the Kerala High Court so far, second thought could not be made by the lower courts even if interests of the destitutes are to be protected in ordinary cases. Rarely, as His Lordship has observed, maintenance could be given from the date of the petition. It is more desirable to pass the award from the date of the application ordinarily; just contra in exceptional cases if the contesting side places materials to strengthen that. Larger Benches' verdict alone could resolve the issue to achieve finality.

Maintenance on Attaining Majority

(S.A. Karim, M. Com., LL.B., Advocate, Thiruvananthapuram)

Section 125 of the Criminal Procedure Code, 1973, speaks about order for maintenance of wives, children and parents. Sub-section (1)(c) deals with maintenance to major child and unmarried daughter, who is unable to maintain oneself. The subsection attracts only if the major child has physical or mental abnormality or injury unable to maintain oneself. The unmarried daughter is an exception. The statutory expression of S.125(1)(c) is "his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of physical or mental abnormality or injury unable to maintain itself. The old code does not contain any provision equivalent to S.125(1)(c).

There cannot be any difference of opinion about the meaning of physical or mental abnormality in sub-section (1)(c). The word 'injury' contained in the sub-section has been interpreted by His Lordship Justice Arunachalam of Madras High Court in T.P.S.H. Selva Saroja v. T.P.S.H. Sasinathana reported in 1989 Criminal Law Journal. According to the learned Judge, the word "injury" in S. 125(1) (c) is the physical or mental abnormality occasioned after attaining majority. With all humility, the interpretation of the learned Judge seems out of place. If the intention of the legislature was as reported, the expression of physical or mental abnormality would have been sufficient with any word that denotes future incident.

As per the Chambers Twentieth Century Dictionary, injure means to harm, to damage, to hurt and so on. Injury is that which injures. The plain dictionary meaning does not agree with the learned Judge. S.44 of Indian Penal Code defines the word 'injury'. It has no relevance in the maintenance proceedings. Therefore, the word 'injury' assumes special significance in S.125(1)(c).

The word "injury" cannot be interpreted devoid of the object of maintenance provisions. The object is to protect wives, helpless and deserted children and destitute parents and to secure the much needed relief. Such unfortunates shall not be tempted to commit crime or to tempt others to commit crime and as such prevent vagrancy and destitution. To bring them up as useful and better citizens, the Government interferes and forces the persons who are bound to protect.

I have a typical case in hand. An unmarried college going girl attained majority. Her father, a well placed person, divorced her mother years back. The girl has been residing with the mother. She has no source of income. Her mother finds it difficult to make both ends meet. If her well placed father refuses to maintain the girl on the plea of attaining majority, she will be nowhere in life and the solemn ideals of maintenance provisions will be defeated. The girl is not responsible for the stated contingencies. It is the creation of the society and the girl is the victim. In the instant case, her condition is nothing but 'injury' inflicted by the Society. Therefore, her plight is due to social injury. This may be the injury stated in sub-section (1)(c) of S.125 of the Code. It is the basic principle when a statute or a statutory expression is interpreted, the purpose of that piece of legislation deserves utmost consideration.