1. Heard learned counsel for the parties.

2. The instant writ application has been preferred by the petitioner for the following reliefs:

                  “A) For quashing the letter dated 30.03.2010 and 04.04.2010(Ann-7&8) issued by Project Officer, Sawang Washery whereby and where under the claim of the petitioner has been rejected.

                  B) The Respondents be directed to pay the compensation of Rs. 5 Lacs to the petitioner under Group Personnel Accident claims scheme for the Accident/death of his mother during duty.

                  C) The Respondents be directed to pay the entire amount of compensation with interest.

                  D) The Respondents be directed not to treat this petitioner differently and extend the same benefit of compensation as has been given to others under group Personnel Accident claim Scheme.

                  E) Any other relief or reliefs for which this petitioner is entitled to.”

3. The brief facts of the case as it appears from the pleadings are that the Petitioner’s mother, Fucha Devi, was a Category-II Mazdoor at CCL's Sawang Washery and on 29.05.2007 she met with a fatal accident at the work site and died in harness. Thereafter, her elder son, Banwari Yadav, was provided employment and the petitioner was entitled to receive the compensation amount as per an Affidavit dated 01.12.2008 wherein Banwari Yadav had no objection if the compensation amount was given to the present petitioner.

4. In the year 2000, the respondent CCL had signed Memorandum of Understanding(hereinafter referred to as MOU) with different insurance companies for CPA Policy wherein the sum insured under Policy would be Rs. 5 lakhs per person at a premium of Rs. 156 annually. The same was notified by the CCL vide letter dated 19.02.2000 for the deduction to be made from salary in connection with Group Accident Insurance Policy

5. Further, in year 2005, another MOU dated 05.05.2005 was signed by the CCL with the Oriental Insurance Company, for the period from 05.05.2005 to 05.05.2006 and subsequently, the next MOU was signed on 26.06.2007 for the period from 06.05.2007 to 05.05.2008.

6. On 28.09.2007, the petitioner applied for the payment of compensation of Rs. 5 lakhs under GPAIS Scheme from CCL and when no action was taken, he made several representations for the same. Thereafter, the Respondent, CCL vide letters dated 30.03.2010 and 04.04.2010 rejected the claim of the petitioner stating that GPAIS and GIC premium were not deducted from the salary of the petitioner’s mother during her lifetime, therefore, no compensation can be granted. Aggrieved of this, the petitioner has preferred the present writ application.

7. Ld. Sr. Counsel for the petitioner has submitted that it was the official responsibility of the CCL to deduct the said amount of premium from the salary of the employees and this was not an optional scheme; rather the same was mandatory and the responsibility was of the employer to deduct the premium.

                  She has also submitted that the MOU dated 26.06.2007 was made retrospectively effective on and from 06.05.2007 and it was operative on the date when petitioner’s mother died.

                  Ld. Sr. Counsel has further submitted that the points raised by the Respondents have already been decided by this Court vide its order dated 12.08.2009 passed in WP(S) No. 5663 of 2007 which has been confirmed by the Division Bench of this Court in LPA No. 449 of 2009.

8. Per contra, learned counsel for the respondent–CCL has submitted that since no premium was deducted from the salary of the deceased employee during her lifetime, she was not covered under the GPAIS. It has also been pleaded that the deceased employee along with others had themselves requested to the respondents that their premium towards the scheme may not to be deducted from their salary.

9. Learned counsel for the respondent-Insurance Company has contended that insurance is a contract requiring payment of premium as consideration and since no premium was paid during the lifetime of the employee and intimation was delayed, the claim has been rightly rejected. Further, learned counsel has placed his reliance on the judgments passed by this Court, in the cases of Satiya Devi v. CCL & Ors(WP(S) No. 1490 of 2010) and Ghamiya Devi v. CCL & Ors(WP(S) No. 840 of 2011), to deny the compensation.

10. Having heard Ld. Counsels for the rival parties and after going through the materials on record, it transpires that the crux of the present case revolves around the entitlement of the petitioner to receive Group Personal Accident Insurance Scheme (GPAIS) benefits amounting to Rs. 5 lakhs following the accidental death of his mother, Late Fucha Devi, a Category-II Mazdoor at CCL's Sawang Washery, who died in harness on 29.05.2007.

11. In view of the submissions made by the rival parties, the following issues arise for consideration:

                  i. Whether the deceased employee was covered under the GPAIS on the date of her death?

                  ii. Whether delay in intimation can disentitle the petitioner from receiving compensation under the Scheme?

12. With regard to the first issue, it is an admitted fact that the MOU dated 26.06.2007 was made effective retrospectively from 06.05.2007 for a period of one year expiring on 05.05.2008; whereas the deceased employee died on 29.05.2007. Thus, on the date of death, the GPAIS Scheme was in operation. It is also an admitted position of the respondent–CCL that deduction of premium commenced only from August, 2007. Therefore, non-deduction of premium prior to the death of the employee was not attributable to any fault on the part of the deceased employee or the petitioner.

13. At this stage, it is profitable to refer the concerned clause of the MOU which stipulates the timeline for the commencement of the MOU and for ready reference relevant clause from the MOU dated 26.06.2007 is quoted herein-below:

                  “…The insurance shall commence from 06-05-2007 for a period of one year expiring on 05-05-2008, and shall cover the risk of entire Manpower of CCL.”

                  The same stand has been taken by the Respondent-CCL too that the MOU dated 26.06.2007 had started ‘retrospectively’ on and from 06.05.2007, which is very much apparent from para no. 16 of the Counter Affidavit dated 05.08.2011.

14. Thus, once the Scheme itself was in force retrospectively and intended to cover the employees of CCL and the consideration for the insurance was to be recovered from employees through salary deduction as the primary contract was between the employer and the insurer. In such scenario, benefits of compensation cannot be denied to the present beneficiary on account of non-deduction of premium amount from the salary of the employee for the reason that the deceased employee was not covered under the alleged insurance Scheme and it is a clear case of lapse from the side of the employer. In this regard, reference may be made to the judgment rendered by Hon’ble Supreme Court in the case of Kusheshwar Prasad Singh v. State of Bihar((2007) 11 SCC 447) and the relevant para of the aforesaid judgment is quoted herein-below:

                  “14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal [AIR 1961 SC 1353] wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).”

15. So far as the plea of the Respondent CCL regarding opting out of the Scheme is concerned; the respondent-CCL's reliance on Annexure-F, purporting to show that the employees of CCL along with the deceased employee have requested for non-deduction of premium; is not acceptable to this Court as the representation for non- deduction of premium (Annexure-F) was pursuant to Letter No. CCL/GM/CPCIR)GPAIS/04-05/4 and the same is undated.

16. Further, any such representation of any employee would not be binding over any MOUs signed by the employer and the insurance company for insurance benefits to the employees and the same cannot override the beneficial scheme intended for the welfare of employees, particularly when the MOU was designed to cover the “entire manpower of CCL” and was a mandatory scheme not optional.

17. In other words, the primary contract was between the employer and the insurance Company and there is no privity of contract between the employee and the insurer and thus any such representation from the employee(s) could not have prevented the employer from effecting the insurance Scheme to come into action.

                  Moreover, the MOU itself says that the beneficiary will not be compelled to produce any slip for deduction of such premium amount towards GPAIS, and it is pertinent here to refer to some of the clauses of the Memorandum of Understanding dated 26.06.2007, that are re- quoted herein-below:

                  “…The OICL shall not insist for production of pay slip of an individual showing deduction of premium towards GPAIS in respect of such employees who met/meets with an accident and otherwise covered by the GPAIS for the period from 6-5-07 as the payment of premium in advance in respect of all the employees has been made by CCL.”

18. Now coming to the second issue, with regard to delay in intimation, it is to be noted that the Oriental Insurance Company rejected the claim vide letter dated 10.06.2008 on the ground that intimation was received on 28.09.2007, i.e., beyond the 90-day period stipulated in the MOU, as the death occurred on 29.05.2007.

19. However, this Court finds that it was the duty of the employer to intimate the Insurance Company about the accidental death of its employee. Any delay on the part of the employer cannot prejudice the rights of the dependent claimant as the deceased employee had met with the fatal accident at the work site itself. This issue is squarely covered by the judgment of this Court in Fudan Devi v. CCL(W.P. (S) No. 5663 of 2007), which was affirmed in L.P.A. No. 449 of 2009, wherein it has been held that the Insurance Company cannot possibly refuse to acknowledge its liability under the policy only on the ground of delay in putting up the claim. The present case being on similar facts, this Court finds no reason to take a different view.

20. Apart from that, reliance placed by the respondent-Insurance company on the cases of Satiya Devi v. CCL & Ors. (supra) and Ghamiya Devi v. CCL & Ors. (supra), are not applicable in this case, inasmuch as, in that case at the time of accidental death there was not at all any MOU in operation, either the validity of the preceding MOU had ended or the subsequent MOU was signed later and there was a gap of certain duration during which none of the MOU could have been made applicable; however, in the case at hand, the validity for MOU was in effect retrospectively right from 06.05.2007 which is a date prior to the date of incident, i.e., 29.05.2007, thus, the only ground that it has been signed on 26.06.2007 cannot be a reason to deny the benefits to the petitioner.

21. Accordingly, this Court holds that the impugned letters dated 30.03.2010, 04.04.2010, and the rejection by the Insurance Company dated 10.06.2008 are arbitrary and unsustainable in the eye of law.

22. In view of the aforesaid discussions, the writ petition is allowed, and the impugned letters dated 30.03.2010 & 04.04.2010 (Ann-7 & 8), are hereby, quashed and set aside.

23. The respondent–Insurance Company is directed to pay a sum of Rs. 5,00,000/- (Rupees Five Lakhs only) to the petitioner towards compensation under the Group Personal Accident Insurance Scheme.

24. The respondent-Insurance Company is also directed to pay statutory interest on the aforesaid amount from 20.05.2008, i.e., the date when the claim was submitted, till the date of actual payment, as per the terms and conditions mentioned in the MOU dated 26.06.2007. The relevant portion from the MOU, in that regard, is quoted in herein-below:

                  “In case of non-receipt of cheque of GPAIS amount within two months from the date of submitting claim complete in all respect to OICL, the OICL shall be liable for payment of interest on the delayed period on an order passed by any Court of Law.”.

25. The entire exercise shall be completed within a period of eight weeks from the date of receipt/production of a copy of this judgment.