New India Assurance Co. Ltd. v. M/s Abhilash Jewellery

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7972 of 2002. From the Order dated 15.3.2002 of the National Consumer Disputes Redr~~sal Commission, New Delhi in Revision Petition No. 81Si,bf 1999. Salil Paul and Indra Sawhney for the Appellant. G. Prakash for the Respondent. The following Order of the Court was delivered : ORDER

1Heard learned counsel for the parties. This appeal has been filed against the order of the National Consumer Disputes Redressal Commission, New Delhi dated 15.03.2002.

2The respondent had a business establishment at Vellappad i~ 1 Trissur District in the State of Kerala. It took a Jeweller's !:flock Policy for Rs. 1, 15,00,000/-. During the currency of the policy, the complainant-respondent lodged a claim with the appellant for the loss of gold ornament weighing 587.870 grams. The claim was repudiated by the appellant on the ground that the loss of gold was occasioned as it was in the custody of an apprentice, who was not an employee.

3The relevant clause in the Insurance Policy stated; "S. 11(a) property insured whilst in the custody of the insured, his partner or his employees".

4The question, therefore, is whether an apprentice is an employee.

5The National Consumer Disputes Redressal Commission has held that an apprentice is an employee because Section 2 (6) of the Kerala Shops and Commercial Establishments Act defines an employee to include an apprentice. The National Commission has also relied on the definition in the Employees State Insurance Act and some other enactments.

6We are of the opinion that the view taken by the Natinal Commssion is not correct. The present case is covered solely by the contract of insurance. That contract of insurance no doubt uses the word 'employee', but it does not say that the word 'employee' in the contract of insurance will have the same meaning as in the Kerala Shops and Commercial Establishments Act or the Employees State Insurance Act or any other enactment.

7In various enactments, the word 'employee', has no doubt, been defined to include an apprentice, but that is only a deeming provision and a legal fiction by which the meaning of the word 'employee' has been extended.

8Legal fictions are well-knwon in law. For example, Section 43 (3) of the Income Tax Act defines 'plant' to include a book. Ordinarily a plant means a factory, and by no stretch of imagination can we call a factory a book. However, the Income Tax Act deems a book to be a plant for the purpose of depreciation.

9Many such illustrations of deeming clauses or legal fictions can be given. The definition of employee in various NEW INDIA ASSURANCE CO. LTD. v. ABHILASH JEWELLERY enactments which include an apprentice within the ambit of the definition is such a piece of legal fiction. That, however, does not mean that in common parlance an apprentice is an employee.

10In the present case, since the word 'employee' has not 8 been defined in the contract of insurance, we have to give it the meaning which it has in common parlance. In common parlance, an apprentice is a trainee and not an employee. Even if he is given a stipend, that does not mean that there is a relationship of master and servant between the firm and the apprentice. Hence, we cannot agree with the view taken by the National Commission. In our view , the claim before the National Commission was not maintainable.

11Hence we set aside the order of the National Commission.

12The appeal is allowed. No orders as to costs. G.N. Appeal allowed.