Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 1567 (PNJ)

Akash Kalra v. Permila Devi

2009-09-04

A.N.JINDAL

body2009
Judgment A.N.Jindal, J. 1. Akash Kalra, owner of the truck bearing Reg. No. HR 38L- 3173, has challenged the award dated 14.2.2008 passed by Motor Accident Claims Tribunal Sonepat (herein reffered as the Tribunal), whereby the claimants - respondent Nos. 1 to 3 (herein referred as the claimants) were awarded compensation to the tune of Rs. 4.15/- lacs on account of the death of Dilawar Singh in a motor vehicle accident. 2. The petition was filed by the claimants under Section 163-A of the Motor Vehicles Act (herein referred as the Act). The pleas taken by the appellant (respondent in the claim petition) are that since it was a comprehensive policy, therefore, the Insurance Company respondent No. 4 should have been held liable for the whole amount, but the Tribunal ordered that the Company would be liable to pay Rs. 3,27,705/- and the remaining amount would be paid by the appellant. 3. Having heard the rival contentions the Company has supported the observations made by the Tribunal while limiting the liability. 4. As per facts, Dilawar Singh (since deceased) was driving the truck bearing Reg No. HR 38L- 3173 owned by the appellant. He was coming from Rourkela (Orrisa) to Delhi for transporting the goods, whereas, Shivdutt was working as a helper. While, they were entering Chuhaki Mar Nala, District Rai Garh (Chhatishgarh), then another vehicle came from the opposite side and during the crossing process the said truck struck against the rear portion of the truck, being driven by the deceased. Resultantly, Dilawar Singh as well as Shiv Dutt died as a result of falling of the truck in the Nala. 5. The Insurance company in its written statement took preliminary objections, inter-alia, that Dilawar Singh was not holding a valid driving licence at the time of the incident; the accident did not take place in the manner as mentioned in the claim petition and Dilawar Singh was a gratuitous passenger, traveling in the truck, therefore, the claim petition was not maintainable. The Insurance Company further stated that Shiv Dutt as the driver and the Insurance Company is not liable to pay for the second driver. 6. From the pleadings of the parties the following issues were framed :- "1. The Insurance Company further stated that Shiv Dutt as the driver and the Insurance Company is not liable to pay for the second driver. 6. From the pleadings of the parties the following issues were framed :- "1. Whether Dilawar Singh died in a road accident on from Rourkela 7.8.2006 due to use of Truck No. HR 38L-3173, allegedly being driven by deceased Dilawar Singh at that time? OPP 2. If issue No. 1 is proved, to what amount of compensation, the petitioners are entitled to and from whom? OPP 3. Whether deceased Dilawar Singh was not holding a valid and effective driving licence and the offending vehicle was being driven in violation of the terms and conditions of the insurance policy at the time of the accident? OPR-3 4. Relief." 7. After scrutinising the entire evidence, the Tribunal held the Company liable as per provisions of Section 147 of the Act to the tune of Rs. 3,27,705/- and for the remaining amount owner of the offending vehicle was held liable. 8. Now, the owner has agitated that the policy being comprehensive in nature, the Insurance Company was liable to pay the whole amount of compensation. 9. Having heard the rival contentions no force could he found in the arguments advanced by the counsel for the appellant. The Insurance Company was responsible for the loss to the extent, it was covered by way of insurance policy. In other words, the parties were bound by the contract entered into between the parties. The appellant has urged that he could employ two drivers, on a long route and he had employed as such. He having paid premium for both the drivers the Company was liable to compensate both the drivers. The Company was liable to compensate both the deaths. In this case, assuming that Shiv Dutt was the main driver, the Tribunal has paid compensation for the additional driver (Dilawar Singh) as per provisions of Section 147 of the Act. Even the spare driver who has been engaged in driving, if premium had been paid, is covered by the policy of the Insurance Company. It was observed in case United India Insurance Company Ltd v. Shanthavva and others, 2006(3) RCR(Civil) 540:2006 ACJ 1222 as under :- "3. Even the spare driver who has been engaged in driving, if premium had been paid, is covered by the policy of the Insurance Company. It was observed in case United India Insurance Company Ltd v. Shanthavva and others, 2006(3) RCR(Civil) 540:2006 ACJ 1222 as under :- "3. The counsel for the insurer argued that the words engaged in driving the vehicle would mean the driver on the steering and not a spare driver. The Central Motor Vehicles Rules permit employing an additional driver. Continuous long driving causes exhaustion and tedium which further exposes to the risk of accident therefore engaging spare driver is permitted by law. The Tariff regulations permit the coverage of the risk of spare driver on the payment of additional premium. 4. The words engaged in driving the vehicle should not be interpreted to mean only the driver on the steering excluding a spare driver. The spare driver is also very much a person engaged in driving the vehicle may be on shift basis. The insurer is very much liable to pay compensation to a spare driver under Section 147 of the Motor Vehicles Act if there is only one claim under the Act policy. However, if there are two separate claims in respect of driver and spare driver unless additional premium is paid the insurer may not be liable to pay for both the drivers. If the claim is in respect of only one driver even if he is not actually driving at the time of accident still the insurer becomes liable to pay under Section 147 of the Motor Vehicles Act as a statutory liability." 10. On bare perusal of the aforesaid judgment, it transpires that if there are two separate claims in respect of the driver and spare driver, the Insurance Company is not liable for both, unless additional premium is paid. In the present case, learned counsel for the appellant has drawn my attention towards the Insurance Policy (Ex. R-3), which clearly shows that additional premium was paid for four employees of the insured. Simply, because it is not specifically mentioned that four employees will be driver, spare driver and others would not mean that Insurance Company could repudiate the claim for spare driver. R-3), which clearly shows that additional premium was paid for four employees of the insured. Simply, because it is not specifically mentioned that four employees will be driver, spare driver and others would not mean that Insurance Company could repudiate the claim for spare driver. Driver as well as spare driver are both employees of the insured and since additional premium was paid for as many as four employees by the insured, it is, therefore held that the Insurance Company - respondent cannot repudiate the claim. Consequently, the Insurance Company could be held liable to pay the compensation as per provisions of Section 147 of the Act. 11. According to Section 147, of the Act the liability of the Insurance Company for the spare driver is limited to the extent as arising under the Workmen compensation Act, 1923. Reference in this regard could be made to Shanthavvas case (supra), wherein the liability of the insurer was held as per terms of the Workmen Compensation Act and the compensation as calculated under the said Act, was to he paid by the insurer and the balance was to be paid by the insured. Consequently the Tribunal was right in holding that out of the total compensation of Rs. 4.15/- lac, the insurer was liable to pay Rs. 3,27,705/- and the remaining amount was to be paid by the owner-appellant. 12. Resultantly, finding no merit in the appeal, the same is dismissed.