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2011 DIGILAW 1160 (KER)

National Insurance Company Ltd. v. Mohammed Ali

2011-12-02

A.M.SHAFFIQUE, K.M.JOSEPH

body2011
JUDGMENT : K.M. Joseph, J. Appellant is the second opposite party/the insurer in proceedings under S. 22 of the Workmen's Compensation Act (hereinafter referred to as the Act'). By the impugned order, the Commissioner has allowed the application and directed the appellant to pay Rs. 3,27,705/- with interest at 12% from the date of accident till the date of deposit. We have heard the learned counsel for the appellant Sri. Lal George and the learned counsel for the respondents/claimants. 2. The learned counsel for the appellant would contend that the Commissioner has acted illegally in allowing the claim against the appellant. He would point out that the case of the applicant was that the deceased was employed as a workman of the first opposite party, he was travelling in a tractor, there was an accident, involving the tractor, as a result of which, the deceased fell from the tractor and he succumbed to the injuries. He would straight away submit that the insurer cannot be made liable as no premium has been paid in respect of the deceased. He would further submit that the employee would not come within any of the clauses in the proviso to S. 147 of the Motor Vehicles Act. He is neither a driver nor he is a conductor or ticket examiner within the meaning of the proviso to S. 147 and therefore the Commissioner has acted illegally in making the insurer liable. 3. Per contra, the learned counsel for the applicant would submit that this is a case where the vehicle involved was not a mere tractor but it was a tractor-cum-trailor, as evident from a perusal of the policy itself. He would submit that a tractor-cum-trailor is a goods vehicle. He would submit that the records available in this case would show that when the tractor-cum-trailor was in motion, the accident took place and therefore being an employee, who was carried in the vehicle, which was a goods vehicle, he would come within the terms of S. 147 of the proviso. Still further, he would contend that the terms of the policy even otherwise provides for coverage of six employees under the Workmen's Compensation Act. 4. Still further, he would contend that the terms of the policy even otherwise provides for coverage of six employees under the Workmen's Compensation Act. 4. The learned counsel for the appellant in reply would submit that as far as the contention of the applicant that, even without coverage under the Act policy, six employees would be covered under the Clauses contained in the contract of insurance is without any substance. He would point out that the policy of insurance, no doubt, contain such a clause. But he invited our attention to the schedule providing for payment of premium and he contended that no premium has actually been paid. According to him, the clause relied on by the applicant is really not applicable and it so happened that though not relevant to the case, such clauses have not been expressly deleted. He would further contend that having regard to the case of the applicant that the deceased suffered accident from a tractor and as a tractor is not a goods vehicle, the claim cannot be accepted. The learned counsel for the appellant canvassed the following decisions before us. He relied on the judgment of the Apex Court in National Insurance Co. Ltd. Vs. V. Chinnamma and Others, , Ramashray Singh Vs. New India Assurance Co. Ltd. and Others, and New India Assurance Co. Ltd. Vs. Vedwati and Others. He also referred to a decision of a learned single Judge reported in Thankachan T. K. v. O. U. Geevarghese, 2009 (1) KHC 699. The learned counsel for the applicant, on the other hand, relied on the judgment of a Division Bench of this Court in Sasi Vs. Saidali. 5. As far as the decision of the Apex Court reported in National Insurance Co. Ltd. Vs. V. Chinnamma and Others, is concerned, that was a case which arose under the Motor Vehicles Act The deceased used to carry vegetables. He purchased five bags of vegetables and loaded the same in a traitor of a tractor and he was travelling therein. He wanted to buy some more vegetables. Because of the negligent driving of the driver of the tractor, an accident occurred and he succumbed to the injuries. He purchased five bags of vegetables and loaded the same in a traitor of a tractor and he was travelling therein. He wanted to buy some more vegetables. Because of the negligent driving of the driver of the tractor, an accident occurred and he succumbed to the injuries. It is in the said factual context of a claim which arose under the Motor Vehicles Act that the Apex Court proceeded to hold as follows: Further more, a tractor is not even a goods carriage." The "goods carriage" has been defined in S. 2(14) to mean "any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods" whereas "tractor" has been defined in S. 2(44) to mean "a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of -propulsion); but excludes a road-roller". The "trailer" has been defined in S. 2(46) to mean "any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle. 6. As far as the decision of the Apex Court reported in Ramashray Singh Vs. New India Assurance Co. Ltd. and Others, is concerned, it is again a case under the Motor Vehicles Act. The Court was dealing with the concept of third party risk flowing from an Act policy. It is necessary to notice the bare facts of the case. 7. The appellant was the owner of a vehicle which was described as a tractor-cum-trekker in which the passengers were carried for hire. He employed one person as a Khalasi. There was an accident and in the accident a person died. The claim was raised under the Workmen's Compensation Act. The High Court in a Writ Petition set aside the finding of the Commissioner to the effect that the insurer was liable. It was in appeal by the claimants that the Apex Court was dealing with the issue. It is pertinent to extract paragraph 10. The appellant's first submission was that Shashi Bhushan Singh was a passenger. The appellant's submission that the phrases 'any person' and "any passenger" in Cls.(i) and (ii) of sub-section (sic) to S. 147(1) are of wide amplitude, is correct. (See New India Assurance Company Vs. Shri Satpal Singh and Others). It is pertinent to extract paragraph 10. The appellant's first submission was that Shashi Bhushan Singh was a passenger. The appellant's submission that the phrases 'any person' and "any passenger" in Cls.(i) and (ii) of sub-section (sic) to S. 147(1) are of wide amplitude, is correct. (See New India Assurance Company Vs. Shri Satpal Singh and Others). However, the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely, employees of the insured. In other words, if the "person" or "passenger" is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to S. 147(1)(b), it is clear that for the purposes of S. 146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the person insured unless; first: the liability of the insured arises under the Workmen's Compensation Act, 1923 and second. If the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description of "any person" or "passenger". If this were permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word "cleaner" while describing the seating capacity of the vehicle does not mean that the cleaner was therefore a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmen's Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employer. This order cannot now be enforced on the basis that the deceased was a passenger. 8. Thereafter, no doubt, the Court referred to a contention in paragraph 13 as to whether the concerned employee can be treated as a conductor. This order cannot now be enforced on the basis that the deceased was a passenger. 8. Thereafter, no doubt, the Court referred to a contention in paragraph 13 as to whether the concerned employee can be treated as a conductor. The learned counsel for the appellant sought to contend that a perusal of paragraph 10 would fortify his argument that only a driver or a person employed as a conductor or ticket examiner contemplated under Clauses (a) and (b) of the proviso to S. 147 alone are covered. We may straight away note that the Apex Court was not called upon to decide a case under Clause (c) of the proviso to S. 147. The argument was that the deceased workman was a passenger. It was in the alternative contended that he was a conductor. The Court did not have occasion to consider the scope and ambit of Clause (c) of the proviso to S. 147: 9. The next decision canvassed by the appellant is reported in New India Assurance Co. Ltd. Vs. Vedwati and Others. That was a case which arose under S. 166 of the Motor Vehicles Act. The tractor in which the deceased was travelling after delivering some goods, overturned resulting in the death. The contention of the insurer was that the tractor could be used only for agricultural work and the insurer was not responsible to indemnify the owner and to pay any amount to the claimants. The Apex Court proceeded to hold as follows: The difference in the language of "goods vehicle" as appear in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "good vehicle" in the old Act. The position becomes further clear because the expression used is "good carriage" is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (it) of the proviso appended to S. 95 of the old Act prescribing requirement of insurance policy. Even S. 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (it) of the proviso appended to S. 95 of the old Act prescribing requirement of insurance policy. Even S. 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short "WC Act"). There is no reference to any passenger in "goods carriage". XXX XXX XXX Our view gets support from a recent decision of a three Judge Bench of this Court in New India Assurance Co. Ltd. Vs. Asha Rani and Others, New India Assurance Co. Ltd. Vs. Asha Rani and Others, in which it has been held that Satpal Singh's case (supra) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award. 10. Accordingly, the appeal was allowed. It is very pertinent at this juncture to notice that the Apex Court has in paragraph 12 which is extracted, specifically referred to the effect of the proviso to S. 147 and the categories of employees carried in goods vehicle inter alia being covered by the liability under the Workmen's Compensation Act. The last decision relied on by the learned counsel for the appellant is the judgment of the learned single Judge reported in Thankachan T.K. v. O.U. Geevarghese, 2009(1) KHC 699. That was also is a case under the Motor Vehicles Act. The injury was sustained when the claimant was travelling in a tractor and it is in the said circumstances, the learned single Judge held that the tractor is not intended to carry passengers and therefore in a policy issued to the tractor as a statutory policy, it does not cover the risk of a person travelling in a tractor's mudguard. 11. In the decision relied on by the learned counsel for the applicant i.e. in Sasi Vs. 11. In the decision relied on by the learned counsel for the applicant i.e. in Sasi Vs. Saidali, a Division Bench of this Court considering the case under the Motor Vehicles Act had proceeded to hold that a tractor with a trailor will satisfy the definition of a goods vehicle as it is meant to carry goods. It is necessary to notice the following paragraph: Of course, going by the definition of tractor in S. 2(44), the tractor itself is not a goods vehicle. It may also become a goods vehicle. A trailer can also be fitted with a tractor. Necessarily, in a trailer one can carry goods. Going by Ext. A1 F.I.R., the trailer was carrying laterite stones and the deceased was also present in the trailer at the time of accident. Ext. B1 policy also discloses that not only the tractor, but the tractor with trailer No. GT/192/95 has been insured. In order to insure the trailer also, there must have been some use for the trailer and a trailer can be put to use only to carry goods. In such circumstances, a tractor with trailer will satisfy the definition of the goods vehicle, as it is meant to carry goods, when it is fitted with a trailer carrying goods as in this case. A survey of the above decisions in our opinion, will yield the following result: 12. A tractor is not a goods carriage vehicle by itself. But the tractor with a trailor can be a goods carriage. The contention of the appellant that liability in respect of an Act policy will be available only to a driver a conductor and a ticket examiner is without any merit. A tractor is not a goods carriage vehicle by itself. But the tractor with a trailor can be a goods carriage. The contention of the appellant that liability in respect of an Act policy will be available only to a driver a conductor and a ticket examiner is without any merit. The proviso (1) to section 147 of the Motor Vehicles Act reads as follows: (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. 13. Therefore a perusal of the aforesaid proviso would show that intention of the Parliament is that in order to comply with a requirement of a valid Act policy, the contract of insurance must provide for coverage in respect of death or bodily injury caused to satisfy the three categories of employees, formulated in Clause (a) to (c) of the proviso. They are as follows: 1. Drivers engaged employees. 2 Conductors of a public service vehicle or person examined as ticket examiner. 3. Any person carried on a goods carriage. While it is true that the definition of a goods carriage as contained in the Motor Vehicles Act is such that it does not contemplate carrying any person, the words employed in Clause (c) of the proviso does not leave us in any doubt that as far as the liability under the Workmen's Compensation Act is concerned with which the proviso is concerned, Parliament contemplates employees who may be travelling in a goods carriage. We are unable to limit the benefit of the proviso to only the driver or to the conductor/ticket examiner. We are unable to limit the benefit of the proviso to only the driver or to the conductor/ticket examiner. If the arguments of the appellant were accepted that only the driver and conductor, ticket examiner, are to be comprehended within the proviso there was no need at all to frame clause (c). Also the very fact that the legislature used the words "or persons carried on a goods vehicle" itself shows that it is intended to cover not the driver but somebody other than the driver. No doubt he must be an employee. This interpretation which we have placed does not go contrary to the dictum laid down by the Apex Court in any of the decisions cited before us. The distinction in regard to the insurer's liability under the Workmen's Compensation Act has been succinctly brought out in decision of the Apex Court itself which we have adverted/extracted [paragraph 12 of the decision reported in New India Assurance Co. Ltd. Vs. Vedwati and Others]. 14. The further question is applying the said exposition of the legal principle applicable what will be the result in the facts of this case. No doubt the parties have proceeded apparently as if it was a tractor. In the application filed, the applicants have referred to the vehicle as a tractor. We have perused the contract of insurance. The contract of insurance itself clearly states that the vehicle is a tractor-cum-trailor. 15. B1 is the permit particulars of the vehicle. B2 is the copy of goods carriage permit. B3 is the R.C. Book of the vehicle. B2 would show that vehicle had a goods carriage permit. The nature of the goods which were authorised to be carried is shown as all kinds of unhazardous goods except those prohibited by law. The permit particulars also show that it is treated as a goods vehicle. In the RC book also shows it as a tractor-cum-trailor. Therefore, it is not a case of a mere tractor. It was a tractor-cum-trailor. There is no case for the appellant that the deceased was not an employee. Therefore, he was an employee. Therefore, if he was carried in the vehicle which was used as a goods vehicle, then certainly without anything more he would be entitled to compensation under Workmen's Compensation Act. 16. There is a finding of the statutory authority that the deceased was an employee. Therefore, he was an employee. Therefore, if he was carried in the vehicle which was used as a goods vehicle, then certainly without anything more he would be entitled to compensation under Workmen's Compensation Act. 16. There is a finding of the statutory authority that the deceased was an employee. The first opposite party has filed a counter affidavit admitting that he was an employee. There was also evidence given by AW1 which was available before the Commissioner and the Commissioner arrived at such a conclusion. Therefore, in the light of the findings we can proceed on the basis that he was an employee carried on the tractor-cum-trailor. Then a further question may arise. No doubt, in the order, A.W.I. has deposed as follows: Going by the definition of the words 'goods carriage' it means motor vehicle constructed or adapted for the use only for the carriage of goods or motor vehicle not so constructed or adapted when used for the carriage of goods. In this case, the materials on record in the form of Exts. B1 to B3 would show that it was considered as a goods vehicle. That tractor in conjunction with the trailor was being used as a goods vehicle and it was meant to carry goods which in this case is mud. Therefore, we are of the view that the deceased fell from the vehicle which was a tractor-cum-trailor which can be treated as a goods vehicle. Being an employee, he was therefore carried on the goods vehicle within the meaning of Clause(c) of the proviso to S. 147 for the purpose of the Workmen's Compensation Act. It is therefore not open to the appellant to rely on judgments of the Apex Court which were rendered under the Motor Vehicles Act considering the case of passengers and they are not applicable to the facts of this case. It is therefore not open to the appellant to rely on judgments of the Apex Court which were rendered under the Motor Vehicles Act considering the case of passengers and they are not applicable to the facts of this case. Apart from all these, we also notice an other salient feature which is that in the contract of insurance, a term exists which reads as follows: Except so far as is necessary to meet the requirements of the Motor Vehicle Act, 1988 in relation to liability under the Workmen's Compensation Act, 1923, the Company shall not be liable to respect of death of or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or mounting or alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises. Contract of insurance clearly provides for liability for the appellant in respect of the employees under the Workmen's Compensation Act. The deceased was an employee. The claim was under the Workmen's Compensation Act. We are not much impressed by the contention of the appellant that it may not be applicable as such. If it was not applicable it ought to have been struck off. Anyway, it is not necessary for us to rest our decision on that score as we find that the deceased was entitled to the benefit of Clause (c) of the proviso to Section 147 of the Motor Vehicles Act. In such circumstances, we do not think it is necessary to remand the matter back for which request was also made by the learned counsel for the appellant. Having regard to legal position and Exts. P1 to P3, which are impeccable documentary evidence available which will go to show that the vehicle was in fact a goods vehicle, there is no merit in the appeal. We dismiss the appeal.