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Gauhati High Court · body

2011 DIGILAW 143 (GAU)

Oriental Insurance Co. Ltd. v. Juti Bala Das

2011-02-23

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. This appeal, by the insurer (Oriental Insurance Co. Ltd.) is directed against the judgment and award dated 18.11.1999, passed by learned Member, Motor Accidents Claims Tribunal, Belonia, South Tripura in T.S. (M.A.C.) No. 13 of 1988, whereby an amount of Rs. 1,01,000 was awarded in favour of the claimant-respondent No. 1 as compensation for the death of her son Krishna Das alias Krishnadhan. It was provided that out of the said amount, Rs. 10,000 would be paid by Probodh Poddar, i.e., the respondent No. 1 in the claim petition and respondent No. 3A in this appeal. The remaining amount was directed to be paid by the insurer aforesaid. It was also provided that the awarded amount should be paid within 45 days, failing which the amount shall carry interest at the rate of 12 per cent per annum from the date of application, i.e., 4.9.1998. Being aggrieved by the said judgment and award, the insurer, as appellant, has come up with this appeal under section 173 of the Motor Vehicles Act, 1988 ('the M.V. Act'). We have heard Mr. P. Goutam, the learned counsel for the appellant insurer. Also heard Mr. D.C. Roy, learned counsel for the claimants-respondents as well as Mr. R.C. Debnath, learned counsel for the respondent Nos. 1 and 2. None appears for the owner of the vehicle, respondent Nos. 3 and 3A. 2. The short question involved in this appeal is as to whether the insurer can be held liable, under the relevant provisions of the M.V. Act and the terms and conditions of the insurance policy, in respect of the offending vehicle, to pay any compensation for the death of an employee of the owner of the vehicle, who was working as assistant on the vehicle at the relevant time. The factum of accident, status of the claimant-respondent and the insurance policy issued in respect of the offending vehicle are not in dispute. In order to appreciate the appellant's contention it would be appropriate to briefly outline the facts of the case as follows: 3. The factum of accident, status of the claimant-respondent and the insurance policy issued in respect of the offending vehicle are not in dispute. In order to appreciate the appellant's contention it would be appropriate to briefly outline the facts of the case as follows: 3. Late Krishna Das alias Krishnadhan, who was the son of claimant-petitioner No. 1 (respondent No. 1 in this appeal) and the elder brother of the claimant-petitioner No. 2 (respondent No. 2 in the appeal), was working as an assistant in the vehicle, covered by registration No. TRT 43, which was owned by the respondent No. 1A in the claim case (respondent No. 3A in the appeal) in whose name the policy stood. The said vehicle was got insured with the appellant covering six passengers and one driver. On 17.7.1998, at about 11.30 p.m., while the said vehicle was proceeding towards Mahamuni to Santirbazar it met with an accident due to rash and negligent driving on the part of the driver. As a result of the accident, the said assistant sustained fatal injuries on his head and other parts of the body. Consequently, Krishnadhan aforesaid succumbed to the injuries sustained by him. At the time of his death, the deceased was aged about 18 years and he was under the employment of the owner of the vehicle earning Rs. 1,500 as his monthly wages. According to the claimants, they were fully dependent on the income of the deceased, who used to contribute his entire income to the benefit and welfare of the claimants. Therefore, the claimants filed a claim petition seeking compensation of Rs. 9,01,000. Though the respondent No. 3A was originally added as the driver-cum-owner of the offending vehicle, subsequently, it was revealed from the written statement, filed by the said driver, that the vehicle at the relevant time was really owned by the respondent No. 3 and as such, Atal Behari Debnath, respondent No. 3, was added as opposite party respondent No. 2. All the respondents contested the claim by filing separate written statements. Respondent Nos. 4 and 5, being the elder brothers of the deceased, supported claimants' case. 4. According to Probodh Poddar, respondent No. 3A, who drove the vehicle, the deceased was working as a helper earning Rs. 25 per day as his wage. All the respondents contested the claim by filing separate written statements. Respondent Nos. 4 and 5, being the elder brothers of the deceased, supported claimants' case. 4. According to Probodh Poddar, respondent No. 3A, who drove the vehicle, the deceased was working as a helper earning Rs. 25 per day as his wage. He further contended that there was no negligence on his part in driving the vehicle and that he had driven the vehicle with all care and safety. He further contended that at the time of the accident, Atal Behari Debnath (respondent No. 3), who was added as the opposite party No. 1A in the claim case, was the real owner of the offending vehicle and that he (respondent No. 3) was unnecessarily impleaded in the said case. Atal Behari Debnath, respondent No. 3, in his written statement, averred that he proposed to sell the vehicle to the respondent No. 3A, i.e., Probodh Poddar and handed over the vehicle along with all the documents, but due to his sudden illness he could not sign the prescribed format as per M.V. Act and to report the transfer of the vehicle in favour of respondent No. 3. He also contended that the vehicle was properly insured with the insurer aforesaid and that it was the liability of the insurer to pay the compensation. The insurer, i.e., the appellant, who contested the claim case as respondent No. 2, by filing a written statement, inter alia, stated that the contract of insurance did not cover the risk of the assistant and as such, the insurer was not liable to pay any compensation for the death of the assistant of the vehicle. Upon the pleading of both the parties the learned trial Judge framed the following issues: (1) Whether TRT 43 (jeep) met with an accident at Mahamuni on Santirbazar-Mahamuni Road on 17.7.1998 at 11.30 p.m. for rash and negligent driving of the said vehicle? (2) Whether Krishna Das alias Krishnadhan died as a result of said accident? (3) Whether the claimants are entitled to get any compensation for the death of Krishna Das alias Krishnadhan and if so what shall be the amount and who shall make the payment? (4) Any other relief the claimants are entitled to get? 5. (2) Whether Krishna Das alias Krishnadhan died as a result of said accident? (3) Whether the claimants are entitled to get any compensation for the death of Krishna Das alias Krishnadhan and if so what shall be the amount and who shall make the payment? (4) Any other relief the claimants are entitled to get? 5. The claimant examined three witnesses including herself and had exhibited certain documents including the certified copy of the F.I.R. and the inquest report prepared by the police, in respect of the dead body of the deceased. The respondent No. 1 exhibited the driving licence, which stood in his favour. The respondent No. 2, i.e., the insurer examined one witness as DW 1. Atal Behari Debnath, i.e., respondent No. 3, examined himself as DW 2. The insurance policy and the certified copy of the report of the Motor Vehicles Inspector in respect of the offending vehicle were exhibited. 6. Considering the evidence on record, the learned trial Judge held that accident occurred due to rash and negligent driving of the vehicle and that the deceased aforesaid died in the said vehicular accident. As the deceased was working as an assistant on the vehicle, the learned trial Judge came to the finding that the monthly income of the deceased was Rs. 1,500 and he used to contribute the same for the maintenance of the claimants. The learned trial Judge awarded compensation of Rs. 1,01,000. It was provided that since the respondent No. 1 in the claim case, i.e., Probodh Poddar (respondent No. 3A in this appeal) was driving the vehicle after purchasing the same on the basis of an agreement of sale executed with respondent No. 1A, i.e., the respondent No. 3, it was his responsibility to get the vehicle properly documented and insured before driving it on the road. With the above observation, learned trial Judge held that the said respondent No. 3 also should share a part of the responsibility. Accordingly, out of the awarded amount, the respondent No. 3 was directed to pay Rs. 10,000 and the insurer was directed to pay the remaining amount of the award. 7. Mr. Goutam, learned counsel appearing for the appellant, taking this court to the provisions of sections 146 and 147 of the M.V. Act and the insurance policy, Exh. Accordingly, out of the awarded amount, the respondent No. 3 was directed to pay Rs. 10,000 and the insurer was directed to pay the remaining amount of the award. 7. Mr. Goutam, learned counsel appearing for the appellant, taking this court to the provisions of sections 146 and 147 of the M.V. Act and the insurance policy, Exh. A, has submitted that the policy was issued covering 6 passengers and a driver and that as no extra premium was paid for the assistant of the vehicle the insurer was not liable to pay any compensation for the death of the assistant of the vehicle. 8. Mr. D.C. Roy, learned counsel for the respondents, has submitted that as the vehicle was covered by a valid insurance policy, the insurer was liable to pay for the death of the assistant of the vehicle, who died in a vehicular accident involving the offending vehicle. It is also submitted that at the time of accident there were only two persons in the said vehicle, i.e., the driver of the vehicle and the said assistant and as such, the vehicle having been insured covering seven persons, the insurer was liable to pay compensation for the death of the assistant, who was the second person using the said vehicle, along with the driver. 9. Perusing the policy it appears that it was an Act policy covering the vehicle, passengers and driver as shown in the schedule of premium, which reads as follows: The said policy also clearly indicates that no other employee except the driver, engaged by the owner of the vehicle, was covered by insurance issued by appellant. From the impugned judgment, it appears that the learned trial Judge observed the capacity of the vehicle was 6+1. At the time of accident apart from the respondent No. 1 the deceased was the only person as the assistant of the vehicle. There is no stipulation in the contract of insurance that for an assistant, if employed, any extra premium is to be paid. I find no reason to support the plea of the insurance company that the insurance company will get a leave from the liability of insurance cover of the vehicle only for the reason that deceased was an assistant of the vehicle. Grossly the liability of the insurance company cannot exceed for the persons more than 6+1. I find no reason to support the plea of the insurance company that the insurance company will get a leave from the liability of insurance cover of the vehicle only for the reason that deceased was an assistant of the vehicle. Grossly the liability of the insurance company cannot exceed for the persons more than 6+1. In the instant case since only one person died and that is within the periphery of the policy of the insurance whether or not he was an assistant or a passenger, the liability is to be substantially borne by the insurance company. Since the respondent No. 1 was driving the vehicle after purchasing the vehicle on an agreement of sale with respondent No. 1A, so it was his responsibility to get the vehicle properly documented and insured before he drove it on the road. Therefore, I think, he should also share a part of the responsibility. With the aforesaid observation the respondent No. 1 was directed to pay an amount of Rs. 10,000 as compensation, while the insurer was directed to pay the remaining amount of the award. 10. From the impugned judgment what I notice is that the learned trial Judge had missed to notice that the capacity of the vehicle was 6+1 (passengers six and driver one). The learned trial Judge further failed to notice that apart from paying premium for the passengers (six passengers) the owner of the vehicle paid premium for the driver also, who was an employee of the owner. Premium covering no other person was paid in respect of the offending vehicle. Therefore, as per terms and conditions of the said policy, there was no difficulty in understanding that the policy did not cover any other employee except the driver of the vehicle. The learned trial Judge also failed to appreciate that an 'assistant' of the vehicle does not come under the definition of a passenger. 11. Mr. P. Goutam, the learned counsel appearing for the insurer, has also taken this court through the provisions of section 146(1) under Chapter XI of the M.V. Act. This Chapter of the M.V. Act deals with insurance of motor vehicles against third party risk. Section 146(1) provides that no person shall use a motor vehicle in a public place without a valid policy of insurance in relation to the use of the vehicle. This Chapter of the M.V. Act deals with insurance of motor vehicles against third party risk. Section 146(1) provides that no person shall use a motor vehicle in a public place without a valid policy of insurance in relation to the use of the vehicle. The statutory requirement of insurance policy has been provided in section 147. As provided by section 147(1) a policy of insurance covers the liability with regard to the persons specified in the policy to the extent specified in sub-section (2). The proviso to section 147(1) reads as follows: Provided that a policy shall not be required-- (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 a conductor of the vehicle or in examining tickets of the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. 12. From the above, it appears that the insurance policy covers the persons mentioned in the policy. It is found that the policy is restricted to the liability arising under the M.V. Act in respect of death or bodily injury to such employee, who is driver or conductor or ticket examiner, if the vehicle is a public vehicle. There is no dispute that the offending vehicle was a public vehicle carrying passengers. Therefore, the policy required to be obtained under the Act does not cover any other employee except those mentioned above. Except the above policy there was no other contract between the insurer and the insured for covering any other employee in respect of the vehicle. In support of his contention, Mr. Goutam, learned counsel for appellant, has referred to the decision of the Apex Court in Ramashray Singh v. New India Assurance Co. Ltd., 2003 ACJ 1550 (SC), which decision was referred by a Division Bench of this court in Oriental Insurance Co. Ltd. v. Himangshu Ch. In support of his contention, Mr. Goutam, learned counsel for appellant, has referred to the decision of the Apex Court in Ramashray Singh v. New India Assurance Co. Ltd., 2003 ACJ 1550 (SC), which decision was referred by a Division Bench of this court in Oriental Insurance Co. Ltd. v. Himangshu Ch. Deb, 2009 ACJ 1359 (Gauhati). 13. In the case of Ramashray Singh, 2003 ACJ 1550 (SC), the central question involved was as to whether the khalasi was covered by the definition of conductor under section 147 of the M.V. Act. The Division Bench of this court referred to the following observation made by the Apex Court: (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 clause (b) of sub-section (1) to section 147 are of wide amplitude, is correct [See New India Assurance Co. Ltd. v. Satpal Singh, 2000 ACJ 1 (SC)]. 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 section 147(1)(b), it is clear that for the purposes of section 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 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 was 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. If this was 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 employee. This order cannot now be enforced on the basis that the deceased was a passenger. (12) So a person carried in pursuance of a contract of employment would be a passenger and would be covered as such. The exclusion of this clause in the proviso to section 147(1)(b) of the present Act bolsters our reasoning that employees other than the three mentioned are not covered by section 147(1)(b). (13) The appellant's next submission was that the concerned employee was a 'conductor'. It is doubtful whether a khalasi and a conductor are the same. But assuming this were so, there is nothing to show that the appellant had paid any additional premium to cover the risk of injury to a conductor. On the contrary, the policy shows that premium had been paid for 13 passengers and one driver. There is no payment of premium for a conductor. 14. In the above referred appeal, preferred by Oriental Insurance Co. Ltd., the question involved was as to whether the claimant-respondent who, as an employee of the owner of the vehicle, was working as assistant at the relevant time, was entitled to be compensated by the insurer of the policy for the injury sustained by him. The Division Bench of this court while allowing the appeal preferred by the insurer observed that the owner of the vehicle, being the employer of the victim, would be liable to pay compensation awarded. 15. Mr. D.C. Roy, learned counsel for the respondent-claimants, has advanced the argument that the insurance policy being a comprehensive one, the appellant was liable to pay the compensation for the death of the employee, who was travelling in the insured vehicle. 15. Mr. D.C. Roy, learned counsel for the respondent-claimants, has advanced the argument that the insurance policy being a comprehensive one, the appellant was liable to pay the compensation for the death of the employee, who was travelling in the insured vehicle. Regarding the meaning of comprehensive policy, the Division Bench of this court referred to the following observation made by Hon'ble Supreme Court in the case of Ramashray Singh, 2003 ACJ 1550 (SC): (14) The appellant's final submission was that as the policy was a comprehensive one, it would cover all risks including the death of the khalasi. The submission is unacceptable. An insurance policy only covers the person or classes of persons specified in the policy. A comprehensive policy merely means that the loss sustained by such person/persons will be payable up to the insured amount irrespective of the actual loss suffered. [See New India Assurance Co. Ltd. v. C.M. Jaya, 2002 ACJ 271 (SC); Colinvaux's Law of Insurance, 7th Edn., pp. 93-94]. 16. In view of the above legal position and the terms of the policy in question, the argument advanced by the learned counsel for the claimant-respondent is found to be misconceived and without any force. That apart, under no circumstance an assistant of the vehicle can be deemed to be a passenger. The said policy premium was received under two policy heads, i.e., for the passengers and the driver. No substance in the contention that the policy covered the risk in respect of the assistant of the vehicle. Thereon, the insurer, i.e., the present appellant is not required to pay the compensation. 17. In light of the above discussion, I am of the considered opinion that though the amount of compensation, awarded by the learned trial Judge, is not liable to be interfered with for want of any challenge to the said amount, the owner of the vehicle, who engaged the deceased as his assistant, is liable to pay the compensation awarded by the learned trial Judge. 18. In view of what has been discussed above, I find sufficient merit in this appeal requiring interference with the impugned judgment and award in regard to the liability to pay the compensation. Hence, the part of the impugned judgment and award, whereby the insurer appellant has been made liable to pay the compensation along with the interest, is hereby set aside and quashed. Hence, the part of the impugned judgment and award, whereby the insurer appellant has been made liable to pay the compensation along with the interest, is hereby set aside and quashed. It is directed that the owner, i.e., the respondent No. 3A (the respondent No. 1 in the claim case), against whom the learned trial Judge has granted award to the extent of Rs. 10,000 being the employer of the deceased shall be liable to pay the entire amount of compensation with interest. Accordingly, the appeal is allowed with the modification in respect of the impugned judgment and award, as indicated above. 19. No costs. Send down the lower court records.