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2011 DIGILAW 794 (GAU)

New India Assurance Company v. Nazma Begum

2011-09-22

P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. Heard Mr. I. Imsang, learned Counsel for the Appellant and Mr. Kakheto Sema, learned Counsel for the Respondent Nos. 1 to 4 and Mr. N. Mozhui, learned Counsel for the Respondent No. 5. 2. This appeal is directed against the judgment and award dated 26.2.2010 rendered by the learned Member, MACT, Dimapur (for short, "MACT") in MAC Case No. 117/2008 whereby and where under, the Appellant has been directed to pay Rs. 6,0,400/-only after deduction of interim award of Rs. 50,000/-to the Respondents/claimants by way of cheque/ demand draft within 30 days from the date of order failing which interest at the rate of Rs. 9 % p.a shall be added to be awarded amount from 18.6.2008 i.e. the date of filing of the claim petition till awarded sum is fully realized. 3. For appreciation of the issues involved, the brief facts of the case are narrated. The Respondent No. 1, 2, 3 and 4 are the wife, mother, sister and minor son of the deceased person who was a driver by profession. On 1.4.07, while he was driving Auto rickshaw bearing registration no. NL-07 F/1025 went missing along with Auto rickshaw, his dead body was found on 2/4/07 at Singrijan road, Dimapur by Diphurpar Police. The Auto rickshaw remained untraced. The Respondent No. 5 is the owner of the said Auto rickshaw (hereinafter referred to as the "vehicle"). The vehicle was insured under the Appellant Company. The Respondent Nos. 1 to 4, being the legal heirs of the deceased, filed a claim petition before the Tribunal under Section 166 of the Motor Vehicle Act, 1988 (For short "M.V. Act") against the Respondent No. 5 (owner of the vehicle) and Respondent No. 2 being the Insurer. 4. The Appellant as Respondent No. 2 contested the claim petition by filing a written statement. 5. The learned Tribunal framed the following issues: (i) Whether the deceased Lt. Md. Azaruddin @ Taiyubur Rahman died at the time of the use of the vehicle (Autorickshaw (B/R No. NL-07 F/1025 ? (ii) Whether the deceased is survived by his wife and minor son and his mother and his minor sister ? (iii) Whether the deceased was earning Rs. 5,500/- per month? (iv) Whether the vehicle was having valid and effective vehicular documents including the Insurance Policy ? (ii) Whether the deceased is survived by his wife and minor son and his mother and his minor sister ? (iii) Whether the deceased was earning Rs. 5,500/- per month? (iv) Whether the vehicle was having valid and effective vehicular documents including the Insurance Policy ? (v) Whether the deceased was the driver of the Autorickshaw B/R. No. NL-07 F/1025 ? (vi) Whether the claimants are entitled to any compensation ? If so, to what extend and payable by whom ? 6. The claimant examined 2 witnesses namely (1) Smt. Nazma Begum (respondent-petitioner No. 1) and (2) Md. Jamal Uddin, who was an Auto rickshaw driver by profession to establish the claim. Respondent No. 5 Shri Narayan Das,who was the owner of the Auto rickshaw examined himself as DW-1. The Appellant Insurance Company examined no witness before the Tribunal although opportunity was afforded to produce witness. 7. In the written statement the Appellant contended that (1) The Insurance Company is liable to indemnify the vehicle owner depending on the terms and conditions of the insurance policy and the owner of the vehicle has to satisfy those policy conditions before claiming any benefit under the policy of insurance and if, any of the terms and conditions is violated the insurance company shall not be liable to indemnify the same; (2) The alleged death of the deceased was apparently a murder case and not a death due to vehicular accident for which the claim petition is not maintainable. The claim should be made by the legal heirs of the deceased under the Workmen's Compensation Act, 1923 as per the contract of insurance entered between the Company and the vehicle owner i.e. between the Insurer and the Insured. The identity of the deceased has not been established and there is no proof of claimant's relationship with the deceased and as such, the claim petition is liable to be dismissed; (3) The claim made by the claimant is unreasonable, highly exhorbitant and without any basis. 8. Although several grounds have been taken in the memo of appeal, the main ground urged upon by the learned Counsel for the Appellant is confined to one legal issue only i.e. to say whether the learned Tribunal erred in law in passing the impugned order inasmuch as the contractual liability of the Appellant is only to the extent as provided under Workmen's Compensation Act, 1923. 9. 9. The learned Counsel for the Appellant in support of the aforesaid submission has taken shelter on a decision of the Apex Court in National Insurance Company Ltd. v. Prembai Patel and Ors. reported in (2005) 6 SCC 172 : 2005 (3) Civil L.J. 727. It was held in the said judgment that liability of insurance company Under Section 147 is confined to that arising Under Section 4 of the Workmen's Compensation Act. It was however, held that it is permissible for the owner /employer to take out such a policy where under entire liability in respect of or that personal injury to any such employee, as prescribed in Sub-clause (a), (b) or (c) of proviso (i) to Section 147(1)(b) of the MV Act, may be fastened upon the insurance company and the insurance company may become liable to satisfy the entire award Under Section 166 of the MV Act. For this purpose, the owner/ employer must take a policy of that particular kind, for which he may be required to pay additional premium and the policy must clearly show that the liability of insurance Company in case of death or bodily injury to the said kind of employee is not restricted to or provided under the Workmen's Compensation Act. Whether the aforesaid law would be applicable to the present case is to be examined taking into consideration the attending facts and nature of the insurance policy taken by the owner of the vehicle. 10. Pleadings of the parties confirm that the deceased was a driver by profession and he was engaged by an employer or owner of the vehicle. There was an employer and employee relationship between the deceased and the owner of the vehicle. For the death of or personal injury caused to Workmen during employment, the employer is liable to pay compensation and the insurance company is liable to indemnify the employer as per the terms and conditions specified in the insurance policy. In the present case it is accepted that the insurer Appellant is liable to indemnify the owner of the vehicle to the extent of liability specified in the terms and conditions of the insurance policy. In the present case it is accepted that the insurer Appellant is liable to indemnify the owner of the vehicle to the extent of liability specified in the terms and conditions of the insurance policy. But it has denied taking the entire liability of compensation as awarded by the Tribunal inasmuch as no such contract between the owner of the vehicle as insurer and the Appellant as insurer has been executed by way of payment of extra premium by the insured/ owner of the vehicle to that effect. 11. The certificate of insurance policy issued in favour of Mr. Narayan Das has been marked as Ext. D-1. It was effective from 16.8.06 till midnight of 15.8.07. The limit of liability as per the Motor Vehicle Act, 1988 is as mentioned in the said certificate of insurance. The certificate of insurance is, therefore, an Act Policy or what is called a policy for Act Liability. The said certificate of insurance has no mention about payment of extra premium by the insured. The effect of non payment of extra premium is that the insurer cannot be saddled with any extra liability to pay the entire amount of compensation as awarded by the Tribunal in favour of the claimant. This factual and legal position is found established in the present case. The Apex Court in the aforesaid Prembai's case (supra) held that the insurance policy taken by the owner of the vehicle having contained a clause that is a policy of ACT Liability only, the Appellant insurance company would be restricted to that arising under the Workmen's Compensation Act. It means the insurance company is to satisfy the award only to the extent of covered under Workmen,s Compensation Act and the remaining portion is to be satisfied by the owner of the vehicle. 12. The question as to whether the death of Auto rickshaw driver comes within the meaning of "Death due to accident arising out of the use of motor vehicle" would need further interpretation in the light of discussion held in Rita Devi and Ors. v. New India Assurance Company Ltd. and Anr. 12. The question as to whether the death of Auto rickshaw driver comes within the meaning of "Death due to accident arising out of the use of motor vehicle" would need further interpretation in the light of discussion held in Rita Devi and Ors. v. New India Assurance Company Ltd. and Anr. reported in 2000 (2) GLT (SC) 1 wherein it is held that the difference between a "murder" which is not an accident and a "murder" which is an accident, depends on the proximity of the cause of such murder and if the dominant intention of the act or felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder. What is apparent in the present case is that the murder took place while the deceased, as driver has been using the said vehicle and the same is remaining untraced and it reflects that the murder of the deceased driver was not originally intended but it was caused in furtherance of any other felonious act of the person who intended to steal the vehicle and in furtherance of such act, the incident took place and this is an accidental murder. No other view can be taken to brush aside the claim of the Respondents under the M.V. Act. Other point raised by the appellant regarding identity of the deceased, it could not be entertained at the earlier stage inasmuch as the Appellant insurance Company failed to adduce evidence before the learned Tribunal to establish its case. Moreover, the Appellant while cross-examining the claimant Smt Nazma Begum (P.W-1) put no suggestion to the effect that the deceased was not her husband or that the claim petition filed by her as wife of the deceased was not her husband. P.W-1 was not cross-examined in an elaborate manner to demolish her evidence that the deceased was not her husband and the claim petition has been filed with mistaken identity. The learned Counsel for the insurer, while cross-examining P.W-1, put only one question to which she replied that she did not know who was Amit Das. P.W-1 was not cross-examined in an elaborate manner to demolish her evidence that the deceased was not her husband and the claim petition has been filed with mistaken identity. The learned Counsel for the insurer, while cross-examining P.W-1, put only one question to which she replied that she did not know who was Amit Das. There was only one suggestion put by the counsel of the insurer to P.W-1 which was denied by her saying that "I deny the suggestion that my husband's salary is Rs. 1,000/-. My husband's daily allowance differs from Rs. 1,00/-to 2,00/-. 13. Situated thus, I find no ground for accepting the objection raised by the Appellant and to hold that the claim petition is not maintainable under the law. However, in the light of the law laid down in Prembai (supra), I hold that the Appellant as insurer is not liable to pay the entire compensation amount awarded by the Tribunal but only to the extent under the terms and conditions laid down in the contract between the Appellant-insurer and owner-insured, because of the accepted position that Ext. D-1, certificate of insurance is an Act Policy only without covering the entire liability of the insured. The impugned judgment and award suffers from infirmity in so far as it has saddled the Appellant-insurance company with the entire liability which is not permissible under the law. The same is, therefore, quashed and set aside. The matter stands remitted to the Tribunal for determination of the amount of compensation to be born by the Appellant-insurance Company as per the contract of insurance i.e. the Act Policy under the M.V. Act within a period of 60 days from the date of receipt of the L.C.R along with a copy of this order after giving due notice and providing opportunity of hearing to the parties concerned. 14. With the aforesaid observations and directions, this appeal stands disposed of. No order as to costs.