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2013 DIGILAW 512 (KER)

National Insurance Company Ltd. v. Printo P. Jose

2013-06-21

THOMAS P.JOSEPH

body2013
JUDGMENT : Thomas P. Joseph, J. The following questions are raised for a decision: (i) Whether the deemed transfer of Certificate of Insurance and the policy described in it under Section 157(1) of the Motor Vehicles Act, 1988 (for short, "the M.V. Act") applies in the matter of liability of the insurer under the Workmen's Compensation Act, 1923 (for short, "the W.C Act")? (ii) Whether a Cleaner carried in a goods carriage is required to be covered by the policy of insurance issued under Section 147(1) of the M.V. Act? 2. This appeal is preferred by the insurer of the vehicle involved challenging the order of Commissioner for Workmen's Compensation, Thrissur (for short, "the Commissioner") allowing the first respondent/employee to recover L 97,574/- with interest from the appellant and respondents 2 and 3 and directing the appellant to deposit the said amount. 3. The accident occurred on 14.10.2003 at about 11.00 a.m. The first respondent was travelling in a tipper lorry bearing No. KL-7/C-8501 as its Cleaner. That vehicle capsized. The first respondent claimed that the said tipper lorry belonged to the second respondent and that he was working under the second respondent at the relevant time. The appellant contended that it has no privity of contract with the second respondent and that the Certificate of Insurance and policy were issued in favour of one M.D. George. In view of that contention the said M.D. George was impleaded as the additional third respondent in the claim petition. 4. In the evidence the first respondent claimed that the vehicle which belonged to the third respondent was transferred to the second respondent prior to the accident. 5. The Commissioner accepted that contention and awarded compensation as above stated directing the appellant to deposit the amount. 6. The learned counsel for the appellant has contended that the vehicle was insured in the name of the third respondent. The Certificate of Insurance and the policy described therein were not transferred in the name of the second respondent following transfer of the tipper lorry to him. The deemed transfer of certificate of insurance and the policy provided in Section 157(1) of the M.V. Act consequent to the transfer of the vehicle has no application so far as liability of the insurer under the W.C Act is concerned. The deemed transfer of certificate of insurance and the policy provided in Section 157(1) of the M.V. Act consequent to the transfer of the vehicle has no application so far as liability of the insurer under the W.C Act is concerned. According to the learned counsel, the deemed transfer of certificate of Insurance and the policy provided in Section 157(1) of the M.V. Act is only as regards liability of the insurer to third parties who file claim petitions before the Motor Accidents Claims Tribunals. The learned counsel submits that a deeming provision in one Act cannot be imported to another Act. Reliance is placed on the decision in State of Karnataka v. K. Gopalakrishna Shenoy, ( AIR 1987 SC 1911 ). 7. The second argument of the learned counsel is that the Cleaner of a goods carriage is not an employee required to be covered by the policy of insurance under Section 147(1) of the M.V. Act. The learned counsel has placed reliance on the decision in Ramashray Singh v. New India Assurance Co. Ltd., ( AIR 2003 SC 2877 ) and the unreported decision of the Division Bench of this Court in Abdulkhader Kunju Muhammed v. Thankamma and Others, (M.F.A. No.157 of 2002). 8. The learned counsel for the 1st respondent has contended that though the tipper lorry involved in the accident was owned by and insured in favour of the 3rd respondent, he had transferred that vehicle to the 2nd respondent prior to the accident. The certificate of insurance is deemed to be transferred in favour of the second respondent by virtue of Section 157(1) of the M.V. Act. 9. Countering the argument of the learned counsel for the appellant that a Cleaner of a goods carriage is not an employee required to be covered by the policy of insurance, the learned counsel submitted that he is an employee carried in a goods carriage and hence required to be covered by the policy of insurance under sub-clause (c) of clause (i) of the proviso to Section 147(1) of the M.V. Act. Reliance is placed on the decision in National Insurance Company Ltd. v. Mohammed Ali, (2012 [4] KLT 633). 10. Section 157(1) of the M.V. Act reads as under: "157. Reliance is placed on the decision in National Insurance Company Ltd. v. Mohammed Ali, (2012 [4] KLT 633). 10. Section 157(1) of the M.V. Act reads as under: "157. Transfer of certificate of insurance.- (1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provision of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer". 11. It is relevant to note that the deeming provision is with respect to the certificate of insurance and the policy issued in accordance with the provisions of "this Chapter" meaning, Chapter XI of the M.V. Act which covers Sections 145 to 164 (both inclusive). Section 147 deals with the requirements of policies and limits of liability. To comply with the requirements of Chapter XI, the policy of insurance must cover persons referred to in Section 147(1). Section 147 (1) of the M.V. Act reads: "147. Section 147 deals with the requirements of policies and limits of liability. To comply with the requirements of Chapter XI, the policy of insurance must cover persons referred to in Section 147(1). Section 147 (1) of the M.V. Act reads: "147. Requirements of policies and limits of liability.- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer an; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: 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 public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is goods carriage, being carried in the vehicle; or (ii) to cover any contractual liability. 12. It is clear from clause (i) of the proviso to Section 147(1) of the M.V. Act that to comply with the requirements of Chapter XI of the M.V. Act, the policy of insurance must cover liability of the insured arising under the W.C. Act also. 12. It is clear from clause (i) of the proviso to Section 147(1) of the M.V. Act that to comply with the requirements of Chapter XI of the M.V. Act, the policy of insurance must cover liability of the insured arising under the W.C. Act also. Hence, when Section 157(1) of the Act refers to a deemed transfer of a certificate of insurance and the policy described therein and issued in accordance with the provisions of "this Chapter" (Chapter XI), it means a certificate of insurance and policy of insurance which are required to cover liability of the insured arising under the W.C. Act also. 13. In Ramashray Singh v. New India Assurance Co. Ltd. (supra) the Supreme Court was considering the expressions "person/passenger" occurring in clauses (i) and (ii) of sub-clause (b) of Section 147(1) and not the clauses under the proviso to Section 147(1) of the M.V. Act. When Section 147(1) of the M.V. Act says that a policy of insurance is required to cover liability arising under the W.C. Act also as stated in the proviso to Section 147(1), it follows that the deemed transfer of certificate of insurance and the policy described therein provided under Sec.157(1) of the M.V. Act applies in the matter of liability of the insured under the W.C. Act also. There is no reason why the deemed transfer of Certificate of Insurance and the policy described therein referred to in Section 157(1) of the M.V. Act should be limited to cases arising under the M.V. Act alone. 14. In the light of what I have stated above, I hold that the deemed transfer of the Certificate of Insurance and the policy described therein under Section 157(1) of the M.V. Act applies so far as liability of the insurer under the W.C. Act as well. 15. Then the question is whether a 'Cleaner' carried in a goods carriage is required to be covered by the certificate of insurance and the policy? It is in this connection that the learned counsel has placed reliance on the unreported decision of the Division Bench in Abdul Khader Kunju Muhammed v. Thankamma and Others, (M.F.A. No.157 of 2002). There, the question considered was whether a helper/porter employed in a stage carriage is required to be covered by the certificate of insurance. It is in this connection that the learned counsel has placed reliance on the unreported decision of the Division Bench in Abdul Khader Kunju Muhammed v. Thankamma and Others, (M.F.A. No.157 of 2002). There, the question considered was whether a helper/porter employed in a stage carriage is required to be covered by the certificate of insurance. Question was answered in the negative since clause (b) of the proviso to Section 147(1) of the M.V. Act covered only employees, if it is a public service vehicle, engaged as a Conductor or in examining tickets in that vehicle. A helper or a porter is not an employee engaged as Conductor or in examining tickets in the vehicle and coming within clause (b) of the proviso to Section 147(1) of the M.V. Act. 16. Here, it is a 'Cleaner' carried in a goods carriage (tipper lorry). Under sub-clause (c) of clause (i) of the proviso to Section 147(1) of the M.V. Act, the Certificate of Insurance is required to cover an employee, "if it is a goods carriage, being carried in the vehicle". The said expression cannot apply to a 'driver' for two reasons: sub-clause (a) of clause (i) of the proviso to Section 147(1) of the M.V. Act refers to the employee 'engaged in driving the vehicle' and that covers the driver of any vehicle referred to in the proviso and; secondly, sub-clause (c) of clause (i) of the proviso refers to an employee who is being carried in the vehicle (by somebody) which cannot be with reference to a 'driver'. For, a 'driver' is not a person who is "being carried" in the vehicle because he himself is driving it. A 'Cleaner' of a goods carriage is an employee of the insured being carried in that vehicle. A "Cleaner" comes within the expression of "employee", if it is a goods carriage, being carried in the vehicle. The decision of the Division Bench in National Insurance Company Ltd. v. Mohammed Ali (supra) lends support to that view. I hold that a 'Cleaner' of a stage carriage being carried in that vehicle is required to be covered by the policy of Insurance in view of sub-clause (c) of clause (i) of the proviso to Section 147(1) of the M.V. Act. 17. I hold that a 'Cleaner' of a stage carriage being carried in that vehicle is required to be covered by the policy of Insurance in view of sub-clause (c) of clause (i) of the proviso to Section 147(1) of the M.V. Act. 17. On evidence, the Commissioner found that the third respondent had transferred the vehicle to the second respondent prior to the accident and that at the relevant time the first respondent was employed by the second respondent. The Certificate of Insurance and the policy described therein issued in favour of the third respondent are deemed to be transferred to the second respondent. The appellant is therefore liable to pay compensation. The appeal fails. It is dismissed. No costs. All pending Interlocutory Applications will stand dismissed.