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Gauhati High Court · body

2015 DIGILAW 1412 (GAU)

United India Insurance Co. Ltd. v. Baban Nath

2015-11-13

N.CHAUDHURY

body2015
JUDGMENT : The judgment and award dated 3.8.2007 passed by WC Commissioner , Guwahati in WC Case No.50 of 2004 has been called in question in the present appeal by the United India Assurance Co.Ltd. . By this judgment, the learned WC Commissioner has directed the insurance company to make payment of Rs.1,03,456/-. 2. One Baban Nath, being claimant filed an application before the WC Commissioner stating that he was employed by one Gunin Kumar Chaudhury as cleaner /Handyman of Bus bearing registration No. 15/5621. On 6.3.2004, while on duty, he fell down by the rear door of the bus at Bilortarihati, Barpeta over the Barpeta –Bhella PWD road. He sustained grievous injury on his person for which he was admitted to Barpeta Civil Hospital. It was found on x-ray examination that he received fracture injury on his neck on right femur and there was contusion on the right parital region of the scalp. The injured was referred to GMCH, Guwahati for better treatment but he could not do so for paucity of money. He prayed that appropriate compensation be paid to him because of the aforesaid disability suffered by him which is permanent and partial in nature. On being notified, Opposite party No. 1, owner of the vehicle appeared and submitted written statement admitting that the claimant was his employee with respect to the vehicle in question and that he was on duty at the time of the accident of the vehicle on the fateful day. The claimant was receiving monthly salary of Rs. 2500/- from him including allowance and that the vehicle was covered by valid insurance of United India Insurance Co. Ltd. vide policy No. 130204/31/02/04027. 3. Opposite party No. 2, United India Insurance Co. Ltd. submitted written statement denying the case of the claimant and stated that it is not liable to make payment of any compensation whatsoever. 4. On being asked by the WC Commissioner to put their respective evidence, claimant examined himself as PW-1 and Dr. SC Sharma as PW-2. Upon examination of these witnesses, they were duly cross examined by the Insurance company which also examined one witness on their favour. 4. On being asked by the WC Commissioner to put their respective evidence, claimant examined himself as PW-1 and Dr. SC Sharma as PW-2. Upon examination of these witnesses, they were duly cross examined by the Insurance company which also examined one witness on their favour. DW-1 stated that the proposal for insurance was made on 28.3.2001 and the same was in force during the period from 28.3.2003 to 27.3.2004 and that the proposal was for insurance cover of the driver and the conductor only @ Rs.15/- for each of them. According to DW-1 there was no insurance cover for the cleaner/handyman and so the insurance company was not liable to make payment of any compensation . DW-1 adduced Exhibit-A policy document and Exhibit-B, the proposal. After perusal of the evidence on record, WC Commissioner noted that owner had paid premium for two employees without specifically mentioning the trade or designation of the work and so he was of the view that there is nothing on record to hold that the risk of the cleaner was not covered by Exhibit-A policy. The WC Commissioner considered the certified copy of the GD Entry and other documents and thereupon arrived at the finding that the claimant was permanently and partially disabled owing to the accident and so she was entitled to compensation under Section 4(i) (c) (ii) of the Workmen’s Compensation Act, 1923 (now renamed as ‘Employees Compensation Act, 1923’ and hereinafter referred to as ‘Act’). Accordingly, it was directed that the insurance company was liable to make payment of Rs.1,03,456/- in all within 30 days failing which the insurance company would be liable to pay interest @ 9% per annum from the date of adjudication till payment. This judgment and award passed on 3.8.2007 has been challenged by the insurance company on a number of points and this court while admitting the appeal on 25.2.2008 framed the following substantial question of law : (i) Unless and until extra premium is paid for the Conductor, whether the appellant is entitled to claim compensation from the insurer for the injury sustained by the Conductor or not? 5. Mr. 5. Mr. RK Bhatra, learned counsel for the appellant submits at the threshold that the substantial question of law framed on 25.2.2008 contains a typographical error inasmuch as claimant being the cleaner, mentioning of the word ‘conductor’ in the substantial question of law is required to be corrected and replaced by the word ‘cleaner’. Having heard the learned counsel for the parties, the aforesaid typographical error is corrected and the word ‘conductor’ is read as ‘cleaner’. 6. I have heard Mr. RK Bhatra, learned counsel for the appellant . None appears for the respondent although service on all the respondents were accepted by the court. I have perused the LCR including the exhibits. The only point for determination in the appeal is in regard to the liability of the insurance company to indemnify the owner on the basis of the policy document (Exhibit-A). By relying on the judgment in the case of Ramashray Singh –vs- New India Assurance Company Ltd. reported in ( AIR 2003 SC 2877 ) the learned counsel for the appellant argues that unless and until appropriate premium is paid by the owner, an employee engaged in a motor vehicle will not be automatically covered by insurance policy. However, the risk for the driver and the conductor are statutorily covered under Section 147 of the Motor Vehcile Act, 1988. According to Mr. Bhatra, policy document does not show that any extra premium is paid by the owner for the cleaner of the vehicle and so Commissioner committed error in holding insurance company responsible for making payment of the compensation. 7. Having perused the policy document, I find that the owner of the vehicle paid premium of Rs.30/- so as to cover the risk of two employees of the vehicle. According to the Commissioner , the policy document does not show as to whether the risk of the cleaner was excluded. Mr. Bhatra, on the other hand argued that when there is no mentioning of the name of the cleaner in the policy document, the two persons would include only the driver and the conductor and not the cleaner. This argument does not appear to be acceptable in view of the Section 147 of the Motor Vehicle Act, 1988. Mr. Bhatra, on the other hand argued that when there is no mentioning of the name of the cleaner in the policy document, the two persons would include only the driver and the conductor and not the cleaner. This argument does not appear to be acceptable in view of the Section 147 of the Motor Vehicle Act, 1988. Provisio to Section 147 of the Motor Vehicle Act indicate that no policy shall be required to cover liability in respect of death arising out of and in course of employment of the employee of the person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in course of his employment other than the liability arising under a WC Act in respect of death or bodily injury to any employee engaged in driving or as conductor of the vehicle. This shows that no policy is required for covering the risk of the driver and conductor and so it is to be considered that in the event of any extra premium being paid by the owner for employees than it should be considered to be for an employee other than the driver and the conductor. This is because while the insurance policy is not required for driver and conductor and the insurance company is at liberty to enter into insurance contract with owner so as to cover the risk of insurance of employees as the owner has made payment of Rs.30/- towards premium for covering risk of two employees and there is no necessity for covering risk of driver and conductor. Such payment of extra premium should be considered to have been paid for employees other than the driver and conductor. This means that a cleaner being an employee not engaged in driving or as a conductor of the vehicle can be covered by payment of extra premium. Here in this case, insurance company entered into contract with the owner for covering risk of two employees on receipt of extra premium of Rs.30/-, this being the position, insurance company should be considered to have cover the risk of a cleaner as in the present case. The sole substantial question of law therefore, is decided against the appellant and in favor of the claimant. Accordingly, the appeal is dismissed. 9. No order as to cost. At this stage, Mr. The sole substantial question of law therefore, is decided against the appellant and in favor of the claimant. Accordingly, the appeal is dismissed. 9. No order as to cost. At this stage, Mr. RK Bhatra submits that 50% of the awarded amount has already been disbursed to the workman in view of an interim order passed in this case. The claimant shall be entitled to withdraw the balance amount from the jurisdictional tribunal. The appellant shall not be liable to make payment of interest towards the awarded amount or otherwise.