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2015 DIGILAW 548 (TRI)

Ranjit Das v. Sajib Paul

2015-07-16

DEEPAK GUPTA

body2015
JUDGMENT : This appeal by the claimants is directed against the award dated 16.12.2010 whereby, the learned Tribunal rejected the claim of the petition on the ground that the claimants being the brothers of the deceased were not entitled to any compensation under Section 163A of the Motor Vehicles Act. 2. Briefly stated the facts of the case are that the claimants who are the major brothers of the deceased filed a petition claiming compensation under Section 163A of the Motor Vehicles Act. In the claim petition, it is mentioned that the deceased was travelling in Truck No.AS-25-C-7424 from Guwahati to Agartala as driver of the vehicle. In Para 16 itself it is again reiterated that the deceased himself was the driver of the vehicle involved in the accident. In Para 19, it is stated that all the claimants are brother of the deceased. Against Para 20, it is stated that the petitioners are entitled to get compensation under Section 163A of the Motor Vehicles Act. In the claim petition, it is also stated that when the truck being driven by deceased Raman Das reached at Kalabagan at about 3.00 p.m. at that time, the said vehicle fell into a ditch to save one pedestrian and therefore, the truck met with an accident. The deceased died as a result of injuries sustained during this accident. It is also stated that the claimants filed a petition before the Commissioner, Workmen’s Compensation, West Tripura, Agartala under the Workmen’s Compensation Act and during the pendency of the petition filed under the Workmen’s Compensation Act it was detected that the petition had some formal defect and due to that formal defect the petition would be dismissed. Considering the fact that the petition was likely to be dismissed the petitioner decided to withdraw the same with liberty to approach Forum afresh. 3. The order passed by the Workmen’s Compensation Commissioner reads as follows:- “Ld. Counsel appearing for the petitioners by submitting a petition under Order 23 Rule 1(3) C.P.C. craves leave for withdrawing the suit on the ground that due to some defects the suit must fail. As such, he prays for leave to withdraw the case with a liberty to file afresh. Ld. Counsel Mr. G.S. Das for the O.P. Insurance and Ld. Counsel Mr. Arindam Roy Choudhury for the O.P. Owner are present. Heard them. Accordingly the petition is allowed. Ld. As such, he prays for leave to withdraw the case with a liberty to file afresh. Ld. Counsel Mr. G.S. Das for the O.P. Insurance and Ld. Counsel Mr. Arindam Roy Choudhury for the O.P. Owner are present. Heard them. Accordingly the petition is allowed. Ld. Counsel is at liberty to file a fresh suit if law permits.” 4. Section 167 of the Motor Vehicles Act gives an option to a party either to approach the Motor Accident Claims Tribunal or the Workmen’s Compensation Commissioner. The application which was filed before the Commissioner, Workmen’s Compensation was produced at the time of hearing. In the application, it is stated that since the petitioners were the brothers of the workmen they cannot file any claim petition under Workmen’s Compensation Act as they will not be dependants within the meaning of the Workmen’s Compensation Act. Thereafter, the petition was withdrawn with liberty to file a petition under the Motor Vehicles Act. Hence, the present petition. 5. Even in the claim petition now filed, there is not a whisper that the claimants were dependant on the deceased. They have only filed the claim petition claiming that they are entitled to compensation being the legal heirs under Section 163A of the Motor Vehicles Act. 6. The main issue which arises is whether a claim petition can be filed under Section 163A by the legal heirs of the person who was driving the vehicle himself. Mr. S. Lodh, learned counsel has placed reliance on the judgment of the Apex Court in Oriental Insurance Company Limited Vs. Rajni Devi and others : (2008) 5 SCC 736 . In that case, the deceased was the owner of the vehicle. The Supreme Court held that there is no liability under the Motor Vehicles Act to cover the owner of the vehicle under Section 163A, but it found that in the policy in question, the insurance company had agreed to pay accident insurance to the owner to the extent of Rs.1,00,000/- and therefore, Rs.1,00,000/- was awarded as not under 163A, but as per the terms of the policy of insurance. In my view, this judgment does not help the petitioners at all. 7. The next judgment relied upon by Mr. Lodh is Ningamma & anr. Vs. United India Insurance Co. Ltd. : 2009 AIR SCW 4916. In my view, this judgment does not help the petitioners at all. 7. The next judgment relied upon by Mr. Lodh is Ningamma & anr. Vs. United India Insurance Co. Ltd. : 2009 AIR SCW 4916. In the case before the Apex Court, the deceased was not the owner of the vehicle. He had borrowed the vehicle from the owner and was driving the vehicle. A claim petition was filed under Section 163A and the question which arose for decision by the Apex Court was whether any compensation was liable to be paid to the person, who had borrowed the vehicle from the owner. The Apex Court answered this question in the following terms:- 18. In the case of Oriental Insurance Company Ltd. v. Rajni Devi and Others, (2008) 5 SCC 736 , wherein one of us, namely, Hon'ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike.” 8. The Apex Court clearly held that the deceased, who had borrowed the vehicle, stepped into the shoes of the owner and therefore, no compensation could be claimed on his behalf under Section 163A. Mr. S. Lodh, learned counsel has placed reliance on the last three lines of Para 18 of the judgment quoted hereinabove wherein the Apex Court held that the deceased cannot be held to be employee of the owner of the motorbike although he was authorized to drive the vehicle by its owner and therefore, he would step into the shoes of the owner of the motorbike. Relying upon these lines, it is contended by Mr. Lodh that the Apex Court held that in case of employees, the insurance company would be liable. In my view, that is not the ratio of this judgment. If a borrower of the vehicle steps into the shoes of the owner I see no reason why the employee of the owner would not also step into the shoes of the owner. The relationship of an owner and an employee is much more legal relationship then the relationship between a owner and a borrower. Moreover, the observations of the Apex Court has to be read in the context of Section 147 of the Motor Vehicles Act wherein even in respect of a driver of the vehicle the insurance company would be liable as far as the liability under the Workmen’s Compensation Act is concerned. In any event, this question is not in dispute any longer. The Apex Court in National Insurance Company Ltd. v. Sinitha & ors : 2012 AIR SCW 10 was dealing with a case in which, the deceased Shijo was driving a vehicle and died. A claim petition under Section 163A was filed. In any event, this question is not in dispute any longer. The Apex Court in National Insurance Company Ltd. v. Sinitha & ors : 2012 AIR SCW 10 was dealing with a case in which, the deceased Shijo was driving a vehicle and died. A claim petition under Section 163A was filed. While allowing this petition, the Apex Court held that if the insurance company wanted to defeat the claim of the claimants it had to prove that the deceased had stepped into the shoes of the owner and one or the ways proving this was to be show that he was the employee of the owner. 9. In this regard, reference may be made to Para 19 of the judgment, which reads as follows:- “19. To substantiate his second contention, it would be essential for the petitioner to establish, that Shijo having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence, can discharge the aforesaid onus. During the course of hearing, despite our queries, learned counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner-Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders. Since the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. Since the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing, that the rider Shijo represented the owner, and as such, was not a third party, in terms of the judgment rendered by this Court in Oriental Insurance Company Limited case ( AIR 2001 SC 1832 : 2001 AIR SCW 1602)(supra). The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner. 10. The Apex Court has clearly held that it was open to the insurance company to defeat the claim for compensation raised by the claimants by establishing that the rider of the motor cycle represented the owner and as such, not a third party. The Apex Court while holding this, further held that the relationship between the driver (Shijo) and the owner was not established nor the capacity in which he was riding the vehicle have been brought out and it was not possible for the Supreme Court to conclude whether he was driving the motor cycle as an agent, employee or representative of the owner. All these words have to be read in conjunction with each other and therefore, the agent, employee or representative of the owner would step into the shoes of the owner. 11. An employee represents the owner. That is why for the wrongful acts of the employee, the owner is held vicariously liable. If the employee was not to represent the owner then the question of holding the owner vicariously liable in cases of tort would not arise. The employee steps into the shoes of the owner and as such in view of the judgments referred to above, no claim under Section 163A would be maintainable where the driver of the vehicle has stepped into the shoes of the owner and is driving the vehicle under his wish and command. 12. The employee steps into the shoes of the owner and as such in view of the judgments referred to above, no claim under Section 163A would be maintainable where the driver of the vehicle has stepped into the shoes of the owner and is driving the vehicle under his wish and command. 12. Lastly, I am of the view that under Section 147 of the Motor Vehicles Act, the insurance company is not liable to cover liability in respect of the employee engaged in driving the vehicle except in so far as the liability is under the Workmen’s Compensation Act. Reference may be made to Section 147(1) of the Act, which reads as follows:- “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; 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 27 [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; (ii) 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 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. 13. The proviso to Section 147(1) of the Motor Vehicles Act clearly lays down that the insurance company is not required to cover in the policy, any liability in respect of death arising out of and in the course of employment of the employee of the person insured by the policy or in respect of bodily injury sustained by such employee in the course of his employment other than a liability arising under the Workmen’s Compensation Act. The language of the Section is very clear that the insurance company is only liable to pay cover liability which may fall upon it under the Workmen’s Compensation Act. Faced with this situation Mr. Lodh, learned counsel submitted that in the policy, premium has been paid covering extra liability in respect of the driver even in respect of the Motor Vehicles Act. I have seen the policy and in the Schedule of Premium. I find that there is third party basic premium charged of Rs.6090.00, which means that it is basically an act policy. Along with it Rs.150/- has been charged and it has been clearly stated that this amount has been charged as WC to 6 employees. WC obviously means Workmen’s Compensation to 6 employees. In addition thereto there is coverage for own damage under the first part. It is contended by Mr. Lodh that since the policy is a comprehensive policy, the coverage is complete. This is a total misconception of the word ‘comprehensive’. ‘Comprehensive’ only means that the policy covers liabilities more than that which is liable to be covered under the Act liability. Comprehensive does not mean that every liability is covered. In this case, the Schedule of Premium clearly shows that what was charged in respect of injury and death was only third party basic which will not cover the liability to the driver under the Motor Vehicles Act and further premium of Rs.150.00 was paid for covering liability to 6 employees under the Workmen’s Compensation Act. In addition to that no other premium has been paid and therefore, the liability cannot be extended to cover the liability for death of the driver under the Motor Vehicles Act. 14. Ordinarily when the claimants are widows or children, this question would be academic importance because this Court would have awarded them the compensation which was payable to them under the Workmen’s Compensation Act. 14. Ordinarily when the claimants are widows or children, this question would be academic importance because this Court would have awarded them the compensation which was payable to them under the Workmen’s Compensation Act. However, in this case, it is the case of the claimants themselves that they being the brothers were not entitled to any compensation under the Workmen’s Compensation Act and therefore, they withdrew their petition which have been filed before the Commissioner, Workmen’s Compensation with liberty to file petition under the Motor Vehicles Act. Since I have held that the driver had stepped into the shoes of the owner, the insurance company cannot be held liable to pay any amount. Therefore, the appeal is dismissed. 15. Send down the lower court records forthwith.