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2016 DIGILAW 165 (CAL)

Dan Singh v. Sukdev Singh

2016-02-11

INDIRA BANERJEE, SAHIDULLAH MUNSHI

body2016
JUDGMENT : Indira Banerjee, J. This appeal, filed by the claimant, is against a judgment and award dated 2nd November, 2004 passed by the learned Commissioner for Workmen's Compensation, West Bengal at Kolkata in Claim Case No.87 of 2001. 2. By the judgment and award under appeal, the learned Commissioner, Workmen's Compensation (3rd Court), West Bengal dismissed the claim of the claimant for compensation on the ground that the victim was not engaged in the capacity of driver of the vehicle which met with the accident, in respect of whom premium had been paid, apart from passengers. 3. The claimant, Dan Singh, is the father of Karanjit Singh, who was the Khalasi of truck no.WB-23/3873, which collided with another truck near Akola, Maharastra, while it was on its way from Mumbai to Kalkata. As a result of the collision, the truck fell into the road side ditch and the khalasi, Karanjit Singh, son of the claimant died on the spot. 4. As the owner refused to pay compensation, the claim case was lodged by the claimant. The claimant claimed compensation of RS. 1,58,842/- as per the schedule to the Workmen's Compensation Act. 5. It is not in dispute that the said truck no.WB-23/3873, which met with the accident, was covered by a policy of insurance taken out by United India Insurance Company. 6. The only issue before the learned Commissioner raised by the respondent insurer was that the insurance policy did not cover the khalasi of the truck. 7. Counsel, appearing on behalf of the respondent insurer has, in support of his contention, cited a judgment of the Supreme Court in Ramashray Singh v. New India Assurance Co. Ltd. and Others, reported in (2003) 10 Supreme Court Cases 664, where the Supreme Court held that the deceased being a khalasi, the claimants in that case would not be entitled to compensation. 8. Section 146 of the Motor Vehicles Act, 1988 provides as follows: "146. Ltd. and Others, reported in (2003) 10 Supreme Court Cases 664, where the Supreme Court held that the deceased being a khalasi, the claimants in that case would not be entitled to compensation. 8. Section 146 of the Motor Vehicles Act, 1988 provides as follows: "146. Necessity for insurance against third party risk.-(1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the sue of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter: Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991. Explanation.- A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this subsection, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force. (2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise. (3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any vehicle owned by any of the following authorities, namely:- (a) the Central Government or a State Government, if the vehicle is used for Government purposes connected with any commercial enterprise; (b) any local authority; (c) any State transport undertaking: ................ " Section 147 provides as follows: "147. " Section 147 provides 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; (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; (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. Explanation.-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided in cause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made there under is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons." 9. Under the provisions of the Motor Vehicles Act, 1988, and in particular, Sections 146 and 147 thereof, third party insurance is a statutory requirement and third party insurance, inter alia, covers any liability under the Workmen's Compensation Act in case of death or of bodily injury to any person. 10. Under the provisions of the Motor Vehicles Act, 1988, and in particular, Sections 146 and 147 thereof, third party insurance is a statutory requirement and third party insurance, inter alia, covers any liability under the Workmen's Compensation Act in case of death or of bodily injury to any person. 10. A policy is, however, not required to cover liability in respect of death arising out of and in course of 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. 11. It is not in dispute that the victim was an employee of the truck. The learned Tribunal has proceeded on the basis that the victim was a khalasi, and/or in other words, is an employee of the vehicle and/or its owner, which is insured against all liability. It is nobody's case that the liability for the death of the victim is not a liability under the Workmen's Compensation Act, 1923. 12. Statutory third party insurance policy covers liability in respect of death or bodily injury in course of employment, which arises under the Workmen's Compensation Act, 1923. It covers employees engaged in driving the vehicle. In case of a public service vehicle, other than the driver, the person engaged as conductor of the vehicle or for examining tickets, are also covered. In the case of goods carriage, there is no exclusion in respect of any class of employees. All employees in respect of whom liability arises under the Workmen's Compensation Act, 1923 would be covered. The insurance policy would also cover contractual liability. 13. In Ramashray Singh (supra), the victim was engaged as a khalasi of a trekker and not of a goods vehicle. Furthermore, the claim had once been rejected under the Workmen's Compensation Act. The judgment in Ramashray Singh (supra) is clearly distinguishable on facts. 14. Counsel, appearing on behalf of the appellant, has cited the judgment in National Insurance Co. Ltd. v. Mastan and Anr., reported in 2006 SAR (Civil) 114, where the Supreme Court held that an injured, subject to the terms and conditions of the contract of insurance, is bound to indemnify the injured under the Workmen's Compensation Act, 1923 as well as the Motor Vehicles Act, 1988. 15. Ltd. v. Mastan and Anr., reported in 2006 SAR (Civil) 114, where the Supreme Court held that an injured, subject to the terms and conditions of the contract of insurance, is bound to indemnify the injured under the Workmen's Compensation Act, 1923 as well as the Motor Vehicles Act, 1988. 15. Under Section 167, an employee covered by the Workmen's Compensation Act, 1923 and/or his heirs might proceed either under the Workmen's Compensation Act, 1923 or under the Motor Vehicles Act, 1988. In this case, of course, the claimant has opted to proceed under the Workmen's Compensation Act, 1923. 16. As observed above, the Workmen's Compensation Act, covers death of all employees in respect of whom liability arises under the Workmen's Compensation Act. No additional premium was required to be paid to cover the khalasi of a goods vehicle. The judgment and award under appeal cannot be sustained and the same is set aside. 17. The claimant would be entitled to compensation of RS. 1,58,842/-, as claimed, with interest @12% per annum, as provided in the Workmen's Compensation Act, 1923 from 1st December, 1995 till full payment to the claimant/appellant in terms of Section 4A(3)(a) of the Workmen's Compensation Act, 1923. 18. The respondent insurer shall deposit RS. 1,58,842/- along with interest @12% per annum from 1st December, 1995 till the date of payment in the Court of the learned Commissioner of Workmen's Compensation within forty five days from the date of receipt of a certified copy of this judgment. 19. The appeal is disposed of accordingly. 20. Urgent photostat certified copies of this judgment, if applied for, be supplied to the parties, subject to compliance of all requisite formalities.