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2018 DIGILAW 2747 (JHR)

Iffco Tokio General Insurance Co. v. Butni Devi

2018-12-13

RAJESH KUMAR

body2018
JUDGMENT Rajesh Kumar, J. - Heard learned counsel for the appellant and learned counsel for the respondents. 2. The present appeal has been filed against the judgment dated 28.02.2013 passed by Presiding Officer, Labour Court Ranchi in W.C. Case No.55/2011 wherein the claimants had been awarded a sum of Rs. 3,42,792/-. 3. Brief facts of case as per the claim petition is that the deceased-Bhuneshwar Munda son of Late Bal Kishun Munda was working as a labour, employed by Raman Oraon (O.P. No.1) in relation to truck bearing registration No.JH03F-6202. While truck was moving from village Siram to Ranchi at Ambatanr, the truck met with an accident resulting in spot death of Bhuneshwar Munda. 4. The case had been filed under Workmen Compensation''s Act 1923. The only defense which is relevant for the purpose of present appeal is that, "Whether the deceased was covered under the definition of cleaner or not?" 5. Learned counsel for the appellant has submitted that as per the pleading and evidence, it is evident that the deceased was a labour not a cleaner. It has been further submitted that as per the insurance policy, premium has only been paid for covering the risk of driver and not for others. 6. Learned counsel for the appellant has relied upon the judgment in the case of Branch Manager, New India Assurance Co. Ltd. v. Narmati Subba reported in (2013) 1 TAC 398 SC . Para-24-25 of the said judgment is quoted herein below 24. It is worth to note that sub-clause (i)(c) refers to an employee who is being carried in the vehicle covered by the policy. Such vehicle being a goods carriage, an employee has to be covered by the statutory policy .On an apposite reading of Sections 147 and 167 the intendment of the Legislature, as it appears to us, is to cover the injury to any person including the owner of the goods or his authorized representative carried in a vehicle and an employee who is carried in the said vehicle. It is apt to state here that the proviso commences in a different way. A policy is not required to cover the liability of the employee except an employee covered under the 1923 Act and that too in respect of an employee carried in a vehicle. To put it differently, it does not cover all kinds of employees. It is apt to state here that the proviso commences in a different way. A policy is not required to cover the liability of the employee except an employee covered under the 1923 Act and that too in respect of an employee carried in a vehicle. To put it differently, it does not cover all kinds of employees. Thus, on a contextual reading of the provision, schematic analysis of the Act and the 1923 Act, it is quite limpid that the statutory policy only covers the employees of the insured, either employed or engaged by him in a goods carriage. It does not cover any other kind of employee and therefore, someone who travels not being an authorized agent in place of the owner of goods, and claims to be an employee of the owner of goods, cannot be covered by the statutory policy and to hold otherwise would tantamount to causing violence to the language employed in the Statute. Therefore, we conclude that the insurer would not be liable to indemnify the insured. 25. Presently, for the sake of completeness, we shall refer to the policy. The policy, exhibit R- 2/3/A, clearly states that insurance is only for carriage of goods and does not cover use of carrying passengers other than employees not more than six in number coming under the purview of the 1923 Act. The language use in the policy reads as follow:- "The policy does not cover: 1. Use for organized racing, pace-making reliability trial or speed testing 2. Use whilst dwaing a trailer except the towing (other then for reward) or any one disabled mechanically propelled vehicle. 3. Use for varying passengers in the vehicle except employees (other than driver) not exceeding six in number coming under the purview of Workmen''s Compensation Act, 1923." 7. On the strength of above judgment, learned counsel for the appellant has submitted that there is jurisdictional error committed by the Presiding Officer, Lower Court in granting compensation to a labour as he was not covered under the policy of insurance. 8. Further, plea has been raised before this Court that the vehicle in question was not having proper permit. 9. This plea had not been taken before the Labour Court and as such no evidence had been laid on that issue. 10. 8. Further, plea has been raised before this Court that the vehicle in question was not having proper permit. 9. This plea had not been taken before the Labour Court and as such no evidence had been laid on that issue. 10. Since, this plea has not been taken and no evidence had been laid by the parties, at this stage this cannot be considered. Accordingly, this plea is hereby rejected. 11. On the other hand, learned counsel for the respondents has relied upon Section 147 (1) of the Motor Vehicle Act, 1988 which reads as under: 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. 12. 12. Relying upon the above section, it has been argued that the Tribunal has rightly awarded the compensation as the deceased was covered under the definition of cleaner and cleaner is statutorily covered under the policy of insurance, "whether premium paid or not is not relevant". 13. It appears that the only question has to be looked into "whether the deceased was a cleaner or not". 14. Lower Court after evaluating the evidence had recorded the finding that the deceased was a cleaner. This finding of fact is based upon the evidence available on record. 15. The present appeal has been filed under Section 30 of the Employee Compensation Act, 1972. 16. Relevant portion of Section 30 of the Employee Compensation Act, 1972 is quoted hereunder: 30. Appeal- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:- (a) ..................................... (b) ..................................... (c) ..................................... (d) ..................................... (e) ..................................... Provided that no appeal shall lie against any order unless substantial question of law is involved in the appeal, and the case of an order other than an order such as is referred to in clause-(b), unless the amount in dispute in the appeal is not less than three hundred rupees. 17. Thus, law is clear that the jurisdiction of this Court is dependent upon existence of substantial question of law. It is trite to say that finding of fact based upon the evidence cannot be disputed under the umbrella of substantial question of law. 18. In view of the above discussion, this Court finds no substantial question of law in the present appeal warranting admission. Accordingly, the same is hereby dismissed. 19. I.A. No.8175 of 2016 is also dismissed.