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2021 DIGILAW 811 (DEL)

United India Insurance Company Ltd v. Anita Devi

2021-04-07

SANJEEV SACHDEVA

body2021
JUDGMENT Sanjeev Sachdeva, J. - Appellant impugns award dated 22.06.2020 given by the Motor Accidents Claims Tribunal, whereby the Detailed Action Report has been disposed of and compensation awarded. 2. Learned counsel for the appellant submits that since the deceased was an employee of the insured he was not covered under the motor insurance policy in terms of proviso to Section 147 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act). 3. Learned counsel submits that no employee of the insured is covered under a motor insurance policy unless special premium has been paid. 4. The facts of the case are that on 17.04.2018 at about 4 A.M., the deceased reached for his duty at Sewa Nagar Bus Depot along with his friend, namely, Fakaruddin. While the deceased and his friend were standing near the workshop inside the depot, the offending vehicle i.e., bus which was coming from the workshop side, being driven by its driver at a very high speed in rash and negligent manner, hit the deceased. On account of forceful impact, the deceased fell down on the road and sustained grievous injuries. He was taken to All India Institute of Medical Sciences, Trauma Centre. However, on the same day, he expired. 5. The only contention raised by learned counsel for the appellant is that because the deceased was also an employee of the insured, he is not covered under the motor insurance policy, which was issued in respect of the offending vehicle. He seeks to rely upon proviso to Section 147 of the Act in support of his contention. 6. Section 147 of the Act reads as under:- "147 Requirements of policies and limits of liability. He seeks to rely upon proviso to Section 147 of the Act in support of his contention. 6. Section 147 of the Act 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 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. 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 clause (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 thereunder 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." 7. The Proviso to section 147 of the Act would become applicable if the death or bodily injury of the employee arises, out of and in the course of his employment, while he was engaged in driving the vehicle, or if it is a public service vehicle, while he was engaged as conductor of the vehicle or in examining tickets on the vehicle, or if it is a goods carriage, being carried in the vehicle. 8. The employee, who sustains bodily injury or dies, must be an employee who is employed on the offending vehicle as its driver, if it is a public service vehicle as a conductor or examiner of tickets or if it is a goods carriage being carried in it. 9. The proviso would not become applicable merely because the deceased or injured is also an employee of the owner of the offending vehicle and is not its driver, conductor or being carried in it as the case may be. 10. The deceased was employed by the owner as one of its drivers. He was not assigned to the offending bus as its driver. He had reached the bus depot for his duty and while he was standing on the side, he was hit by the offending bus, being driven by its driver in a rash and negligent manner, causing his death. 11. The admitted position is that the deceased was neither the driver of the offending bus nor its conductor. 12. No doubt that he was an employee of the insured but he was not connected with the subject bus and was merely standing on the side. 13. The death of the deceased cannot be said to be arising out of or in the course of his employment. Merely because the deceased was also an employee of the insured would not bring the deceased within the exception created by the proviso to Section 147 of the Act. 14. 13. The death of the deceased cannot be said to be arising out of or in the course of his employment. Merely because the deceased was also an employee of the insured would not bring the deceased within the exception created by the proviso to Section 147 of the Act. 14. Proviso to Section 147 of the Act would apply in case the death or bodily injury is sustained by an employee arising out of or in the course of his employment. 15. In case the deceased himself was the driver of the offending bus and had expired or sustained bodily injury while driving the bus, in which case, it could be said that the death or bodily injury has arisen out of or in the course of employment. 16. The deceased was standing on the side when the offending bus being driven by another driver hit him and he sustained injuries, consequent to which he expired. Clearly, this would not be a case which would be covered under the proviso to Section 147 of the Act. 17. The judgment in the case of Oriental Insurance Company Limited vs. Meena Variyal & Ors., (2007) 5 SCC 428 relied on by learned counsel for the appellant is also not applicable in the facts of the present case. In the said case, the deceased himself was driving the vehicle and the accident occurred on account of his own negligence. In the said case, the Supreme Court held that whether the deceased was the owner or the driver of the vehicle would not make a difference. 18. Clearly, in the facts of the present case, the submission of learned counsel for appellant that deceased cannot be treated as a 'third party' is not sustainable. Merely because the deceased was also an employee of the same employer, would not exclude him from the definition of a 'third party'. He would lose the identity as a 'third party' only if he is covered under the proviso to section 147 of the Act. 19. The deceased was neither the driver of the offending bus nor was connected with the offending bus. He was merely standing on the side in the bus depot, when the accident occurred. He would thus satisfy the definition of a 'third party' covered under the motor insurance policy. 20. 19. The deceased was neither the driver of the offending bus nor was connected with the offending bus. He was merely standing on the side in the bus depot, when the accident occurred. He would thus satisfy the definition of a 'third party' covered under the motor insurance policy. 20. The challenge to the award of the tribunal on this ground is clearly not sustainable. 21. Further, there is no challenge to the finding of negligence or the quantum of compensation awarded and as such the same does not warrant any interference. 22. The submission of learned counsel for appellant that the Tribunal has erred in awarding interest @ 9% per annum is also not sustainable as no material has been produced before this Court to show that the rate of interest on fixed deposits for a period of one year on the date of accident i.e. 17.04.2018 was not 9% per annum. 23. In view of the above, I do not find any merit in the appeal. The appeal is accordingly dismissed. 24. Copy of the order be uploaded on the High Court website and be forwarded to learned counsel for the parties by the Court Master.