National Insurance Company Limited vs Sri Maruthi S/O Hanumantha Poojara on 27 December, 2010

[Cites 21, Cited by 115]

Karnataka High Court

National Insurance Company Limited vs Sri Maruthi S/O Hanumantha Poojara on 27 December, 2010

Equivalent citations: 2011 AAC 1142 (KAR), 2011 (2) AIR KANT HCR 141, (2012) ACJ 1408, (2012) 3 TAC 920, (2012) 3 ACC 796, 2011 (2) KCCR SN 122 (KAR)

Bench: Manjula Chellur, L.Narayana Swamy

 

IN THE HIGH COURT or KARNATAKA, AT E3.i\1\T.(}4ALC_)f{"E   1'

DATED THIS 27": DAY OF' DEcEM13~ER;;'_'20'T'10'-_  

PRESENT

THE HON' BLE MRS. JUSTICE MANq1§'1A_c.1§ELLUR  

THE HONBLE MR. JLJSTICEVV-L.NAI5{AYANAv_$W2XMY

MFA Nos. 6556, «e557i%355k58,%{@559Aof2:006 'EWC--DB]

BETWEEN " {A ff '7},

National. Insurance 3Com-p&2iny~"Limited,
Belgaurn 'D .O~.. V' 'V A »-- V 

N0. 144, suiah:n~a.;r;. Ccrnjfiiex,

M.C.vi Road, Ba'nga1ore--s55o 001.

 '  Re{§__fi:s¢:'--I1tcd by i1s'z?1s*s't. Adm.Officer.

V' Srnt. Ki}/VIA. Kumuda.

 APPELLANT

A   S§:s:'t'haran1a Rae, Advocate)

AN

' 1} Ts1~£'M;;{ruth1.

 Years.
" -S.,.*'0 Harmmantha Poojara,
 R/a Jarnbagi K.D.,
 Mudhol Taluk,

Bagalkol Disl':r1'<:i. R<3sp(mc1er1'1 in MFA No. 6556/2006



.\\ 

2. Sri Durgappa @ Dilip.
38 yea1's,S/0 Fakirappa Poqjari.
R/a Janlbagi K.D..
Mudhol Taluk.
Bagalkot District.

3. Sri Lakshmana,
41 years.
w/0 Shettappa Madar.
R/a Jambagi K.D.,
Mudhol Taluk.
Bagalkot District.

4. Sri Ramappa.
Aged 31 years, ._  -_
S/0 Chandrappa Budriif " '
R/a Budni B.K., ' =
Mudh01Talu'k:,' 
Bagalkot [)_isti'};ei}

rig: Rgsisoiiriéni' i1:---MFA No. 6559/2006

5. Sri Venkappa, H 
S/0 Karappa' ._u'1a'g.od'a._.'  
Ramadiurgia _Talu.k.1. " ''

Belgaum 'nigu-~;ct«.  22-26 RESPONDENT (common)

i,_B.ab~--:,g H. 1'\V/ie"t'é1'gndda, Adv. For Rwl & R-2 served} f-'.r_%.M':sé_e11a:ie6us First Appeal No. 6556/2006 is filed un'der_See§.i_.i6n 30 (1) of the W.C. Act against the order dig-:edv--._'21;v3';2006 passed in WCA No. 194/2005 on the file of the";.Lab0ur Officer and Commissioner for Workmen ..CQmpensati0n, Bagaikot. District. Bagalkot. awarding a VVco'i11per1sation of Rs.2.48,295/~ with interest at 1.2%. Miscellalieous First. Appeai No. 6557/2006 is filed " under Sect:1'011 30 {1} of the WC. Act. against the order 1st. Respondent in MFA 151 Resporrtiebnt nﬁ iA.FA..N6.6's66'/2006 V' 4 of the tractor-trailer bearing No. KA.24/t-2863-2864. The respondents/claimants claimed to be working as eooiies According to them on 23.9.2005 as under the said owner.

per the directions of the employer~cum--owner of the i:ractor~ trailer in question, travelled in the said traotor.etrai__lerj' coolies under him to fence stones on the I'idgH€.'"C=fi t1ie'l.}arrCf K V' the employer. While they were :v'tra\breiling_a1ongb'with:V"the fencing stones, when they reachecl'.thcV_A.Budni~_t because of a ditch, the tractor-..+_traa,iIer along fell Vt into the ditch. As a result, all' cfthern sustained grievous injuries. They were all 'first Health Centre at Hoskote'Vaspeeialist at Mudhol. According to them, 'a1e":nju::ég.tj; by them have resulted in penrzanent'u"disab.i.lity."- resulting in total loss of earning capacity; 'They alfstolctaimed that they were earning about rnonth as salary apart from Rs.25/-- as bata ev day.' Q o:

"Z," As against this the 5*" respondent herein, admits _t:.ei_n'g the owner of the tractor-traiier in question, so also factum of all the claimants {respondents 1 to 4 herein) working as coolies under him and another claimant as driver in the said tractorwtrailer. He admits the occur1'ence_..of the accident: and also sustenance of injuries by the etairn-aii't'is. He further claims the t.ract'or--trailer in qz_i'e:st'iogn'-dub-eilrig * insured with the appellant Inst11.'a_r1ce__Cor:*iplany'.':va.nd Viseekvsdl Indemnifying him against the claiins ofjtlie ellai_rnar'1ts.l '

3. So far as the ap_p"ellant~i'i1si1rer; the".

claimants were neithercoolies,nor"the«.5"' respondent therein was a driver under insu_r€;}d:. l'H:e..yfurther denies the occurrence of the accident' elite. is that none of the claiinanytsy.stistaiinedg 'any if1j't1~fl:€S and all the averments regarding" hospital at Budni K.D., etc., are deniedi.«..T£1eylalsoA the earnings of the claimants and accdrding to claimant / driver did not h.ave a valid » d1'-iy"irtg:__The appellant / insurer further contended that liable to pay any compensation and the coverage "given to the parties was a special package iI1E's.14lI"c"ilIllC{3 called lV[iscel.laneous & Special Type of Vehicles 'B' package by paying 3.202/--. therefore, none of

- the worknien are covered.

4. The Commissioner after raising several points on the controversies. ultimately held that all the cla_in'1ants sustained employment. injuries arising out of and the course of the employment. Finally, t.he ~ that the insurei' is liable to iI]d€:1'IA1,11pi'fy theu"

tracto1'«trailer was a goods veh'i.._cle:_"'meant;_ 'for agricultural operations and all=.__the clainiantslllbeiingy coolies,l' under the owner, were p1'oceedinlg: towards land of the owner in respect of i.e.,H fencing the ridge with the stones. oflV.th:eIVpv----t'ractor had also produced Valid this accident. Having regardi: _ci_rcun'1stances, ultimately the Commissiyoriei' the nature of injuries, percentage llofddisabilityland the income of each of the °-claimant; "proceeded" to assess the compensation and dlirhecltreld'»thelii3_slurer to pay the said amount. Aggrieved by the._said, the insurer has approached this Court in these appeals.

* 5. The award of the Commissioner is challenged so far M to as four employees/coolies except the 5"' claimant referred in the award of the Coniznissioner. who was a driver under the owner of the vehicle.

6. The contention of the insurer/appellant appeals is the Special Policy issued to the owrier above covers the risk of only ow11ei'_:c:.'u.m--driV"ei*" n'ot"otheru "

workmen. Therefore, the Con1missior;'ei'..was»not l_1:1s'ti'fi.edI1,i_i1 awarding compensation to all"-the clairnantslvirrespective of_* nature of work they were doing' the owner of the vehicle. According to the appei.1ar'it. 5» the Registration Certificates indicate oJr.ilyt_ one-. Ap>e1'lso11V""o.ei'r1g permitted to travel.in"they.t1'ac:t.or--t'railer. "'l'he1i'efo1'e. even if the tractor-- traileij is ._c-onsi'd.ei'..edias~al"goods transport Vehicle. the case of the coolies'-is notllcoveredf~It"is further contended that in the agrictilttiial ll"fc1Cli()_I'"V'tlTE1'll.'€'l:"; there is no need t.o engage injured respondents to loplerate the said vehicle and in View of the 'V V' A :'3.ect.io1l1" 'l.'4'i" of the Motor Vehicles Act contemplates ~ ;cove1*i.ng«.ti1.el"risk of driver, who was employed to operate the pveliicievloziplyand other risk is not at all covered under the policty inloiuestion. According to learned Counsel, even asseasinerit. of loss of earning capacity at 60% is exhorbitiant. and exaggerated. The wages of the coolies were also assessed at Rs.3.500/- per month ignoring the realities at the relevant point of time. With. these averments. he has sottgl'i.t}."'for atlowing the appeals by setting aside the Commissioner for Workmens' Conlpertsatiogi. 0' " "

7. During t.he Course Counsel for the appellant» ._Vl5'1=oduce'sV__tr=4Ve the"? Notiﬁcation No. SO.12_48[E] da.ted._5'.--.1L1.2004...iSSlled under Section 41(4) of the "'i\.tilo'.t.ol1%_ {Act specifying the particulars required to" Certificate of Registrattieon_x.lj. Als:f:.3per*..l:this N'oti--ﬁ'catio11 mentioned above. classificatioiir arid non-transport vehicle are made which he._refer1'ed to later.

lV8;'~Accordi-:.1g_t_othe learned Counsel for the appellant. .the_ tra«:Lor¥trai1e1* in question was covered under lg/llisg:ellart'evo_u's;'"aiid Special. Vehicle Policy '3 Package betweenﬂ .1"L;t3.2005 to 108.2006 and had covered the risk of h the oW'r1.da111age to the tractor--tra.i1er, third party risk and "personal accideiit cover to the owner~cum--driver. As no ' .__;~; 3 «X 9 additional premium had been collected to cover the risk of any other woi-Rman, the case of the elairnants--eoolies other than the driver is not Covered under the policy. According to him, tractor--trailer is neither a goods vehicle nor a tratisport vehicle. He further contends that if it is a goo¢l_'s.l{rehi.el'e.V there would be statutory coverage to the Carried in that vehicle to the extent" of .i1L9-.4mberf'of persons permitted to be Carried out in thatlvpehielle as»"p__e'r»tV11e issued by the R.T.O.

9. It is further eontentdedih"th.éit._the said. Vehicle not being a transport vehicle,' theie ivnollelcﬁterage to any person being:.ea1*ried'i':_1 tVheVsa.id"~v_el1iele. 'aking into consideration the definition of.t_agtiet1l'tn.ral"' tractor and trailer, one would defirrlely ulrid.ersta'nd."thst it is not a transport vehicle and therefore provisolltllllllto Section 147 (b) and (ii) which is 'vt:loAve.pu_t.iblie service vehicle is not attracted to the tra.g:t.or--trs'ilei'll' unit. To substantiate this proposition he gnlacesvvreliance on Rule 100(6) oi" the Karnataka. Motor VV'.:"'31".1'l'AL_"",l€ Rules and so also Rule 226. 10

10. As the rule says. no person other than the attendant or attendants required by Rule be carried on a trailer which is a goods vehicle. T__i1erei'ore', workman could be carried on the tractor--.t1'ailerueéieept i:l_1e* driver of the tractor--trailer. The:=.A:attendant:s.'tractor referred to under Rule 22601"-.the Rules wherein it is said a being a motor vehicle, there shall be' 20 years of age, who could like applying breaks of the" carr:ied'."-nfllherefore. the person who is enti.t1ed"to traveliii. a"--trai1er"must be a person aged about 20_ to apply the breaks. Hence, learnedl'counsel-.contendsTf1'om Rule 100(6) read with Rule 226$}. isj4"C17.l'_5ta1" clearvthat an agricultural trailer cannot even. ear1j7A.A&an attendant. He relies upon Ex.P.7A ~«~ " Vof.V:'Registration, at Item No.1-4. which says including theildriver, the seating capacity is '1', therefore, the policy issued by the appellant does not cover the cases of avorkmen (coolies) other than the driver. According to the learned Counsel for the appellant, the award of 11 Compensation by the Tribultal is eontrary to the Very Act'. and Rules. Hence. the award deserves to be set. aside. Herelies upon several judgements. which would be referredlfo'-«_a't..V a later stage. It is also conteiided that the vehic.l'e'-i11_que's1 ' being a non transport vehicle. no o_t.her_ inte'rpretatio1i"can be it given to introduce or create no1i":4exisi§f1gl'li_abi_1itylo'n appellant/insurer. Therefo'::e,"'-~_he seelgs VforV:llav;io«wirig' the!' appeals absolving them of the liability. to compeirisation.

11. As against :.C_ounsel Mr. SP.

Shankar argutngfor the"i*espon'dents/Velainiants contends as follows; """ .

Tflatyltiie:t'.§ﬁa3t:orsti'a¢iler_l unit in this case is said to be covered a it Package 'B' Policy with EMT €Ildt')rS€i1}©I1tS'lll{€V_?',_'2l, 24, 36 and 48: that though fully ~ poiicywas not filed before the Commissioner, before H copy of such policy is filed only after the directio-n.s.'ot this Court; that as per the terms of the fully 'w/;3rdedl'lpolic:y'. Section 11 so far as the liability t.o the third ;r;rart'iles is relevant: that the wordings of the policy indicate "that the vehicle in question is a goods vehicle, therefore the 12 arguments or the contentions of the appellant/instirer is barred under Section 92 of the Eividence general exception in the said policy does not exvcludelllthve ' liability of the insurer so far as coolies--epmploy_edi'for loaiitjing F and unloading from the insured vel?iic1e.A,_Altfhereforeuthe all the coolies in question is covered asthey.wetre'l"wo'i'king as"

coolies under the owner of the..tracto'ir;trai.l'er ~a.nd_.they were proceeding to the owner to attend to agricultural operationsf' it i ll

12. of R.W.1 did not indicate Eiterms of the contract, excluding »_t'E.1e insurer, therefore his evidence was iiotlhinpg the policy at Ex.R.2 did not coverthe cooliesj 'Acco'rding to the respondent the policy is '"*not'in coiisoiiance with the endorsements mentioned as Nos. s...7';.i_e:>i'1; 48. This is nothing but withholding necessary inaterial information as the said document: was V'-».r)re--juéiicial to the plea of the appellant/insurer- He further V"-l'cor_b1_te'nds that the decisions relied upon by the learned Counsel for the appellant are not applicable to the facts of 13 the present case. The traeto1'~t.railer in question beingjtiakeri for agricultural work, there was no violation of te'1'tns "of the insurance. Therefore the liability of the iiis-t1're;"Ad.epencls V' upon the purpose for which the vehicle --was5_used::Whetl'1er for agricultural purpose or for co1nn.1erCial7purpose . » ,

13. It is further coi»1li'_en<jl_ed it.he'~,:d"etfini'tio:n oft". tractorwtrailer as COI'1[§1'l'1p1E1t<VA3CI..Vvvl;I'l'1d'€-lfnSébl:l0I1S,A:E[44] and 2(46] of the Act are the decisions relied upon by would substantiatéﬂ A / claimants.

In other respondent.s, these rules deal an attendant. on a trailer for the different agriculture. It is further conte.::d.ed t.hat..,Sect'io'n'V'l4§{4} is also relevant. Ex.P.2 issued 1, ,.¢.1,gy the appellantus the requirements of the M.V. Act of ,1 requirements are set out in Section 1417, especially Qjtal as a matter of fact': mandates the liability '*..of the "i,nsu1'e1*. Further, Sections 149(2) and 149(7) are while considering the liability under Section 147(2) .7 fa'.

'-,x cifthe Act. Acco1'ding to the learned counsel, the intention of 14 makers of the Legislation has to be considered and» the relevant material at the time of redi'af1ir1g oi' Sect.ion as per the report finds place at paraw3.l6 is irri;_)ort§ant_; According to him reading of said.:paragofgtheéldraft'would indicate that: the insurer should C:over._A_ACto:n1pulsorigly. risks arising out of the use oi'lth'e....rn0to'r v_ehicle;_ari.d'"tha't the '' liability of the insurer is coextei1siye._wi.tl1 that o.fHth,e insured subject to Section 14'7v( the proviso to section 147{1)(b).that carried in a goods vehicle He also refers to Sections lraming of the Rules.

The "insurer are wholly out of place to the main 'purposesof X & XI. According to Rule 100 Q17 liulehs only provide immunity against "the "off'e1"i-Ce of.carryingmpassengers in goods vehicle and does =o_r'_:..permitl the insurer to avoid the liability. With'these"averments, he sought. for dismissal of the "appeals; _ "l4. The point that would arise for our consideration is '-'»w'hethei* the appeals deserve to be allowed"? 15

15. ]E<3x.R.2 is the policy marked before the Court below and Ex.R«7A is the Registration Certi.ficate pvei"t_ai'ni.ng to the Vehicle in question. The seating capaeityVv.oi' vehicle is shown as 'E'. This pertains [tractor]. So far as Ex.P.7B it pertainlslltlo tv.rla_i1ei1".- document. there is no seating capacity: in said t1'=--ailer.'--.. The contention of the learned Counsel forthe _é.:p1$'e;11'ai?1t is to it the effect that in the abs.enee;Aof'an:_\?; sea,ti1~1§ '//vl1'§91'1gement for anyone including the is that the workmen or '_coolie_s the policy in that the insurer did not cover there is no seating capacity. On the otherihandllllR.ull'es" (6) and 226 of the Karnataka R1:t1l§S__'read as under:

_ . .4p7-..v''Rule-100(6): No person other than an ' v..:V"a.tvtenda_:nt or attendants required by Rule 226 _shs;ll<;be carried on a Trailer which is a goods Vehicle . "

"Rule 226: Attendants on. trailers:~ (1) Where a trailer is or being drawn by .21 motor vehicle, la) there shall be carriage in the trailer or trailers'-..

or on the drawing motor vehicle, as the 16 may be, the following persons, not i.- ' than twenty years of age and eo11ipe'iteVnt:

discharge their duties, that.<i's'to.say_, -- if the brakes of the trailer be operated"

by the driver of the 'drawing rr1ot,or_vehie'l._ve"oi*l to some other ersor; earriyedon that V6hiC1t?;',w [1] one person on ev'e'iy'u~a:1£3i:=co_rnp,er.¢'m to apply

iii) \ J the brakes; and-"' one or hear the rear of the last --trai]e'r.in trairi"i'r1~--s_ti'ch position as to be dvable i'toj5have;'a clear view of the road in rear of :'.t_he trailer :to._.the drivers of overtaking Vehicles and4lAto»'eo_n1municate With. the driver * » dravviIivgrI1otorlvehi.ele;

'brakes of the trailer can be operated by of the motor vehicle or by some persons'; carried on that Vehicle such other person in addition to the driver shall be 'carried on that Vehicle and one person on the last trailer in train in aeeordariee with the provisions of su.b--c1ause (ii) of clause (a); (C) If the trailei' is or traiiers are being drawn by tractor the u11~lader1 weight of which exceeds 7.250 Kilograms. noiwithst'.andi11g that 17 brakes of the trailer or trailers operated by the driver or some other-uﬁersjoriilll' on the tractor not less than 0ne.'p'e1's_o'n on each trailer and not less thairtwo "pje1'1sor.1__s'or1_L the last trailer in train one3of'--whor11.'shall beg." the person req'uiredllby"'~t.he proVisionls.Vof{_sub.-- Clause (ii) of Clause {a}.

(2) This rule not.a;j_p;V;;--_{€;%jphasis Sul3DlieC1) 1 *

-'5

(a) to,a.oyVf--t1*ailer€hiavir1§'vf1fotv_.zrifo1;e than two :.rwl*1e_elAs arid exce'edfin_gf_'.77l kilograms in lwlten osed singly and not in a , .trai3i lovthle-r_ti----ai1ers;

{b]lto traili-ngvhalf of an articulated vehicle:

_{e).__to arljf vtre-.il'er used solely for carrying water _ _for the purpose of the drawing vehicle ' * _'wl*1'en used singly and not in a train with Oth.ev1"* trailers;

£3' (:51 to anv a,9:riou1i:1,1ral or road--makin;; or road repairiI1,r._{ or 1'0ad~Clean.i.I1;_f, inmlement drawn by a motor vehicle; or {emphasis supplied) 18

(e) to any closed trailer specially Constructed for any purpose and specially exempted from any or all oeil.."'--.y t.he provisions of this Rule by Order in writing made th'e.i'(''~-- *' ' Registering Authority, to the..eXtent's:o ._ exempted."

16. Reading of the Rules;

attendant is required to Vbellearried on_i191.va"~,t'railer for'-R different purpose other than_..a,§1*i.eultural) purpose ie, for the application of break ._l'te_ the drivers of overtaking vehiztles, 1f'Lhe.l;i"aile;5.1S'(he alaistlone in the train of trailers... lie earriled as per Rule 226(1) of the isian exception to Rule 226(1).

In ot:her-worgisj of Rule 100(6) along with Rule 22}j6(d).earryi'i1gV(an attendant for the purpose of application 'A 'orealxs: xofvthe trailer is necessary in vehicles other than _ "then trailer (to be attached to tractor) and other V'ehiC.l'es~.shown in Rule 226(2). Certainly trac.tor--trailer it yusedior agricultural purpose are not the ones referred to R' --u_ride1- Rule 226(1). Therefore the contention of the learned Counsel for the appellant that, Rule 100(6) read with Rule \W 19 228 of the Rules are applicable to the facts of the present case, falls to ground.

17. To understand the controversy one has what exactly is the deﬁnition of t1'actoretrailerlL' 'tractor' is deﬁned at Section 2[4_/ll». which 9;: rnotor ll vehicle which is not itself constructed 'iltollircaivjf (other than equipment usedll_fo1j.thelpurpose' pre.pulsion); --. S' but excludes a road roller'. S

18. Section 2(46i-1.'l€fe'rs_ tc; which means 'any vehicle. other than e1As-e:ni:Ve.trailer and asidewcar, drawn or interided--.to"jloe -- a inotor lvehicle'. I ,dei"ined at Sub--secti0n {28} of Section S2" of the Actgas' ﬁnder:

:_Wl'i/.{.Ql".OI'..l"V3l1iCl€" or "vehicle" means any J niechanically propelled vehicle adapted for use it reads whether the power of propulsion is V_i;ra'ns_-sinitted thereto from an external or internal ltsource and includes a chassis to which a body ll'"has not been attached and a trailer; but does not include a Vehicle running upon fixed rails or a Vehicle of a special type adapted for use only 20 in a factory or in any, other enclosed premises or a Vehicle having less than four wheels fitted with engine capacity of not exceeding five cubic centimeters."

20. Sub~Sectior1 (13) of Section 2 'goods' and Sub-section (14) of Se-'ction.2 'of 'die-alusiy with the 'goods carriage' which readlays lu._ri'der:ll" * A T "2[l3} "Goods" inclyltﬂtdes hxllvestoclvg.

anything [other than__l:lle:j_uip_rnent '--«ordinarily used with the:4_."v.ehiI.iAle}:_ a 'vehicle except living include luggage'or__ person'al:tefTects_carried' in a motor car or iril*a_ytrailefgattached' tloa" motor car or the liigglgige of passengers travelling 'Lin the velii:Cl€.l"*.._ l' "2(1"4}y_l_Vl"gloods carriage" means any motor vehicle constructed or adopted for use solely the carriage of goods, or any motor not so constructed or adopted when ' used for the carriage of goods."

~ The learned Counsel for the appellant places reliance _ lo.nl"t'n'e following cases:

21. N'EW INDIA ASSURANCE CO. LTD mVS~ C.MV.-"AJAYA reported in AIR 2002 SC 651:

This was a case under 1939 of the Mot.or'.4':\:/'ehicillesl M with reference to Section 95 of the _Mot.or Vehicvlleslﬁcll. question before their Lordships wasiwh-.'en'lanllﬁclt taken what would be the eX1en_t'*o.f liabi-1it.y of lthe':i_n'surance " V company? The question was inslui*arice_.eompany would be liable to the $ection 95(2) of the Act Where thev_premi,u»rn:.for {compensation to a third higher liability.

It was held insurance company is limited thunder" of the Act policy, if basic premium is paid' WW-a_s"always open to the insured to makepppayment additional premium and get higher risk '~ ._C0ve'1:._ iiespect of thilrdl party. ._ facts of the above case. the pillion rider _ on a two mlheeller died when the scooter collided with a truck. Tllhe tr'uc1{"'Was comprehensively insured but no additional or lT.highlerlpremiuin was paid to cover the unlimited or higher "li»abilit:y of a third party. Therefore, it was held that 22 Rs.50,000/-- alone was the limit of liability as per the statute though the policy was a comprehensive policy and the insurance Cornpany/ insurer was not liable to pay unlimited Compensation to the third party.

22. The next decision relied upon by Counsel for the appellant is b INDIA ASSURANCE co, LTD, repggtcdl 2877.

In this case. their Lordsliispisiof the*Ape:::.'.=Co"urt"while dealing with the limits oi"~liabilitjf oi%.:'the"=lnsuranVCe 'Company so far vas"'i'th.ir'tl patty lriispk w'as""Concerned, made specific emphasis with (ii) of Sub~Sectio1'1 {b} to Section 14;7[~l_). - V' A '~§'.jI'he'faet;s in'the__above case are as under:

' ._On_eaS.hashi Bhushan Singh was employeé as a of the vehicle. On 21.10.1998, the vehicle .q metuwitlirpan'accident and said Khalasi - Shashi Bhushan it died. The Workmen's Comperisation Court awaréed eorripensatioil on the ground that the vehicle in question was 23 comprehensively insured with the insurer and the aceidertt, occurred during the course of and arisi11_g§jV"*oii1'Hpt' employment. Aggrieved by this, the insurer went beflctret the High Court of Patna and t.he High..».Court_"allowedt.tl1e:twt'i_Vt0u petition holding that in the absence ianyttispecial between the appellant and t.h:e'"r_espon'dent., thew}? parties were governed by stat,ute~..wii;ich didvnot require the respondent to cover liabiIity'._in an accident of a Khalasi. This order of the.ljIigh- taken before the Apex Courti: High Court has niisconstruied .in particular clause [b} of in that context, their Lordshipspﬁatparap; proceeded to hold as under:

it .The:$appellant's first submission watsttttha-t"Shashi Bhushan Singh was a lip-asse'11ger. The appellant's submission 0' the phrases 'any person' and 'any 000:?-.V.passenger" in Cls. (I) and (ii) of sub" 'section [b) to S. 14'/[.1] are of wide amplitude. is correct. [See New India Asstirance Company wvsm Satpal Singh and others. 2000(1) SCC 237]. However. the proviso to the sub--seetion cawes out an exception in respect of one class of persons and passengers. namely employees of the insured. in other words,' 24 if the "person" or "passenger" is employee. then the insurer is req{_uired'Vi''--.. -5 under the statute to cover only.,V_certai.ii y employees. As Statedearlicr, this would still allow the insured.'to;'_"enter'~.in'to' agreement to covergothere.en1ploy.eesy,r but under the provisl(j'~e«l,;E§. S. 14I"Z(1]'(b}, is clear that for thegV.purp_osle'slA of S: 'I46(l1j' a policy shall is to cover liability in respect out of at1_d'_'ir1 the cou'rseo'1"' eifnployment of " llpersoii.ya"insL€red"'"'u11less: first; the ' l.i.abilityf'ol';4'tlie"'----insured arises under the 4' Worl{rnen'sQ4Colﬁilpensatzion Act. 1923 and the-eVconVdlyA"vifthe employee is engaged in VA driyi'ng..._the vehicle and if it is a public ,gs--eVrVice Vehicle, is engaged as conductor '' o'f.vt.l1e Vehicle or in examining tickets on litlie vehicle. lf the concerned employee is faﬂﬂ /' 4' neither a driver nor conductor nor examiner of tickets. the insured cannot claim that the employee would come under the description of "any person" or "passenger". If this was permissible, then l i there would be no need to make special provisions for employees of the insured. The mere mention of the word "cleaner'.'*'"---- 25 while describing the seating capacity--<jot7:.:"--«ch'._ the vehicle does not mean :_.

cleaner was therefore a passe-ng'e._r';*' Besides the claim. I-of' "the deceased' employee was ad_judi(':ate(,l'_'A . p it i A Workmen's Conipensation "Courf;»"which could have assutiied. junsdiction and passed an ,.order ;direct'ing._ cornplensation only on the«--b"asisy thatci deceased was an ernployeef oi:de1".:Vy_':C_annot' be enforced oh the_:'V.basi's.i"j;hug1t the deceased ' * a passenger." .

"i3,." :_ijfﬂie~~..2Lp§3ellant's next submission iwas that ';_he«...eoncerned employee was a 'condu:et:or'.V It is doubtful whether a VVh'E€halasi" and a conductor are the same. 'i ..Bu_t"..assuming this were so. there is & .,),iJi,y:;1CV>y.¥T§lViing to show that the appellant: had i 'paid any additional premium to cover the risk of injuiy to a conductor. On the contrary, the policy shows that premium was paid for 13 passengers and 1 driver. 26 There is no payment of premium for a conductor."

"l5. Consequently. although appellant's claim under the i11st1;1'ance , A' policy arose under the Wor'l:__rner;t'esul' 'M Compensation Act. sinee.__thefcorice1fned_' employee was not engagede-inthepcaplacitjfi-ee,__. of a driver in respect!of'v.wh0rn."'.l,alone premium was p.aid._ apart. 'fro"mV'-othe S passengers: his clai_nil:'is _un_sustaii1ablef3

23. The learned _C'o1insel appellant also brought to our 'notice ofthe Apex Court in the easier' Nl3l7l'lON;4\l;- CO., LTD. --Vs--

CHINN:AMlV:_IA'reported» 2004 sc 4388 {Three Judges Bench).

A' case where one Gopal was carnv1ng"--t".he business of vegetables. In this case Vthe:iegal";rep1'esentatives of the deceased V. Gopal ',_l"hfiled'aV_ Acclaim petition. The deceased had pzulichualsed five bags of vegetables and loaded the same in a trailer of a tractor and was also "travelling along with the vehicle. As a result of rash and negligent driving of the driver of the tractor the accident, occurred when the driver :32» 27 noticed a bus from the opposite direction took the bus to the left side of the road margin and due t.o heavy jerks, the deceased fell down and sustained injuries resulting in his death in the hospital,-.___ Their Lordships of the Apex Court in this held tractor was not a goods carriage and i:n"thi's____" 5 _._ é case, the accident had occurred prior"'<1,_o t1r*1..exl' amendment by Act 54 of 199%» _V Lordships at pa1'as»9, 16 case was covered under the oldQ'~\ct'»anci th-'erevf'o£'e, the insurer was 11(V;t--...:l'iv&1bble'V. to compensation.

24. The learned 4'Counsel,i* alsolorought to our notice another hlfepgortedatjase'"in"THE"CrRllENTAL INSURANCE co., LTD, §'v_s-'1j3R1J_ AIR sow 3734}.

In saidc__as'c_,s tractor was insured and not the trolley: inAs'urec1_crespondent ~ a labourer slipped down ' from the trolley attached to a tractor. The tractor was 'ins'ured 'only carrying out the agricultural work but at the releuvantaphoiiit of time, the tractor and the trolley were sent , "1"or*--.thevpurp0se of digging of earth and taking it. in a trolley t.o bi9iclA<-kiln. Therefore, it was held that the labourer was mere V ""passen.ger and not Owner or driver and his claim petition / 29 This is a Case arising under the Karnataka Motor Vehicles Taxation Act 1957 with reference to permit. The question that arose before the Their Lordships was whether the tractor--trai1er when combined would constitute aifgoaods carriage' and necessitate a permit for its use on roads..'_ Lordships held that it constitutes a goods carriage andhstatei K V' was empowered to levy tax on all Veliiic-less:yvhi.ch'V'arel designed and manufactured for L1se'on"roads.lV_'v_The releyant", para»2-4 reads as under:

"24. Section ,2'{2 ' "a__ comprehensive definition oft" the *i_txf'o1f.ds"~i:,:hi1'o'tor vehicle'. llll separately defined V to mean any vehicle to be drawn by motor ve41'1i(.3:le; isilstillincluded into the definition of . the wolrds...fm:otor vehicle' under Section 2(28}. it vi._S-.iiEn"i1arly. the word tractor' is defined in 2(44] to mean a motor vehicle which itself constructed to carry any load. Therefore. the words 'motor vehicle' have been defined in the comprehensive sense by the legislature. Therefore, We have to read the words 'motor Vehicle' in the broadest possible sense keeping in mind that the Act. has been enacted in order to keep control over motor Vehicles, transport Vehicles. etc. Thus. a combined reading of afore. stated defi11itio:n'»c. 30 under Section 2. reproduced hereina'i:~o\}e,:"._"v~_ shows that the definition 'motor_.A":<Jehic.}é" ti"

includes any mechanical propelied._.:"ate1*1icie adopted for use upon road irresp'ect~ive.__o'§_ source of power and °inci.udes --traiie:;."'~._. Therefore, even thoidtghpppa t,ra'ivJer is motor vehicle. it ngotor Vehicle. the .tr:1Ctor."trtai'1er would contstittite a 'goods carriageihc'-:n2_der:v _V2[14} and. consequentiy,.»~-- H v..'.transpoprf.t"' in §g'e:1l¢:¢'1e* under Sec:_tion;2{47}::.-_ "Fr1e"ttes't Ato':be.a}§;pIied in such a whé:ti1er~.the veh'icIﬂe is proposed to be 'utsedvtfor-»transppoVi't'ing goods from one place to ﬂanothe.r. vehicle is so altered or pr'epared* thatftit becomes apt for use for i;ransport.ing goods. it can be stated that it is .b_pa_dopt€d for the carriage of goods. Applying it"«v._t1're'.i'~a.hoVe test, we are of the View that the .'tracttor~traiIer in the present case falls under Section 2(14} as a goods carriage' and consequently, it falls under the definition of 'transport. vehicle' under Section 2[47} of the Motor Vehicles Act, 1988."

ii) THE ORIENTAL INSURANCE CO.LTD --vs-- D. AND OTHERS [ILR 2006 KAR 4355] This was a Case where a tract.orwtrailer xvzis inxfol*fede:'131 ' the accident. In this case, the c_i_iec.easedj'and' 'tithe liI}.};UVI'€':CVl it persons were the employees of oi'1e:'wD. La:/.11aan_, "Who owner of the tractor--trailer. tractor alone varavs...ivi1siured*..l' and the trailer was not iz'isL1:'eV_d_4_l.:lV':-Tlfherefore,~theirpvvlmrdships held that both tracto'r_..l:"ahdl_p t2raii.le'r_l'Vvvrelqiiired registration separately and ,were separately.

Therefore. ijtlrailfiiiwvere not Covered by the policy and herice ho«.co'rhper1'sation came to be paid.

iii) co., LTD., mvsm HANL11_\/iANiAi$P.A' &:".oTHERs [1992 AC} 1083}. this case .... it was held that the trailer was 'co'ristru§:ted«.for._the purpose of carriage of goods. Therefore, when it ljpijlled by a tractor, both together constitute trarlspolrt xreliicle viz., goods Vehicle and ultimately held that thei--.ihsLii'a11ce company which had insured both the vehicles lwasliliable to pay the compensation in respect. of death and 32 also injuries to the employees travelling in the tractor but however, the liability was restricted to an extent of liability under the provisions of the Workmen's Compensation Act unless an extra coverage was taken by payingfjexptra premium.

iv) BHIMAVVA AND omens --vs-- C 1829} In this case also, the employees. of one Pain.panagot1'da were travelling in tractorwtrolleyg"which 'was"Ad.rive;f1 one driver by name Shankan Thellltracjptoratrolleylltiiriived turtle resultingl"in._tl:e déjia'thl"of'-one'"coolie and injuries to other coolies.:"'._ held that even without an adjudicaﬁonv nnder.the...l€Vorkmen's Compensation Act, the &_ con"ip.anv'zvas liaE;le_.to.vpay the compensation limited to the under the Workmen's Compensation Act. Lordships. by reading of Sections 146 and

--V 'appear in Chapter XI of the Act makes it amply it it " "clear that the existence of a policy of insurance that satisfies C theilbiasic minimum prescribed under Section 147 of the Act 'is absolutely essential for the use of any motor vehicle in a «. p1,;rpos'e«; .

33 public place. It was further held that it is always open to the owner of a vehicle t.o secure a policy of assurance providing Coverage Wider than the on.e envisaged by Section:"i--47_f'..Ii' such wider coverage is taken, the liability will be" ' the terms of the policy if it goes, beyond " gth-e it it liability under Section 147' of the the lsaid was no Wider cover obtainedl_by._the iz~1suredfow1r1er.. for thew!' vehicle. Ultimately it was liable to indemnify the person vor...l:clas'ses2.:_» specified in the policy in respectof policy purports to cover even in Motor Vehicles Act without .'..b_e.ir1lg tleterxnined under the Workrnenf llC

v) 3 _; l OP.1ENTAL_l_lNlSU§2ANCE co. LTD. --vs-- THIPPESWAMY {zoos Aca 805} .Ii1:th,isV.case, the tractorwtrailer used for transporting ma'teria.}' 'fer'° constructing a farmhouse is for agricultural The tractormtrailer met with an accident in the l'..a'bove case. As a result" of the same two labourers u..._sustained injuries. The insurance company disputed its war 34 liabiiity on the ground that. the vehicle was not used for the purpose for which it was insured. His Lordship held that the farmhouse is used for keeping E1g1'iCL1Ht1I'E:1l impiernents, etc. Therefore. it is part and parcel of the agricuiturai operations when the vehicie was used for agricultural purpoVse_'4arid"e:heid that when the vehicle was used for agrict1ltural'A4';ju1fpo:se,"Athe Company is liable.

vi} In unreported decision Nc;,,&53s7'i 6358/2001 etc.. disposed-.i_o'f-on 2'4-h. .Mar¢'h,'V":%'o'os their V Lordships held as 1inder.:i'"" it Ii: ciaimants were travelling in the t1'act'o.r--4trailer_and iinslurer denied the liability on the ground that ~ihe"'1veh'i.cle in which the claimants were ~ r,tfaVellirig onthe accident was neither a goods vehicle of the goods aiieged to have been taken along withltlielin at the time of the accident. After referring Hto several cases, Their Lordships held that the definition of and trailer together would constitute a goods carriage ' vehicle as contemp1at.ed t111d€1' Section 2(l4) and especiaiiy "35 when it. is used for transporting the goods from one place to another. Ultimately it was held that the insurer was liable to pay the compensation.

vii) NEW INDIA ASSURANCE c0., LTp'---- RAJKUMAR E2009 KAR. M.A._C.»6€3l In this case a trailer attached tojj'aA~'tracti/_or* to be a goods carriage and wheritlge claimants'werevtrawe1lin_g.I' in a trailer attached to the tractor .c_arryingj for the purpose of transporting the rnar1.:,ifr"e' for ;_ tavgrictaylpttural purpose, the insurer was held._l.iabl.e to..pa3I. the eo1'n'pens:at§ion. viii} The Ap.e§¢"le'oi}:5i;t "Ln 'si<ANo'IA~}NsURANcE Co, LTD, --Vsw KQKILABEN {AIR 1987 so 1184} has observed _here'iinder:: v .V"'i:4t... _____ _vSeCti0n 96(2](b)[ii} extends iniimunity to the Insurance Company if a lib}-'each is committed of the condition liaelfcluding driver by a named person or "' 'persons or by any person who is not fully licensed, or by any person who has been disqualiﬁed for 1f1ol.ding or obtaining a driving licence during the period of disqttalification. The expression 'breach' is 'm of great significance. The dici4ionary"'*---- 36 meaning of 'breach' is 'infringementfor.:"g violation of a promise or obligationfm'(seep 9 Collins English Dictionary). it is.Vt1i'e~-irciéife abundantly clear that tl1'e"i1'is1.1«reer to establish that the insured g1§i._1ty* of if A infringement or violation of a' promiseﬂthat. a person who is not--~,[Vsic] duly licensedfgvill have to be chayrg-emof 'the Vehicle. ffhe very concept. Violation of the promise that 'breach' carries v..wii;hin .its;elf.b4iAndtz_ces 7an inference that or infringement on the iparftflof be a wilful ' violhaiiiofn. If the insured is : not " a{;j-.gi1.,vayfauit and has not done if ._panyth'i.ng'qhefshorild not have done or is n'ot_fan?:i'ss."in 'any respect' how can it be Vconscien.t_i.o«usly posited that he has

-eorr1mitt.ed a breach? it is only when the himself places the vehicle in tflfciiiarge of a person who does not hold a 'driving licence, that it can be said that he is 'guilty' of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the insurance Company ihat. the breach was promise. the grounds for exculpation can be found from Section 84.

38 By reading section 84, apart frQI11_ll<'t:]lj:'e-' implied mandate to the licensed driverp .n:otll H to place an unlicensed person in "c:ha'rge"'of'* _ the vehicle. There a«__ stiatutoiyplllll obligation on the saidbllpwerlson not to"leaveal.l'--~ the vehicle uiiattencled and it in charge of an uiilieensed is prohibited "by 1awm""inu.§: treated as a mandate the should be considered'.su.llfieient& in Aiéyeillor law for egicusing nor;-5cornplial.nce..V-- with the 'coi_1.di't-i'o'nsl. 'i-t}can1_1ct t.herefore in any case Albe'Vconlsidered_'as_a- breach on the part of l _the_ in's1.1red_..l'=.To_. construe the provision 't4__differe1_1tll3}. " be to rewrite the pr0vis'ior1 engrafting a rider to the effect that iln""t'he event of the motor vehicle :=hap.pening to be driven by an unlicensed pe,:i'S"Cn regardless of the circumstances in ~_lA4which such a contingency occurs. the the needs to be insured will not be liable under contract of insurance. lit emphasised that it is not the contract. of insurance which is being interpreted. It is the statutory provision defining the 39 conditions of exernption which is beingVv._'"._ interpreted. These must therefore....._b»e:"e-'V interpreted in the spirit in which t.h--eTsa:nee' have been enacted aC__c:o.nj_1pani--e"d' ,a1'1. anxiety to ensure that the p.roteetion_is._not nullified by the blargkliitrard 'Vinokvingll it interpretation whie,h'*~..3erve.s to dei7eat..;1&lie. provision rather -{nlfil.'i'tsy l_li'fe--ai:1'n. To do _'~-_amonlnt"ﬂ to nullifying the Abenelvolentid. provision by reading it n'on}benVevoﬂlent eye and 'with tuned touthe' purpose and _ph;iloslopl1y legisi»ati'on without being " o'f.l»thlelltruevéoals sought to be ' aehviev-edi. the legislature has given, 4' the Cotirt eanrio't deprive of by way of an lbexereise in linterpretation when the View V whi(:h__ renders the provision potent is _ equally plausible as the one which renders M " dlti1e_:.~pro\rision impotent. In fact it appears llftliiat the former view is more plausible .\f\ it apart the fact that it desirable. When the option is between from is more opting for a_ view which will relieve the distress and misery of the victims of accidents or their dependents on the one \'*:i hand and the equally plausible View which____ 40 will reduce the profitability of the i11surerw_l"._ in regard to the occupational undertaken by him by way of business activity. there is hardl_y.....a_ny C_l*1.oi'ce:.::iThe Court cannot but opt for the Even if one were tollvnlake a.y;jtri'ct.ly'V doctrinaire approach. the.__ veryv-._ conclusion would er_n'e.r_ge.._yin obeisancefto. the doctri_1j1e«. of down' the exclusion clause i.n!t1<:'e orthe 'main purplos__e' ofm proyisio:.1 that the 4_'yeXcl1§:es.iorl.V not""cross swords 2: H .l>plu.rp'o'se' highlighted " 1.t.L§::'a:1:e"ia;.; "l'h'e.lgeffortf be to harmonize ' of' allowing the exclusion 4' clause "successfully at the main.

l"'Vpur'pose.A'=_Th*Is theory which needs no supported by Carter's "Breach Contract" Vide paragraph 251. To ' lquote:~ Q'Vs:f._"Notwithstanding the general ability of l contracting parties to agree to exclusion clause which operate t.o deﬁne obligations there exists a rule. usually referred to as the "main purpose rule". which may limit the application of wide exclusion clauses .a;:.af1o=d.' ' c- V », 'Vdevelo}§rne':it:_l'_.''i of defining a promisor's obligations. For example. in Glynn contractual _ 41 Margetson 8: C0,. E1893} AC. 351 Lord Halsbury LC. stated: ''It seemsto me' is that in construing this _ec1oeu~ r11er1't'."'whie'h is a contract of carriage"rbetwe'en-__ti1e.__LW parties, one must be ir1¥the._first iiiSt'&}'1Ct€l look at the Wl'10lVE~.l:Il1'i-7~_lI'L11'i1."€If}."L one part of it only. 3;-ooliing at the Wl'l§Ol€ instrL1rner1t,4l"3.ndseeing what one rriust regard as its.o.lt11ai--rf one must reject ._wordsl." "m.deed._"whoI_e .V rérovisions, if 4_tl1Vey;5"a_re.V "iné:or1sis_te11t' what one 2' _assL'tmeS- tl<1e: mam purpose of the or --.1e"ontra:Ct."

-- rule played a role in the the doctrine of ftmdlarnerltal breach, the continued ..«va1iditVj/llllllof the rule was acknowledged when the doctrine was rejected by the lfV';lCl)t1S€3. of Lords in Suissee Atlaritigue Soeieted' Armement Maritime SA. V. N.V. Rotterdamsche Kolen Centrale, {1967] 1 AC. 361 at 393,412 4'l.3.427~«428, 430. Accordinszlv, wide exclusion clauses will be read down to the extent to which thev are

ix) In GURU ooVEKiet':r'<~ws-."*t«'1;;oMe:i§rA.ti Loso [AIR 1988 SC 1332) at paras 13 8: 1'4», has observed as under:

it insurance inconsistent with the main purpose, or object of the contract." (Exphasis added.}._:

15. In our opinion, tlierefore,"t.t__ie 42 Courts of Gujarat andJAndhraj a're:_j_ right and the High Courts-.oif it and Madhya Pradeshiiiare in Thei':

exclusion c1ause«.o_does not.__eXonerate the Insurer."

now refer to the ofdthiisin the New Asiatic __ . V. Pessttmal Dhanarnal

- Asur;g:;.ij'1V:9e4}7t *'s.c.R. 86?': (AIR 1964 so 7'v36).'.'In=._tbh'atV case the owner of a motor car'~--.ha_d insured it with the appellant. company, under a ~v44VC;orriprehensive policy. He had permitted ' ~.V--V'pj----ar3Lother person, who had insured his own i * "car with another company. to drive it and while the other person was driving the car it met with an accident. As a result of the accident one person died and another person sustairied injuries. Both of them .\VK were in the car. The heirs of the man who"-. 43 died and the Person who sL1stain_'eid"_'--._"'-- injuries ﬁled suits for damages. This :_. held that on a cor1siderai',ion__yllofx. provisions of sections E':3"to. 9{3?_4oi'_:h'e-. Act the insurer was liable, tof"inden2.1_iify"' person or class Ofr;:)e1'sons_speciﬁed-iinvthe policy in respect olf-.aan--y liability policy purports to _iri«._the case..ofi,hat person or Vth_o:se classes" oi' persons. If the policy covers the insii1'er.--for liability to the.Iihi1rd party.'_the.y:ir1s'tirer was bound to i.n'denini.ﬁr~the 11'.-"€I'S(.}i1:;0.I" classes of person 1 spe_cii"iedl'in ._th~ejpol'icy. same was the ' "effect su'o--~se'ction_"V{ij of section 96 of the I 'ActlVWh-i.cli.,proyided that the insurer was ll gélblouliid ltorlpay*--.i_othe person entitled to the albelilvefi/t."of"'.adecree he had obtained in VVp_1'espe'ctv.._._o[«' any liability covered by the of the policy against any person of the fact that the insurer entitled to avoid or cancel the policy.

.This meant, that once the insurer had issued a certiﬁcate of insurance in accordance with subsection (4) of section 95 of the Act the insurer had to saiisfy any decree which a person receiving injuries 45 Chapter VIII of the Act. Any other View will expose innocent third parties to go without compensation when they sufi"<:lI.:'.l"'»u injury on account of such motor and will 'iiefeat the very i"

introducing 'the necessity insurance policy under the"A::t.l'<7 -1'

27. After referring to several:j':idg.rnentsrelievdy both the parties as stated it resfer toll Section 147 of the Motor_Vehic'l'esA re'ads*'as under:

"£47. Requirernen-ts"o1'po'}i_cies--.and limits of liability?

= i {ll tn:§iei~ ' to comply with the l req't1,,ire1i14elnts of this Chapter, a it V_ipo}'icyl"of insurance must be a policy «which:

{a} is issued by a person who is an authorised insurer and [b] insures the person or ciasses of person specified in the policy to the extent specified in subw ; section (2)-

_\\ (ii against any liability which may be incurred by him in respect of the death of 46 bodily injury to any including owner of 9' goods or his _aut_lh'o.risedy_ representative' 'earn'-eld' in'= V' the veh:icle;'_'l0~r'V dlamlage afiy-.___pr0}5c.Ijtly of ya' party' "caused "by l arising out;-'oﬂthe use of thev-x.rehic1e < _in?_a p_ublic:p1Aa'ce;

(ii? "

* udeath of or injury to any l'i'--._d'"passenger of a public service vehicle caused by required:

s or arising out of the use of the vehicle in a public place:

J Provided that a policy shall not be to cover liability in respect of the death, arising out of and in the course of his \\m employment, of the employee of a person insured by 47 policy or in respect of;bodil.y__l' ' injury sustained by 'M employee ansing 0311 of in the course olfhisleniploymenft--._'_ other than a llliability. g undeimlu the V"

Conipenlsationl Act,' {$3 of ' inUrespeci.pof the death of 'of - bodily *--iifi;'li rs? to, any ernployeev-~ or .

. _ ' Worknierfs ' 'V «.:[;;.}?engalge'd in driving the vehicle, is a public service vehicle S 'fengaged as a conductor of the {ii} EXplé1i'1afiO1]i- For the doubts. it is hereby declared that Vehicle or in examining tickets on the vehicle. or [C] if it is a goods carriage, being carried in the vehicle, or to cover any contractual liability. removal of the death of or bodily injury to any person or damage to any property--___0f 48 a third party shall be deeniedj-«.to~V.Vv have been caused by or_;'to«.fh~aye' ;_ arising out of the use of al"I{ehijcltei'in " a public place; »nwo:with'sta§1eihg that the person who is_'d-sad 'or iAnj"ured:'or"*:ie ' the prop_ert:y wh--ichwi.s damaged'. was not in a piiblyic place Vat:.yt'hell"1Virr1e of the aCcide_;;t:."'iif the act"«or_AAorVIr.§ission Whyich led €§.oVilthet.Va"ccident occurred in a

28. Sectioﬁ;.ll49 is aiso" releyai1.t"\*.r.htich reads as under:

\£'"\ 'tt.i11'sured'-..i_ri respect of third party risksm '*.[1]"' If. after a certificate of "«.....i.nsL1rance has been issued under subwsection {3} of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under Clause {b} of sub-

section (1) of Section 147 (being a liability covered by the terms of the ":f'i49f'"»lyVI)ut3il"""'0f insurers to satisfy V'Vfj".idgrIi'e1;1ts-- and awards against persons 49 policy [or under the provisionstcf Section 163~A} is obtained any person insured by 1- then, notwithstanding H __ iii}-at' tithye insurer may be'e1'1t.itled tov4l'ay:o4idllor:'.V cancel or may "=a\}oi(i:}ec1"' cancelled; the fjolilcy, they 3 shall, subj'ect'--t to the moi"

this Sectio.nl;""vpay.yA to itlie." person entit:_led_ to the.1.be_iiel"'itt of the decree any .--'notA--l.:'V_'e?§;ceeding the V' "§iaya'ble: thereunder, as ii' iweyre ktnfe._lfuclgrnent~debtor, in . "tlie liability together with llll " VJlitany'~ainoun'tV''payable in respect of any sum payable in interest on that sum by .H.y'i\]1'A1."'t11V(?'3T:Of any enactment relating to A' ~v...in.t;erest on judgments."

{tinder Subsection [1] of Section 149, an insurer Wholcan_avo.i_di"or can be successful in avoiding or cancelling the policy is still bound to satisfy the award as contemplated Sub--section {1} of Section 149 of the Act.

30. Sub--Section (4) of Section 149 of the Act indicates that the insurer cannot. exclude any liability by adding any 4 _/ term in the policy format which is prescribed by the statute. If the insurer intends to avoid the liability, it can be done only in the manner provided under S'Llb~S€Cl.i("3i1V.'"-(2), of Section 149 or StzbwSection (7) of Section 149 o£l_:the"S a matter of fact. the report of the Law Commi'ssvio:n.. oflndia = Volume 13 of the report at Chapter III:-aetzparal'84,l *i'efers;_to the requirements of insurance policy 'eoVering,t'heVArisks of the V' S. persons.

"3.16 As already di.scufSAs'e'd_,'.thep statute had originally provideid slevvelrral on the scopefof the:"llco131.pt1lsoryV inszzirance cover. lirnitations have since been it is now provided that, in thelicase' oil or injury to any person, the _i1'1s.lura_nCel should cover the entire extent of actual 'liability [section l4'7[2}[a}}. However. ..v_J'iJ1:'«.1;efSp€Ct of damage to, or loss of, property, icefnpulsoiy insurance cover is limited to R_s4j'..t5OOO/-- under Section 1.47(2)(b)."

By reading Sections 147 and 149, it is clear that t.hel""_«IJegis1ative intent. was that the insurer has to cﬁompulsorily cover all the risks arising out of and use of _/ 52 xix]....

(xXi} ..... ..

Power tiller and tractor is mentioned at..'_colV.-aN(3l,l{Vii} "

which is described as a trar1spo'rt~--vehicle.M'"30 liar. as agricultural tractor and power tiller. itqis"mentioned.asnoh; transport vehicle. As per thils.S'ectionA.41{4}.."et:¢rjf..;Certificate"all of Registration has to specify,th.le'<types Of'lﬂ'f10LQIf_T':/'€hiC16 as mentioned in Columnslllﬁ table as the Central Gove1':,nment"rri_ay declaretdepending upon the nature of the design,'* constructionll'a;n'd<. "use of the vehicle specified. According a'toV_:Vthe..'--learn«éd Counsel for the appellant. the l V' --. tract'o1?:.A'is a-- non--tra"r'isjjort Vehicle though trailer is considered 'as_ a tra'Eis'port irehiele.

per the table agricultural tractor and power tiller" shown in the non~transport classification, but povsfer tiller and tractors using public roads are shown as ___transpo1*t vehicle. The tractor--tille1' is a non--transpo1'ting 53 vehicle but when used on roads, is considered as a transport vehicle from the gist of the judgments referred to a1:i..ove]=.iI_t.~v.iVs crystal clear when the tracto1'~trail.er C01'I1bilZ1€'Cl"' constitute a goods carriage, therefo_re..permits"are'_"i1ecessary for its use on the roads. Under'~:yMotoz'V Vehicles Sections 2(44} and 2[46) the "'d_Vefini't'ions Vof'lvitraoaopritrailerj? would definitely indicate when trailer orfiintended to be drawn by a motor 'veliiele, it becoiiiesi a goods Vehicle.

34. As Zofiriow, §Lhere_:'V.areVA"otrilyp two types of policies envisaged I_1)3V'lVllSV.E1S contemplated under Section"6'of "1'ariff;§ Their liability under the liabilityorily policy reads as under:

M ..(i)V'Lilabi'li1;y'i' Only Policy: This cover A. Third Party Liability for bodily injury ;h'd/ or death and Property Damage Personal Accident cover for Owner Driver is also included.

{ii} Package Policy: This covers loss or damage to the vehicle insured in addition to (i) above.

54

35. By reading the above two types of policies_,__ it is clear package policy is nothing short of cor;1prehensi'v"e.i with all the contents almost similar to the (',Q'ii3prAéi'1.é_l'1,S'i:V"€_'l.

policy which was in vogue earlier t_(_)...th_e i.i1t_-i'odi;ict_i0ri'=ofthis package policy.

36. The fully worded now'----prodn_celdTrelfelrs toll' limits of liability as eiivisagetdll"inc;'§',of11i;nercia'1'-Vehicles 'B' Policy (Misc. 8.: special of 1 refers to loss of daniagejy '_-to tract0r~trailer combination'; liabiyliiifhto third parties and Section"--lIl vehicle. We are concsf-mad ![1):Of Section II which reads as under: V a .

Suhjectlltov.th_e__l.imits of liability as laid down in the ' ;schedu_le.y'11erei_n, the company will indemnify the insured including the claimants costs and expenses Uninsured shall become legally liable to pay in Lreaspecvtl of death of or bodily injury to any person {including l7--thc"Aloading{ and/or unloading] of the Motor Vehicle." 55 3?. The wordings of the fully worded policy rnéilges it clear that the Vehicle in question is a Therefore, the respondents were justified in cannot: plead other than what is sta'te'd.in l_;he_. general exception in the policy wereto .liabil:ityVlof the insurer to cover the cool.i__es~.._ernpli;yed .f¢:<j1E;a'd1:1g' andll' unloading then the argument Vo€.Tt.h°'e_ap.pellantsvwas:§ justified. Though the fully worded" of contract between the parties, on perusal of the same ei<c.ept oi§p,t1i§e.llolthlelrl'lMTs. are relevant.

As a not find a place in the fully W_Yord_edl refers to exclusion of riots, strikes IMT 24 refers to replacement of p8f;1'lJS._A"/1'1.l€1"}_'tll'T€1 very 'policy is referred to as a special lll"pac'Kagé--."ipolicy, unless the insured was fully made known contract by including them in the terms of policy, _i.t~ issllnothing but withholding necessary and V'-»importan_t3 information from the insured. Depending upon of the Vehicle whether for agricultural purpose or for cornmerciail purpose, the liability of the insurer would be 56 decided. When the intention of the Legislat.ion was to 'cover compulsorily all the risk arising out of the use of tl'1e_l1no~toi~ vehicle and that the liability of the insurer is_.e:o§'ext_:ensi%?¢V" _ with that of t.he insured subject to Section 14'? ={. lijjtblbicoolieis or employees are cornpulsorily covertedf; dfllherefore-e,.__ argument that Rule 100(6) r'/lw__.Rule'.2.26 of Motor Vehicles Rules is relevant41isy:re3'.ected'andnthevisame will not authorise or permitthje indsuret. toavoid the liability.

38. In th.eDCase ¢;§fV'i§iAf:f:o.i$IAx1,--..;NsU§iéiNcE co. LTD. -- vs-- swAR;»x"N""_s1l9¢(:;':§"i«::>;Qo=;.._ _V*6;1{ln~;¢_ 1 ACJ 1}, the Larger Bench ti-e.ld_ under:

' of our findings to the as raised in these " p.etiti.o'ns "are" as follows:

(il n'Cha,pter XI of the Motor Vehicles Act, _ 1988 providing compulsory insurance of "'-_:*'vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of \\l\ .\J\ the Act have to be so interpreted as to effectuate the said object.

57 insurer is entitled to raise a deI'er;.r:.e '2 claim petition filed under Section' or Section 166 ofihe Mo.rc'n'~'.Zi;::i1i;~:ies_ Act, 1988 inter alia in_te1fmusy of' 149(2}{a}(ii) olithe saia Act-.. {iii} The breach / gin,/..?O1iCy' yconditionl"'e..g.';: disqualilieation driver' .. or invalid driving .'*~'._ice1_iee_: 'ofﬂ the driver. as contained -- [2)(a)(ii} of 4seotion;"ll4'9#:haveV"r.to be.Vb1"oved to have been .VCorr;.rnitte_dA._ by"-the insured for yd"avoidi11g"-livability«by'=the insurer. Mere abs-e.I1ce. '-fake' "or...invalid driving licence V°7orV'disquaE.ification of the driver for ' drivfing"''a_t''the relevant time, are not in ' therns_elv-es defences available to the " 'insurer against either the insured or the _ V llgtowards To avoid its the third parties. liability insured, insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly

(iv) [vi licensed driver or one who was not 58 disqualified to drive at the relevant tin1.ee..__u7 The insurance companies are, hoyv.ev'er;'s."'a.

with a View to avoid their liability" miisﬁ"

not only establislii__ the.""'ava'ilable'--_ defence{s} raised in the said f;r0ce'edi11gs_y but must also yVestabVl'i.sh'*.'breach_i.y on the-id" V part of the ovv_n'e.1j of the ivehviVcle;:"'~the--ii burden of prool"'ldwhere{or on them' _ . .. , The court c:ai1not5' l'ay_dov.tn"' any criteria 31$ to sa1d."'s.._bﬁ1rdVé§hv" i would be dischargedi,:_ ﬁinasn_1uch------~as . Ltpyonl the ' coriceirning the same facts and Cif(:Z:lJIi1SLEtI1C€ o'f»eac"h case. V?3'c*.enitvl'iere.the insurer is able to prove bre-ac'b1'he part of the insured the condition policy "regarding holding of a valid licence by U the driver or his qualification to drive Aiiljduring the relevant period. the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause o'f the accident. The Tribunals in .\f\ interpreting the policy conditions would apply "the rule of main purpose"

59

the concept of "fundamental breaclfi'-'»ltoT._E2 allow defences available to the_.A'ihsuredf :"

under section 149(2) ofthe Act;~-- " .

(vii)The question as to \?Vh_€4't'I1.f'3I"«_l.h'€-- .o\m_1er"' has taken reasonable care to find out it to whether the _d~r.ivingA licence' 'p'ro:dvuced3 by the driver, {al"'l'ake_pone' 'o-rpfotheriagisel.

does not~..fu1fi;lh'thel--.reqi1i_rement's of law or not yto:"b:e»ud'etermined in each case': --

Va xat.4'thet--Vtim.e.iof accident was . having a learners hi ins.urance companies would . y vlgea 'liable»_ato._ _satisfy the decree. {ix} «tribunal constituted under " Se.ction'«...i765 read with Section 168 is Fenipopwered to' adjudicate all claims in respect of the accidents involving death V or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver other. In the on the course of \\[\ adjudicating the claim for compensation and to decide the availability of dei'enc§:.ll'»u 60 or defences to the insurer. the has necessarily the power" a_nd.l"

jurisdiction to decide,' disputes' A between insurer and the jinsure'd_._ "'.Tft'n.e"' decision rendered on the clain1s».a.n"d_\'~ V disputes inter--_V_s'e..t_betv"JeenV the and insured "in ,the course} of adjudication clairn for' compensation by the ckugnénié and the axvard rnade thehreon 'dis 'enlforCeable and "executable in tire _sa_rrie n_1anner..aslp1*ovided in Section u{Qi"~"€r1fOi'C€1'I1€I1lZ and W; e5§jee1iti--or1-._of tl'1e...a*.2vard in favour of the 'emmmmg,--

Wiley-.eV"'on"«adjudication of the claim V' utn-.de1%_ the Act the tribunal arrives at a V _ lgaccordance A' "conclusion that the insurer has satisfactorily proved its defence in with the of section 149(2) read with subsection (7), provisions as interpreted by this Court above, the Tribunal can direct. that the insurer is liable to be reimbursed by the insured the and other for cornpensation amounts which it has been compelled to pay to the third party under the award of the tribunal. Such deterniinatiori 61 claim by the Tribunal will be and the money found due to ihe"insurevr° it"

from the insured willmbe recove'ra:blbel"0n-A a certificate issued the Collector in the sairie n1anr1€tr"unde;_"'~ V Section 174 o»f.the__ActAasVarrearVs land:

revenue. The certifica'te W"i1l_«be issued for the Vrecoveryd . arrears "oi" land revenue onlyle-if} :as_'requi'red by sub» _section.{3]"oi"&SVe'c'tion ivss"'oi'°the Act the ii1':s'ui'ed--¢ tails todeposi't the amount " ~f1'ji"i A'iavVoui'--;ol't- the insurer within tliirty days the date of it '7«1n_nouficem_ent.' oi' the award by the ' t;V_ribtur1ai_..«__A"

V "[xi] The'----tpr_ovi«sions contained in sub--section [4] it A _' "with proviso thereunder and subsection {5} v.r_hi.ch are intended to cover speciﬁed contingencies mentioned therein to enable \t'\ 4' the insurer to recover amount paid under defences of insurer the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and against insured by 62 relegating them to the remedy before regular court in cases where on given l'aucts:l"_ and circumstances adjudication claims inter se might delay the adjts.dicat.io1'il of the claims of the xrictintsf

39. policy, there is no avoidance olliability. General errceptions mentioned therein do liability.

The judgments relied upori ].~earn.§efl__l_Counsel for the appellant so ;_fai'll;1js§ls case where the tractor alone on agricultural work but tljie labourers to brick kiln ytfherefore, their Lordships held that the pu"rpose_t'or whlieh the vehicle was used was not for J V' _ agrilculture_ and ladvded' to this the vehicle in which they were Vt.rav'el1'in_gt not insured. Hence. the insurer was held not liable. decision in Serjerao's case again refers to Brij Mohans case. In this case only trolley was involved and not " :the..tract.or.

Under General eVx'ce_ption's._lof thisfully :wo'rd'edlW 63

40. The combination of tractor-trailer is nothingshort of a goods carriage. Therefore, when once it is held laslgoods carriage vehicle, by virtue of Section --II-1(1) of it policy and also provisions of Sectiiotn" 147, 'the_ xoff'thHe--.« claimants on hand is covered. The :c:.lVai'mants lin_th,e case have rightly approached thle'~~Worl.{mer1'sVA vCon'i:rni'ssione1' "

and the Commissionerpwas ju--stiﬁed--~..pin hold!.ngA..'§that the . injured claimants wereﬁioolies f';i..1i;1de'1%. the» owner viz- the insured. In the_'presentWease, they».werle...earrying stones for constructingﬁ». ;f1c1':L_§:e--.'_1n thiei-l.and~*b}:1ongli'ng to the insured so as to store t,hAelvl'warte:r,p Thm-__iS.nQthing but part and parcel of agrieultucalél _ "The Claimants were neither gratuitous passengers nor persons who were travelling in the ~,.r.,{yr£tCtori~rti*aill'er forvﬂuthe purpose other than agricultural 5p_e{~at1,§n..s." Vlsoo.ki.ng to the avocation of the claimants, the computati.ort-- of the compensation by the Commissioner is Wjust. aiivdeproper. Viewed from any angle, we do not find l."ll_Ae1ny<"go0d ground to interfere with the awards of the V. :7' /./ 64 Commissioner. Therefore the claimants in the present Case-swere rightly heid as covered under Ex.Rw2 policy. ';

\ f3U5Gge<i.

41. Accordingiy, the appeals are disxiiissedf-._:

{ij,g.IUDGE Nsu/W _ V

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