Gauhati High Court
United India Insurance Co Ltd vs Gaya Roy on 19 March, 2015
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: MFA 64/2005
1. United India Insurance Company Ltd.,
Having its registered office at-
24, Whites Road,
Chennai,
And one of the Regional Offices at-
G.S. Road, Dispur,
Guwahati, Assam.
...... Appellant
-Versus-
1. Smti. Gaya Roy
W/o Late Maneswar Roy,
R/o Village Dharmapur,
P.O. & P.S. Sarbhog,
Dist- Barpeta, Assam.
....... Respondent/ Claimant
2. Shri Dipak Das Ward No-3, Sarbhog Town, P.O. & P.S. Sarbhog, Dist- Barpeta, Assam.
...... Respondent/ Owner
-BEFORE-
HON'BLE MR. JUSTICE N. CHAUDHURY
For the Appellant : Mr. SS Sharma
Sr. Advocate
Mr. A Sharma
Advocate
Page 1 of 9
MFA 64/2005
For the Respondents : Mr. N Debnath
Advocate
Date of Hearing : 19.03.2015
Date of delivery of
Judgment and Order : 19.03.2015
JUDGMENT AND ORDER (ORAL )
This is an appeal under section 30 of the Workmen's Compensation Act, 1923 challenging the judgment and award dated 24.02.2005 passed by Workmen's Compensation Commissioner (hereinafter referred to as 'the WC Commissioner'), Guwahati in W.C. Case No. 272/2002. By that judgment and award, the WC Commissioner has awarded compensation of Rs. 3,06,180/- against the owner and directed the insurance company to make payment because of insurance coverage.
2. One Gaya Roy, as claimant, instituted the workmen's compensation claim stating that her husband Maneswar Roy died on 07.07.2002 in course of his service in Bus No. AS-15/1245 owned by O.P. No. 1 Dipak Das and insured by O.P. No. 2 United Insurance Company Limited. A U/D case was registered at Sarbhog P.S. vide No. 08/2002 in regard to the death and investigated into. The deceased used to get Rs. 1,200/- as monthly salary daily allowance and his age was 50 years at the time of accident.
3. On notices being issued by the WC Commissioner, the opposite parties appeared. O.P. No. 1 by filing written statement admitted that deceased was his employee in the aforesaid bus and that he died on 08.07.2002 in course of his employment. The owner stated that Maneswar Roy was given Rs. 1,200/- as monthly salary and Rs. 3,000/- as maintenance per month. O.P. No. 2 insurance company filed another written statement denying the contents of the claim petition and also refusing to pay compensation unless the claim is proved. Upon such rival contentions of the parties, the WC Commissioner put the parties to prove their respective cases. The claimant examined 3 (three) Page 2 of 9 MFA 64/2005 witnesses. She was examined as PW 1, Dr. Paresh Kalita was examined as PW 2 and O.P. No. 1 owner of the vehicle Dipak Das was examined as PW 3. Insurance company examined one Naba Kumar Doley as DW 1 and both the parties adduced documentary evidence. Upon consideration of the evidence led by the parties, the WC Commissioner arrived at the finding that deceased Maneswar Roy worked as a conductor of the bus and that he was drawing salary at the rate of Rs. 4,200/- per month including daily allowance. The learned WC Commissioner found that the case was covered by Section 4(1)(a) of the Workmen's Compensation Act, 1923 and accordingly the compensation was assessed as follows:-
50% of Rs. 4,000/- x 153.09 = Rs. 3,06,180/-
The O.P. No. 1 employer was liable to make payment of compensation but since the vehicle involved in the accident was duly insured with the United India Insurance Company Ltd., the WC Commissioner directed the O.P. No. 2 United Insurance Company Ltd. to make payment of compensation within 30 days from the date of receipt of the order. In default, interest at the rate of 9% per annum on the amount of compensation w.e.f. the date of accident was ordered till deposit is made. It is this judgment and award dated 24.02.2005 which has been brought under challenge in the present appeal. It is to be noted here that immediately after the judgment and award was communicated, the insurance company made deposit of the whole amount with the jurisdictional WC Commissioner on 06.07.2005.
4. While admitting this appeal under section 30 of the Workmen's Compensation Act, 1923 (now re-named as Employee's Compensation Act, 1923) the following substantial questions of law were framed by this Court:-
i) Whether the learned Commissioner was justified to fasten the liability on the appellant-insurer in absence of payment of any additional premium made by the owner to cover the risk of a handyman, whereas the coverage of driver and one conductor alone was taken?
ii) Whether the learned Commissioner was justified to make the appellant liable to pay compensation in face of the decision of the Apex Court in Ramashray Singh vs. New India Assurance Company Ltd., reported in AIR (2003) SC 2877= 2003 (12) SCC 664?Page 3 of 9 MFA 64/2005
iii) Whether the learned Commissioner's finding, that the deceased handyman was one of the conductors of the bus, is correct?
iv) Whether the award of interest from the date of the accident is permitted, since the same is contrary to the decision of the Apex Court, reported in (2006) 5 SCC 192?
v) Whether the daily allowance paid to the deceased could have been included in the salary of the deceased to calculate compensation?
vi) Any other question, which may be allowed to raise at the time of hearing of this appeal.
5. I have heard Mr. SS Sharma, learned senior counsel assisted by Mr. A Sharma for the appellant and Mr. N Debnath, learned counsel for the claimant- respondent. Mr. PK Talukdar appears on behalf of the respondent No. 2 owner. I have perused the materials available on record including depositions of the witnesses.
6. Mr. SS Sharma learned senior counsel would argue that the deceased was not a conductor at all. He was a handyman. Even the claimant described him to be a handyman but the owner O.P. No. 1 coming to the witness box as PW 3 deposed that there were two conductors in the vehicle and that deceased was one of the conductors. According to Mr. Sharma, the insured paid premium for one driver and one conductor only. There was no extra premium for handyman. Even if the deceased is considered to be a second conductor, he would not be covered by the insurance policy, inasmuch as, only one conductor has been insured by the owner. Liability, if there be any, would lie on the owner and not on the insurance company. According to the learned senior counsel, the finding of the learned WC Commissioner that deceased was a conductor is perverse. Both in the pleading of the claimant as well as O.P. No. 1, the deceased was described a handyman but only in course of evidence the O.P. No. 1 took a different stand and claimed that the deceased was a second conductor. The learned WC Commissioner failed to take into account the evidence of PW 1 and 3 in proper perspective and so, the finding cannot be sustained. He would further argue that even if the deceased was a conductor, there is no material whatsoever on record to come to a finding that he died because of the occupational hazard. With these submissions, the learned senior Page 4 of 9 MFA 64/2005 counsel would urge that the impugned judgment and award be set aside by deciding substantial questions of law in favour of the appellant.
7. Per contra, Mr. N Debnath, learned counsel for the respondent would argue that the owner is the best person as to the identity of his employee. He having come to the witness box and having deposed that the deceased was also a conductor whatever name he may be called in colloquial language, his status cannot be a different one. He further submits that for a driver or a conductor, no payment of premium is necessary. Under proviso (i) of Section 147 of the Motor Vehicles Act, 1988, there is no necessity for specifically insuring a driver and a conductor or a ticket examiner. They are statutorily covered by operation of section 147 (i)(b) of the Motor Vehicles Act, 1988. The insured admittedly paid premium of Rs. 30/- towards insurance for 2 (two) extra employees apart from 46 passengers of the vehicle. Relying on a judgment of this court given in the case of National Insurance Company Limited v. Konjengbam Ibo Singh and another reported in (2008) 3 GLR 547, the learned counsel would argue that such extra premium should be construed to be premium paid for additional driver and additional conductor. If such a construction is resorted to, in that even a second conductor is also covered by the insurance policy in question and that being the position, learned WC Commissioner has not committed any error in directing the insurance company to make payment of the compensation.
8. Section 147 of the Motor Vehicles Act lays down requirements of policies and limits of liability. Relevant part of this section excluding the explanation is quoted below for ready reference:
"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 or 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 Page 5 of 9 MFA 64/2005 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 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."
9. Thus, it would appear that in a public service vehicle person engaged in driving the vehicle or conductor of the vehicle or ticket examiner of the vehicle are automatically covered. In the case of Ramashray Singh v. New India Assurance Company Ltd. reported in (2003) 10 SCC 664, the claim application was filed for death of a khalasi. In that case, the Apex Court clarified the legal position arising out of the death of khalasi in paragraph No. 10 which is quoted below:-
"10. The appellant's first submission was that Shashi Bhushan Singh was a passenger. The appellant's submission that the phrases "any person" and "any passenger" in sub-clauses (i) and (ii) of clause (b) to section 147 (1) are of wide amplitude, is correct. (See New India Assurance Co. v. Satpal Singh). However, the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely, employees of the insured. In other words, if the "person" or "passenger" is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to section 147(1)(b). It is clear that for the purposes of section 146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the Page 6 of 9 MFA 64/2005 person insured unless: first, the liability of the insured arises under the Workmen's Compensation Act, 1923, and second, if the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the employee concerned is 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 were permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word "cleaner" while describing the seating capacity of the vehicle does not mean that the cleaner was, therefore, a passenger. Besides, the claim of the deceased employee was adjudicated upon by the Workmen's Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passenger."
10. Considering the aforesaid provision of law, a Single Bench of this Court held in the case of National Insurance Company Ltd. v. Konjengbam Ibo Singh and another (supra) that under proviso (i), the liability of insurance company for certain employees of the vehicles including that of a driver is statutory whereas under proviso (ii), the insurer is at liberty to cover any additional contractual liability. By making payment of additional premium at the rate of Rs. 15 per head insured is at liberty to get insurance coverage for additional driver or additional cleaner. Paragraph 10 of the aforesaid judgment is quoted below:-
"10. The clause of the policy with respect to legal liability of the insurance company (quoted ibid in the judgment), I am of the view that this condition is to be understood having read the same harmoniously with proviso (i) and (ii) of section 147(1)(b) of the Motor Vehicles Act. Under proviso (i) the liability of insurance company for certain employees of the vehicles, including that of driver is statutory whereas under
proviso (ii) the insurer is at liberty to cover any additional contractual liability. Hence, stretching of the liability on payment of additional premium at the rate of Rs. 15 per driver, etc. indicates the extension of the liability for the additional driver or cleaners, etc., which are otherwise not covered under proviso (i). Even at the risk of repetition, I hold that the driver of the vehicle as well as conductor and ticket examiner of passenger bus are already covered under proviso (i) and there is no necessity to pay additional premium for these employees, whose liability is covered under Workmen's Compensation Act, 1923."
11. I have gone through both these judgments. It appears that under normal circumstances, owner of a vehicle is not required to make payment of premium for insurance coverage of a driver. In case of a public service vehicle, Page 7 of 9 MFA 64/2005 a conductor or a ticket examiner is also automatically covered by insurance policy under section 147(b) of the Motor Vehicles Act, 1988. But there is always a practice that owners keep more than one driver or conductor in the bus for proper functioning and in that event, they are at liberty to get the services of those extra drivers and cleaners by making payment of extra premium at the rate of Rs. 15 per head. Here in this case the vehicle owner got insurance coverage for 46 passengers and two more employees apart from one driver and one conductor. Under normal circumstances, the vehicle in question being a public service vehicle there was no necessity for making payment of extra premium for the lone driver and the lone conductor. Once the insured has made payment of extra premium for two persons, then such premium should be construed to be the premium paid for an additional driver and an additional conductor only. Here in this case, the deceased has been described by the owner as an additional conductor whatever name he may be called but insured has already made payment of premium for two extra persons which cannot include the regular driver and the regular conductor and in that event, the learned WC Commissioner has not committed any error in holding that the deceased in question was covered by the insurance policy.
12. From the aforesaid discussions it is clear that the learned WC Commissioner relied on the deposition of the PW 3 in coming to hold that deceased was a conductor. He was described to be the second conductor by the PW 3. Such finding of the trial court cannot be said to be perverse because there is some materials on record in support of such finding. The appellate court under section 30 of the Workmen's Compensation Act has no liberty to appreciate the evidence. It can only examine as to whether a particular finding of the learned WC Commissioner is based on some amount of evidence or not. The question of sufficiency of evidence will come in the realm of appreciation of evidence and shall not be for the purpose of deciding perversity or otherwise of a finding. Since there is some material to arrive at a finding then appreciation of the learned trial court of that evidence cannot be called in question in exercise of power under section 30 of the Workmen's Compensation Act. Having so found, the substantial questions of law in regard to status of the deceased vide Page 8 of 9 MFA 64/2005 substantial questions of law No. 3 referred to above has to be decided against t he appellant and in favour of the claimant.
13. In view of the discussion made hereinabove, the other substantial questions of law at substantial questions of law No. 1 and 2 referred to above are also decided in favour of the claimant holding that the learned WC Commissioner did not commit any error in fastening the liability of paying compensation on the insurance company. The substantial question of law No. 4 is in regard to the interest on the compensation amount. The learned WC Commissioner has directed the insurance company to make payment within 30 days from the date of receipt of the order. It appears that the order was communicated vide Memo dated 01.03.2005 and immediately thereafter the insurance company made the deposit on 06.07.2005 and so it does not appear that the insurance company committed any delay in making the payment. That being the position, fourth substantial question of law does not require any adjudication. The substantial question of law No. 5 deals with the question as to whether daily allowance can be calculated as part of salary. The question is no longer res-integra in view of the judgment passed by the Hon'ble Supreme Court in Mohd. Ameeruddin and another v. United India Insurance Company Ltd. and another reported in (2011) 1 SCC 304. The Hon'ble Supreme Court held that daily allowance has to be included into the salary of the deceased unless it is shown that it was not regularly paid. Having so found, all the substantial questions of law are decided in favour of the claimant and against the appellant. Accordingly, this appeal stands dismissed.
14. The claimant shall be at liberty to withdraw the amount from the jurisdictional Workmen's Compensation Commissioner, if not withdrawn.
15. Send down the L.C.Rs.
16. Interim order, if any, shall automatically stand vacated.
JUDGE BiswaS Page 9 of 9 MFA 64/2005