State Consumer Disputes Redressal Commission
Smt. G. Neelamma vs National Insurance Company Ltd. on 25 July, 2011
BEFORE THE A BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. FA 145 of 2008 against C.C. 160/2006, Dist. Forum, Ananthapur Between: 1) Smt. G. Neelamma W/o. Lingamaiah 2) Linga Raju, S/o. Lingamaiah Minor Rep. by his mother Appellant No. 1 Both R/o. Medapuram (V) Chennekothapalli (M) Ananthapur Dist. *** Appellants/ . Complainants And 1) Gopal Reddy, S/o. Narayana Reddy Owner of Van No. AP-02-U-4399 D.No. 16-686-ID, Survey Tailors Bangalore Road, Dharmavaram Ananthapur Dist. ** Respondent/OP1 2) National Insurance Company Ltd. Rep. by its Divisional Manager Ananthapur. *** Respondent/OP2 Counsel for the Appellant: M/s. M. Ramgopal Reddy Counsel for the Respondents: Mr. N. Mohan Krishna (R2) CORAM: HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT. SMT. M. SHREESHA, MEMBER
& SRI R. L. NARASIMHA RAO, MEMBER MONDAY, THIS THE TWENTY FIRTH DAY OF JULY TWO THOUSAND ELVEN ORAL ORDER: (Per Honble Sri Justice D. Appa Rao, President) ***
1) Appellant is unsuccessful complainant.
2) The case of the complainants in brief is that first complainant is the mother and second complainant is the brother of late G. Narayana Swamy. He is the driver working on the van bearing No. AP-02-U-4399 insured for Rs. 2 lakhs covering the liability of the driver by receiving additional premium of Rs. 100/-. While so when he was driving the van belonging to Op1 on 28.1.2004 the driver of the lorry bearing No. AP-02-U-4412 while driving it in a rash and negligent manner dashed against the van due to which G. Narayana Swamy driver died on spot. When claim was made the insurance company did not repudiate nor settle the claim.
They being beneficiaries of the policy entitled to claim compensation, and therefore claimed a sum of Rs. 2 lakhs with interest together with costs of Rs. 5,000/-.
3) Op1 owner resisted the matter. He alleged that he paid Rs. 100/- towards additional premium for coverage of liability of driver in addition to statutory liability. He should be indemnified by the insurance company. Personal accident coverage to the paid driver was endorsed as per IMT-17. He admitted that deceased G. Narayana Swamy died in the accident while he was working as a driver. A petition under Workmens Compensation Act was also filed, and compensation was awarded under W.C. Act. Therefore he prayed for dismissal of the complaint against him with costs.
4) The insurance company Op2 equally resisted the case. While admitting issuance of policy it did not admit that premium of Rs. 100/- was collected to cover the risk or indemnify risk of the driver. It covers the risk of owner-cum-driver provided he drives the vehicle. The complainant was also put to prove that the deceased was paid driver, and the policy covers his risk. The complainants have already filed claim under Workmens Compensation Act in W.C. No. 17/2004 before the Asst. Commissioner of Labour, Ananthapur wherein they claimed Rs.
4,50,000/-. By order dt. 28.12.2006 an amount of Rs. 3,31,908/- was awarded.
Since they had obtained compensation by recoursing to an application under W.C. Act, complainants claiming compensation under the policy will not arise. An amount of Rs. 100/- collected as premium is compulsory towards personal accident cover for owner-cum-driver. Since the owner did not receive any injury, the paid driver is not entitled to any compensation under the terms of the policy. Therefore it prayed for dismissal of the complaint with costs.
5) The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A4 marked while Op2 filed affidavit evidence of its Administrative Officer and got Exs. B1 & B2 marked.
6) The Dist. Forum after considering the evidence placed on record opined that the policy covers the risk of owner-cum-driver. It was to cover the personal accident of the owner. It does not extend coverage of paid driver cleaner or conductor etc. At any rate the complainants had already received the amount under W.C. Act wherein the insurance company was also made as a party, and therefore dismissed the complaint.
7) Aggrieved by the said decision, the complainants preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that premium was collected to cover the liability of the driver. IMT-17 specifically states that the owner and also driver (paid driver) were entitled to get the insurance coverage. Denial is contrary to well established law, and therefore prayed that the complaint be allowed.
8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9) It is an undisputed fact that Op1 the owner insured his van under goods carrying commercial vehicle (open) policy covering the period from 15/2/2004 to 14/2/2005 for a sum of Rs. 2 lakhs. It is also not in dispute that first complainants son G. Narayana Swamy was paid driver of Op1 and he drove the said vehicle. On 28.2.2004 it met with an accident wherein he died on spot evidenced under FIR Ex. A1, post-mortem examination report Ex. A2 and inquest Ex. A3.
10) While the complainants contend that an amount of Rs. 100/- was collected towards additional premium is to cover the driver while the insurance company pleads that additional premium collected was compulsory to include personal accident cover to owner-cum-driver to an extent of Rs. 2 lakhs. The schedule appended to the policy mentions about personal accident cover for owner-driver. Section-IV reads as follows:
Section-IV Personal Accident Cover for owner-cum-driver:
Subject otherwise to the terms, exceptions, conditions, and limitations of this the company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner-driver of the vehicle, in direct connection with the vehicle insured or whilst driving or mounting into/dismounting from or travelling in the insured vehicle as a co-driver, caused by violent, accidental, external, and visible means which independent of any other cause shall within six calendar months of such injury result in:
Nature of injury Scale of compensation
i) Death 100%
ii) Loss of two limbs or sight of two eyes or one limb and sight of one eye 100% iii ) Loss of one limb or sight of one eye 50% iv ) Permanent Total Disablement from injuries other than named above 100% Provided always that (1) compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner-driver arising out of any one occurrence and total liability of the insurer shall not in the aggregate exceed the sum of Rs. 1 lakh during any one period of insurance.
(2) no compensation shall be payable in respect of death or injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.
(3) such compensation shall be payable directly to the injured person or his/her legal representative(s) whose receipt shall be the full discharge in respect of the injury to the insured.
i) This cover is subject to :
a) the owner-driver is the registered owner of the vehicle insured herein
b) the owner-driver is the insured named in this policy.
c) the owner-driver holds an effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicle Rules, 1989 at the time of the accident.
IMT-17 pertains to personal accident cover to paid drivers, cleaners and conductors. The said stipulation reads as follows :
IMT 17. PERSONAL ACCIDENT COVER TO PAID DRIVERS, CLEANERS AND CONDUCTORS : (Applicable to all classes of vehicles) In consideration of the payment of an additional premium, it is hereby understood and agreed that the insurer undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by the paid driver/cleaner/conductor in the employ of the insured in direct connection with the vehicle insured whilst mounting into dismounting from or traveling in the insured vehicle and caused by violent accidental external and visible means which independently of any other cause shall within six calendar months of the occurrence of such injury result in :-
Details of Injury Scale of Compensation
i) Death 100%
ii) Loss of two limbs or sight of two eyes or one limb and sight of one eye 100% iii ) Loss of one limb or sight of one eye 50% iv ) Permanent Total Disablement from injuries other than named above 100% Provided always that (1) compensation shall be payable under only one of the items (i) to (iv) above in respect of any such person arising out of any one occurrence and total liability of the insurer shall not in the aggregate exceed the sum of Rs.......* during any one period of insurance in respect of any such person.
(2) no compensation shall be payable in respect of death or injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.
(3) such compensation shall be payable only with the approval of the insured named in the policy and directly to the injured person or his/her legal representative(s) whose receipt shall be a full discharge in respect of the injury of such person.
Subject otherwise to the terms exceptions conditions and limitations of this policy.
. * The Capital Sum Insured (CSI) per person is to be inserted.
From a perusal of above it is beyond doubt that Op1 did not pay the premium covering the risk of paid driver, cleaner or conductor as mentioned in IMT-17. The premium that was collected by the insurance company was under Section IV covering the personal accident risk of owner-cum-driver. Therefore the policy does not cover the risk of the paid driver.
11) At any rate, the complainant had already filed claim under W.C. Act in W.C. No. 17/2004 before the Assistant Commissioner of Labour impleading the insurance company also as a party. The insurance company is made as a party - Op2 to the said application. The Asst. Commissioner of Labour, Ananthapur after enquiry directed both Op1 as well as insurance company to pay Rs. 3,31,908/- jointly and severally vide order Ex. B2. Having obtained order against the insurance company and recovered the amount, we are afraid the complainants cannot seek compensation once again under the policy.
12) Section 8 of the W.C. Act makes it clear that no compensation has to be paid in respect of a workman whose injury has resulted in death except by deposit with the Commissioner and no such payment made directly by an employer shall be deemed to be a payment of compensation; the employer should not make any payment of compensation directly to the deceaseds heirs and legal representatives or to any of them; (i) Section 8 of the Act is designed to protect the heirs and legal representatives of the deceased workman against any kind of exploitation or fraud likely to be practiced on them by or on behalf of the employer or any third party; (ii) Section 8 of the Act lays down the format for quantum of compensation payable by an employer when an employee meets with an accident. Its object is that unscrupulous employer should not take advantage of the ignorance of the employee in making payment of a paltry sum. Therefore the Act safeguards the interest of the workers and any private payment will not discharge the statutory obligation.
13) In Rajak Haji Jumma Vs. United India Insurance Company Ltd. reported in 1995 (1) LLJ 168 ( Bombay). the Bombay High Court held where the employer had deposited a sum of Rs. 27,000/- with the Court of Commissioner for Workmen Compensation. However the insurance company was not liable to indemnify when the insurer was not impleaded when a claim was made referring to Section 19 (1) of the W.C. Act which reads as under :
19. Reference to Commissioners:
(1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration or compensation (including any question as to the nature or extent of disablement) the question shall, in default of agreement, be settled by a commissioner.
Liability of the employer: The liability of the employer arises as soon as the injury is caused and at any subsequent occasion. It cannot be suspended.
Liability of the insurance company: If the insurance company has agreed to discharge the liability of the employer under the Workmens Compensation Act the liability of the insurance company to indemnify the insurer shall have to be determined by the Commissioner for Workmens Compensation in the very same proceedings by virtue of the provisions contained in Section 19(1) of the Act.
Scope of expression any person : The insurer also will come within the scope of any person contemplated in Section 19 of the Act and thus within the jurisdiction of the Workmens Compensation Commissioner.
14) In fact in the above decision, it had relied yet another decision of High Court of Rajasthan in Madan Gopal Vs. Anandi Lal reported in (1992) ACJ 543 referring to the expression any person it was held that includes the insurance company concerned. It is therefore obvious that if the insurance company has agreed to discharge the liability of the employer under Workmens Compensation Act, the liability of insurance company to indemnify the insurer shall have to be determined by the Commissioner for Workmens Compensation in the very same proceedings by virtue of provisions contained in Section 19(1) of the Act. In that case since the primary liability being on the employer and the amount was determined the High Court obviously by invoking its jurisdiction directed the Commissioner for Workmens Compensation to determine afresh ..... after giving due opportunity to the appellant and respondent to file supplementary pleadings and lead such evidence as they wish to lead. It was also mentioned that notice had to be issued to the insurance company in Form-J under rule 39 of the Workmens Compensation Rules, 1924. Therefore under the policy the complainants are not entitled to compensation under the Consumer Protection Act.
15) In the light of the above, the complainants are not entitled to claim the amount covered under the policy. The risk of the paid driver is not covered that apart having already lodged claim and collected the amount from the owner as well as insurance company the complaint is not maintainable. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
16) In the result the appeal is dismissed. However, in the circumstances of the case no costs.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER
3) ________________________________ MEMBER 25/07/2011 *pnr UP LOAD O.K.