Madras High Court
Branch Manager vs Tmt.Subbammal on 9 October, 2007
Author: S.Nagamuthu
Bench: S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 09/10/2007 CORAM The Honourable Mr.Justice S.NAGAMUTHU C.M.A (MD) No.118 of 2000 Branch Manager, Oriental Insurance Co. Ltd., Thurayur Salai, Namakkal. ... Appellant vs. 1.Tmt.Subbammal 2.Appa Naicker 3.Thiru.P.Rengasamy ... Respondents Prayer This appeal filed under Section 30 of Workmen's Compensation Act, 1923 against the judgment and decree made in W.C.No.231 of 1997 dated 01.02.1997 on the file of the Deputy Commissioner for Workmen's Compensation, Trichy. !For Appellant ... Mr.K.Bhaskaran ^For Respondents ... Mr.A.Saravanan :JUDGMENT
The second respondent in W.C.No.231 of 1997 on the file of the Deputy Commissioner for Workmen's Compensation, Trichy is the appellant. The respondents 1 and 2 are the claimants and the third respondent is the first respondent before the Commissioner.
2.The claimants are the parents of the deceased. The third respondent is the registered owner of the Tractor bearing registration No.T.A.S 9912, which was attached with a trailer. According to the claimants, the deceased was employed under the third respondent. On 08.12.1996, when the Tractor was engaged in transporting sand, the deceased was sitting on the mutgard and fell down due to the impact when the driver applied break suddenly. He sustained injuries and thereafter, succumbed to the same. Contending that the deceased was a workman, the claimants made a claim under the Workmen's Compensation Act. Admittedly, the appellant is the Insurer of the vehicle.
3.Before the Commissioner, the third respondent herein did not file any counter and he was also set exparte. The appellant however, contended by filing an appropriate counter before the Commissioner that the Insurance policy issued by the appellant did not cover the deceased and assuming that the policy covers the deceased, since the tractor was used otherwise than for agricultural purposes in violation of the policy conditions, the Insurance Company is not liable to indemnify the owner of the vehicle. It was also contended that the deceased was not a workman under the third respondent.
4.Before the Commissioner, on the side of the claimants, the first respondent herein was examined as P.W.1 and three documents namely, Ex.A.1-First Information Report, Ex.A.2-Post Mortem report and Ex.A.3-Insurance policy were marked. On the side of the appellant herein, one witness was examined as R.W.1 and the policy was marked as Ex.B.1. Considering the rival contentions and the evidence available on record, the Commissioner passed an award dated 01.12.1999, holding that the deceased was a workman under the third respondent and that the insurance policy covers the deceased and therefore, the appellant was liable to pay compensation to the tune of Rs.1,88,847/-.
5.Challenging the said award, the appellant has come forward with this appeal. In the grounds of appeal, the appellant has not chosen to specifically formulate any substantial question of law. At the time of admission of the appeal also there was no such question of law formulated by this Court. Therefore, on perusal of the records and also going by the grounds of appeal, now this Court feels it appropriate to formulate the following substantial questions of law which arises for consideration, in this appeal:-
"(i)Whether a Tractor fitted with a trailer would fall within the definition of goods carriage as defined in Section 2(14) of the Motor Vehicles Act?
(ii)Whether the policy of the Insurance issued by the appellant would cover the liability in respect of the death of the deceased in the course of his employment arising under the Workmen's Compensation Act of 1923?
(iii)Whether the appellant is liable to indemnify the owner of the vehicle to satisfy the award though there is a clear violation of policy condition that the Tractor was used for a purpose other than for an agricultural purposes?"
6.Though there were divergent view expressed, whether a Tractor attached with trailer would fall with the definition of Section 2(14) of the Motor Vehicle Act, so as to be defined as a goods carriage, a Full Bench of the Hon'ble Supreme Court in National Insurance Co. Ltd., v. Chinnamma (III (2004)ACC 1(SC), has dealt with the said question in detail and has held as follows:-
"16.A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise......."
7.A similar question again came to be considered in Oriental Insurance Co. Ltd., v. Brij Mohan (2007 (3) T.A.C. 20(S.C)) wherein, the the Hon'ble Supreme Court referred to National Insurance Co. Ltd., v. V.Chinnamanna's case (cited supra) and however, has not answered the question whether a tractor fitted with trailer falls within the definition of goods carriage or not as defined in Section 2(14) of the Motor Vehicles Act.
8.The Hon'ble Supreme Court in both the cases above, has held that the vehicle viz., tractor attached with trailer same is necessarily required to be used only for agricultural purposes unless registered otherwise.
9.In both the cases, cited supra, on facts, it was found out by the the Hon'ble Supreme Court that the tractor in both the cases were used for the purposes other than agricultural purposes and therefore, held that the Insurer is not liable to satisfy the award since the user of the vehicle is in violation of the policy condition.
10.In the case on hand, as found in the F.I.R., the tractor attached with trailer was used for the purpose of carrying sand for construction of house for one Mr.Arumugam. The evidence of P.W.1 also does not go to show that the vehicle was used for agricultural purpose. Thus, it is abundantly clear that the vehicle was not used for agricultural purpose but for non-agricultural purpose which is a clear violation of policy condition as held by the the Hon'ble Supreme Court in the judgments cited supra. Thus the appellant is not liable to indemnify the liability of the third respondent herein to satisfy the award in favour of the claimants.
11.The deceased according to the claimant, was a workmen under the third respondent. The third respondent has not disputed the same. Even the appellant has not let in any evidence to rebut the evidence of P.W.1 who has categorically stated that the deceased was employed under the third respondent. Therefore, the finding of the Commissioner that the deceased was a workman under the third respondent is correct and the same does not suffer from any infirmity.
12.The next important question is whether the insurance policy issued by the appellant covers an employee of the third respondent and whether the same would fasten the liability on the Insurer to pay compensation, since the employee namely, the deceased in this case died during the course of employment. In New India Assurance Co. Ltd., V. Asha Rani and Others (2003 (2) SCC 223), the the Hon'ble Supreme Court has opined as follows:-
"25.Section 147 of 1998 Act, inter alia prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle". Proviso appended there to categorically states that compulsory coverage in respect of the drivers and conductors of public service vehicle and employees carried in a goods vehicles would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a "goods carriage"."
13.In my considered opinion, since the tractor while attached with trailer would fall within the definition of a goods carriage, there has to be a compulsory coverage of insurance in respect of the employees carried in a goods vehicle. It would be limited to the liability under the Workmen compensation Act. A perusal of the policy of insurance issued by the appellant in this case would show that it covers either a driver or a workmen. Therefore, under Section 147 of the Motor Vehicle Act, since the insurance policy issued by the respondent in this case covers the Workmen namely the deceased, the appellant is liable to pay compensation provided there is no violation of the policy conditions as stated in Section 149 of the Motor Vehicles Act. Section 149 (2)(a)(i) of the Motor Vehicle Act, makes it clear that if the vehicle is used for the purpose of not allowed by the permit under which the vehicle is used whether the vehicle is a transport vehicles then, the Insurer is not liable to indemnify the liability. In this case, I have already held that the tractor attached with trailer has been used for a purpose which is not allowed by the permit in as much as the same was used for a non-agricultural purpose though as per the permit, it could be used only for agricultural purposes. For all these reasons, in conclusion, I hold that the claimants are entitled for compensation under the Workmen's Compensation Act from the third respondent herein and however, the appellant is not liable to indemnify the third respondent for the reasons stated above. To that extent, the award made by the Commissioner needs to be modified.
14.At this juncture, it is to be seen that the the Hon'ble Supreme Court has been taking the view that in all cases where the Insurance company escapes from its liability to pay compensation, to the claimants, on the ground of violation of policy conditions, considering the object of the fact, the Insurance Company is required to satisfy the award and then to realise the amount from the owner of the vehicle without initiating any separate proceedings. Applying the said view expressed by the Hon'ble Supreme Court, in this case, the appellant is directed to pay compensation to the claimants by satisfying the award and then to realise the same from the owner of the vehicle namely, the third respondent without the necessity of filing a separate proceedings.
15.With the above modification, the civil miscellaneous appeal is partly allowed. No costs.
To The Deputy Commissioner for Workmen's Compensation, Trichy.