Gauhati High Court
National Insurance Co. Ltd. vs Konjengbam Ibo Singh And Anr. on 5 March, 2008
Equivalent citations: 2008(1)GLT868, 2008 LAB. I. C. (NOC) 622 (GAU.) (IMPHAL BENCH), 2008 (3) AJHAR (NOC) 748 (GAU.) (IMPHAL BENCH)
JUDGMENT B.D. Agarwal, J.
1. This appeal is directed against the judgment And award dated 13.12.2002 passed by the learned Commissioner under Workmen's Compensation Act, 1923 Manipur, Imphal in Claim Case No. 23 of 2002. By this impugned judgment, the learned Commissioner has awarded a sum of Rs. 3,56,336/- with interest at the rate of 12% per annum in favour of the claimant for the death of his son.
2. Heard Mr. K. Pradeep, learned Counsel for the appellant. None appeared for the owner of the vehicle as well as for the claimants i.e. the respondents.
3. The claim application was filed seeking compensation of Rs. 4.5 lakhs for the death of claimant's son in a motor vehicle accident that took place on 21.06.2002. At the relevant time, the deceased was engaged by the respondent No. 1 in his truck No. MN-05-2466. The claimant's son succumbed to the injuries on the next day. The learned Commissioner has held that the deceased was a workman within the provisions of Workmen's Compensation Act and the incident also arose out of and in the course of employment. Accordingly, it was held that the claimant is entitled to compensation. The Commissioner has further held that since the vehicle was duly insured with M/S National Insurance Company, the insured is to be indemnified by the insurer.
4. In this appeal the only question to be answered is as to whether the risk of the life of the deceased driver was covered under the policy and as to whether the insurance company is liable to satisfy the award. According to Mr. Pradeep, the owner of the truck did not pay any premium to cover the risk of the driver and as such, the insurer ought not to have been held liable to indemnify the insured. To buttress his submission, the learned Counsel for the appellant referred to the conditions of policy as well as the premium chart.
5. According to the learned Counsel for the appellant, under the terms of the policy (marked as Ext. A/18-1) the owner of the goods vehicle are required to pay additional premium of Rs. 15/- per driver or cleaner or any other person engaged in loading and unloading of goods. As contended, since no such additional premium was. paid by the owner of the vehicle, the impugned award should be directed against the owner of the vehicle and the insurance company should be absolved from its liability.
6. For better appreciation of the contention of the learned Counsel, the relevant portion of the policy as well as that of Section 147 of the Motor Vehicles Act, 1988 are reproduced below:
POLICY CONDITION IMT 17. -Legal Liability to Persons Employed in connection with the Operation And/or maintaining and/or Loading and/or Unloading of Motor Vehicles (Goods Carrying).
In consideration of the payment of an additional premium it is hereby understood and agreed that not withstanding anything contained herein to the contrary the Company shall indemnify the Insured against his legal liability under the Workmen's Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this Endorsement, the Fatal Accident Act, 1855 or at Common Law in respect of personal injury to any paid driver (or cleaner or conductor or persons employed in loading/or unloading but in any case not exceeding seven in number including driver and cleaner) whilst engaged in the service of the Insured in such occupation in connection with the goods carrying Commercial Vehicle and not exceeding seven in number and will in addition be responsible for all costs and expenses incurred with its written consent.
The premium have been calculated at the rate of Rs. 15/- per driver (and/or cleaner and/ or person employed in loading and/or unloading but not exceeding seven in number including driver and cleaner).
Provided always that:
(2) **** **** **** (3) **** **** **** Subject otherwise to the terms exceptions, conditions and limitation of this policy except so far as necessary to meet the requirements of the Motor Vehicles Act 1988.
6.1. SECTION 147 OF MOTOR VEHICLES ACT, 1988:
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 authorized insurer; and
(b) Insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)-
(i) Against any liability which may be incurred by him in respect of the death of bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place;
Provided that a policy shall not be required- (i) To cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-
(a) Engaged in driving the vehicle, or
(b) If it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) If it is a goods carriage, being carried in the vehicle, or
(ii) To cover any contractual liability.
Explanation **** **** **** (2) **** **** **** (3) **** **** **** (4) **** **** ****
7. During the course of hearing, learned Counsel also cited the judgment of this Court rendered in the case of National Insurance Company Ltd. v. Smt. Sagolsem Ongbi Thoinu Devi and Anr. (closposed of on 21.09.2006) as well as the Judgment of the Hon'ble Supreme Court rendered in the case of Ramashray Singh v. New India Insurance Co. Ltd. and Ors. . In both the aforesaid cases the claim applications were filed for the death of "Khalasi/helper", whereas in the present case, I am concerned with the liability of the insurance company for the death of 'driver' of goods vehicle. Hence, the authorities cited on behalf of the appellant are distinguishable on facts.
8. Be that as it may, the judgment of the Hon'ble Supreme Court rendered in the case of Ramashray Singh (supra) has made it clear that under proviso to Section 147 (1) (b) of the Motor Vehicles Act the liability of the insurance company is not covered under the policy in respect of employees of the insured vehicle unless the liability is arising under the Workmen's Compensation Act. In other words, the proviso is an exception to the general rule that policy shall cover only the risk of death or bodily injury of any person or one class of persons as specified in the policy. I am also of the view that proviso (i) to Section 147 (l)(b) of the Motor Vehicles Act has made it clear that the risk of driver of the vehicle and that of conductor and ticket examiner in the passenger vehicle as well as goods carrying vehicle are automatically covered under the Act policy.
9. In the case of Ramashray Singh also, the Apex Court has clarified this legal position, although the case was arising out of the death of a 'Khalasi'. The legal principle in this regard has been laid down in paragraph No. 10 of the said judgment which is also extracted below in extenso:
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 (l)(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 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.
(emphasis mine)
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 @ 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. Consequently, I do not find any illegality in the impugned judgments fastening the liability upon the insurance company to satisfy the awarded amount on behalf of the owner of the vehicle since the offending vehicle was duly insured under the appellant.
12. In the result, the appeal stands dismissed. However, there shall be no order as to cost of the proceeding.