* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.1102 of 2010
%22.09.2014
Between:
A. Narsimha Reddy. Appellant AND Midde Chinna Niranjan and another. …. Respondents ! Counsel for Appellant : Sri A. Vishnu Vardhana Reddy ^ Counsel for Respondent No.1 : Sri P.S.P. Suresh Kumar ^ Counsel for Respondent No.2 : Sri K. Kishore Kumar Reddy < Gist:
> Head Note:
? Cases referred:
1) 2007 ACJ 1735 (AP) = 2007 (1) ALD 364
2) 1990 ACJ 37 (Madras)
3) 2006 ACJ 789 (Delhi)
4) 1990 ACJ 201 (Madras)
5) 1995 ACJ 1106 (Bombay) HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No.1102 of 2010
JUDGMENT:
Aggrieved by the award dated 12.12.2008 in O.P.No.2601 of 2006 passed by Motor Accidents Claims Tribunal-cum-III Additional Chief Judge, City Civil Court, Hyderabad (for short “the tribunal”), the first respondent/owner of the tractor filed the instant MACMA.
2 a) On factual side, on 01.05.2006 when the claimant and some others who were the labourers under first respondent/owner while travelling in a tractor-cum-trailer bearing No.AP 2H 0827 and AP 22H 1148 to bring grass for the cattle from Ghantraopally to Peddakothapally, on the way the driver drove the vehicle in a rash and negligent manner and thereby the claimant fell down from the tractor and the tractor ran over him causing injuries to his head and other parts of the body. Impugning liability on the driver, the claimant filed OP No.2601 of 2006 against respondents 1 and 2, who are the owner and insurer of the crime vehicle and claimed Rs.4 lakhs as compensation under different heads.
b) First respondent filed counter and admitted the case of the claimant.
c) Second respondent/Insurance Company in its counter opposed the material averments in the claim petition. It mainly contended that the first respondent did not pay premium to cover the risk of a labourer but only driver and on this plea, R2 repudiated its liability.
d) During trial PWs.1 and 2 were examined and Exs.A.1 to A.8 were marked on behalf of claimant. RW1 was examined and Exs.B1 to B3 were marked on behalf of respondents.
e) Award shows that with reference to issue No.1, the Tribunal basing on the evidence of PW1—claimant and Exs.A1— FIR and A2—charge sheet held that the accident was occurred due to fault of driver of tractor-cum-trailer. Then, relating to quantum of compensation, the Tribunal awarded a total compensation of Rs.2 lakhs as follows:
Compensation for head injury (grievous) Rs. 1,00,000-
00 Medical expenses Rs. 50,000-00 Loss of earnings Rs. 50,000-00 Total Rs.2,00,000-
00 Regarding liability, the Tribunal held that Ex.B1—policy cover the risk of one employee who is obviously the driver of the tractor and hence it does not cover the risk of claimant who was the labourer under R1/owner. On this finding the Tribunal exonerated second respondent/Insurance Company and fastened liability on R1/owner alone.
Hence the appeal by R1/owner.
3) The parties in the appeal are referred as they stood before the Tribunal.
4) Heard arguments of Sri A.Vishnu Vardhana Reddy, learned counsel for appellant/owner and Sri P.Suresh Kumar, learned counsel for R1/claimant and Sri K.Kishore Kumar Reddy, learned counsel for R2/Insurance Company.
5) Impugning the award learned counsel for appellant/R1 argued that the Tribunal grossly erred in fastening liability on the owner alone on the wrong appreciation of Ex.B3—policy copy which clearly shows that owner paid premium to give coverage to the risk of one employee. He argued that Tribunal erred in coming to the conclusion that employee means usually the driver of the tractor and under that wrong impression held that risk of claimant who was the labourer under R1/owner is not covered. He argued that under Ex.B3—policy the risk of driver of tractor would automatically cover under Section 147 of MV Act and hence the amount of Rs.25/- paid under the head “WC to employee 1” shall be treated to cover the risk of one another employee. Since claimant is the labourer under R1, the policy shall be deemed to cover his risk. He thus prayed to allow the appeal and fasten liability on Insurance Company also jointly and severally along with the owner.
6) Per contra, while supporting the award learned counsel for R2/Insurance Company argued that Ex.B1 copy of policy would clearly show that the owner paid Rs.25/- under the head “WC to driver” which indicates the said premium covers the risk of driver alone because the tractor is meant for sitting driver alone but none others and therefore, the Tribunal rightly exonerated the Insurance Company from liability. He thus prayed to dismiss the appeal.
7) Learned counsel for R1/claimant supported the appellant.
8) In the light of above rival arguments, the point for determination in this appeal is:
“Whether the Tribunal was right in exonerating the Insurance Company from the liability?”
9a) POINT: To decide the point in issue, it must first be decided as to in what capacity the claimant has travelled in the tractor at the relevant time of accident. Since inception, the plea of claimant is that he was working as labourer under R1/owner in his tractor since six months prior to the accident. In his evidence also the claimant deposed that he was working as labourer under R1 i.e. owner of the tractor since six months prior to the accident. This aspect was not challenged by R2/Insurance Company in the cross-examination of PW1. So, it can be held that claimant was working as labourer under R1/owner of the tractor and in that capacity he traveled in the tractor at the relevant time of accident.
b) So, the next aspect is whether the policy covers his risk or not. It may be noted that the Insurance Company filed copy of policy marked as Ex.B1, whereas R1/owner also filed copy of policy issued to him by the Insurance Company which is marked as Ex.B3. Ex.B1 and Ex.B3 are similar in all respects, except regarding payment of premium of Rs.25/-. As per Ex.B1, while classifying the policy amount under different heads, premium of Rs.25/- is shown under the head “WC to driver”, whereas in Ex.B3 in the classification table the said amount of Rs.25/- is shown under the head “WC to employee 1”. Basing on Ex.B1, counsel for Insurance Company argued that premium of Rs.25/-
was paid to give coverage to the driver alone since the tractor is meant for sitting of driver alone. Whereas the contention of appellant/owner is that irrespective of what is mentioned in the copy of policy filed by Insurance Company, the particulars mentioned in the policy copy served to him should alone be taken into consideration. As per Ex.B3 the said amount of Rs.25/- was paid to give coverage to “one employee” who is other than driver because every policy issued under Section 147 of MV Act should invariably cover the risk of driver and the owner need not pay a separate premium to cover the risk of driver.
c) I find force in the submission of the appellant/owner. Between Ex.B1 and Ex.B3, the latter has to be preferred since what was supplied to the policy—holder is more important than what was preserved by the Insurance Company. Thus, as per Ex.B3 the sum of Rs.25/- is shown as paid under the head “WC to employee 1” which means to cover the risk of one employee to the extent of compensation payable under Workmen’s Compensation Act, 1923 (for short “WC Act”). In the present context, the word ‘employee’ need not necessarily be interpreted as driver of the tractor because as per the proviso to Section 147(1) of MV Act, the risk of driver to the extent of compensation payable under WC Act is invariably covered and therefore, the appellant/owner is not in need to pay any more compensation for the driver. Of course, he may pay extra premium to give full coverage over and above the coverage given under WC Act to the driver. However, the premium of Rs.25/- cannot be taken as an extra premium for the driver in view of heading “WC to employee 1”. In my considered view, if the appellant/owner paid extra premium to get extra coverage to the driver, then the nomenclature of heading would not have been “WC to employee 1” but it would have been something else like “extra premium to driver” or “extra liability to driver” etc. So, the heading “WC employee 1” – Rs.25/- should be understood in relation to another employee but not the driver.
d) The other argument of Insurance Company is that the tractor is meant for sitting of driver alone and so the premium of Rs.25/- should be taken for his coverage alone. This argument though apparently looks sound but not correct. In the instant case, both ExB1 and B3 would show that the appellant insured not only the tractor but also his trailer. Foreseeing the necessities of the employees travelling in the tractor-cum-trailer for his work, the appellant/owner must have paid premium to give coverage to one employee to the extent of workmen’s compensation. Hence, the argument of Insurance Company cannot be accepted. Consequently the finding of the Tribunal in exonerating the Insurance Company cannot be countenanced. It is therefore held that policy covers the risk of claimant.
e) For another reason also it must be held that the policy covers the risk of claimant. The undisputed evidence would show that the tractor tyre ran over him after he fell down from the tractor. This would show that tractor caused the accident after he fell down on the road but not while he was in the vehicle. In such an event it must be said that the claimant received injury as a third party but not as inmate of the vehicle. It was so held by this Court in a decision reported in United India Insurance Company Limited rep. by its Branch Manager vs. Kurva Yejju
[1]
Mallamma and others . In that case, when the deceased was getting down from the lorry, the driver suddenly moved the same in a rash and negligent manner and thereby the deceased suffered severe injuries and succumbed to death on the spot. In the resultant claim petition, the Insurance Company sought to repudiate its liability on the contention that the deceased being a gratuitous passenger, policy would not cover his liability. In that context, a learned single Judge of this Court following the decisions reported in
[2]
1) A. Subramani vs. Mani and others
2) Kanwar Shamsher Singh and others vs. Satbir Singh [3] and others
3) Thoznilalar Transport Company vs. Valliammal and [4] others
4) Oriental Insurance Co. Ltd. and another vs. Edward
[5]
D'Cruz and others has held thus:
“13. That having regard to aforesaid principles, the only conclusion which can be arrived in this case is that the deceased no longer remains as a passenger, either gratuitous or otherwise, but wholly stands on the footage of a third party. Therefore, there is no substance in the plea raised by the appellant/insurance-company and there is no escape from its liability.”
10) When the above ratio is applied to the present case, here also the claimant suffered injuries only when he totally disembarked from the vehicle. So, irrespective of the fact in which capacity he travelled in the vehicle, he suffered accident only as a third party. Needless to say that Ex.B1 = Ex.B3 policy invariably cover the risk of third party to full extent.
11) So, the aforesaid discussion would show that the policy covers either way—firstly, to the extent of the compensation payable under WC Act and secondly, to full extent as it covers to a third party. Since MV Act is a beneficial legislation and as the claimant suffered grievous injuries in the resultant accident, I hold that he is entitled to compensation to full extent as a third party than the limited compensation under WC Act. Since the quantum of compensation awarded by the tribunal is not disputed in this appeal and not challenged by the claimant even, the said amount is held to be payable by both the owner and insurer jointly and severally.
12) In the result, this MACMA is allowed and ordered as follows:
a) The Award of the Tribunal insofar as exonerating Insurance Company from its liability is set aside and held that both owner and insurer/R1 and R2 in the OP are jointly and severally liable to pay compensation awarded by the Tribunal.
b) The respondents shall deposit the compensation amount within two months from the date of this judgment, failing which execution can be taken out against them.
c) No costs in the appeal.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U. DURGA PRASAD RAO, J
Date: 22.09.2014
Note: LR Copy to be marked: Yes/No
Murthy
[1] 2007 ACJ 1735 (AP) = 2007 (1) ALD 364
[2] 1990 ACJ 37 (Madras)
[3] 2006 ACJ 789 (Delhi)
[4] 1990 ACJ 201 (Madras)
[5] 1995 ACJ 1106 (Bombay)