1. This appeal is directed against the judgement and award dated 02.07.2001 passed by the Motor Accident Claims Tribunal (Main), Rajkot in MACP No. 641 of 1995 whereby the said claim petition was allowed and the claimants were awarded a sum of Rs. 2,15,000/- along with interest at the rate of 9% per annum.
2. The claim petition was filed in pursuance of an accident which had occurred on 08.05.1995 on Wankaner-Halvad road when a truck driven by the original responent no. 1 in a rash and negligent manner in which the deceased was travelling turned turtle. The heirs and legal representatives of said deceased filed Claim Petition seeking compensation to the tune of Rs. 3 lakhs. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr. Sunil Parikh, learned counsel for the appellant has contended that the Tribunal failed to appreciate the contention raised by the Insurance Company that the deceased was travelling in the goods vehicle as an unauthorised and illegal passenger which was against the terms and conditions of the insurance policy. He further submitted that even otherwise the Tribunal ought to have held that the policy is an Act policy and extra payment covering the wider risk of labourers was not charged and hence the truck is covered under the Workmen's Compensation Act, 1923.
3.1 Mr. Parikh in support of his submissions relied upon the decision of the Apex Court in the case of National Insurance Co. Ltd. vs. Prembhai Patel reported in AIR 2005 SC 2337 (=2005(6) SCC 172) and submitted that the said decision has held that when the insurance policy is for 'Act Liability' the liability of the insurance company would not be unlimited but would be limited as per the Workmen's Compensation Act.
4. Mr. Parth Tolia, learned advocate appearing for Mr. Harshit Tolia for the original claimants supported the award passed by the Tribunal and submitted that the Tribunal has rightly awarded compensation under the Motor Vehicles Act. He has relied upon a decision of the Apex Court in the case of Gottumukkala Appa Narsimha Raju & Others vs. National Insurance Co. Ltd. reported in AIR 2007 SC 2907 and submitted that the insurance company is bound to pay compensation under the Motor Vehicles Act.
5. From a persual of the records it is clear that the insurance policy in question was an Act policy and therefore risk of labourers travelling in the truck is covered under the Workmen's Compensation Act, 1923. Section 147 of the Motor Vehicles Act specifically states that the risk of employees travelling in the vehicle as labourer who receive bodily injuries is covered under the Workmen's Compensation Act.
I.M.T. 17 is not attached to the policy which confirms that the appellant insurance company's liability is restricted only under the Workmen's Compensation Act and not under the Motor Vehicles Act.
6. In the case of National Insurance Co,. Ltd. vs. Prembhai Patel (supra), the Apex Court has held that in case the owner of the vehicle wants the liability of the insurance company in respect of death of or bodily injury to any such employee as is described in Cl. (a) or (b) or (C ) of provisio (i) to Section 147(1)(b) should not be restricted to that under the Workmen's Compensation Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the policy should also contain a clause to that effect. However, where the policy mentions “a policy for Act Liability” or “Act Liability”, the liability of the insurance company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen's Act. In the instant case also the policy is an 'Act Policy' for which the insurance company shall be liable only for the amount payable under the Workmen's Compensation Act. The decision relied upon by the learned advocate for the respondent shall not be applicable on the facts and circumstances of the present case.
7. In the present case, the income of the deceased is considered as Rs. 1000/- per month. Therefore the loss per month comes to Rs. 400. The age of the deceased was around 44 years and therefore factor of 172.52 can be applied. Accordingly, the amount of compensation comes to Rs. 69,008/-. Accordingly, the appellant insurance company shall be liable for compensation only upto the amount of Rs. 69,008/-.
8. In the premises aforesaid, it is held that the liability of the original opponent nos.1 and 2 shall remain intact to meet the entire claim awarded with interest as awarded by the Tribunal. However, so far as the present appellant Insurance Company is concerned, the award will stand modified and the amount awarded against the appellant will be Rs. 69,008/- with running interest thereon at the rate of 6% per annum from the date of the application till realization. The remaining amount lying in the FDR along with interest shall be refunded to the Insurance Company. It will be open to the original claimants to recover the remaining amount from the owner of the truck. However if the amount is already withdrawn by the claimants, the said amount shall be recovered from the owner of the truck. The award of the Claims Tribunal shall stand modified accordingly. Appeal is allowed accordingly. No order as to costs.
[K.S. JHAVERI, J.] Divya//