1. By way of filing this appeal, the appellant- Insurance Company has challenged the judgment and award passed on 30.07.1997 by Motor Accident Claimss Tribunal (Main), Himmatnagar in MACP No.577 of 1989, whereby the Tribunal has awarded the compensation of Rs.1,54,000/- alongwith 12% running interest from the date of application till realisation with proportionate costs under the Motor Vehicles Act.
2. The short facts of the present appeal are that on 21.08.1989, the deceased Lalabhai was going by driving the tanker No.GRX-5798 and at that time, one truck was coming from opposite direction and another truck was overtaking the said truck. Due to said overtaking, the deceased had dragged his tanker to the Kaccha Road and because of that the tanker toppled down and as a result thereof, the deceased sustained injuries and succumbed to death. Therefore, the original claimants had filed MACP No.577 of 1989 before the Tribunal for compensation.
3. The Tribunal, after hearing learned advocate for the parties and after considering the evidence produced on record, decided the claim petition and passed the award as stated herein above, against which present appeal is preferred.
4. Feeling aggrieved by the said judgment and award passed by the learned Motor Accident Claims Tribunal (Main), Himmatnagar in MAC Petition No.577 of 1989, the appellant – insurance company has challenged the same by filing this appeal.
5. Learned counsel for the appellant submitted that that having regard to the insurance policy taken by the owner of the vehicle and provisions of Sections 147 and 149 of the Act, its liability is restricted to that, which is provided under the Workmen's Compensation Act, 1923 (hereinafter referred to as "the Workmen's Act") and it is not liable to satisfy the entire award made in favour of the claimants. Learned counsel for the appellant has submitted that the owner, while getting his vehicle insured, had paid only that much amount of premium as was required to cover the liability under the Workmen's Act. He had not paid such premium so as to cover the entire amount of liability qua an employee and, therefore, the liability of the appellant would be a restricted one and it would not be to satisfy the entire award made in favour of the claimants. He therefore submitted that the Tribunal has committed an error in holding the insurance company liable though it was not statutorily liable to pay the entire award amount. He relied upon the decision of the Supreme Court in the case of National Insurance Co. v. Prembai Patel and others, reported in 2005(6) SCC 172.
6. Mr. Dave, learned counsel for the respondents has submitted pursuant to the policy if no premium is paid, even then, the claimants are entitled to recover the compensation from the owner of the vehicle.
7. In the case of National Insurance Co. (supra) the Honourable Supreme Court has observed as under :-
“13. The insurance policy being in the nature of a contract, it is permissible for an owner to take such a policy whereunder the entire liability in respect of the death of or bodily injury to any such employee as is described in subclauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) may be fastened upon the insurance company and insurance company may become liable to satisfy the entire award. However, for this purpose the owner must take a policy of that particular kind for which he may be required to pay additional premium and the policy must clearly show that the liability of the insurance company in case of death of or bodily injury to the aforesaid kind of employees is not restricted to that provided under the Workmen's Act and is either more or unlimited depending upon the quantum of premium paid and the terms of the policy.
15. Though the aforesaid decision has been rendered on Section 95(2) of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear 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 clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) should not be restricted to that under the Workmen's 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.”
8. Having heard learned counsel for both the sides and having gone through the record. Considering the fact that other truck was not joined as a party and the deceased himself was a wrongdoer, I am of the opinion that the contention raised by the appellant is required to be accepted, but, the insurance company is liable to pay the amount arising under the Workmen's Act. In the premises, the appellant-Insurance company is liable to pay Rs.1,07,640/- along with interest at the rate of 12% per annum and the balance amount of Rs.46,360/- is to be recovered from the original owner, respondent No.5 along with interest at the rate of 12% per annum.
9. In case the appellant-Insurance company has deposited the entire amount awarded by the Tribunal with the Motor Accident Claims Tribunal, then, the same be refunded to the insurance company or has paid the said amount to the claimants, it will be open to it to recover the amount, which exceeds its liability under the Workmen's Act, from the owner of the vehicle in accordance with law.
10. The appeal is allowed to the aforesaid extent with the aforesaid modifications. No costs.
..mitesh..
[K.S.JHAVERI, J.]