By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellant – insurance company, original Opponent No.3 has challenged judgment and order dated 12th July 1996 passed by the learned Motor Accident Claims Tribunal (Main), Bhavnagar in MAC Petition No.473 of 1992 whereby the Tribunal has awarded Rs.2,60,000 to the claimant as against his claim of Rs.3,70,000. 2 The short facts of the present appeal are that respondent No.7 herein was owner of truck bearing registration No.GTB 5396 and respondent No.6 was working as Driver of the said truck and employee of respondent No.7. It is the case of the claimants that on the fateful day the second driver of the said truck was driving the said truck on the Highway of Bhavnagar to Mahua and when the said truck reached patia of Ghardi village at about 1 AM, because of rash and negligent driving of the second driver, the door of the truck on the passenger side was opened and deceased fell down from the truck and he was run over by the rear wheels of the truck. Therefore, the claimants being the heirs and legal representatives of the deceased filed claim petition claiming the total compensation of Rs.3,70,000/- on various grounds. The Tribunal after considering the oral as well as documentary evidence produced on record has held that the the claimants could prove that opponent no.1 – driver was negligent in driving Motor Vehicle bearing registration No.GTB 5396 and because of the same deceased died and awarded Rs.2,60,000 to the claimants.
3 Feeling aggrieved by the said judgment and award dated 12th July 1996 passed by the learned Motor Accident Claims Tribunal (Main), Bhavnagar in MAC Petition No.473 of 1992, the appellant – insurance company has challenged the same by filing this appeal.
4. Learned counsel for the appellants 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.
5. Mr Trivedi, 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.
6. Though served, respondent No.7, Habibbhai Ismailbhai Kubariya,has not appeared who was the original opponent No.2, 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 sub-clauses (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, I am of the opinion that the contention raised by the appellant is required to be accepted. The insurance company is liable to pay the amount arising under the Workmen's Act. In the premises, the insurance company is liable to pay Rs.61,236 and the balance amount of Rs.1,98,764 is to be recovered from the original owner, respondent No.7 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.
11. The appeal is allowed to the aforesaid extent with the aforesaid modifications. No costs.
(K.S.Jhaveri, J.) *mohd