1. This appeal has been preferred against the judgment and order dated 15.04.1996 passed by the Motor Accident Claims Tribunal (Main), Bhavnagar in M.A.C.P. No.244 of 1991 whereby the claim petition was partly allowed and the original claimants were awarded total compensation of Rs.3,08,000 along with interest @15% per annum from the date of the application till its realization.
2. The facts in brief are that on 23.05.1991 at around 0600 hours while Labhubhai Koli was travelling in a tractor bearing no. GAB 8424 along with his goods, at a particular place, on account of rash and negligent driving, the tractor turned turtle as a result of which Labhubhai sustained severe bodily injuries and he died on the spot. The legal heirs of the deceased, filed claim petition, which came to be partly allowed, by way of the impugned award.
3. 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, in 2005(6) SCC 172.
4. 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.
5. In the case of National Insurance Co. (supra) the Hon'ble Apex 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 where under 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."
6. 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.1,94,571 and the balance amount of Rs.1,13,429/- is to be recovered from the original owner, along with interest at the rate of 12% per annum.
7. 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 along with interest @ 3% per annum 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.
8. The appeal is partly allowed to the aforesaid extent. No costs.
[K.S.
JHAVERI, J.] /phalguni/