1.0 This appeal is directed against the judgement and award dated 29.03.1996 passed by learned Motor Accident Claims Tribunal (Auxi), Vadodara in Motor Accident Claim Petition No. 185 of 1984, wherein the Tribunal has awarded a sum of Rs. 1,26,400/ along with proportionate cost and interest at the rate of 15% per annum from the date of filing of the petition till its realization.
2.0 The claimant in the present case is driver of Motor Truck bearing No.G.R.N 3509.He was driving the said vehicle on 14.07.1983 from Baroda to Surat. At that time Luxury Bus bearing No.GTX 3171 came from Surat to Baroda and at about 11.30 p.m on national highway no.8 both the vehicles dashed each other. The claimant sustained injuries and therefore he filed the aforesaid claim petition wherein the impugned award came to be passed.
3.0 The main contention raised on behalf of the appellant Insurance company is that the claimant driver of the truck bearing registration No. GRN 3509 is negligent to the extent of 20% and the driver and owner of the luxury bus bearing registration No. GTS 3171 is liable to the extent of 80%. He further submitted that claimant who is driver of the Truck bearing registration No. GRN 3509 which is insured with the appellant Insurance Company is employee and he is entitled to claim compensation under the Workmen's Compensation Act and therefore the Insurance Company is not liable to make the payment under the Motor Vehicles Act. In support of this contention he has relied upon a decision in the case of the National Insurance Co. v. Prembai Patel and others, reported in 2005(6) SCC 172 wherein in para 13, 14 and 15 it is held 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 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.
14. The aforesaid interpretation of the relevant provisions applicable to the case in hand is in consonance with the view expressed by a Constitution Bench in New India Assurance Co. Ltd. vs. C.M. Jaya and others (2002) 2 SCC 278, where, while interpreting the provisions of Section 95(2) of Motor Vehicles Act, 1939, the Court held as under in para 10 of the report: "............................The liability could be statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to rewriting the statute or the contract of insurance which is not permissible.
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.”
4.0 Mr. Hakim, learned advocate for the respondentsclaimants made an endeavour by submitting that the claimants have paid the additional amount of premium and therefore, the Insurance Company is liable to pay compensation to the claimants. Though served, none appears for the respondent No. 3 owner of the luxury Bus. G.T. 3171.
5.0 There is no dispute that the claimant is employee of the owner of the vehicle. The accident has happened during the course of his employment. Therefore looking to the facts of the case and in view of the ratio laid down in the case of New India Insurance Company (Supra), this Court is of the opinion that the claimant can claim compensation under the Workmen's Compensation Act. The award of the Tribunal qua the Insurance Company is quashed and set aside. The Accordingly the Insurance Company is discharged from its liability to make the compensation under the Motor Vehicles Act.
6.0 If the amount is lying in F.D.R it will be refunded to the appellant Insurance Company. If it is withdrawn by the claimants, it will not be recovered from the claimants but it will be recovered from the owner of Luxury bus by the Insurance Company. If it is not withdrawn by the claimants, the claimants will recover the amount from the owner of the Luxury bus. Appeal is allowed accordingly with no order as to costs.
(K.S.JHAVERI, J.) niru*