Court No. - 25
Case :- FIRST APPEAL FROM ORDER No. - 3247 of 2004 Appellant :- United India Insurance Co Ltd Respondent :- Mohd. Mustaffa And Others Counsel for Appellant :- Saurabh Srivastava Counsel for Respondent :- S.D. Ojha
Hon'ble Ram Krishna Gautam,J.
This appeal under Section 173 of Motor Vehicles Act, 1988 has been filed by United India Insurance Co. Ltd. against Mohd. Mustaffa and others against judgment and award dated 24.08.2004, passed by ADJ-Ist / MACT, Siddharth Nagar in MAC No. 78 of 2001, on the ground that Tribunal has directed to make the compensation awarded to the claimants by the Insurance Company-appellant, whereas the claim was filed for death of Khalasi in a Tempo, for which no extra premium was paid and as such awarded compensation against the appellant / Insurance Company, was erroneous. Hon'ble Apex Court in Ramashray Singh Vs. New India Assurance Co. Ltd. TAC 2003 (3) SC page 3 has propounded that if there is no premium taken specifically for Khalasi or Cleaner, no responsibility for damages towards Khalasi or Cleaner will be of Insurance Company, but Tribunal failed to appreciate this fact. Hence this appeal.
Heard learned counsel for parties and perused the impugned judgment and material placed on record.
The only question in this appeal is as to whether liability was of Insurance Company for alleged death of Khalasi of offending vehicle or no premium was charged by Insurance Company in view of law propounded by Supreme Court in Ramashray Singh's case (supra).
This was pleaded in additional written statement filed by Insurance Company before the Tribunal, but the Tribunal has not framed issue upon this specific point rather issue was framed as to whether the offending vehicle was validly and effectively insured by Insurance Company and this issue no. 2 was decided in favour of claimants. This fact was admitted by Insurance Company, but the fact disputed was that this Insurance Cover Note was not for insuring risk of Conductor or Khalasi, but no such specific issue was framed, however, Tribunal has dealt this aspect and the owner of offending vehicle while being examined on oath has tried to say that though he had appointed deceased as Cleaner for his vehicle, but he was removed one day before, but he could not file the register regarding employment or removal of the Cleaner concerned nor he could categorically establish this fact that he had removed his Cleaner (deceased) before accident and once he was removed from post of Cleaner, then how and why he was travelling in that vehicle. Nowhere this has been said by the claimant that the deceased was travelling as a passenger in above offending tempo at the time of accident rather this has been said that he was travelling as Cleaner in above offending vehicle at the time of accident and he sustained above injury and death. Then, as per law propounded by Hon'ble Apex Court, no such premium was taken for the insurance towards Khalasi or Cleaner in the concerned insurance policy filed before the Tribunal. It was for a driver and six passengers and the Cleaner was not secured in this Insurance policy.
In para 10 of the above judgment, while interpreting the status of a 'person' or 'passenger', Hon'ble Apex Court has held as under:-
"The appellant's first submission was that Shashi Bhushan Singh was a passenger. The appellant's submission that the phrases 'any person' and "any passenger" in clauses (i) and (ii) of sub section (b) to Section 147(1) are of wide amplitude, is correct. [See: New India Assurance Company V. Satpal Singh and Others 2000 (1) SCC 237 ]. However, the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely, employees of the insured. In other words, if the "person" or "passenger" is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to Section 147 (1)(b), it is clear that for the purposes of Section 146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the person insured unless: first : the liability of the insured arises under the Workmen's Compensation Act, 1923 and second : if the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description of "any person" or "passenger". If this were permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word "cleaner" while describing the seating capacity of the vehicle does not mean that the cleaner was therefore a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmen's Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passenger."
Regarding disposition of Khalasi, para 13 of the above judgment reads as under:-
"The appellant's next submission was that the concerned employee was a 'conductor'. It is doubtful whether a 'khalasi' and a conductor are the same. But assuming this were so, there is nothing to show that the appellant had paid any additional premium to cover the risk of injury to a conductor. On the contrary, the policy shows that premium was paid for 13 passengers and 1 driver. There is no payment of premium for a conductor."
Meaning thereby, there is no payment of premium for a Conductor or Khalasi in the present case too, as was not there in above case, hence he was not covered under the above policy.
So far as the argument regarding comprehensive policy is concerned, in para 14 Hon'ble Apex Court has held as under:-
"The appellant's final submission was that as the policy was a comprehensive one, it would cover all risks including the death of the khalasi. The submission is unacceptable. An insurance policy only covers the person or classes of persons specified in the policy. A comprehensive policy merely means that the loss sustained by such person/persons will be payable upto the insured amount irrespective of the actual loss suffered. [See: New India Insurance Co. Ltd. v. J.M. Jaya 2002 (2) SCC 278; Colinvaux's: Law of Insurance (7th Edition) p. 93-94]."
Meaning thereby, this argument is also not sustainable for the death of Khalasi in present case, once the injured was Khalasi for whom premium was not taken by Insurance Company, therefore, his legal representatives were not to be compensated by the Insurance Company for death of Khalasi, who was not secured or covered under above comprehensive insurance policy, but it will be liability and responsibility of owner of offending vehicle to make the compensation as awarded by the Tribunal and in case of payment by Insurance Company the Company will have right to pay and recover in the same proceeding from the owner of offending vehicle.
It has been apprised by learned counsel for both sides that the entire amount has been deposited by Insurance Company in this proceeding before the Tribunal, hence this appeal is allowed for a right of the appellant Insurance Company to recover the above deposited amount along with 7% interest till actual realization from the owner of offending vehicle i.e. respondent No. 3.
The claimants will be entitled to withdraw the amount deposited as per direction of Tribunal given in the award.
Order Date :- 21.1.2019 NS