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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
ARRK TOOLING SERMO INDIA PVT. LTD., - APPELLANT
Vs.
INDIRA N. KATTI AGED - RESPONDENTS
M.F.A.NO.9179/2010 (MV)
Decided On : 15-07-2021
Motor Vehicles Act – Sections 173 (1) and 147 - Workmen's Compensation Act – Accident – Death – Compensation Awarded - Whether death of employee who was travelling in car which belongs to the appellant/insured covers risk of policy - Whether Tribunal has committed an error in fastening liability on insured instead of Insurance Company and whether it requires interference of this Court - Deceased was travelling in a Car and due to rash and negligent driving of driver of said vehicle, met with an accident.
Finding of the court:
Policy is comprehensive policy and discussion made in judgment is aptly applicable to case on hand and subsequent circulars are clear that Insurance Company cannot disown its liability contending policy not covers risk of employee and insured. Policy covers risk of the employee who travelled in car which belongs to the Company as gratuitous passenger as held in Balakrishnan's case in comprehensive policy - Section 147(lj(b) of MV Act, risk of third party and the limits of liability of Insurance Company and so also considering words 'any person' or 'passenger' occurring in Section 147 - It is clear that employee of appellant Company died while travelling in car, which belongs to Company It is also not in dispute that deceased was an employee of appellant Company. On perusal of schedule premium and also the document at Ex.R2, it is clear that vehicle insured is a private car, which belongs to the Company and also it is not in dispute that the policy is a package policy/comprehensive policy. The said fact is also admitted by R.W.l in cross-examination. The only contention of the Insurance Company before the Court is that the Insurance Company is not liable to pay the compensation as the deceased travelled as an employee of the Company and hence, the risk of the deceased is not covered under the policy.
Result: Appeal allowed
JUDGMENT :
This appeal is filed challenging the judgment and award passed in MVC No.4481/2001 dated 21.07.2010 on the file of the MACT, Court of Small Causes, Bengaluru City, (SCCH.10) (‘the Tribunal’ for short), questioning the liability.
2. The parties are referred to as per their before the Tribunal to avoid confusion and for the convenience of the Court.
3. The factual matrix of the case is that the deceased Ashok R. Kyalkond was travelling in a Car bearing registration No.MH-12-W-3542 and due to the rash and negligent driving of the driver of the said vehicle, met with an accident on 18.06.2001 at about 6.00 p.m. on Jayapal Godown, Lonikond Village on Pune-Nagar Road (Maharashtra State) within the limits of Loni Kalabhor Police Station, Maharashtra State. Hence, the claim petition was filed by the wife of the deceased, minor son and parents of the deceased. The Insurance Company in the written statement took defence that the deceased was proceeding in the offending Car during the course of his employment under the owner and the risk of the deceased was not covered under the insurance policy issued in respect of the said vehicle. The liability is subject to the validity of the vehicle documents, driving licence at the time of the accident etc.,
4. The claimants, in order to substantiate their claim, examined the first claimant as P.W.1 and got marked the documents at Exs.P1 to P9. On the other hand, respondent examined a witness as R.W.1 and got marked the documents at Ex.R1-the copy of the policy/receipt, Ex.P2-policy, Ex.P3-settlement intimation voucher, Ex.P4-receipt of amount, Ex.P5-motor claim form and Ex.P6-registeration extract. The Tribunal, considering the materials on record, allowed the claim petition in part by granting compensation of Rs.14,90,295/-with interest at the rate of 6% per annum directing respondent No.1 to deposit the compensation amount by deducting any compensation, if already paid and exonerated the liability on the Insurance Company coming to the conclusion that the deceased being the employee of the owner is not covered under the policy. Hence, the present appeal is filed by the Company i.e., respondent No.1.
5. The main contention of the learned counsel appearing for the appellant is that the Insurance Company in its amended written statement at para No.9 contended that insurer was not required to cover the deceased; the liability under the policy is fixed for a sum of Rs.1,00,000/-which has been satisfied directly and therefore, the Insurance Company is not liable to satisfy the remaining amount. The Insurance Company relied upon the document Ex.R1-copy of the policy/receipt and also the document at Ex.R2-the private car policy of the vehicle involved in the accident. The payment made under Ex.R1 is in respect of the different policy. Hence, the Tribunal ought to have appreciated the same to hold that the liability under the instant policy towards the third party liability is that of the Insurance Company alone.
6. Learned counsel for the appellant would further contend that the Tribunal failed to note that Ex.R3 is another receipt issued by respondent No.1, which is in respect of the own damages, the compensation for the car in question. It is not towards any payment made in terms of the policy Ex.R2 on account of the deceased as alleged. R.W.1 admitted in his evidence that additional premium of Rs.200/-was collected under Ex.R2 towards personal accident to cover the unnamed passengers other than the insured and his paid driver or cleaner. He has further admitted that the settlement intimation voucher at Ex.R3 does not cover the settlement for the death of the deceased. It is pertinent to note that, under Ex.R3, a sum of Rs.1,00,000/-is paid in respect of the vehicle belong to this respondent and not towards compensation or settlement of the deceased. The deceased was not a workman as defined under Clause IMT-5 of Ex.R2 as admitted by R.W.1.
7. Learned counsel for the appellant also wound contend
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