The liability of the Insurance Company in a motor vehicle accident involving an employee is not limited to the liability arising under the Workmen’s Compensation Act, and the assessment of loss of earning due to disability should be pragmatic and based on legal evidence.

1. The judgment and award dated 16.02.2010 passed by the MACT, Tezpur in MAC Case No.109/2006 has been challenged by the Insurance Company in MAC App No.46/2013 seeking reduction of award. The claimant has filed MAC App No.175/2010 for enhancement of the award.

2. The undisputed facts which may be relevant for disposal of these appeals are that Shri Brojeswar Ghosh, husband of the claimant sustained injury in a motor vehicle accident involving vehicle No.AS 12B 4391 owned by M/S Shree Krishna Food Products and insured with the Oriental Insurance Company Ltd. The claim petition was filed on behalf of the injured by his wife Rita Ghosh claiming compensation. The MACT, Tezpur passed an award of Rs.8,66,712/- which included Rs.2,16,712/- for cost of treatment, Rs.4,50,00 for loss of income due to sustaining disability, Rs.50,000/- for loss of amenities of life, Rs.30,000/- for loss of expectation of life, Rs.50,000/- for discomfort or inconvenience, hardship, disappointment and frustration in life, Rs.20,000/- for attendant charge and Rs.50,000/- for pain, suffering and mental shock.

3. Aggrieved by the award, both the Insurance company and the claimant have preferred appeals as mentioned at the outset.

4. Learned Senior counsel Mr. S. Dutta for the Insurance Company and Mr. S.K. Singh for the claimant were heard. In the appeal filed by the Insurance Company, the sole question raised is that the injured travelling in vehicle was an employee of the owner of the vehicle and therefore, liability of the Insurance Company could not be more than the liability arising under the Workmen’s Compensation Act, 1923 (8/1923) in view of Section 147 of the MV Act and the award made by the Tribunal was much higher than such liability, which the Insurance Company was not liable to satisfy in terms of the policy.

5. Proviso to Section 147(1) of the MV Act reads as under:

Provided that a policy shall not be required—

(i) To cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee—

a. engaged in driving the vehicle, or

b. if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or

c. if it is a goods carriage, being carried in the vehicle,

(ii) to cover any contractual liability.

6. A plain reading of the above provisions of the MV Act clearly shows that in respect of death or bodily injuries sustained by the employees mentioned in clause (a) (b) and (c) to proviso (i), the liability under the statutory policy is limited to the extent of the liability arising under the Workmen’s Compensation Act.

7. In the present case, evidently and admittedly the injured Brojeswar Ghosh was the employee of M/S Shree Krishna Food Products, who was also the owner of the offending vehicle. It is also apparent from the evidence and materials brought on record, that the injured was working under M/S Shree Krishna Food Products and his job was to oversee the catering business of M/S Shree Krishna Food Products. It was further elicited during cross-examination, that the injured was neither a driver nor a handyman in the offending vehicle. What therefore abundantly clear is that the injured though was an employee under the M/S Shree Krishna Food Products, he does not fall within the category of employees as enumerated in clause-(a), (b) and (c), inasmuch as, evidently he was travelling in the vehicle with the Food Products of his employer. Admittedly, the injured was not an employee of the offending vehicle as defined in proviso (1) of Section 147. He was evidently