Interpretation of the Motor Vehicles Act provisions to determine the coverage of employees under the insurance policy.

JUDGMENT :

Suman Shyam, J. - Heard Mr. R. Goswami, learned counsel for the appellant. I have also heard Mr. N.N.B. Choudhury, learned counsel appearing for the respondent No. 1 and Mr. M.H. Rajbarbhuiya, learned counsel representing the respondent No. 2.

2. This appeal has been preferred against the judgment and order dated 20.9.2012 passed by the learned Commissioner of Employee's Compensation, Nagaon in NWC Case No. 4 of 2005, awarding a sum of Rs. 1,99,233 as compensation to the respondent No. 1 for the loss of earning capacity suffered by him. The appellant insurance company has been directed to deposit the amount.

3. This appeal was admitted to be heard on the following substantial question of law:

Whether the claimant-respondent No. 1 is covered by policy of insurance as per provisions of section 147 of the Motor Vehicles Act (for short 'the Act of 1988')?

4. The basic facts of this case are not in dispute. The respondent No. 1- claimant was engaged as a 'handyman-cum-cleaner' on a 709 minibus bearing registration No. AS 02-A 0851 owned by the respondent No. 2. On 29.7.2004, while the said vehicle was proceeding from Nagaon towards Guwahati, the claimant got down from the bus but while trying to get back on the vehicle, he fell down from the footboard and sustained grievous injuries. The claimant was treated in BPC Hospital at Nagaon. An F.I.R. was lodged, based on which Nellie PS Case No. 851/2004 was registered by the police. Due to the injuries sustained by the claimant in the said accident, his left leg was permanently damaged as a result of which the claimant could not continue in his employment.

5. It is not in dispute that the accident occurred during the course of and out of the employment of the claimant. However, when the respondent No. 2 had refused to compensate the claimant for the loss of earnings suffered by him due to the injuries sustained, Claim Case No. NWC 4 of 2005 was instituted by the claimant, which was disposed of by the impugned judgment and order dated 20.9.2012 awarding a sum of Rs. 1,99,233 as compensation. While computing the amount of compensation, the salary of the claimant was taken as Rs. 3,000 per month and his age at the time of accident as 22 years. The learned Commissioner had assessed the loss of earning capacity as 50 per cent.

6. Mr. R. Goswami, learned counsel for the appellant insurance company, has submitted in all fairness that the factum of the accident is not in dispute nor does the appellant deny that the claimant had suffered grievous injuries resulting in loss of his earning capacity. However, since claimant was employed as a handyman and no additional premium had been paid by the owner of the vehicle to cover the claim arising out of his liability towards the handyman of the vehicle, the appellant cannot be asked to bear the amount of compensation since a handyman does not come within the definition of an employee mentioned in proviso (i) to section 147 (1) (b) of the Act of 1988. In other words, according to Mr. Goswami, the handyman of the minibus is not included within the category of employees whose liability is covered under the statute even without any extra premium being paid by the insured.

7. To buttress his argument, Mr. Goswami has placed reliance on the decision of the Hon'ble Supreme Court rendered in the case of Ramashray Singh v. New India Assurance Co. Ltd., (2003) ACJ 1550 (SC), to contend that the class of persons who would be covered under the proviso to section 147 (1) of the Act of 1988 has been laid down by the Supreme Court in the aforesaid decision, according to which handyman of a vehicle would not be covered under the statute. Mr. Goswami further submits that by following the law laid down in Ramashray Singh (supra) this court has also held in National Insurance Co. Ltd. v. Konjengbam Ibo Singh, (2009) ACJ 2325 (Gauhati), that except the driver, conductor and ticket examiner of a passenger bus, no other category of employee will be covered under the p