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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
United India Insurance Co. Ltd., Royapuram, Chennai
Versus
Thiru. Ponnuvel & Others
C.M.A. No.57 of 2010 M.P. Nos. 1 and 2 of 2010
Decided On : 20-04-2010
(B)Workmen’s Compensation Act, 1923(8 of 1923)-Sec.3-Workmen-Driver-Accident-Policy condition-Overloading-Negligence-Violation-Insurance company-Liability-Avoidance-The mere fact that the accident was due to the negligence of a workman is not a ground to the employer or the Insurance Company liable to escape from their liability to pay compensation, under the Workmen’s Compensation Act.
Even if the workmen himself was negligence in driving, leading to an accident, a claim for compensation under the Workmen’s Compensation Act, 1923, would still be maintainable against the employer and the insurer, if the workman sustains a personal injury, as a result of an accident, which took place during the course of an employment. The mere fact that the accident was due to the negligence of a Workman, is not a ground to the employer or the Insurance Company liable to escape from their liability to pay compensation, under the Workmen’s Compensation Act. That could be a valid defence under the Motor Vehicles Act. Para 16
(C)Workmen’s Compensation Act, 1923(8 of 1923)-Sec.3-Motor Vehicles Act, 1988(59 of 1988)-Sec.166-Workmen-Driver-Accident-Policy condition-Overloading-Negligence-Violation-Insurance company-Liability-Avoidance-In a claim by the driver of the motor vehicle for his employment injuries, the insurer or the employer cannot raise the defence that the driver violated the provisions of the Motor Vehicles Act, 1988 and the rules framed under it regarding the usage of the vehicle by the driver-Violations of the provisions of Motor Vehicles Act and the Rules framed thereunder, regarding restriction of number of passengers, to be carried in a vehicle, cannot be termed as wilful disobedience of the workman to an order expressly given, or to a rule expressly framed for the purpose of securing the safety of the workman.
The provisions of Motor Vehicles Act and the Rules framed thereunder, regarding restriction of number of passengers, to be carried in a vehicle, cannot be imported into the Workmen’s Compensation Act, 1923 and violation of which, cannot be termed as wilful disobedience of the workman to an order expressly given, or to a rule expressly framed for the purpose of securing the safety of the workman. Para 17
(D)Workmen’s Compensation Act, 1923(8 of 1923)-Sec.3-Motor Vehicles Act, 1988(59 of 1988)-Sec.166-Workmen-Negligence-Violation-Insurance company-Liability-Defence-Avoidance-Defences available under the Workmen’s Compensation Act, 1923 and Motor Vehicles Act, 1988 to the insurer to avoid its liability are mutually exclusive.
There is no provision in the Motor Vehicles Act or in the Workmen’s Compensation Act, enabling the Insurance Company to avail both the defences that are provided in two separate enactments. Each enactment is intended to cover a different type of liability. The former relates to vicarious liability and the latter, statutory liability when there is an employee-employer relationship. In the result, the finding of the Tribunal, fastening liability on the appellant-Insurance Company, is confirmed.
Para 17
United India Insurance Company Limited is the appellant. Questioning the liability, fastened on the Insurance Company by the Commissioner for Workmen, Deputy Commissioner for Labour, Chennai, and the quantum of compensation, this appeal has been filed.
2. According to the first respondent, he was employed as a driver in Mini Door Auto, bearing Registration No. TN05 9049 on a monthly salary of Rs. 6,000/- with the second respondent for a period of two years. On 10. 2007, about 2.15 p.m., at Sathiyamurthy Main Road, near Water Tank, the said Auto collided with a Lorry and the respondent/claimant sustained grievous injuries. He was taken to Stanley Medical College Hospital for treatment. In this regard, a case in Cr.No.512 of 2007, was registered in G3, Kilpauk Traffic Police Station on the same day. As the second respondent was aware of the accident, no notice was given. According to the first respondent, the accident had occurred during the course of his employment with the second respondent and when the above said vehicle was insured with the appellant-Insurance Company. The policy was valid from 1. 2007 to 1. 2008 and therefore, the Insurance Company is liable to pay compensation. He claimed a compensation of Rs.6,00,000/-. The owner of the vehicle remained ex parte.
3. Theappellant-Insurance Company disputed the manner of accident. The relationship of employer and employee was put to strict proof. Apart from the above, the appellant-Insurance Company resisted the claim on the ground that the first respondent has violated the terms and conditions of the Insurance Policy as well as the provisions of Motor Vehicles Act, since he had allowed three passengers to sit in front seat of the Autorickshaw at the time of accident and therefore, they are not liable to pay compensation.
4. It was the further contention of the appellant-Insurance Company that there was a wilful disobedience of the instructions of the employer by the Auto driver in transporting more number of passengers and therefore, for the negligence caused by him, the Company cannot be mulcted with the liability.
5. Before the Tribunal, the first respondent/claimant examined himself as PW.1 and PW.2, is the Doctor, who examined the respondent/claimant with reference to medical records. Exhibit A-3 – Discharge Summary, Exhibit A-4 – Insurance Policy, Exhibit A-5 – Driving Licence, Exhibit A-6 – X-Ray and Exhibit A-7 – Disability Certificate were marked on the side of the respondent/claimant. No oral and documentary evidence has been let in on behalf of the appellant-Insurance Company.
.6. Learned Commissioner for Workmen, on evaluation of pleadings and evidence, found that at the time of accident, the first respondent was employed as a driver with the second respondent and by applying the structured formula, quantified the compensation at Rs.1,72,030/- with the statutory interest from the date of claim till the date of realisation.
7. Inviting the attention of this Court to Exhibit A-1 – FIR, lodged by one Mary to the effect that the Autorickshaw bearing No.TN05 9049 was driven in a high speed and in the process of overtaking a lorry, collided with another vehicle, Mr. J. Chandran, learned counsel for the appellant-Insurance Company submitted that since the accident had occurred due to the negligence of the driver of the Autorickshaw, the Insurance Company cannot be fastened with the liability to pay compensation for the injuries sustained by the respondent. He further submitted that the Commissioner for Workmen has erred in taking the income of the first respondent at Rs.3,304.55 per month and therefore, the quantum of compensation arrived at, is on the higher side.
8. Referring to the provisions of the Motor Vehicles Act and Central Motor Vehicle Rules, learned counsel for the appellant-Insurance Company submitted that on the date of accident, six major persons traveled in the Autorickshaw, exceeding the capacity of the permit condition and the Insuran
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