2017 Supreme(Mad) 4281

IN THE HIGH COURT OF MADRAS
M. DURAISWAMY, J.
Divisional Manager, United India Insurance Co. Ltd. - Appellant
Versus
Kalaivani - Respondent
C.M.A. No. 559 of 2015 and M.P. No. 1 of 2015, (Against the award and decree dated 25.11.2014 made in W.C.A.No. 7 of 2011 on the file of the Commissioner, Additional Commissioner for Employees' Compensation, Puducherry)
Decided on : 22-11-2017

Headnote:

Motor Vehicle Act,1988 - Section 2(14),4-A,12(2),13,95,146(1),147(1)(b),147(1)(b)(i) - Workmens Compensation Act, 1923- Sections 4, 30 and 30 (1)(a) - Claim of compensation – Insurance company - claiming a compensation of Rs. 21,50,000/- with interest at the rate of 12% per annum for the death of one Ramalingam, who is the husband of the 1st respondent, father of the respondents 2 & 3 and son of the 4th respondent. The 5th respondent is the owner of the vehicle.According to the claimants, on 25.06.2011, at about 04.30 pm, the deceased Ramalingam, along with one Shanmugam and Marimuthu was loading the sugarcane reeds in the Tractor bearing Registration No. TN 25 Y 4167 belonging to the 5th respondent at Sivaranthagam and Pangoor Road Junction. The deceased Ramalingam was in the Trailer tightening the reeds. He lost his balance and fell down from the vehicle and sustained head injuries. Immediately, the said Ramalingam was admitted at Sri Venkateswara Medical College and Research Centre at Ariyalur by the co-workers. However, the said Ramalingam succumbed to the injuries on 25.06.2011 at about 05.00 p.m. - Trailer on his own because of his own negligence and sustained injuries and died due to the said injuries. The vehicle bearing Registration No. TN-25-Y-4167 was not involved in the accident. The driver and the police officials have connived together for raising the false claim. The Insurance Policy purported to be issued in respect of the Tractor bearing Registration No. TN-25-Y-4167 does not cover any workmen and the owner has not paid any premium towards covering injury or death of any other person other than the driver of the said Tractor and another employee for the maintenance of the Tractor. The seating capacity of the Tractor is only one as per the Registration Certificate and there is no scope or provision for any other person to travel in the Tractor. The Trailer was not insured with the Insurance Company and there is no provision for a load-man in a Tractor to claim compensation. The Insurance Company is not liable to pay any compensation to the claimants and only the 5th respondent is liable. The alleged accident had occurred when the Tractor was not in use and the Tractor was not in motion and hence, as per the policy conditions, liability cannot be cast upon the Insurance Company to indemnify the owner of the Tractor for the death of Ramalingam. In these circumstances, the appellant prayed for dismissal of the petition. - Whether the Deputy Commissioner of Labour was correct in holding that the appellant is liable in-spite of the fact the policy does not cover the said risk?Whether the Deputy Commissioner of Labour was correct in holding that the appellant is liable to pay compensation for the death occurring outside the purview of Section 3(1)?. Whether the Deputy Commissioner of Labour was correct in applying Section 147(1)(b)(i) of the M.V. Act when admittedly the Trailer was not insured with the appellant? – Held, liability of the insurer depends on the terms of the contract between the insured and the insurer contained in the policy; (ii) there is no prohibition for an insured from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute whereby risk to the gratuitous passenger could also be covered; and (iii) in such cases where the policy is not merely statutory policy, the terms of the policy have to be considered to determine the liability of the insurer. Hence, the Court after noticing the relevant clauses in the policy, on facts found that under Section II-1(a) of the policy, the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to “any person”. The expression “any person” would undoubtedly include an occupant of the car who is gratuitously travelling in it. Further, referring to the case of Pushpabai Purshottam Udeshi (supra), it was observed that the said decision was based upon the relevant clause in the insurance policy in that case which restricted the legal liability of the insurer to the statutory requirement under Section 95 of the Act. As such, that decision had no bearing on Amrit Lal Soods case as the terms of the policy were wide enough to cover a gratuitous occupant of the vehicle. Thus, it is clear that the specific clause in the policy being wider, covering higher risk, made all the difference in Amrit Lal Soods case as to unlimited or higher liability. The Court decided that case in the light of the specific clause contained in the policy. The said decision cannot be read as laying down that even though the liability of the insurance company is limited to the statutory requirement, an unlimited or higher liability can be imposed on it - , I have followed the decision of the Honble Supreme Court and other High Courts and held that if the trailer is attached to the tractor, the policy will cover coolie also and if any coolie travels in the tractor sustains injuries, then the policy would cover them also. In the said case, the deceased travelling in the tractor by sitting on the mudguard. Following is the operative portion of the judgment. - since the deceased was travelling by the Tractor, even though, he was sitting in the mudguard, for the personal injuries received by him, the Insurance Company has to be held liable. To support this view of this Court, takes aid of the oral account of the R.W.1 also who is a Junior Assistant in Insurance Company who says in his cross-examination that the policy issued for the first respondent is a package policy, that if the Trailer is attached to the Tractor, the Policy will cover Coolie also and if any Coolie travels in the Tractor sustains injuries, then the Policy would cover them also. Hence, he irresistible conclusion would be that the Insurance Company has to be held liable to pay the compensation to the claimant. - The appeal is liable to be dismissed