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GUJARAT AT AHMEDABAD HIGH COURT
Mr. Justice H.K. Rathod
Oriental Insurance Co. Ltd. — Appellant
versus
Gunwantba Mularajsinh Jadeja & Ors — Respondents
First Appeal No. 2928 of 2007
With
Civil Application No. 8196 of 2007
In First Appeal No. 2928 of 2007
Decided on : 05-05-2009
1. Mr. Vibhuti Nanavati for appellant/Insurance company
Headnote:A. Motor Vehicles Act, 1988 Section 147 (1)(b) sub-clauses (a), (b), (c) of proviso (i)- Workmen’s Compensation Act, 1923- liability of insurance company- Plea that deceased traveling as gratuitous passenger- FIR not disclosing the deceased to be travelling as a cleaner- The contention that insurance company is not liable rejected.
The insurance policy being in the nature of a contract, it is permissible for an owner to take such a policy where under the entire liability in respect of the death of or bodily injury to any such employee as is described in sub-clauses (a) or (b) or (c) of proviso (i) to Section 147 (1) (b) may be fastened upon the insurance company and insurance may become liable to satisfy the entire award. However, for this purpose the owner must take a policy of that particular kind for which he may be required to pay additional premium and the policy must clearly show that the liability of the insurance company in case of death of or bodily injury to the aforesaid kind of employees is not restricted to that provided under the Workmen’s Act and is either more or unlimited depending upon the quantum of premium paid and the terms of the policy.
B. Motor Vehicles Act, 1988 Sections 166 & 167- Workmen’s Compensation Act, 1923- Deceased travelling as cleaner- The contention that liability of the Insurance Company would be limited to that under 1923 Act, rejected.
In this case no contention was raised that the policy which has been obtained by owner of vehicle is an ‘act policy’ and additional premium is not paid by owner of vehicle, means, that additional premium was paid by owner of vehicle and risk of deceased is covered under policy because of additional premium paid by owner of vehicle. It is necessary to note that no such submission was made by appellant insurance company before claims tribunal also that liability of insurance company is restricted under provisions of Workmen’s Compensation Act. If this contention was argued and raised before claims tribunal, then, claimant must have got opportunity to point out before claims tribunal that additional premium was paid covering risk of deceased. Now, to raise such contention which is based on facts that whether policy was obtained or not? Whether it covers risk of deceased or not? Whether it is a restricted policy under provisions of the Workmen’s Compensation Act or not? Therefore, the contention of the insurance company not accepted.
C. Motor Vehicles Act 1988 Section 170 –Permission of the court to the Insurance Company for challenging the award of the Tribunal –The plea raised for the first time in appeal however not allowed.
Whether additional premium covered risk of deceased or not and whether condition incorporated in insurance policy restricted liability of insurance company or not. For that, there was no evidence on record produced by insurance company before claims tribunal. Therefore, he submitted if such evidence was led before claims Tribunal, then, claimant can have opportunity to defence his case on the basis evidence on record, but if such contention is raised first time before the Court, naturally, claimants have no opportunity to meet with such contentions which have been raised first time before the Court. Therefore, he submitted that the Court may not encourage the contentions which have been raised first time before the Court and the Court may not entertain such contentions which have been raised before the Court first time. Therefore, he submitted that contention raised by the advocate may be rejected.
No doubt he contention were raised for the first time before the High Court, however legal contention can be permitted at any time before the appellate court. It is duty of claims tribunal to consider only contention which was raised before it. Export that, there is no duty of Claims Tribunal to consider other contentions. The contentions which are not raised before claims tribunal, such contention is not permissible to raise before the Court first time. Other wise, it amounts to do injustice to other side. Such type of approach cannot be encouraged by the court. If these all contentions were raised before claims tribunal by advocate of insurance company, then, claims tribunal must have to examine it as to whether limited liability or not? Whether application can be made before claims tribunal or not? And also consider scope of Section 167 of M.V. Act? The agricultural income is also evidence before claims tribunal of widow as well as village from No. 8/A was also produced and father of deceased was having 26 Acres land. These are evidence on record which are cross-examined by advocate of insurance company. Even, though these contentions were not raised by advocate of insurance company before claims tribunal. The contentions which are raised before the Court are not pure question of law. There were certain lapses on the part of insurance company not to raise a relevant contention before the tribunal and then to raise the same before the appellate Court. Such type of practice cannot be encouraged. Therefore, the contentions raised for first time not allowed. (Para no. 15)
D. Motor Vehicles Act 1988 Section 166-Workmen’s Compensation Act 1923-Option regarding claims for compensation –Where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Act s but not under both. (Para no. 16 & 17)
1. Heard the learned advocates appearing on behalf of respective parties.
2. The appellant insurance company has challenged the award passed by Motor Accident Claims Tribunal, Jamnagar in Claim Case No.4148 of 1998 decided on 22nd May 2006, where, Claims Tribunal has awarded Rs.7 lakhs with 7.5% interest in favour of respondents claimants.
3. Learned advocate Ms. Jani raised contentions before this Court that Claims Tribunal has failed to appreciate that deceased was travelling as a gratuitous passenger and not as a Cleaner as claimed, therefore, Insurance Company cannot be held liable to pay any compensation. The FIR is filed by one of the passenger travelling in Matador, but, FIR does not mention that deceased was travelling as a Cleaner. In Matador, approximately eight passengers were travelling where driver, owner, conductor and all passengers belong to village Toda. Therefore, it is not possible that name of deceased and his alleged capacity of Cleaner of Matador does not figure in the FIR. Learned advocate Ms. Jani further submitted that affidavit filed by owner shows that deceased was employed by him as a Cleaner. If the owner mentioned that deceased was travelling as a gratuitous passenger, the entire liability would rest on him and Insurance Company would be exonerated. The charge-sheet also does not mention that deceased as a Cleaner of the truck. The owner has not produced any evidence like his books of accounts or other detail showing that he was paying Rs.2,000/- as salary and Rs.1,000/- as Bhattha to deceased since last three years as claimed by him. She also raised contention that without prejudice to aforesaid contention, deceased was travelling as a Cleaner, the liability of Insurance Company would be limited to that under the Workmen’s Compensation Act, 1923. She relied upon the decision of Apex Court in case of National India Insurance Company Limited v. Prembai Patel and Others reported in (2005)6 SCC 172. She also raised contention that against employer, an employee has no right to file claim petition if the risk is covered under the provisions of Workmen’s Compensation Act. The accident occurred on 1st April 1998 and policy was effective on the date of accident. Therefore, amount which has been awarded by claims tribunal is on higher side and monthly wages of claimant cannot be exceeded Rs.2,000/- per month and taking 50% of monthly wages and adopting relevant factor of 203.83 considering age of deceased to be 32, payable compensation would be Rs.2,03,850/- as against Rs.7 lakhs. She also raised contention before this Court that income from agriculture source is also included while awarding compensation, which is also a basic error committed by claims tribunal in awarding compensation in favour of claimants. This Court has simply asked a question to learned advocate Ms. Jani that whether insurance company has obtained 170 permission under provisions of M.V. Act or not ? The answer is given that on 1st July 2005, a claims tribunal has allowed application on the same day granting permission to insurance company under the provisions of Section 170 of the M.V. Act. The claims tribunal has granted permission under Section 170 on what ground when owner of vehicle had appeared and gave evidence before claims tribunal. Except that, no other contention is raised by learned advocate Ms. Megha Jani before this Court.
4. Learned advocate Mr. Premal Rachh appearing on behalf of respondents claimants submitted that deceased Cleaner was working with owner of vehicle as an employee of employer Bapalal Jadeja. The owner of Matador has paid an additional premium covering complete risk of Cleaner as an employee in case of death or bodily injury and Insurance Company has accepted complete liability being not restricted liability under the provisions of Workmen’s Compensation Act. Therefore, he submitted that decision which has been relied upon by learned advocate Ms. Jani in case of Prembai Patel and others (Supra
