Dismissed

O.I.C. Ltd. v. Balisara and Others

Allahabad HC24 Oct 2018FAFO/1166/1991

Case brief

AI extract

What is this about?

The High Court dismissed the appeal filed by Oriental Insurance Company against the Tribunal's award of Rs. 1,82,400/- for the death of an employee of Union Bank of India. The court held that the statutory liability under Section 95 of the Motor Vehicles Act, 1939, does not apply as the deceased was an employee of the bank, not the owner of the truck.

What did the court decide?

The appeal was dismissed; the Tribunal's award of Rs. 1,82,400/- was upheld.

O.I.C. Ltd. Vs Balisara and Others — Cheque Dishonour | Allahabad HC (2018)

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Court No. - 34

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Case :- FIRST APPEAL FROM ORDER No. - 1166 of 1991

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Appellant :- Oriental Insurance Company Ltd. Respondent :- Balisara And Others Counsel for Appellant :- S.K. Kakkar

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Hon'ble Sudhir Agarwal,J.

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Heard learned counsel for the appellant and perused the record.

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This is an appeal preferred by Insurance Company under Section 110-D of the Motor Vehicles Act, 1939 (herein after referred to as 'Act 1939') aggrieved by judgment and award dated 24.09.1991 passed by Sri D.N. Sinha, Motor Accident Claims Tribunal/ VIIIth Additional District Judge, Gorakhpur (hereinafter referred to as “Tribunal”) awarding compensation of Rs. 1,82,400/- to claimants alongwith interest at the rate of 12% per annum.

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Facts in brief giving rise to present appeal are that one Kedar Bahadur Singh son of Ballu Singh was employed as Watchman in Union Bank of India, Bhaupar, Gorakhpur. On 04.01.1987 at about 7.00 pm in Mohalla Mahaddipur, Gorakhpur he was riding a bicycle and going from east to west from lift side of road. At that time Truck No. MHT 9549 which was also going from east to west was being driven rashly and negligently by its driver came in high speed and without giving any horn dashed against Kedar Bahadur Singh. He immediately succumb to injuries on spot. Post mortem was conducted on 05.01.1987 at District Hospital, Gorakhpur. Truck was owned by Sri Sagir Ahmad, Respondent-8 and Abdul Kaum was driver. Thereupon claimant-respondents, i.e., Respondent-1, Balisara wife of deceased, Respondents-2 to 6, i.e., Krishna, Radha, Mira, Gita and Sita, minor daughters of deceased and Respondent-7, Deep Bahadur Singh, minor son of deceased, lodged claim for compensation before Tribunal at Azamgarh. Owner and driver of vehicle, i.e., Respondents8 and 9 contested claim and filed their joint written statement admitting the factum of accident but pleaded that accident did not take

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place due to any negligence of driver but on the contrary deceased himself was riding bicycle negligently. They also pleaded that truck was insured with Oriental Insurance Company Limited, i.e., appellant and they are liable to pay compensation since driver was having a valid driving licence. Similar defence was taken by appellant also in its separate written statement.

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Tribunal formulated three issues as under:

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“1. Whether on 4.1.87 at about 7 p.m. in mohalla Mohaddipur the above accident took place by the negligent driving of the driver of truck no. MHT 9549?

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2. Whether the above accident on 4.1.87 at 7 p.m. took place by the negligent riding on bicycle by Kedar Bahadur Singh if so its effect?

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3. To what amount of compensation if any are the petitioner entitled and from whom?”

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It considered issues-1 and 2 together and answered the same holding that accident was caused due to rash and negligent driving of driver of Truck No. MHT 9549 and not by negligent driving of bicycle by deceased. Then coming to issue-3 Tribunal observed that deceased was 41 years of age at the time of accident on the basis of official document supplied by employer of deceased and his income was Rs. 1876.30 per month as per the income certificate. Dependency of claimant thus was assessed by Tribunal as Rs. 1000/- per month and applying multiplier of 19 it computed loss of income as Rs. 2,28,000/-. Thereafter applying 20% deduction amount was reduced to Rs. 1,82,400/- and the same was awarded.

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The only issue raised before this Court by appellant is that insurance policy of vehicle was for limited liability and, therefore, it could not have been more than the statutory liability provided under Section 95 of Act, 1939 and Tribunal in awarding compensation of Rs. 1,82,400/- has clearly erred in law. Photocopy of insurance policy has been placed on record alongwith a miscellaneous application. It is not stated anywhere in memo of appeal or otherwise that aforesaid policy was placed before Court below and any such issue was raised thereat.

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Copy of policy has been filed alongwith affidavit accompanying stay application also but therefrom also it appears that aforesaid document was not placed before Tribunal since neither it contains any paper number nor exhibit number. Thus it would not be justified to allow the appellant to raise a new plea for the first time before this Court by placing a document for which there is no attempt to request the Court to admit additional document as evidence at the time of appeal under Order 41 Rule 27 C.P.C.

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Be that as it may still I propose to consider even this aspect of the argument. Section 95 of Act, 1939 reads as under:-

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" 95. Requirements of policies and limits of liability .—

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(1) In order to comply with the requirements of this Chapter, a policy of insurance may be a policy which —

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(a) is issued by a person who is an authorised insurer or by a cooperative society allowed under Section 108 to transact the business of an insurer, and

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(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) —

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(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

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(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place;

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Provided that a policy shall not be required—

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(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employees 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 Mother 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—

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(a) engaged in driving the vehicle, or

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

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(c) if it is a goods vehicle, being carried in the vehicle, or

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(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a

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contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or

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(iii) to cover any contractual liability.

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Explanation.—For the removal of doubts, it is hereby declared that the death of or bodily injury to any person, or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

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(2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely—

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(a) where the vehicle is a goods vehicle , a limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle;

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(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment ,—

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(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all ;

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(ii) in respect of passengers,—

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(1) a limit of fifteen thousand rupees in all where the vehicle is registered to carry not more than thirty passengers;

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(2) a limit of seventy-five thousand rupees in all where the vehicle is registered to carry more than thirty but not more than sixty passengers;

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(3) a limit of one lakh rupees in all where the vehicle is registered to carry more than sixty passengers; and

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(4) subject the limits aforesaid, ten thousand rupees for each individual passenger where the vehicle is a motor cab, and five thousand rupees for each individual passenger in any other case;

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(c) save as provided in clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred ;

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(d) irrespective of the class of the vehicle, a limit of rupees two thousand in all in respect of damage to any property of a third party.

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(4) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any conditions subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.

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(4-A) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time. the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

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(5) Notwithstanding anything elsewhere contained in any law , a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons ."

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Section 95 shows that sub-section (2)(a) is applicable in respect of death of employees other than driver, meaning thereby employees of owner of goods vehicle and, therefore, the same has no application in the case in hand. Deceased, in the present case, was employee of Bank and not the employee of Respondent-8. No other part of Section 95 could be pointed out which could have any application to the case in hand. Therefore, the submission that liability of appellant is limited under Section 95 is thoroughly misconceived and is liable to be rejected. The question formulated above is answered against appellant.

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The appeal lacks merit. Dismissed accordingly.

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Order Date :- 24.10.2018 Shahroz/AK

O.I.C. Ltd. v. Balisara and Others

Case brief

What is this about?

What did the court decide?

O.I.C. Ltd. v. Balisara and Others

Case brief

What is this about?

What did the court decide?

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