The Division Bench held that where the claimant is an employee of the vehicle owner, the insurance company's liability is restricted to the amount payable under the Employees Compensation Act, 1923, rather than the full Motor Vehicles Act compensation.
Insurance company to pay `2,17,644/- with interest; balance payable by vehicle owner.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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ORIENTAL INSURANCE CO. LTD. ..... Appellant Through: Mr. L.K. Tyagi , Adv.
Versus
HARISH CHAND ANAND & ORS .....Respondents Through: None.
CORAM: HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
MACA No. 348/2004 Page 1 of 9
During the inquiry, the insurance company, inter alia, pleaded that the first respondent (the claimant) was a gratuitous passenger in the offending vehicle and since the vehicle was a goods transport vehicle, the insurance company could not be held liable. Noticeably, the claimant had claimed to be the representative of the owner of the vehicle which fact was disputed by the latter. The defence taken by the insurance company referred to the said denial of the status by the insured to seek to be absolved.
MACA No. 348/2004 Page 2 of 9
getting adjourned before it reached the stage of hearing yet again on 23.3.2015 when it was submitted on behalf of the appellant insurance company that the question for consideration essentially is as to whether the claimant was travelling in the offending vehicle as an owner of the goods or representative of the owner of goods or as an employee who is entitled to compensation and would be governed by the provisions of Employees Compensation Act, 1923.
MACA No. 348/2004 Page 3 of 9
“The counsel for insurance company has argued at length on the point that Insurance Company is not liable to pay any compensation as the petitioner was a gratuitous passenger in vehicle no. HR-38-G-4790. It is not disputed that offending vehicle was duly insured. It is also a matter of record that offending vehicle is goods vehicle. The certified true copy of insurance policy which has been proved as Ex.RW1/A only proves that Insurance Company is only liable to public and the legal liability for paid driver/workman no. 1 has been added to it.
It is a settled proposition that in view of the law laid down in M/s National Insurance Co. Ltd. vs. Baljeet Kaur & Ors. 2004 (1) Scale, the Apex Court has settled that U/s 147 Motor Vehicle act besides third party only the owner of the goods or his authorised representatives travelling in the goods vehicle is covered under the policy. It further clarifies that it does not extend to cover the class of cases where gratuitous passenger for whom Insurance Policy was not envisaged and for whom no insurance premium was paid, employed the goods vehicle as a medium of conveyance. It was further held that in case of gratuitous passenger the owner of the vehicle shall be liable to satisfy the decree. However, in the interest of victims the insurer was directed to pay to the claimants if not already paid and this decision was held to be prospective in nature.
The question is that whether in the present case the petitioner was a gratuitous passenger or not. In case the petitioner is a gratuitous passenger, in view of the law laid down above the Insurance Company shall not be liable. But it the petitioner is not a gratuitous passenger at all, then the Insurance Company can avoid its liability. As I have discussed above the owner of the goods or his representatives is covered specifically stated on oath that he was the employee of R-1 who deals in readymade garments and plastic goods in patri Bazar in various areas of Delhi. The petitioner has further stated on oath that he used to work as helper on the stall of R.1 in patri Bazar, Pritam Pura. He further stated on
MACA No. 348/2004 Page 4 of 9
29/8/99 after closing the stall in night about 12.30 am he was going with R.1 in TSR no. HR-38G-4790 from Pritam Pura Patri Bazar to Rani Bagh (residence of R.1)
R.1 in his written statement has evasively denied this fact. However, he did not come forward to disprove that petitioner was not his employee nor did he come forward to depose that petitioner was not travelling in the TSR as his representative. The plea of the petitioner is that he was travelling in the TSR as an employee/representative of the owner of the goods. R.1 happens to be the owner of the offending vehicle.
This fact has not been repudiated either by the Insurance Company nor by R.1. R.1 contested the case only to the extent of filing the written statement and thereafter did not come forward to rebut the case of the petitioner. The Insurance Company on their part also did not lead any evidence so as to contradict the case of the petitioner. In the circumstances, there is no reason to disbelieve the version of the representative of the owner of the vehicle. Thus, Insurance Company shall be liable to pay the compensation.”
147 Requirements of policies and limits of liability. — (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which— (a) is issued by a person who is an authorised insurer; and
MACA No. 348/2004 Page 5 of 9
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)—
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(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:
Provided that a policy shall not be required—
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee 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 other 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—
(ii) to cover any contractual liability.
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.
MACA No. 348/2004 Page 6 of 9
“16. The High Court, in the impugned judgment, has held that if the legal representatives of the deceased employee approach the Motor Accident Claims Tribunal for payment of compensation to them by moving a petition under Section 166 of the Act, the liability of the insurance company is not limited to the extent provided under the Workmen's Act and on its basis directed the appellant insurance company to pay the entire amount of compensation to the claimants. As shown above, the insurance policy taken by the owner contained a clause that it was a policy for "Act Liability" only. This being the nature of policy the liability of the appellant would be restricted to that arising under the Workmen's Act. The judgment of the High Court, therefore, needs to be modified accordingly.
17. The judgment of the High Court insofar as it relates to quantum of compensation and interest, which is to be paid to the claimants (respondent Nos. 3 to 6 herein) is affirmed. The liability of the appellant insurance company to satisfy the award would be restricted to that arising under the Workmen's Act. The respondent Nos. 1 and 2 (owners of the vehicle) would be liable to satisfy the remaining portion of the award”.
MACA No. 348/2004 Page 7 of 9
Insurance Company Ltd. vs. Baljit Kaur & Ors. 1(2004) ACC 259 (SC) . Upon perusal, it is found that the view taken in Baljit Kaur & Ors(supra) cannot come into aid either of the claimant or of the person insured in view of the observations to the following effect:
“........It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree”.
MACA No. 348/2004 Page 8 of 9
R.K. GAUBA
FEBRUARY 02, 2016/ nk
MACA No. 348/2004 Page 9 of 9
2 issues framed by the court
Whether the liability of the insurance company is restricted to the compensation payable under the Employees Compensation Act, 1923 when the claimant is an employee of the vehicle owner.
Whether the appeal challenging the Tribunal's award of compensation is maintainable in the facts of the present case.
Colour shows how this judgement treated each authority
National Insurance Co. Ltd. vs. Baljeet Kaur & Ors.Explained¶22
M/s National Insurance Co. Ltd. vs. Baljeet Kaur & Ors. 2004 (1) Scale
National Insurance Company Ltd. vs. Prembai Patel & Ors.Relied on¶43
National Insurance Company Ltd. vs. Prembai Patel & Ors. II (2005)ACC 365 (SC)
National Insurance Company Ltd. vs. Baljit Kaur & Ors.Distinguished¶48
National Insurance Company Ltd. vs. Baljit Kaur & Ors. 1(2004) ACC 259 (SC)
6 provisions across 2 enactments
Oriental Insurance Co. Ltd.
Harish Chand Anand
R.K. Gauba
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
