Dismissed

United India Insurance Co. Ltd., v. Smti Namita Bala Das and 4 Ors.

Gauhati HC21 Nov 2019MACApp./23/2010

Case brief

AI extract

What is this about?

Compensation for a vehicle handyman’s death was challenged on limited insurance liability and assessment of income. The Court rejected both grounds, dismissed the insurer’s appeal and directed payment of the outstanding compensation with accrued interest within three months.

What did the court decide?

Insurer directed to deposit the balance compensation with accrued interest before the Tribunal within three months, for disbursement to the claimants upon identification.

United India Insurance Co. Ltd., Vs Smti Namita Bala Das and 4 Ors. — Insurance | Gauhati HC (2019)

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GAHC010160712010

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : MACApp. 23/2010

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1:UNITED INDIA INSURANCE CO. LTD.,

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A COMPANY REGISTERED AND INCORPORATED UNDER THE COMPANIES ACT, 1956 AND HAVING ITS HEAD OFFICE AT 24 WHITES ROAD, MADRAS AND A REGIONAL OFFICE AT DISPUR, GUWAHATI-5

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VERSUS

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1:SMTI NAMITA BALA DAS and 4 ORS, W/O LATE SANJIT CH. DAS.

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2:SUTAN CH. DAS S/O LATE SANJIT CH. DAS.

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3:MISS PRIYATAMA DAS D/O LATE SANJIT CH. DAS.

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4:MISS SARASWATI DAS D/O LATE SANJIT CH. DAS ALL ARE R/O VILL. PAMGAON P.S. LANKA DIST. NAGAON ASSAM. RESPONDENT NO. 2 3 and 4 ARE MINOR AND REPRESENTED THROUGH THEIR MOTHER SMTI NAMITA BALA DAS RESPONDENT NO. 1

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5:KAMAL DAS S/O LATE BINI DAS R/O SONAPUR P.S KHETRI DIST. KAMRUP ASSAM PRESENTLY RESIDING AND TO BE SERVED AT KRISHNA NAGAR HOJAI TOWN

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P.S. HOJAI DIST. NAGAON ASSAM. OWNER and DRIVER OF THE VEHICLE AXK 388

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Advocate for the Petitioner : MR.S DUTTA

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Advocate for the Respondent : MR.B PATHAK

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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JUDGMENT & ORDER (ORAL)

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Date : 21-11-2019

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Heard Ms. S. Roy, learned counsel for the appellant. Also heard Mr. R. Thadani, learned counsel for the respondent Nos. 1 to 4.

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This appeal under Section 173 of the Motor Vehicles Act, 1988 (“the MV Act”, in short) is directed against the judgment and award dated 23.10.2009 passed by the learned Member, Motor Accident Claims Tribunal, Sankardev Nagar at Hojai , Nagaon (“the Tribunal”, in short), in MACT Case No. 369/2008. By the said judgment and award dated 23.10.2009, the learned Tribunal had awarded an amount of Rs. 8,74,000/- as compensation to the claimants who are the respondent Nos. 1 to 4 herein, with the further direction to the appellant, who is the insurer of the offending vehicle, to make the payment of the same within 60 days from the date of the said judgment and order and failure to make payment of the said amount of compensation within the stipulated period of 60 days, an interest @ 8.5% per annum shall be calculated on the compensation amount until payment.

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The facts leading to the institution of the claim application are that on 19.01.2008, at about 3-30 p.m., when the vehicle bearing registration No. ASK3866, a truck (“the subject-vehicle”, in short), was proceeding from Borbil Bakum Gaon under Howraghat Police Station, District – Karbi Anglong towards

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Sankardev Nagar, Hojai, Nagaon, it met with an accident on the road side near Village -Pomwe Cro under Howraghat Police Station. The deceased Sanjit Ch. Das who was a handyman in the subject-vehicle, was on the said subject-vehicle and in the accident, he sustained grievous injuries. He was immediately shifted to Hojai for treatment. On being advised by the doctor at Hojai, he was thereafter, shifted to the Guwahati Medical College & Hospital (the GMCH) at Guwahati but at about 6-20 p.m., he succumbed to his injuries at the GMCH. In connection with the said accident, a case being Howraghat Police Station No. 7/2008, was registered under Section 279/304A, Indian Penal Code(IPC) against the driver of the subject-vehicle, on the basis of an Ejahar lodged by the wife of the deceased who is the respondent No. 1 herein. After the death of the deceased, the post-mortem examination of the body of the deceased was done at the GMCH.

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Subsequent to the death of the deceased, the respondent Nos. 1 to 4 herein as the claimants, had preferred an application under Section 166 of the Act before the learned Tribunal claiming a compensation of Rs. 21,00,000/- on the ground that the death of the deceased arose out of and in course of his employment involving a motor vehicle and arrayed the owner-cum-driver and the insurer of the subject-vehicle as opposite parties. The said claim application was registered and numbered as MACT Case No. 369/2008. On registration of the same, the learned Tribunal issued notices to both the opposite parties. On receipt of notice, both the opposite parties appeared and submitted their respective written statement. The owner-cum-driver as opposite party No. 2 in its written statement stated that at a relevant time of occurrence, the subjectvehicle was duly insured with the opposite party No. 1-insurer with a valid policy of insurance and had all the valid documents. The contention advanced by the owner-cum-driver was that as the subject-vehicle was duly insured, he as the insured, was liable to be indemnified by the insurer of the subject-vehicle. The owner-cum-driver had denied the other contentions made in the claim application. The insurer had denied its liability by taking all the available pleas,

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thereby, putting the claimants to the strict proof.

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Upon consideration of the pleadings of the parties, the learned Tribunal had framed the following three issues:-

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(i) Whether the offending vehicle No. ASK 3886 was driven rashly and negligently at the time of accident and whether the claimants husband Sanjit Ch. Das died in the said accident?

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(ii) Whether the claimant is entitled to get any compensation and from whom?

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(iii) To what relief/relies the parties are entitled?

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In the proceeding before the learned Tribunal, the claimant No. 1 examined herself as CW-1 and exhibited eight number of documents including the Ejahar as Ext.- 1, the Post-Mortem Examination Report as Ext.- 2, the Accident Information Report in Form-54 as Ext.- 3 and the Death Certificate as Ext.- 7. The claimants’ side also exhibited the birth certificates of the 3(three) children of the deceased i.e. claimant Nos. 2 to 4. The claimant No. 1 i.e. C.W. No. 1 was cross-examined by the insurer. The insurer did not, however, adduce any evidence before the learned Tribunal. After the submission of the written statement, the owner-cum-driver did not participate further in the proceeding.

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Upon appreciation of the evidence placed before it, the learned Tribunal decided all the issues in favour of the claimants. The learned Tribunal came to a finding that the accident on 19.01.2008 took place due to rash and negligent driving on the part of the owner-cum-driver of the subject-vehicle. It had also held that the deceased died as a result of the injuries sustained in the said accident. For the purpose of assessment of compensation, the learned Tribunal had accepted the age of the deceased as 30 years at the time of the accident on the basis of the Post-Mortem Examination Report and the evidence adduced by the claimants and accordingly, adopted a multiplier of ‘18’. In so far as the

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income of the deceased is concerned, the learned Tribunal had taken Rs. 6,000/per month as monthly income of the deceased in his capacity as handyman in the subject-vehicle. After deducting 1/3^rd from the said monthly income i.e. 2,000/- as the expenses towards personal and living expenses, the learned Tribunal had assessed the annual dependency at Rs. 48,000/-. On the aforesaid basis, the learned Tribunal had arrived at the amount of compensation towards loss of dependency as Rs. 8,64,000/-. Adding an amount of Rs. 10,000/- towards general damages i.e. funeral expenditure, loss of consortium, loss of estate etc., the learned Tribunal awarded the amount of Rs. 8,74,000/- as compensation with a direction to the appellant-insurer to make deposit of the same, in the manner indicated above. Assailing the said judgment and award of the learned Tribunal, the present appeal has been preferred by the appellant-insurer.

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Ms. Roy, learned counsel for the appellant has confined her submissions on two aspects. It is submitted by her that the deceased being a workmen i.e. a handyman in the subject-vehicle, the learned Tribunal ought to have applied the methodology as prescribed under the Workmen’s Compensation Act, 1923 (“the W.C. Act”, in short) so to work out the amount of compensation and the same being not done, the impugned judgment and award has suffered from apparent illegality. As such, the same is liable to be interfered with. In support of her submission, she has placed reliance in the decision of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Prembai Patel and Ors., reported in (2005) 6 SCC 172. She further submits that in the absence of documentary evidence as regards the monthly income of the deceased, the learned Tribunal had taken Rs. 6,000/- per month as monthly income of the deceased, which according to her, is on the higher side.

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Supporting the impugned judgment and award of the learned Tribunal, Mr. Thadani, learned counsel has submitted that there is no scope for interference in the appeal as regards the compensation arrived at by the learned Tribunal. In absence of not leading any evidence as regards the policy of

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insurance, it is not open on the part of the appellant-insurer to agitate the point that the methodology of calculation provided under the W.C. Act ought to have been applied. The appellant had neither placed the insurance policy before the learned Tribunal nor had made any effort to place the same before the appellate court and in the process, a period of more than 10 years has elapsed. The monthly income of Rs. 6,000/- accepted by the learned Tribunal is quite reasonable, he submits. Mr. Thadani, learned counsel has also placed reliance in the decision in Prembai Patel (supra). He has also relied in the decision of the Hon’ble Supreme Court in Oriental Insurance Company Limited vs. Dyamavva and Ors., reported in (2013) 9 SCC 406.

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I have considered the submissions made by the learned counsel for the parties and also perused the materials available in the records of MACT Case No. 369/2008, in original.

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As the parties have confined their submissions on the above two aspects, indicated above, it appears not necessary to dilate further on the other aspects of the matter.

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Where a death has resulted from an accident all or any of the legal representatives of the deceased can claim compensation by filing an application under Section 166 of the Act before a Motor Accident Claims Tribunal, constituted under Section 165 of the MV Act. In a claim application filed under Section 166 of the Act, the claimant has to establish rash and negligent act on the part of the driver of the vehicle involved in the accident and the compensation is assessed on the principle of fault, apart from the no fault liability envisaged under Section 140 of the Act. As per Section 3 of the WC Act, now renamed as the Employees Compensation Act, 1923, if personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter II of the WC Act. Where death results from the injury, the

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methodology of calculating the compensation has been provided in clause (a) of sub-section (1) of Section 4 of the WC Act. Section 167 of the MV Act lays down that notwithstanding anything contained in the WC Act where the death of, or bodily injury to, any person gives rise to a claim for compensation under the MV Act and also under the WC Act, the person entitled to compensation may without prejudice to the provisions of Chapter X of the MV Act claim such compensation under either of these two Acts but not under both.

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The principle laid down in Dyamavva (supra) is that once option was exercised under one Act, it is not open to the claimant to avail remedy under the other Act.

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At this stage, it is profitable to refer to the relevant parts of Section 147 of the Motor Vehicles Act and the same are extracted herein :-

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"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 -

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(a) is issued by a person who is an authorized 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, including owner of the goods or his authorized 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;

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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 employee of a person insured by the policy or in respect of bodily injury sustained by such

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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 -

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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 conductor of the vehicle or in examining tickets on the vehicle, or

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(ii) to cover any contractual liability”.

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As per the definition provided in Section 2(dd) of the WC Act, an “employee” means a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle. As per Section 147 of the MV Act, the statutory liability under an insurance policy essentially covers an employee, if it is good carriage, being carried in the vehicle. There is no dispute to the fact that the deceased in the instant case was an employee/workmen, in connection with the subject-vehicle recruited by the owner-cum-driver, which fact is not disputed by the appellant-insurer at any point of time.

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In a petition under the WC Act, the injured or the legal representatives of the deceased workmen did not have to establish negligence as a pre-condition for award of compensation. But in a claim application under Section 166 of the MV Act before the Tribunal, the injured or the legal representatives of the deceased has to establish at least by the standard of pre-ponderance of probabilities that there was no negligence on the part of the injured or the deceased and he was not responsible for the accident and fault lies on the part of others. There is, however, an exception provided in Section 140 of the MV Act where a provision has been made for payment of compensation on the principle of no fault.

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The other question that has arisen in the preset case is whether the appellant-insurance company is liable to pay the entire amount of compensation

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awarded to the claimants or its liability is restricted to that which is prescribed under the WC Act.

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It is observed in Prembai Patel (supra) that Clause (b) of sub-section (1) of Section 147 of the MV Act has provided that a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him in respect of death of or bodily injury to any person or passenger or damage to any property of a third party caused by or arising out of the use of the vehicle in public place. Sub-clauses (i) and (ii) of clause (b) are comprehensive in the sense that they cover both "any person" or "passenger". An employee of owner of the vehicle like a driver or a conductor may also come within the purview of the words "any person" occurring in sub-clause (i). Proviso (i) to clause (b) of sub-section (1) of Section 147 has provided that a policy shall not be required to cover liability in respect of 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 WC Act if the employee is such as described in sub-clause (a) or (b) or (c). It is explained by the Hon’ble Supreme Court that the effect of the said proviso is that if an insurance policy covers the liability under the WC Act in respect of 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), it will be a valid policy and would comply with the requirements of Chapter XI of the MV Act.

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Section 149 of the Act imposes a duty upon the insurance company to satisfy judgments and awards against persons insured in respect of third party risks. The expression - "such liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 14 7 (being a liability covered by the terms of the policy)" - occurring in sub- section (1) of Section 149 shows that any such liability, which is mandatorily required to be covered by a policy under clause (b) of Section 147(1), has to be satisfied by the insurance company. The

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effect of this provision is that an insurance policy, which covers only the liability arising under the WC Act in respect of death of or bodily injury to any such employee as described in sub-clauses (a) or (b) or (c) to proviso (i) to Section 147(1)(b) of the MV Act is perfectly valid and permissible under the Act. Therefore, where any such policy has been taken by the owner of the vehicle, the liability of the insurance company will be confined to that arising under the WC Act.

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The other relevant parts from the decision in Prembai Patel (supra) are extracted herein:-

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“13. The insurance policy being in the nature of a contract, it is permissible for an owner to take such a policy whereunder 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 company 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.

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The aforesaid interpretation of the relevant provisions applicable to the case in hand is in consonance with the view expressed by a Constitution Bench in New India Assurance Co. Ltd. vs. C.M. Jaya and others (2002) 2 SCC 278, where, while interpreting the provisions of Section 95(2) of Motor Vehicles Act, 1939, the Court held as under in para 10 of the report: -

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The liability could be statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited

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statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to rewriting the statute or the contract of insurance which is not permissible."

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The Bench also referred to earlier decisions rendered in New India Assurance Co. Ltd. vs. Shanti Bai (1995) 2 SCC 539 and Amrit Lal Sod vs. Kaushalya Devi Thapar (1998) 3 SCC 744, and observed that in case of an insurance policy not taking any higher liability by accepting a higher premium, the liability of the insurance company is neither unlimited nor higher than the statutory liability fixed under Section 95(2) of the Motor Vehicles Act, 1939. It was further observed that it is open to the insured to make payment of additional higher premium and get higher risk covered in respect of third party also. But in the absence of any such clause in the insurance policy, the liability of the insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability.

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Though the aforesaid decision has been rendered on Section 95(2) of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear that in case the owner of the vehicle wants the liability of the insurance company in respect of death of or bodily injury to any such employee as is described in clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) should not be restricted to that under the Workmen's Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the policy should also contain a clause to that effect. However, where the policy mentions "a policy for Act Liability" or "Act Liability", the liability of the insurance company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen's Act”.

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In view of the submission made on behalf of the appellant-insurer, the other question that has arisen in the instant case is whether the amount of compensation, to be payable by the appellant-insurer, is to be restricted as per provisions of WC Act or the appellant-insurer is also liable to pay entire compensation amount, as awarded by the learned Tribunal. For that purpose, it is necessary to refer to the terms and conditions of the insurance policy by which the subject-vehicle was insured in the instance case.

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Having gone through the records of MACT Case No. 369/2008, it is noticed that the appellant-insurer did not bring on record the copy of the insurance policy by which the subject-vehicle was provided the insurance

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coverage. The claim application was filed in the year 2008 and the judgment and award was rendered on 23.10.2009. Thereafter, the present appeal was preferred by the appellant-insurer on 28.01.2010. No effort has been made by the appellant-insurer during the pendency of the present appeal also to bring on record the copy of the policy of insurance by way of additional evidence. In this connection, it is relevant to take note of the observations made by the Hon’ble Supreme Court in the case of National Insurance Company Limited, New Delhi vs. Jugal Kishore and Ors., reported in (1988) 1 SCC 626.

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“10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in Civil Appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the Court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be overemphasized”.

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Since apart from the insured i.e. the owner of the subject-vehicle, the appellant-insurer was in possession of the policy of insurance and it is the terms and conditions of the policy of the insurance on which the appellant-insurer has structured this present appeal, it is the appellant-insurer who should have brought the said policy of insurance into the records.

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In the case of Ramchandra vs. Regional Manager, United India Insurance Company Limited, reported in (2013) 12 SCC 84, the decision in Prembai Patel (supra) has been extensively discussed. It is observed therein that the determination whether the liability to pay the compensation in respect of death or bodily injury to an employee should be restricted to that under the WC Act or not, depends upon whether a policy has been taken by making payment of extra premium and whether the policy contains a clause to that effect. The claimant involved therein was employed as a cleaner of a vehicle, who sustained injuries due to driving of the vehicle in a rash and negligent manner by the driver. The contention was raised therein by the insurance company that since the claimant was travelling in the vehicle as a cleaner, its liability to make payment of compensation was limited under the WC Act and the learned Tribunal has no jurisdiction to entertain the claim filed by the cleaner. The High Court held that since the claimant was a cleaner of the vehicle, the liability of the insurance company was restricted to the extent payable under the WC Act and the balance would be shouldered by the insured/owner of the vehicle. The High Court further directed that if an excess amount had been deposited, the same would be refunded to the insurance company. The Hon’ble Supreme Court has held that High Court was not correct in holding that the claimant-appellant was not entitled to any compensation over and above the liability under the WC Act and the direction of the High Court was set aside as the High Court had failed to examine the nature and clauses of the policy, which was not produced even before the learned Tribunal. It was noticed therein that the insurance company had neither produced the policy of insurance before the High Court nor led any evidence to establish that as per the terms and conditions of policy, extra premium had not been paid. It is observed that though it is correct that limited statutory liability cannot be extended to make it unlimited or higher, it is also manifestly clear that in so far as the entitlement of the claimant-deceased employee of the vehicle is concerned, the same cannot be restricted to the compensation under the WC Act and the claimant-deceased employee is entitled to be compensated even under the MV Act which will depend upon the terms and conditions of the policy of

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insurance. For ready reference, the following relevant parts from the said decision are quoted herein under:-

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“24. From this legal position it is also equally clear that in the instant matter insofar as the entitlement of the claimant to the compensation under the Motor Vehicles Act is concerned, the right of the claimant is not affected. However, the respondent Insurance Company had filed an appeal in the High Court contending that the order of the Tribunal could not be sustained in law to the extent of liability over and above the liability under the Workmen's Compensation Act and on this point the contention of the appellant Company has been accepted by the High Court overlooking the more important fact that the respondent Insurer Company had neither produced the policy of insurance before the High Court nor led any evidence to establish that as per terms and conditions of policy extra premium had not been paid.

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The question, therefore, is whether the amount of compensation could rightly be apportioned between the insurer/Insurance Company and the insured/owner of the vehicle. However, the owner of the vehicle had not appeared before the tribunal but the Insurance Company allowed the matter to be proceeded before the tribunal and when the respondent Insurance Company filed an appeal in the High Court, the insured/owner of the vehicle once again failed to appear but the respondent Insurance Company did not pursue for his appearance. The High Court, however, further overlooked that the apportionment of the amount of compensation between the owner of the vehicle and the insurance company was an inter se dispute between insurance company and the insured/owner of the vehicle and, therefore, the order due to non-appearance of the insured/owner of the vehicle could not have been passed to the detriment of the claimant as the claimant in any case is entitled to the amount of compensation determined by the Tribunal. If the Insurance Company acquiesced with the situation and allowed the proceeding to continue even in absence of the insured/owner of the vehicle who has been held liable to pay the amount even though the insured might have been liable to pay higher premium, the consequence of the same obviously will have to be borne by the Insurance Company and the claimant cannot be made to suffer.

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Hence, at the stage of appeal before the High Court, we find no legal justification for the High Court to leave it open to the Insurance Company to realize the amount of compensation beyond Rs. 32,091/- from the insured/owner as the plea of the respondent/Insurance Company although was that the claimant is not entitled to any compensation beyond the extent of liability under the Workmen's Compensation Act and the

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respondent/Insurance Company had not taken the alternative plea either before the tribunal or the High Court that in case the claimant is held entitled to compensation beyond the extent of liability under the Workmen's Compensation Act, the same was not payable as no extra premium was paid by the insured/owner under the policy of insurance. The Insurance Company had failed to raise any plea before the courts below i.e. either the Motor Accident Claims Tribunal or the High Court and it did not even contend that in case the claimant is entitled to any compensation beyond what was payable under the Workmen's Compensation Act, it is the insured owner who was liable to pay as it had no contractual liability since the insured/owner of the vehicle had not paid any extra premium. Thus, this plea was never put to test or gone into by the Motor Accident Claims Tribunal since the Insurance Company neither took this plea nor adduced any evidence to that effect so as to give a cause to the High Court to accept this plea of the Insurance Company straight away at the appellate stage”.

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The records of MACT Case No. 369/2008 are perused in the light of the above observations made by the Hon’ble Supreme Court of India in Ramchandra (supra). In the claim application, mention was made of the insurance policy No. 130104/31/07/02/00000620 with validity upto 25.12.2008, issued by the appellant insurance company. In Ext.-3 i.e. the Accident Information Report in Form-54, the same insurance policy No. 130104/31/07/02/00000620 was mentioned. Thus, it is evident that the appellant-insurer was well aware of the insurance policy number it had issued in respect of the subject-vehicle, on the day it had received the notice from the learned Tribunal. Being the insurer, it was within its knowledge about the insurance coverage it had extended in respect of the subject-vehicle. But in the written statement filed on behalf of the appellant-insurer on 16.12.2008 before the learned Tribunal, there was no whisper about the WC Act and that its liability to the claimant would be limited to the extent, as provided under the WC Act. In the written statement filed by the owner-cum-driver before the Tribunal on 30.01.2009, the owner had contended that the subject-vehicle was insured with the appellant-insurer. There was nothing in the cross-examination of the claimant wherefrom it could be inferred that the appellant-insurer had raised any plea about its limited extent of liability under the WC Act. The

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insurance policy was never brought on record before the learned Tribunal. The same has not been brought before the appellate Court also so as to apprise the appellate Court about the terms and conditions of the policy of insurance.

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26 . In the light of the observations made by the Hon’ble Supreme Court in the aforesaid decision and in view of the discussions made above, this Court is of the view that the contention of the appellant that its liability should be restricted to the extent provided under the WC Act and there should be apportionment of the liability with the balance to be paid by the owner-insured of the subject-vehicle cannot be entertained in the absence of the insurance policy document which is only because of the failure on the part of the appellant-insurer itself.

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The Tribunal had accepted the monthly income of the deceased as Rs. 6,000/- per month. The deceased was a handyman of the subject-vehicle where the owner himself was the driver, who had not specifically denied about the monthly income of the deceased whereas it was he who had to mention about the actual salary he used to pay to the deceased as the handyman of the subject-vehicle. It cannot be expected of the claimant to lead any documentary evidence as regards the monthly income of the deceased, a handyman, employed in the manner above by such an owner. Nothing to the contrary also was elicited from the cross-examination of the claimant by the appellant-insurer nor any contrary evidence was led on its behalf. The deceased had 4 (four) dependents. In such view of the matter, it cannot be said that the learned Tribunal was not justified in its approach to accept the monthly income of the deceased as claimed by the claimants. This Court is of the view that no interference is called for in that regard.

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28 . Resultantly, this appeal being devoid of merit, fails and the same is dismissed. There shall be no order as to cost.

¶98

It is noticed that pursuant an order dated 13.06.2015 to deposit an amount of Rs. 4,00,000/- in the Registry, the appellant-insurer had deposited

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the said amount of Rs. 4,00,000/- before the Registry of this Court. The said amount of Rs. 4,00,000/- so deposited, was disbursed to the claimants on 08.09.2015. It is, therefore, ordered that the appellant-insurer shall comply with the judgment and award of the learned Tribunal by depositing the balance amount of the compensation amount along with the interest accrued thereon before the Tribunal within a period of 3 (three) months from today. On such deposit being made, the Tribunal will disburse the same to the claimants upon due identification.

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The LCR is to be sent back accordingly.

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JUDGE

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Comparing Assistant

United India Insurance Co. Ltd., v. Smti Namita Bala Das and 4 Ors.

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United India Insurance Co. Ltd., v. Smti Namita Bala Das and 4 Ors.

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