Cholamandalam M S General Insurance Co. Ltd. Vs Smti Tulsi Devi and Anr.

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GAHC010035112019

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

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Case No. : MFA/10/2022

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CHOLAMANDALAM M S GENERAL INSURANCE CO. LTD CHOLAMANDALAM M S GENERAL INSURANCE CO. LTD.,

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Address - HAVING ITS REGISTERED OFFICE AT SHAW WALLACE BUILDING NO. 154, 2ND FLOOR, THAMBU CHETTY STREET, CHENNAI- 600001, AND NORTH EAST STATE OFFICE AT ASTHA PLAZA, 4TH FLOOR, OPPOSITE TO DEORAH COLLEGE, BORA SERVICE, ULUBARI, G.S. ROAD, GUWAHATI781005.

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VERSUS

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SMTI TULSI DEVI AND ANR SMTI. TULSI DEVI AND ANR Address - W/O- LATE LAKHAN KARKI @ LEKHOK, R/O- VILL.- NURBARI TEA ESTATE, P.O.- NIKAMUL SATRA, P.S. TEZPUR, DIST.- SONITPUR, ASSAM, PIN- 784154

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2:SRI ARUN BISWAKARMA S/O- SRI CHANDRA MAN BISWAKARMA R/O- VILL. H/NO. 10 AMRIT NAGAR NEPALI BASTI MAIDAN GAON BELTOLA DIST.- KAMRUP (M) GAUHATI- 781029

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Advocate for the Petitioner : MR K K BHATTACHARYYA, MS. R DEVI,MS JONA TALUKDAR,MR J JOHN

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Advocate for the Respondent : MR. K BHATTACHARJEE (R1), MR. S KHAN (R1),MS. A BARMAN (R1),MS B TALUKDAR (R1),MR. M H LASKAR

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Linked Case : I.A.(Civil)/117/2022

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CHOLAMANDALAM M S GENERAL INSURANCE CO. LTD. CHOLAMANDALAM M S GENERAL INSURANCE CO. LTD. Address - HAVING ITS REGISTERED OFFICE AT SHAW WALLACE BUILDING NO. 154 2ND FLOOR THAMBU CHETTY STREET CHENNAI- 600001 AND NORTH EAST STATE OFFICE AT ASTHA PLAZA 4TH FLOOR OPPOSITE TO DEORAH COLLEGE BORA SERVICE ULUBARI G.S. ROAD GUWAHATI- 781005. VERSUS SMTI. TULSI DEVI AND ANR SMTI. TULSI DEVI AND ANR Address - W/O- LATE LAKHAN KARKI @ LEKHOK R/O- VILL.- NURBARI TEA ESTATE P.O.- NIKAMUL SATRA P.S. TEZPUR DIST.- SONITPUR ASSAM PIN- 784154. 2:SRI ARUN BISWAKARMA S/O- SRI CHANDRA MAN BISWAKARMA R/O- VILL. H/NO. 10 AMRIT NAGAR NEPALI BASTI MAIDAN GAON BELTOLA DIST.- KAMRUP (M) GAUHATI- 781029. -----------Advocate for : MR K K BHATTACHARYYA Advocate for : appearing for SMTI. TULSI DEVI AND ANR

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Linked Case : I.A.(Civil)/1216/2019

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CHOLAMANDALAM M S GENERAL INSURANCE CO. LTD.

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HAVING ITS REGISTERED OFFICE AT SHAW WALLACE BUILDING NO. 154 2ND FLOOR THAMBU CHETTY STREET CHENNAI- 600001 AND NORTH EAST STATE OFFICE AT ASTHA PLAZA 4TH FLOOR OPPOSITE TO DEORAH COLLEGE BORA SERVICE ULUBARI G.S. ROAD GUWAHATI- 781005.

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VERSUS

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SMTI. TULSI DEVI AND ANR W/O- LATE LAKHAN KARKI @ LEKHOK R/O- VILL.- NURBARI TEA ESTATE P.O.- NIKAMUL SATRA P.S. TEZPUR DIST.- SONITPUR ASSAM PIN- 784154. 2:SRI ARUN BISWAKARMA S/O- SRI CHANDRA MAN BISWAKARMA R/O- VILL. H/NO. 10 AMRIT NAGAR NEPALI BASTI MAIDAN GAON BELTOLA DIST.- KAMRUP (M) GAUHATI- 781029. -----------Advocate for : MR. K K BHATTA Advocate for : MR. S ROY appearing for SMTI. TULSI DEVI AND ANR

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BEFORE

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HONOURABLE MRS. JUSTICE MARLI VANKUNG

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JUDGMENT

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Date : 18.03.2025

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Heard Mr. K.K. Bhatta, learned counsel for the appellant. Also heard Mr. K.

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Bhattacharjee, learned counsel for the respondent No. 1 and Mr. S. Roy, learned counsel for the respondent No. 2.

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2. The instant appeal is filed against the judgment and order passed by the learned Assistant Labour Commissioner-Cum-Commissioner for Employee’s Compensation, Sonitpur, Assam in SWC Case No. 09/2015 dated 28.11.2018, wherein the learned Commissioner, Employee’s Compensation had awarded the sum of Rs. 9,94,469 (Rupees Nine Lakh Ninety Four Thousand Four Hundred Sixty Nine) only to the claimant to be paid by the present appellant Cholamandalam MS General Insurance Co. Ltd with an interest @ 12% per annum to be borne by the appellant compensation from the date of the accident i.e., 18.02.2015. Aggrieved by the said judgment and award, the instant appeal is filed by the appellant Insurance Company.

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3. Facts of the case in brief is that on 18.02.2015 Sh. Lakhan Karki was proceeding with truck Registration No. AS/01FC/9951 as a second driver, when they reached the Rattchjara NH 44, due to mechanical defect, the vehicle capsized and the driver who drove the vehicle died on the spot, while the second driver/Sh. Lakhar Kachi succumbed to his injuries and died on 08.07.2015. An accident case was registered under Umkiang GDE No. 03 dated 18.02.2015. The accident vehicle was insured with the Cholamandalam MS General Insurance Co. Ltd vide policy No. 3379/01135080/000/00 which was valid from 27.12.2014 to 26.12.2015 and thus was valid when the accident occurred on 18.02.2015. The claimant who is the wife of Sh. Lakhan Karki/second driver claimed for compensation which was registered as SWC Case No. 09/2015. The Insurance Company arrayed as opposite party No. 2 submitted their written statement and questioned the claim of the second driver.

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4. The learned trial court framed the following issues:-

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i) Whether the claimant was workman within the meaning of the Employee’s Compensation Act 1923 as amended?

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ii) Whether the accident arose out of and in the course of the employment?

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iii) Whether the said claimant is entitled to get compensation; if so, what shall be the quantum and from whom?

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5. Both the parties adduced their evidence and after hearing both the parties, the impugned award as mentioned above was duly made by the learned Commissioner for Employees Compensation, by deciding all the issues in favour of the claimant. Aggrieved by the said, the instant MFA has been filed by the appellant.

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6. The substantial questions of law framed by this Court on 18.01.2021 are:-

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Whether the learned Commissioner was justified to fasten liability upon the appellant in as much as in the insurance policy there was no coverage for the 2^nd driver?

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Whether extra premium of Rs. 50/- paid by the insured cover the risk of 2^nd driver or it cover the wider liability of the 1^st driver?

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7. Mr. K.K. Bhatta, learned counsel for the appellant submitted that the Motor Vehicles Act, 1988, before amendment is applicable herein, since the accident happened before the amendment of the Motor Vehicles Act, the proviso of Section 147 of the Act states that- “ 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

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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—

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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(c) If it is not a goods carriage , being carried in the vehicle or

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(ii) To cover any contractual liability”

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He submitted that the learned Commissioner failed to take into account that the deceased was a second driver who was not driving the accident vehicle, and coverage for the second driver of the truck was not taken by the owner of the vehicle (Respondent No.2), nor was it provided under the policy issued by the appellant, therefore, the second driver being not covered by the policy, no liability can be fastened upon the appellant-insurer.

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8. The learned counsel for the appellant submitted that the learned Commissioner ought to have considered that the deceased was a second driver on the truck and in the absence of coverage for a second driver in the policy, the liability to pay compensation was that of the employer-owner of the vehicle and this aspect was completely ignored by the Learned Commissioner.

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9. The learned counsel for the appellant further submitted that the learned Commissioner erred in concluding that the extra premium of Rs. 50/- paid by the insured covered the risk of

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a second driver, whereas the additional premium was solely for extending the coverage to the first paid driver and as such, the Commissioner’s interpretation is erroneous and contrary to the policy terms.

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10. It was also submitted by the learned counsel that the learned Commissioner misconstrued the provisions of IMT-40, which does not provide that payment of Rs. 50/- as an additional premium for a paid driver automatically covers the risk of a second driver.

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11. The learned counsel relied on the decisions of the Hon'ble Supreme Court and various High Courts, wherein it was held that an insurance company is not liable for a risk not covered by the policy. In New India Assurance Co. Ltd. v. Asha Rani, reported in (2003) 2 SCC 223 , the Supreme Court held that liability cannot be imposed on the insurer beyond the scope of the insurance policy. Similarly, in Oriental Insurance Co. Ltd. v. Meena Variyal & Ors., reported in (2007) 5 SCC 428 , it was observed that the insurer cannot be held liable for a person who is not covered under the policy.

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12. The learned counsel thus submitted that the impugned award imposes liability upon the appellant-insurer beyond the terms of the policy contract, wherein it is a settled legal principle that insurance liability cannot be extended beyond the scope of contractual coverage and submitted that the impugned award is unsustainable and is liable to be set aside.

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13. Per contra, Mr. K. Bhattacharjee, learned counsel for the respondent/claimant submitted that the appeal is liable to be dismissed on the ground that the appellant did not follow the statutory provision of the section 30 and has not deposited any amount before the this court as the award is a money decree. He submitted that under section 30 of the Act in the proviso it is stated the memorandum of appeal must be accompanied by certificate by the

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commissioner to the affect that the appellant has deposited with the amount payable under the order appeal against. The learned counsel relied upon the Judgment of the Apex Court in CHANDRA KISHOR JHA V. MAHAVIR PRASAAD & ORS, reported in 1999

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(8) SCC 266 , wherein the apex court had held as in many other cases that:

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“It is a well settled statutory principle that if a statute provides for thing to be done in a particular manner that is to be done in no other manner.”

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14. The learned counsel for the respondent further submitted that regarding the substantial questions of law involved in the instant case, in spite of two drivers involved in the accident dated 18.02.2015, the present claim is for one driver and as such respondent is entitled to receive compensation under the statutory provision sec. 147 of the MV Act 1988, since accident vehicle was insured with the appellant /Cholamandalam MS General Insurance Co. Ltd vide policy No. 3379/01135080/000/00 which was valid at the time of the accident.

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15. The learned counsel for the claimant/ respondent further submitted that the extra premium of Rs.50/- was also paid by the insured which cover the risk of the second driver under the Rule 40 of the Indian Motor Tarriff Act (IMT).

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The learned counsel has produced an abstract which reads as follows:-

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“IMT 40 Legal Liability to paid driver and/or conductor and/cleaner employed in connection with the operation of Motor vehicle. (For buses, taxis and motorized three/four wheelers under commercial vehicles tariff)

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In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the insurer shall indemnify insured against his legal liability under the Workmen's Compensation Act, 1923 and

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subsequent amendments of that Act prior to the date of this endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver and/or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the vehicle insured and will in addition be responsible for all costs and expenses incurred with its written consent

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The premium to be calculated and paid while taking insurance of the vehicle concurred at the rate of Rs. 25/- per driver and/or conductor and/or cleaner.

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Provided always that:

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(1) this Endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurer or Group of Underwriters a Policy of Insurance in respect of liability as herein defined for his general employees.

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(2) the insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations.

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(3) the insured shall keep a record of the name of each driver cleaner conductor or person employed in loading and/or unloading and the amount of wages salary and other earnings paid to such employees and shall at all times allow the insurer to inspect such record.

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(4) in the event of the Policy being cancelled at the request of the insured no refund of the premium paid in respect of this Endorsement will be allowed.

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Subject otherwise to the terms exceptions conditions and limitations of this Policy except so far as necessary to meet the requirements of the Motor Vehicles Act, 1988.

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16. The learned counsel submitted that since the second driver was also an employee of the owner of the accident vehicle who died in the vehicular accident, he is covered by the

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insurance policy by paying the extra premium which will cover his legal liabilities (LL). The learned counsel has relied on the following judgments:-

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1995 (0) Supreme (KAR) 582 Oriental Insurance Co. Ltd. Vs. Kashim.

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1998 STPL 363, National Insurance Co. Vs. Thimmareddy & ANR. Para.-3,4,

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2008 (0) Supreme (Gau) 196, National Insurance Co. Ltd. Vs. Konjenbam IBO Singh and Anr. Para.-10

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2022 STPL 7960 SC Shahajahan Vs. Shri ram General Ins. Co. Ltd. Para.-2,3,4,6,

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2022 (0) Supreme (KAR) 370 The Branch Manager, Oriental Insurance Co. Ltd. Vs. Tahaseentaj w/o Shamiulla @ Guilab & Ors. Para.-17,18

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2013 (0) Supreme (MAD) 3329 The National Insurance Co. Ltd. Chennai vs. Jayapal & ANR Para.- 19.

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17. Having considered the submissions made by the learned counsels for both the parties, this court finds that it is not a disputed fact that the claimant’s husband Sh. Lakhan Karki(Late) was employed by the owner of the accident vehicle registration No. AS/ 01FC/9951 as the second driver at the time of the accident on 18.02.2015. The fact that the accident vehicle was having a valid insurance policy with the appellant/Cholamandalam MS General Insurance Co. Ltd vide policy No. 3379/01135080/000/00 is also not disputed.

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18. This court finds it appropriate to consider both the substantial questions of law together

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i.e., whether the appellant can be held liable if there is no coverage for the 2^nd driver in the insurance policy and whether extra premium of Rs. 50/- paid by the insured can cover the

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risk of 2^nd driver.

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19. It is seen that the respondent has produced an abstract of the Indian Motor Tarriff Act to show that an additional premium paid will cover the second driver.

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This Court finds it appropriate to reproduce herein IMT - 40 of the India Motorcycle Tariff, which reads as under:-

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“Legal Liability to paid driver and/or Conductor and/or cleaner employed in connection with the operation of Motor vehicle. (For buses, taxis and motorized three/four wheelers under under IMT15 covers the risk of the insured or any named person other than paid driver or cleaner.”

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Thus, from the reading of the above provisions of law it appears that the Extra Premium of Rs.50/- paid by the insured under IMT 40 would cover the second driver, unless proved otherwise.

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20. A Coordinate Bench of this Court in National Insurance Co. Ltd. Vs. Konjenbam IBO Singh and Anr. (supra) had also observed and held that :-“ 10. The clause of the policy with respect to legal liability of the insurance company (quoted ibid in the Judgment), I am of the view that this condition is to be understood having read the same harmoniously with proviso (i) and (ii) of Section 147 (1) (b) of the Motor Vehicles Act. Under proviso (i) the liability of insurance company for certain employees of the vehicles, including that of driver is statutory whereas under proviso (ii) the insurer is at liberty to cover any additional contractual liability. Hence, stretching of the liability on payment of additional premium @ Rs. 15/- per driver etc. Indicates the extension of the liability for the additional driver or cleaners etc., which are otherwise not covered under proviso (i) Even at the risk of repetition, I hold that the driver of the vehicle as well as conductor and ticket examiner of passenger bus are

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already covered under proviso (i) and there is no necessity to pay additional premium for these employees, whose liability is covered under Workmen's Compensation Act, 1923 .”

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21. It was also opined by the Karnataka High Court in National Insurance Co. Vs. Thimmareddy & Anr.( supra) that “that even in the case of a spare driver who is not actually driving the vehicle at the time of the accident that the statutory cover in Section 147(1) and (i)(c) as an employee of the owner of the vehicle travelling in the course of employment, the claimant would be entitled to compensation under the Workmen's Compensation Act.”

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22. The Karnataka High court in The Branch Manager, Oriental Insurance Co. Ltd. Vs. Tahaseentaj w/o Shamiulla @ Guilab & Ors. (supra) made the following observations and held that “With regard to the other defence that Insurance Company is not liable to pay compensation in respect of the second driver and the owner being made the statement before the police that Shamiulla was the first driver and his son is the second driver and on perusal of Ex.R.2 no separate premium is paid in respect of the second driver and in view of the judgment of this Court relied upon by the learned counsel for the claimants in UNITED INDIA INSURANCE COMPANY VS. SMT. SHANTHAVVA AND OTHERS supra wherein in similar circumstances this Court held that the spare driver is also very much a person engaged in driving the vehicle. may be on shift basis and that the word 'engaged in driving the vehicle' should not be interpreted to mean only the driver on the steering excluding a spare driver, the insurer is very much liable to pay compensation in respect of a spare driver under Section 147 of Motor Vehicles Act if there is only one claim under the policy. However, if there are two separate claims in respect of driver and spare driver unless additional premium is paid the insurer may not be liable to pay for both the drivers.[If the claim is in respect of only one

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driver even if he is not actually driving at the time of the accident still the insurer is liable to pay under Section 147 of MV Act as a statutory liability.”

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23. In the present case, it is noted that there is no evidence to the effect that the first driver has claimed any compensation from the owner of the accident vehicle and since the claim is only for one driver, the insurer company is liable to pay under the provisions of section 147 of the MV Act, further it is seen that an extra premium of Rs. 50/- was paid in the insurance

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policy which could also cover the risk of 2^nd driver under IMT 40.

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24. Thus, on considering the above provision of law under the Indian Motor Tarriff Act and the findings of the courts in judgments highlighted above, which are found aptly applicable in the present case, this court finds that the learned Commissioner was justified to fasten liability upon the appellant to paid the awarded amount of Rs. 9,94,469/- to the claimant/respondent No. 1.

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25. In view of the above, this court finds no grounds to interfere with the judgment and order passed by the learned Assistant Labour Commissioner-Cum-Commissioner for Employee’s Compensation, Sonitpur, Assam in SWC Case No. 09/2015 dated 28.11.2018 and accordingly, the appeal MFA No.10 of 2022 stands dismissed and disposed of.

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No costs.

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JUDGE

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Comparing Assistant

Cholamandalam M S General Insurance Co. Ltd. v. Smti Tulsi Devi and Anr.

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Cholamandalam M S General Insurance Co. Ltd. v. Smti Tulsi Devi and Anr.

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