Two appeals were dismissed against an award by the Motor Accidents Claims Tribunal. The court held the insurance company liable for full compensation under the Motor Vehicles Act despite Workmen's Compensation premium payments, based on policy clauses and precedent. The quantum was upheld.
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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 21st DAY OF NOVEMBER 2022 / 30th KARTHIKA, 1944
MACA NO. 1522 OF 2016
AGAINST THE ORDER/JUDGMENT IN OP(MV)NO.136/2005 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR
APPELLANT:
UNITED INDIA INSURANCE COMPANY LIMITED
ERNAKULAM, NOW REPRESENTED BY ITS REGIONAL
MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL
ROAD, KOCHI -11.
BY ADVS.
SRI.MATHEWS JACOB (SR.), SRI.P.JACOB MATHEW
RESPONDENTS:
1ARUN,
S/O.LATE RAMAKRISHNAN
VARIYELIKKUDY HOUSE, ARACKAPPADY VILLAGE, VENGOLA
KARA, VALAYANCHIRANGARA P.O, PIN - 683 556.
2AMAL (MINOR)
S/O.LATE RAMAKRISHNAN, VARIYELIKKUDY HOUSE,
ARACKAPPADY VILLAGE, VENGOLA KARA,
VALAYANCHIRANGARA P.O, PIN - 683 556, REPRESENTED
BY HIS ELDER BROTHER 1ST RESPONDENT.
3JANAKI, W/O.VELAYUDHAN
VARIYELIKKUDY HOUSE, ARACKAPPADY VILLAGE, VENGOLA KARA,
VALAYANCHIRANGARA P.O, PIN -683 556.
4T.K. OMANA, W/O.AYYAPPANKUTTY
THACHOLI HOUSE, ARACKAPPADY VILLAGE, VENGOLA KARA,
VALAYANCHIRANGARA P.O, PIN-683 556.
5KABEER C.A.
CHALAKKARA HOUSE, 11/353, TRIKKAKARA, KAKKANADU P.O,
PIN - 682 030.
BY ADV SRI.SHEJI P.ABRAHAM
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 14.11.2022, A/W.MACA NO.3354/2021, THE COURT ON
21.11.2022 DELIVERED THE FOLLOWING:
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MACA Nos.1522/16 & 3354/21
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 21ST DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944
MACA NO. 3354 OF 2021
AGAINST THE ORDER/JUDGMENT IN OP(MV)NO. 136/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR
APPELLANTS:
1ARUN
AGED 27 YEARS
S/O.DECEASED RAMAKRISHNAN, VARIYELIKKUDY HOUSE,
ARACKAPPADY VILLAGE, VENGOLA KARA, VALAYANCHIRANGARA
P.O.-683556.
2AMAL,
AGED 23 YEARS
S/O.DECEASED RAMAKRISHNAN, VARIYELIKKUDY HOUSE,
ARACKAPPADY VILLAGE, VENGOLA KARA, VALAYANCHIRANGARA
P.O.-683556.
3JANAKI,
W/O.VELAYUDHAN, VARIYELIKKUDY HOUSE, ARACKAPPADY
VILLAGE, VENGOLA KARA, VALAYANCHIRANGARA P.O.-
683556.
4T.K.OMANA,
W/O.AYYAPPANKUTTY, THACHOLY HOUSE, ARACKAPPADY
VILLAGE, VALAYANCHIRANGARA P.O-683556.
BY ADV SHEJI P.ABRAHAM
RESPONDENTS:
1 RENJITH.N.R S/O.RAMACHANDRAN, NETTIKADAN HOUSE, KRARIYALI, KOMBANAD P.O-683541.2 KABEER C.A, CHALAKKARA HOUSE, II/353, THRIKKAKKARA, KAKKANADU P.O., PIN-682030.MACA Nos.1522/16 & 3354/21
3
3THE MANAGER
UNITED INDIA INSURANCE CO.LTD.B.O.NO.4, ERNAKULAM-
683011, REPRESENTED BY THE BRANCH MANAGER.
BY ADVS.
RAJAN P.KALIYATH
SRI.MATHEWS JACOB (SR.)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 14.11.2022, A/W. MACA NO. 1522/2016, THE COURT ON
21.11.2022 THE SAME DAY DELIVERED THE FOLLOWING:
MACA Nos.1522/16 & 3354/21
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P.V.KUNHIKRISHNAN, J.
M.A.C.A.Nos.1522 of 2016 & 3354 of 2021
---------------------------------------------Dated this the 21st day of November, 2022
JUDGMENT
These two appeals are filed against the award passed in O.P.(MV) No.136/2005 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. M.A.C.A. No.1522/2016 is filed by the
3rd respondent in O.P.(MV) No.136/2005 and M.A.C.A. No.3354/2021 is filed by the petitioners in that claim petition. (Parties are hereinafter mentioned in accordance to their rank before the Tribunal).
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MACA Nos.1522/16 & 3354/21
big njaval tree and the said tree fell down into the platform of the tempo where the deceased was standing and he sustained fatal injuries and he was immediately taken to Medical College Hospital, Kolenchery but he succumbed to the injuries on the same day. Respondents 1 and 2 remained ex parte and the 3rd respondent insurance company filed a written statement. On the side of the petitioners, PWs 1 to 3 were examined and Exts.A1 to A5 were marked. Ext.X1 is the CD file, Ext.X1(a) is the case diary and Ext.X1(b) is the copy of the charge sheet in the C.D. file. After going through the evidence and documents the Tribunal dismissed the same finding that the petitioners have failed to establish negligence on the part of the 1st respondent driver.
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compensation and allied matters like liability of owner and insurer.
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compensation fixed, i.e., more than what is payable under the Workmen’s Compensation Act. According to the Senior Counsel, the insurance company collected an additional premium of Rs.25/- towards workmen’s compensation liability to one employee. It is the case of the insurance company that the deceased who was engaged in loading and unloading goods is covered under the Workmen’s Compensation Act. It is also contended that though under Section 167 of the Motor Vehicles Act an option is given to file claim either by invoking the powers under the provisions of the Motor Vehicles Act or under the Workmen’s Compensation Act. It is argued that the liability of the insurer will be only under the provisions of the Workmen’s Compensation Act if it is established that the deceased injured was an employee of the insured. The Senior Counsel submitted that the petitioners are entitled an amount of Rs.3,79,120/- with interest at the rate of 12% per annum from the date of accident and also Rs.2,500/- towards funeral expenses under the Workmen’s Compensation Act.
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(1) KLT SN 41(C.No.40)] . The counsel also relied on the judgment of the Apex Court in Ramachandra v. United India Insurance Co. Ltd. [2013 (3) KLT SN (85) (C.No.87) SC] . It is also the case of the petitioners that the quantum of compensation awarded by the Tribunal is too low.
MACA Nos.1522/16 & 3354/21
9
the matter to the Lower court with specific findings. It will be
better to extract the relevant portion of the judgment dated 29.07.2015 in M.A.C.A. No.2388/2009:
“11. In this case, the accident occurred while the deceased was engaged in loading granite. The course of employment and the casual relationship between the use of the motor vehicle and the accident has therefore been established. What is required is only to show there is casual connection and even if it is not direct proximate, it can be safely concluded that the accident arose out of the use of the lorry which was parked for loading. The final report submitted by the Police shows that the deceased was loading granite and one Eldo was cutting a njaval tree standing on the top of the quarry, which fell down on the deceased.
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Compensation Act.
“Legal liability to persons employed in connection with the operation and/or maintaining and/or Loading and/or Unloading of Motor Vehicles.
(For GOODS VEHICLE)
In consideration of the payment of an additional premium of --- it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the insurer shall indemnify the insured against his legal liability under the Workmen's Compensation Act, 1923 and 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 (or cleaner or conductor or person employed in loading/or unloading but in any case not exceeding seven in number including driver and cleaner) whilst engaged in the service of the insured in such occupation in connection with the --- and not exceeding seven in number and will in addition be responsible for all costs and expenses incurred with its written consent.”
MACA Nos.1522/16 & 3354/21
11
Tribunal. Since it is an old case, it will be disposed of expeditiously as the claimants are widow, minor children and mother of the deceased who are yet to receive the quantum.
The Registry will send back the records to the Tribunal forthwith.”
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was used and the driver was engaged for the insured. Moreover, from a perusal of the endorsement IMT 39 in Ext.B1, it is clear that the loading and unloading employees are also covered. RW1 has stated that only in a package policy, loading and unloading workers are covered. However, the documents on record speaks that an additional premium of Rs.75/- was collected to cover the employees others 1. The Tribunal considered the matter in detail and rejected the contention of the insurance company. It will be better to extract the relevant portion of the impugned judgment.
“17. The counsel for the petitioners submitted argument notes stating all his contentions and it is his specific contention that the employee by the insured or his authorized agent itself is covered under the policy, since goods vehicles are used for paid service. Practically speaking, so far as a goods vehicle is concerned, the insured is not the person always in use of the goods vehicle, and all the employees need not be directly employed by him. What is the definition given to the term 'while engaged in the service of the insured' is not established by the parties or by any other evidence. In this juncture, counsel for the petitioner invited this Tribunal's attention to the decision rendered by our Hon'ble Supreme Court in General Assurance
MACA Nos.1522/16 & 3354/21
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Society Ltd. v. Chandmull Jain and another reported in AIR 1966 Supreme Court 1644, where it was held that in case of ambiguity or doubt contract is to be construed contra proferentem that is against insurance company. It is observed in that decision that, in interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract. Here in the case at hand, admittedly there is a policy and extra premium apart from the basic premium was paid so as to cover the employees engaged in loading and unloading work. The only question in dispute is whether the person is engaged in the service of the insured or not. On analyzing the facts and circumstances of the case, I am only to hold that the purpose of the very policy itself will be defeated if the loading and unloading worker is not covered, even though admitting for a moment that he is not employed by the insured directly. As stated earlier, it is highly difficult for all the loading and unloading workers to be directly employed by the insured at every time of the course of the employment. So adopting the principles and guidelines in the decision cited supra, and drawing the principles therein, I am constrained to hold and interpret the provisions of IMT No.39 as against the contentions raised by the counsel for R3. In view of the fact that an extra premium is being paid by the insured. I am to hold that the deceased employee is covered under the policy.
MACA Nos.1522/16 & 3354/21
14
Workmen's Compensation Act or Fatal Accidents Act or Common Law, since the accident here, as already found, arose out of the use of the motor vehicle and since the petitioner preferred to claim compensation as per the provisions of Motor Vehicles act, it is positively considered and I hold that the insurance company is bound to grant compensation as per the provisions of the Motor Vehicles Act.
Moreover, in Sulaiman ’s case (supra), this Court considered a similar point. It will be better to extract paragraphs 16 and 17 of the above case.
“16. The relevant entries as regards payment of premium in Ext.B1 policy in the case on hand are extracted hereunder:
"Basic premium - 1245 L/L to persons employed in connection with the operation & maintenance loading or unloading - 30 TPPD unlimited - 75 1350
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additional premium to cover certain other risks including that of the workers engaged for loading and unloading. Therefore it will be futile for the Insurance Company to contend for the position that its liability is restricted to "act only liability".”
that an amount of Rs.3480/- is paid as premium in the following manner:
| B:T.P.BASIC | 3,280.00 |
|---|---|
| Compulsory PA to Owner – Driver Amount 200000 |
100.00 |
| WC to employee 1 | 25.00 |
| Employees Others 1 | 75.00 |
| ---------- | |
| Total Liability Premium | 3,480.00 |
Ext.B1 contains the details of the terms and conditions of
the policy. An amount of Rs.75/- is paid towards employees others 1 and WC to employee 1 separately. In such circumstances, the contention raised by the counsel for the insurance company can not be accepted.
MACA Nos.1522/16 & 3354/21
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Court observed like this:
“10. The respondent-insurance company assailed the judgment and order of the tribunal by filing a first appeal bearing MFA No.6711/2004 in the High Court of Karnataka at Bangalore wherein the learned single Judge recorded that the only grievance of the appellant-insurance company was that while allowing the claim petition, the first respondent/claimant had put the entire burden on the appellant to satisfy the amount of `1,42,800/- which was awarded to the claimant. The counsel representing the insurance company submitted before the High Court that it was not in dispute that the claimant was travelling as a cleaner in the matador van in question and, therefore, the liability of the appellant ought to have been restricted under the Workmen's Compensation Act. As such, 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.
MACA Nos.1522/16 & 3354/21
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cover larger liability, the liability of the insurance company will be restricted to the one under the Workmen's Compensation Act. It was, therefore, held that in the light of such settled position of law, the tribunal could not have put the entire liability on the appellant. The learned single Judge, therefore, directed that the liability of the insurance company was restricted to one under the Workmen's Compensation Act which would be `32,091/- and the balance will have to be shouldered by the insured/owner of the vehicle. It was further ordered that the rate of interest will be as per order of the Motor Accident Claims Tribunal. The appeal was allowed to this extent but a further direction was given that if excess amount had been deposited, the same will be refunded to the insurance company.
MACA Nos.1522/16 & 3354/21
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under the Workmen's Compensation Act. Therefore, it was submitted that the impugned order is liable to be set aside by this Court. The counsel had further submitted that the tribunal was justified and rightly directed the respondent-insurance company to pay the compensation together with costs and interest at 6 per cent per annum from the date of petition to the date of payment and the first respondent/insurance company being the insurer of the vehicle was rightly directed to pay the entire compensation. The learned single Judge was thus in error in allowing the appeal of the respondent insurance company in part which is fit to be struck down as illegal and invalid.
xxxxxxx
MACA Nos.1522/16 & 3354/21
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to satisfy the remaining portion of the award.
xxxxx
14. Similarly in Sasikumar 's case (supra) also, this
Court considered the same point. Paragraphs 18 and 19 of the above judgment is extracted hereunder:
“18. With regard to the reliance sought to be placed on the decision rendered by the Apex Court in 2008 (4) KLT 552 (SC) = AIR 2008 SC 2871 (United India Insurance Co. Ltd. v. Suresh K.K.), it was a case where the three wheeler Goods Autorickshaw was not having any additional seat to carry anybody other than the driver. There was also a further case
MACA Nos.1522/16 & 3354/21
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that no goods were actually being carried in the vehicle at the relevant time. A finding was rendered by the Apex Court on both the above grounds. Coming to the instant case, the fact that goods were being carried in the vehicle at the relevant time stands admitted. The dispute is only with regard to the question whether anybody else was permitted to be carried in the vehicle or whether the appellant was travelling along with the driver, sharing his one and only seat available in the vehicle. A copy of the policy was produced before the Tribunal as Ext.B1, wherein the seating capacity was shown as 'zero'. At the same time, it was a 'comprehensive policy' providing for own damage as well, and necessary premium has been collected under 'A' segment of the Schedule. Coming to 'B' segment of the Schedule of premium, liability to public risk (Basic) was covered by collecting premium of 1183/-. A sum of 75/- was collected for coverage towards unlimited T.P.P.D. (Third Party Property Damage) and yet another sum of 15/-was collected towards legal liability for paid Drivers/Workmen No.1. The learned</u> Counsel for the Insurance Company submitted that the said premium of 15/- was collected only to provide additional coverage to the driver/Workmen No.1, over and above the extent of liability to be satisfied under the M.V. Act in terms of Section 147(2)(b)(ii) with reference to extent as payable under the Workmen's Compensation Act. But this is not discernible from the policy schedule and the terms and conditions were never produced before the Tribunal in this regard. While collecting additional premium of `75/towards T.P.P.D., there was a specific endorsement that, it is for the Cover for Unlimited
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Amount towards T.P.P.D. No such wording is used as to the collection of `15/- in respect of the Paid Driver/Workmen No.1, if it were intended to provide such wider coverage over and above the limit under the Workmen's Compensation Act.
[underline supplied]
In the light of the above dictum, I think there is nothing
to interfere with the finding regarding the liability of the insurance company.
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of compensation awarded by the Tribunal is justified. There is no challenge on the quantum of compensation by the insurance company in M.A.C.A.No.1522/2016. The claimant filed M.A.C.A.No.3354/2021 for enhancement. After going through the amount awarded in different heads, I am of the considered opinion that, there is nothing to interfere with the compensation awarded by the Tribunal. The Tribunal awarded sufficient compensation under different heads. Therefore, both these appeals fail.
Hence, M.A.C.A.Nos.3354 of 2021 and 1522 of 2016 are dismissed.
Sd/-
P.V.KUNHIKRISHNAN JUDGE
JV/DM
2 issues framed by the court
Whether the insurance company is liable to indemnify the owner for the entire compensation awarded under the Motor Vehicles Act for a deceased worker engaged in loading, considering premiums paid for
Whether the quantum of compensation awarded by the Motor Accidents Claims Tribunal requires interference.
Colour shows how this judgement treated each authority
Sulaiman v. AlipaRelied on¶55
Sulaiman v. Alipa [2011 (1) KLT 496]
Sasikumar v. LakshmananRelied on¶55
Sasikumar v. Lakshmanan [2016 (1) KLT SN 41(C.No.40)]
Ramachandra v. United India Insurance Co. Ltd.Explained¶56
Ramachandra v. United India Insurance Co. Ltd. [2013 (3) KLT SN (85) (C.No.87) SC]
General Assurance Society Ltd. v. Chandmull JainApplied¶83
General Assurance Society Ltd. v. Chandmull Jain and another reported in AIR 1966 Supreme Court 1644 · Who else cites this
Arun
Amal
Janaki
T.K. Omana
United India Insurance Company Limited
P.V. Kunhikrishnan
As recorded by the court registry
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