Partly allowed

J.Mohammad , G.Mohammad Rafi v. D.Sulai Baba

Telangana HC1 Dec 2014MACMA/1107/2007

Case brief

AI extract

What is this about?

The High Court allowed an appeal filed by an injured cleaner. It held that the vehicle owner's insurance policy under IMT 17 covered the risk of the cleaner as an employee attached to the goods, making the insurer jointly liable. The compensation quantum was enhanced from Rs. 1,03,000 to Rs. 1,25,000.

What did the court decide?

Compensation enhanced to Rs. 1,25,000. Insurer made jointly liable. Respondents directed to deposit balance compensation within one month.

J.Mohammad , G.Mohammad Rafi Vs D.Sulai Baba — Insurance | Telangana HC (2014)

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THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.1107 OF 2007

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Dated 1st December, 2014

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Between :

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J.Mohammad @ G.Mohammad Rafi … Appellant a n d D.Sulai Baba & another

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… Respondents

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THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.1107 OF 2007

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JUDGMENT:

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The appellant, who is the injured-petitioner in O.P.No.229 of 2004, is aggrieved by the award of the Tribunal dated 05.03.2007 against owner and insurer of the vehicle bearing No.AP03 U 4203. The claim petition is filed under Section 166 of the Motor Vehicles Act for Rs.2,00,000/- since awarded by the Tribunal of Rs.1,03,000/- with interest @ 7.5% per annum only against the owner of vehicle by exonerating the insurer saying the policy not covered the risk, claimant preferred this appeal.

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The contentions in the grounds of appeal are that the award of the Tribunal is contrary and unjust, the Tribunal ought to have fixed the joint and several liability against owner and insurer of the vehicle and erred in holding that Policy does not cover the risk of the cleaner though Ex.B.1 policy is a comprehensive policy when additional premium is collected apart from the cleaner is part and parcel of the

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vehicle with driver, hence to allow the appeal as prayed for.

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Whereas it is the contention of the counsel for the insurer that the claimant is unauthorized passenger and the claim that he is a cleaner is not proved apart from risk of cleaner not covered by policy terms, hence to dismiss the appeal.

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Learned counsel for the insurer places reliance upon the expressions of the Apex Court in United India Insurance Company [1] Limited Vs. Serji Ra o , Oriental Insurance Company Limited Vs. Brij Mohan^[2] and Sanjeeve Kumar Samrat Vs.National Insurance Company Limited^[3]

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Whereas the learned counsel for the appellant-claimant places reliance upon the expression of the Apex Court in Hanumangouda v.

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United India Insurance Co. Ltd. ,^[4] .

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Heard and perused the material on record.

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The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

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Now the points that arise for consideration are:-

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1) Whether the award of the Tribunal exonerating the insurer holding that Policy does not cover the risk of cleaner is sustainable or requires interference on that ground and also on the quantum, if so, with what observations?

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2) To what result?

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Point No.1:

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There is no much dispute on the fact that the accident was the result of the rash and negligent driving of the driver of the crime vehicle wherein the injured was also proceeding by sitting in the cabin since on the way the vehicle dashed against road side neem tree from rash and negligent driving of the driver in between Vayalpad and Kalikiri. Ex.A.1 FIR and Ex.A.3 charge sheet are against the driver for his rash

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and negligent driving. In proof of the same in support of the evidence of the injured-claimant-PW.1, P.W.1 stated that at the time when they were going for loading of tomatoes along with four coolies in the mini lorry, the lorry dashed against the neem tree from the driver’s negligence. The vehicle is registered as a commercial goods vehicle and Ex.B.1 Policy is in force by the date of accident on 09.10.2003. No doubt, the dispute is as to whether the policy covers the risk? As per the contention of the insurer there is no premium collected to cover the risk of cleaner. It is thus mainly interpretation of the policy. Regarding fixing of any liability on the insurer, Ex.B.1 policy shows the total amount collected is Rs.10,565/- and there is a mention of IMT Endorsement Numbers 5, 21, 48, 20 and 17. Page 2 of the Policy shows the basic premium of Rs.3,280/-, compulsory PA to ownerdriver Rs.100/- (upto Rs.2,00,000/- coverage) and for third party property damage collected Rs.200/-. Thus, there is no coverage of the cleaner or driver separately. There is no coverage of even any employee.

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In fact, Section 147 (1) (c) so far as owner or representative of goods, Act Policy itself covers equally under clause-A for driver. In fact, IMT Nos.5, 21, 48, 20 and 17 mentioned as attached, though there is no additional premium thereunder collected, showing gross Rs.3,280/- also collected and the policy mentioned as mere Act Policy but package policy by saying policy B-package. It is to show from the package B-Policy, IMT Nos.5, 21, 48, 20 and 17 risks are covered even otherwise the injured was traveling as employee under the owner with tomatoes loaded in the tractor of the owner to represent the goods. Thus, from the B-package Policy covering IMT 17, also the risk of employee is covered and thereby insurer can be made liable. These facts are not considered by the Tribunal in its observations at para 7 of the award in saying there is no special payment mentioned in the name of cleaner, which is not a just conclusion in interpreting the

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policy. No doubt, in Apex Court’s expression, i n Serji Rao’s case (referred supra) referring to Brij Mohan’s case (referred supra) it was held that when there is no coverage of Act Policy by collection of additional premium, policy risk other than those mentioned in Section 147 (1) (a)(b)(c) not covered. Here once there is a premium collected as referred in the policy of eight employees under the owner, insured and also for one non-fair paid passenger on the premium paid respectively of Rs.200+Rs.75 and the claim of the injured that he was a cleaner is not disputed by the owner even otherwise when it shows that tomato load and as one person can travel as attendant or representative of the goods and even eight coolies under the owner risk coverage is there, the risk of the injured is covered by the policy that can be safely said including from the expression of Hanumanagouda’s case (referred supra) where it was held that the clerk of the insured proceeding with the goods and the High Court negatived the claim holding that the gumastha is not a person for loading and unloading though the coverage is for persons employed in connection with loading/unloading and in connection with operation of motor vehicle and the gumastha, who is traveling with the load for purpose of delivery can be thereby said within the coverage. Thereby, the expressions placed reliance by the Insurer in Brij Mohan’s case, Serji Rao’s case and Sanjeeve Kumar Samrat’s case (referred supra) though there is no dispute on the principle of law, no way apply here as there is a coverage of risk under IMT 17 and 39 so far as injured/claimant is concerned; there it was observed that there is no coverage of risk of kalasi for neither a passenger or ticket collector as such Kalasi is not covered that principle also has no application in this case.

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Now coming to the quantum of compensation, as per Ex.A.4disability certificate and evidence of P.W.2-Doctor, there is a fracture of shaft of left femur and fracture of both bones of right leg and there is

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20% permanent disability and injured was treated by interlocking nailing of both femur and tibia, there is

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20% permanent disability spoken by Doctor saying the injuredclaimant is unable to walk freely without stick support. The injured is aged about 22 years, the accident was dated 09.10.2003 even Rs.3,000/- per month are taken as earnings and even taken 10% disability, by adopting the multiplier of ‘18’, the compensation comes to Rs.64,800/- apart from entitlement of injured for Rs.40,000/- for pain and suffering of the injuries, Rs.20,000/- towards medical expenses, loss of earnings, transport charges and attendant charges, total comes to Rs.1,24,800/- rounded off to Rs.1,25,000/-. Accordingly, point No.1 is answered.

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Point No.2:

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In the result, the appeal is allowed in part by holding that the policy covers the risk and the insurer is also jointly liable to pay compensation to the claimant and enhancing the compensation from Rs.1,03,000/- to Rs.1,25,000/- with interest at 7½% per annum from the date of claim petition till realization. The respondents shall deposit with notice the compensation amount balance due as per the appeal award within a period of one month from the date of receipt of a copy of this order else to execute and recover. On such deposit or recovery, the claimant is permitted to withdraw the same. There shall be no order as to costs in the appeal.

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_____________________________ Dr.B.SIVA SANKARA RAO, J

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01.12.2014 sur

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[1] 2007 AIR SCW 7280 [2] 2007 AC J 1909 [3] 2013 ACJ 1 [4] 2014 (4) SCJ 341

J.Mohammad , G.Mohammad Rafi v. D.Sulai Baba

Case brief

What is this about?

What did the court decide?

J.Mohammad , G.Mohammad Rafi v. D.Sulai Baba

Case brief

What is this about?

What did the court decide?

What the court decided

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