Transport Vehicle; New India Assurance Company Limited Vs. Beena Kumari [Kerala High Court, 22-02-2016]

Motor Vehicles Act, 1988 – Section 163A – Employees Compensation Act, 1923 – liability of the insurer in respect of the claim of a driver engaged for driving ‘transport vehicle’ – Negligence of the employee even if proved is immaterial and it is not a deciding factor, if it involves ‘death’ or permanent disability- for working out the compensation payable under the W.C. Act in so far as negligence is not a relevant factor in respect of injuries resulting in death, and when the Statute clearly stipulates that the liability of the insurer in respect of the claim of a driver engaged for driving ‘transport vehicle’ shall be to the extent as specified under the W.C. Act, the contention raised by the insurance company that by virtue of the finding on negligence interference is to be made, does not merit any consideration.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

M.A.C.A.No.1707 of 2013

Dated this the 22nd day of February, 2016

AGAINST THE AWARD IN OPMV 1443/2007 of M.A.C.T.,ATTINGAL DATED 25-01-2013

APPELLANT/RESPONDENT 2 & 4

THE NEW INDIA ASSURANCE COMPANY LIMITED NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G ROAD, KOCHI 11.

BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW

RESPONDENTS/PETITIONERS AND RESPONDENT 1 & 3

BEENA KUMARI AND 5 OTHERS

R1 BY ADV. SRI.M.R.SARIN

JUDGMENT

Ramachandra Menon, J.

The insurance company is before this Court challenging the correctness and sustainability of the award passed by the Tribunal fixing the total compensation payable as ₹3,24,750/- and in mulcting 50% of the liability upon the shoulders of the appellant in a claim under Section 163A of the Act, despite the finding that the accident was solely because of the negligence on the part of the deceased. The contention appears to be that, once it is found by the Tribunal, based on the evidence, that the accident was because of the negligence on the part of the deceased, no liability could have been fixed on the Insurer of the vehicle which was being driven by the deceased person.

2. The factual sequence revealed from the proceedings shows that the deceased was driving a tourist bus bearing No. KL-05/R-2646 on 21.4.2007 and when it reached the spot of occurrence, the bus collided with a container lorry bearing No.HR- 38/H-7683 owned and insured by the 3rd and 4th respondents before the Tribunal, causing fatal injuries leading to death of the driver of the tourist bus. This led to the claim petition preferred by the legal heirs before the Tribunal under Section 163A of the Act.

3. The appellant/insurance company contended that the accident was solely because of the negligence on the part of the driver of the tourist bus and that the police had charge sheeted him, though charge got abated. However, based on the materials on record, the Tribunal arrived at a finding that the accident was because of the negligence equally on the part of the deceased/driver of the tourist bus and the driver of the container lorry and hence fixed the ratio of negligence as 50:50. After fixing the total compensation payable as ₹3,24,750/-, half of the compensation was reduced because of the negligence on the part of the deceased/driver of the tourist bus and only the balance was ordered to be paid to the claimants. This according to the insurance company is not correct by virtue of the law declared by the Supreme Court in

# National Insurance Company Ltd. v. Sinitha, 2011 (4) KLT 821

Hence the appeal.

4. Heard Sri.Mathews Jacob, the learned Senior Counsel appearing for the appellant at length.

5. It is true that the law has been declared by the Apex Court as per the decision cited supra. We are also aware of the subsequent order passed by a Co-ordinate Bench of the Supreme Court as per the verdict reported in

# United India Insurance Company Ltd. v. Sunil Kumar, 2013 (4) KLT 488

whereby the aforesaid decision has been doubted and referred to Larger Bench. True, the order of reference does not come within Article 141 of the Constitution of India and the verdict already passed by the Supreme Court earlier in 2011 still remains as the law of the land. But the question to be considered in the instant case is whether any interference is to be made by this Court based on the submission that this is a case where negligence is already proved or whether the appellant/insurance company still could be directed to satisfy the due amount.

6. There is no dispute with regard to the factual sequence, particularly as to the involvement of two vehicles in the accident, leading to death of the deceased. There is also no dispute with regard to the factum of employment of the deceased under the insured and as to the existence of valid policy coverage. In so far as the status of the deceased is concerned, he was driving a ‘transport vehicle’ and under such circumstance, the liability to be satisfied by the insurance company as part of statutory liability flowing from Section 147 of the M.V.Act is to the extent as specified in the Statute. For convenience of reference, the provision is extracted below:-

# 147. Requirements of policies and limits of liability

(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-

(a) is issued by a person who is an authorised insurer; and

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-

(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place :

Provided that a policy shall not be required-

(1) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923 in respect of the death of, or bodily injury to, any such employee-

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.

Explanation.- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1) shall cover any liability incurred in respect of any accident, up to the following limits, namely :-

(a) save as provided in clause (b), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of rupees six thousand :

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.

(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.”

From the above provision, it is quite obvious that there is a statutory liability upon the insurance company to satisfy the claim in respect of a person engaged as a driver in so far as it is a ‘transport vehicle’. Since the factual position is not disputed, liability still is there for the insurance company to satisfy the claim, but the limit is specified in the Statute itself, i.e., it shall be to the extent as payable under the relevant provisions of the Workmen’s Compensation Act (presently, Employees Compensation Act). Question is, what is the amount to be paid under the W.C.Act.

7. Based on the admitted facts and figures taken by the Tribunal, if the amount of compensation is worked out, the actual compensation payable will be something more and it cannot be less than the present extent of liability cast upon the shoulders of the appellant. It cannot be lost sight of, that negligence of the employee (even if proved) is immaterial and it is not a deciding factor under the W.C.Act, if it involves ‘death’ or permanent disability, by virtue of the mandate of Section 3(1), proviso ‘b’. The said provision is extracted below:-

# 3. Employer’s liability for compensation

(1) If personal injury is caused to a workman 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 this Chapter:

Provided that the employer shall not be so liable-

(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding [three] days;

(b) in respect of any [injury, not resulting in death, [or permanent total disablement] caused by] an accident which is directly attributable to-

(i) the workman having been at the time thereof under the influence of drink or drugs, or

(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen [*] [* * * * * *1

8. So, for working out the compensation payable under the W.C.Act in so far as negligence is not a relevant factor in respect of injuries resulting in death, and when the Statute clearly stipulates that the liability of the insurer in respect of the claim of a driver engaged for driving ‘transport vehicle’ shall be to the extent as specified under the W.C. Act, the contention now raised by the insurance company that by virtue of the finding on negligence interference is to be made, does not merit any consideration.

We find absolutely no tenable ground to make any interference. The appeal is devoid of any merit. The same stands dismissed accordingly.

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