CASE NO.: Appeal (civil) 5147 of 2003 PETITIONER: Ramashray Singh RESPONDENT: Vs. New India Assurance Co. Ltd & Ors. DATE OF JUDGMENT: 22/07/2003 BENCH: Ruma Pal & B.N.Srikrishna. JUDGMENT:
J U D G M E N T
(Arising out of SLP(C) No. 20600 Of 2002)
RUMA PAL, J
Leave granted.
The appellant is the owner of a vehicle, described as a
“trekker”, in which passengers are carried for hire. He
employed Shashi Bhushan Singh as a “khalasi” of the vehicle.
On 21.10.1998 the vehicle met with an accident as a result of
which Shashi Bhushan Singh died. The legal heirs of the
deceased employee filed a claim in the Workmen’s
Compensation Court against the appellant, as the owner of the
vehicle, and against the respondent insurance company. The
Workmen’s Compensation Court held that the vehicle had been
comprehensively insured with the respondent and that since the
accident had occurred during the period of insurance, the
insurance company was liable to pay the compensation on
account of the death of the employee. The respondent was,
therefore, directed to deposit the compensation determined
under the provisions of The Workmen’s Compensation Act,
1923.
The decision was challenged by the respondent before
the High Court at Patna under Article 226. The High Court
allowed the writ petition. It held that in the absence of any
special contract between the appellant and the respondent , the
rights of the parties were governed by statute which did not
require the respondent to cover liability in respect of an
accident to a khalasi. The statute in question is the Motor
Vehicles Act, 1988 (referred to hereinafter as the Act).
The appellant has impugned the decision of the High
Court before this Court, primarily on the ground that the High
Court had misconstrued the provisions of the Act and in
particular clause (b) of subsection (1) of section 147. It was
contended that the insurance policy expressly covered the
death or injury to the khalasi. Our attention was drawn to the
insurance certificate where under the heading “Particulars of
the vehicle insured” there is a column which refers to “Seating
capacity including driver and cleaner”. Under this sub-head the
figure “13+ 1” has been inserted. A cleaner, as accepted by
both parties before us, would include a khalasi. The appellant
submitted that he had paid premium on the basis of 13+1 to
cover the liability in question.
The respondent has refuted the claim that any additional
premium was paid to cover the risk pertaining to a khalasi. It is
contended that in terms of the insurance policy, as also under
the provisions of Section 147 (1) (b), no employee of the
insured apart from the driver was covered.
Chapter XI of the Act covers the subject ‘Insurance of
Motor Vehicles Against Third Party Risks’ under Section 146(1)
of which no person shall use a motor vehicle in public unless
there is a valid policy of insurance which complies with the
requirements of the Chapter. The mandatory requirements of
such insurance policy have been provided in Section 147.
The relevant extract of Section 147 is reproduced with
emphasis on the words on which the appellant’s case rests :
“Section 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) xxx xxx xxx xxx xxx
(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 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 –
(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 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-
(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
(b) If it is a goods carriage, being carried
in the vehicle, or
(ii) to cover any contractual liability”.
Over and above the risks which are covered by this
statutory provision, parties may of course enter into a contract
by which the insurer agrees to cover additional risks. It is not
the appellant’s case that apart from the policy of insurance
there was any contract between the appellant and the
insurance company. The policy has a clause which defines
the limits of liability in respect of death or bodily injury to any
person caused by or arising out of the use of the motor vehicle
under Section II(i) of the terms and conditions of the
Policy. In proviso (b) to Section II (1), it has been
expressly stated that “Except so far as is necessary to meet
the requirements of the Motor Vehicles Act, the Company
shall not be liable in respect of death of or bodily injury to any
person in the employment of the insured arising out of and in
the course of such employment”.
A copy of the original policy was produced by the
respondents in the course of arguments. The appellant has
objected to the production of the policy at this stage. We
would have understood and upheld the submission had the
appellant not based his claim on the policy. Indeed, in the
absence of the policy, we could not have entertained the
appellant’s claim at all. [See: Dr. T.V. Jose V. Chacko P.M.
alias Thankachan 2001 (8) SCC 748.]
The appellant’s first submission was that Shashi
Bhushan Singh was a passenger. The appellant’s submission
that the phrases ‘any person’ and “any passenger” in clauses
(i) and (ii) of sub section (b) to Section 147(1) are of wide
amplitude, is correct. [See: New India Assurance Company
V. Satpal Singh and Others 2000 (1) SCC 237 ]. However,
the proviso to the sub-section carves out an exception in
respect of one class of persons and passengers, namely,
employees of the insured. In other words, if the “person” or
“passenger” is an employee, then the insurer is required under
the statute to cover only certain employees. As stated earlier,
this would still allow the insured to enter into an agreement to
cover other employees, but under the proviso to Section 147
(1)(b), it is clear that for the purposes of Section 146(1), a
policy shall not be required to cover liability in respect of the
death arising out of and in the course of any employment of
the person insured unless: first : the liability of the insured
arises under the Workmen’s Compensation Act, 1923 and
second : if the employee is engaged in driving the vehicle and
if it is a public service vehicle, is engaged as conductor of the
vehicle or in examining tickets on the vehicle. If the
concerned employee is neither a driver nor conductor nor
examiner of tickets, the insured cannot claim that the
employee would come under the description of “any person”
or “passenger”. If this were permissible, then there would be
no need to make special provisions for employees of the
insured. The mere mention of the word “cleaner” while
describing the seating capacity of the vehicle does not mean
that the cleaner was therefore a passenger. Besides the
claim of the deceased employee was adjudicated upon by the
Workmen’s Compensation Court which could have assumed
jurisdiction and passed an order directing compensation only
on the basis that the deceased was an employee. This order
cannot now be enforced on the basis that the deceased was a
passenger.
The decision of the Full Bench of the Kerala High Court
relied on by the appellant National Insurance Co. Ltd. v.
Philomena Mathew : 1993 ACJ 1116 was based on a
construction of Section 95 of the Motor Vehicles Act, 1939 the
corresponding section to which under the present Act is
section 147. The relevant provisions of the two sections
which are otherwise in pari materia are materially different in
one respect. Section 95 covered a fourth category of
employee after the three now mentioned in clauses (a)(b) and
(c) to the proviso to Section 147 (1)(b) viz.,:
“where the vehicle is a vehicle in which
passengers are carried for hire or reward or by
reason of or in pursuance of a contract of
employment, to cover liability in respect of the
death of or bodily injury to persons being
carried in or upon or entering or mounting or
alighting from the vehicle at the time of the
occurrence of the event, out of which a claim
arises”. (emphasis supplied)
So a person carried in pursuance of a contract of
employment would be a passenger and would be covered as
such. The exclusion of this clause in the proviso to Section
147(1)(b) of the present Act bolsters our reasoning that
employees other than the three mentioned are not covered by
Section 147 (1)(b).
The appellant’s next submission was that the concerned
employee was a ‘conductor’. It is doubtful whether a ‘khalasi’
and a conductor are the same. But assuming this were so,
there is nothing to show that the appellant had paid any
additional premium to cover the risk of injury to a conductor.
On the contrary, the policy shows that premium was paid for
13 passengers and 1 driver. There is no payment of premium
for a conductor.
The appellant’s final submission was that as the policy
was a comprehensive one, it would cover all risks including
the death of the khalasi. The submission is unacceptable. An
insurance policy only covers the person or classes of persons
specified in the policy. A comprehensive policy merely means
that the loss sustained by such person/persons will be
payable upto the insured amount irrespective of the actual
loss suffered. [See: New India Insurance Co. Ltd. v. J.M.
Jaya 2002 (2) SCC 278; Colinvaux’s: Law of Insurance
(7th Edition) p. 93-94].
Consequently, although the appellant’s claim under the
insurance policy arose under the Workmen’s Compensation
Act, since the concerned employee was not engaged in the
capacity of driver in respect of whom alone premium was paid
apart from the passengers, his claim is unsustainable.
The appeal is accordingly dismissed without any order
as to costs.