IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.01.2007
CORAM
THE HON'BLE MR.JUSTICE P.D. DINAKARAN
Civil Miscellaneous Appeal No.245 of 2000
1. Dhavamani
2. Minor Jayaprema
3. Minor Jayapriya
.. Minors 2 & 3 rep. by their
mother & natural guardian .. Appellants
Vs.
1. Ideal Spinning Mills Ltd.,
4, Nehru Nagaram, Salem - 4.
2. United India Insurance Co. Ltd.,
Division Office-II,
Peramanoor Main Road,
Salem - 7. .. Respondents
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Appeal against the order of the Commissioner for
Workmen's Compensation (Deputy Commissioner of Labour),
Salem, dated 8.7.1998 made in W.C.No.141 of 1996.
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For Appellants : Mr. P. Thirunavukarasu
For Respondents : Mr. V. Srinivasn - R1
Mr. C. Ramesh Babu - R2
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J U D G M E N T
The applicants before the Commissioner for Workmen’s
Compensation have preferred the above appeal against the
award dated 08.07.1998 made in W.C.No.141 of 1996 on the
file of the Deputy Commissioner of Labour (Commissioner for
Workmen’s Compensation), Salem, for enhancement of the award
amount.
2. The deceased Sennan, who is the husband of the
first appellant/first claimant and father of appellants 2 &
3/claimants 2 & 3, was working as a driver in the lorry
bearing Registration No.TN-27-5533 belonging to the first
respondent company and insured with the second respondent.
On 10.09.1995, when he was driving the lorry near Mettupatty
Thathanoor, he gave way to the lorry, which came in the
opposite direction, and while so, the lorry dragged due to
slit soil and drizzling and hit against a tamarind tree, due
to which, he sustained grievous injuries and died on the
spot. The appellants filed a petition claiming a
compensation of Rs.2,00,000/-.
3. The claim petition was resisted by the first
respondent/employer stating that the alleged accident had
taken place only due to the carelessness and negligent
driving of the vehicle by the deceased and that the vehicle
involved in the accident had been fully insured with the
second respondent and hence the second respondent is liable
to pay compensation. According to the second respondent-
insurance company, the deceased was not an employee under
the first respondent-company, which alone had taken
insurance policy, and he was an employee of Sree
Solaiandavar Textile Mills, and since the deceased was
carrying more than sixty persons belonging to a marriage
party in the lorry for hire or reward, which is not his part
of employment, violating the insurance policy conditions,
the second respondent/insurance company is not liable to pay
any amount.
4.1. The Commissioner, based on Ex.A1, first
information report, wherein the informer has stated that
when the deceased was driving the lorry near Metthupatty
Thathanoor, he gave way to the lorry which came in the
opposite direction and while so, the lorry hit against a
tamarind tree and capsized and the driver died on the spot;
Ex.P2, post mortem certificate, shows the date of admission
of the victim and the injuries sustained by him; and Ex.R2,
motor claim form, submitted to the second respondent by the
first respondent, reveals that the deceased was the driver
of the lorry at the time of the accident, held that the
deceased was a workman under the first respondent and he
died in the accident which arose out of and in the course of
his employment. Secondly, the Commissioner, considering
Ex.A2, post mortem certificate, and the averments made in
the claim petition, determined the age of the deceased as 30
years at the time of accident and fixed the monthly wages of
the deceased at Rs.1000/- as there is no proof for the
appellants’ claim that he deceased was drawing Rs.2000/- per
month and arrived at a sum of Rs.83,192/- as compensation
payable to the appellants/claimants.
4.2. Further, the Commissioner, taking into
consideration Ex.A1, first information report, wherein it is
narrated by the informer that the lorry was transporting 60
persons of a marriage party, and the plea of the second
respondent that the vehicle concerned is a goods vehicle and
it should not be used to carry passengers/human beings
except six employees of insured as per law, held that the
first respondent-employer alone is liable to pay
compensation to the appellants.
4.3. Hence, the present appeal by the
appellants/claimants seeking for enhancement of the award
amount.
5. When the appeal was admitted, the following
substantial questions of law are framed for consideration:
1. Whether the learned Commissioner
calculated the Award correctly?
2. Whether the Insurance Company is liable to
pay the compensation or not?
6. Learned counsel for the appellants contended that
the Commissioner has erred in fixing the monthly income of
the deceased as Rs.1,000/-; in calculating the percentage of
salary in the factors mentioned in the Schedule of the Act
and in holding that the second respondent-insurance company
is not liable to pay compensation, as it is liable to pay
compensation for the driver, cleaner and six coolies as per
the policy conditions.
7. According to the appellants, the deceased was
drawing a sum of Rs.2,000/- as monthly income and the
Commissioner had erroneously restricted it to Rs.1,000/- and
awarded only Rs.83,192/-.
8. The Commissioner, considering the Minimum Wages
Notification viz., G.O.Ms.No.625 dated 25.5.1995, which
states that the driver is entitled to receive Rs.1,740/- as
wages, restricted it to Rs.1,000/- as per Explanation II of
Section 4(1)(b) of the Workmen’s Compensation Act, 1984, as
there is no proof for the appellants’ claim that the
deceased was earning Rs.2000/- per month. Thus, arrived at
a sum of Rs.83,192/- as compensation payable to the
appellants/claimants. I am of the view that the quantum of
compensation arrived at by the Commissioner is just and
proper. Accordingly, the first question of law is answered
against the appellants.
9. With regard to the second question of law, the issue
is covered by the decision of the Apex Court in National
Insurance Co. Ltd. v. Prembai Patel, reported in 2005 (3)
CTC 569, wherein the Apex Court has held as follows:
“13. The insurance policy being in the nature
of a contract, it is permissible for an owner to
take such a policy whereunder the entire liability
in respect of the death of or bodily injury to any
such employee as is described in sub-clauses (a)
or (b) or (c) of Proviso (i) to Section 147(1)(b)
may be fastened upon the insurance company and
insurance company may become liable to satisfy the
entire award. However, for this purpose the owner
must take a policy of that particular kind for
which he may be required to pay additional premium
and the policy must clearly show that the
liability of the insurance company in case of
death of or bodily injury to the aforesaid kind of
employees is not restricted to that provided under
the Workmen’s Act and is either more or unlimited
depending upon the quantum of premium paid and the
terms of the policy.
…
15. Though the aforesaid decision has been
rendered on Section 95(2) of the Motor Vehicles
Act, 1939, but the principle underlying therein
will be fully applicable here also. It is thus
clear that in case the owner of the vehicle wants
the liability of the insurance company in respect
of death of or bodily injury to any such employee
as is described in Clauses (a) or (b) or (c) of
proviso (i) to Section 147(1)(b), should not be
restricted to that under the Workmen’s Act but
should be more or unlimited, he must take such a
policy by making payment of extra premium and the
policy should also contain a clause to that
effect. However, where the policy mentions “a
policy for Act Liability” or “Act Liability”, the
liability of the insurance company qua the
employees as aforesaid would not be unlimited but
would be limited to that arising under the
Workmen’s Act.
16. The High Court, in the impugned judgment,
has held that if the legal representatives of the
deceased employee approach the Motor Accident
Claims Tribunal for payment of compensation to
them by moving a petition under Section 166 of the
Act, the liability of the insurance company is not
limited to the extent provided under the Workmen’s
Act and on its basis directed the appellant
insurance company to pay the entire amount of
compensation to the claimants. As shown above,
the insurance policy taken by the owner contained
a clause that it was a policy for “Act Liability”
only. This being the nature of policy the
liability of the appellant would be restricted to
that arising under the Workmen’s Act. The
judgment of the High Court, therefore, needs to be
modified accordingly.
17. The judgment of the High Court insofar as
it relates to quantum of compensation and
interest, which is to be paid to the claimants
(respondent Nos.3 to 6 herein) is affirmed. The
liability of the appellant insurance company to
satisfy the award would be restricted to that
arising under the Workmen’s Act. The respondent
Nos.1 and 2 (owners of the vehicle) would be
liable to satisfy the remaining portion of the
award.”
10. As per the decision of the Apex Court, the second
respondent-insurance company is liable to pay the
compensation awarded by the Commissioner to the
appellants/claimants and recover the amount, which exceeds
its liability under the Workmen’s Compensation Act, from the
owner of the vehicle, by filing an execution petition before
the concerned Court.
With the above modification, the appeal is disposed of.
No costs.
ATR
To
1. The Deputy Commissioner of Labour
(Commissioner for Workmen’s Compensation)
Salem.
2. The Record Keeper
V.R. Section, High Court, Madras.