High Court Kerala High Court

National Insurance Company Ltd vs Vadakkethadathil Philip on 5 August, 2008

Kerala High Court
National Insurance Company Ltd vs Vadakkethadathil Philip on 5 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA.No. 562 of 2003(A)


1. NATIONAL INSURANCE COMPANY LTD.,
                      ...  Petitioner

                        Vs



1. VADAKKETHADATHIL PHILIP, S/O. JOHN,
                       ...       Respondent

2. THRESIA, W/O. VADAKKETHADATHIL PHILIP,

3. K.J.SEBASTIAN,

4. MATHEW,

                For Petitioner  :SRI.P.R.RAMACHANDRA MENON

                For Respondent  :SRI.GRASHIOUS KURIAKOSE

The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :05/08/2008

 O R D E R
                          J. B. KOSHY &
                K. P. BALACHANDRAN, JJ.
               ------------------------------------------------
                       M. F. A No.562 of 2003
               ------------------------------------------------
               Dated this the 5th day of August, 2008

                             JUDGMENT

J. B. Koshy, J

This is an appeal filed by the Insurance

Company. The respondents/ applicants are the

dependents of 22 years old man. They applied

for compensation under Workmen’s Compensation

Act contending that due to the negligence of

the first respondent/the driver of the lorry

owned by the second respondent and insured by

the third respondent, their son sustained

serious injuries and died in the course of

employment. It is also submitted that he was

employed by the second respondent as loading

and unloading worker in the lorry bearing

registration No.KL.11C.779. The death due to

the accident is not disputed. The Commissioner

for Workmen’s Compensation awarded a

compensation of Rs.2,87,781/- for the death of

the son of the applicants. Third respondent/

M. F. A No.562 of 2003 -2-

Insurance Company questioned the award

contending that on the basis of Asharani’s

case decision (New India Insurance Co. Ltd. v. Asha Rani

and ors. (2003) 2 SCC 223) nobody can be carried in a

goods carriage and the claim of any such

person is not liable to be fixed on the

insurer under the statute. It is true that in

view of the decision of the Hon. Apex Court in

Asha Rani’s case (cited supra) passenger in a

goods vehicle is not covered by the policy

unless there is specific coverage mentioned in

the policy. Ext.R1 is the insurance policy

certificate. The above certificate clearly

shows that it is intended for carriage of

goods. Clause No.3 limitation of use says that

it does not cover passengers in the vehicle

except employees (other than driver) not

exceeding six in number under the purview of

Workmen’s Compensation Act, 1923 and

thereafter, driver was specifically covered.

Therefore, there was a condition in the policy

M. F. A No.562 of 2003 -3-

to cover passengers who are employees not

exceeding six in number. But they are only

entitled to compensation as provided under

Workmen’s Compensation Act. Contributory

negligence by not travelling in a cabin etc.

is not a ground for denying compensation under

the Workmen’s Compensation Act. In view of the

specific coverage in the policy of six

employees other than driver under the

Workmen’s Compensation Act, we are of the view

that the Insurance Company is liable to pay

compensation and no interference is required

in the award passed by the Commissioner for

Workmen’s Compensation. Appeal fails and is

dismissed accordingly.

J. B. KOSHY
JUDGE

K.P.BALACHANDRAN,
JUDGE
kns/-