The National Insurance Company Limited v. Salugari Benjimen And 2 ORS

HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU C.M.A.No.45 of 2009 JUDGMENT:

This appeal is filed against the order dated 17.09.2008 in WC No.48 of 2005 by which the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour, Kadapa, awarded compensation of Rs.4,36,940/- against opposite parties 1 & 2.

The case of the applicants is that their son was working as a second driver of the lorry bearing No.AP04U 4477 belonging to first opposite party and insured with the second opposite party. On 27.11.2004 the said vehicle met with an accident resulting the instantaneous death of the deceased second driver. Therefore, the parents of the deceased filed the WC case claiming compensation of Rs.5,00,000/-. For the applicants, AW.1 was examined and Exs.A.1 to A.5 were marked. RW.1 is an officer from the insurance company and the insurance policy was marked as Ex.B.1. After considering the oral and documentary evidence, the Commissioner came to a conclusion that the applicants are entitled to compensation of Rs.4,36,940/-. It is this order that is now impugned and assailed in this appeal by the insurance company.

This Court has heard Sri Naresh Byrapaneni, learned counsel for the appellant/insurance company and Sri D.

Kodandarami Reddy, learned counsel for the respondents/ applicants.

According to the learned counsel for the appellant, the insurance company is not at all liable in this case and he argues that Ex.B.1 policy is issued specifically to cover third party basic, third party property damages and compulsory personal accident coverage only to the owner and driver. Therefore, the learned counsel argued that the driver of the vehicle is not covered by the policy of the insurance and that the insurance company is not liable. He relies upon the cases of a) Ramashray Singh v. New India Assurance Co. Ltd. and Ors.1; b) The New India Assurance Co. Ltd., rep. by its Branch Manager v. Lodya Shankar and Ors.2; and c) Dudekula Salabee v. R. Siva Sankar Reddy and Anr.3.

Basing on these three cases, the learned counsel argued that unless and until specific premium is paid for covering the accident to persons like the second driver, the insurance company is not liable. By pointing out the schedule annexed to the policy, he also argued that only the owner and driver and third parties are covered along with damages to the vehicle but not the 'employees' of first opposite party. The 'second driver' is not covered at all as per the learned counsel.

In reply to this, learned counsel for respondents/applicants argued that the applicants are 1 (2003) 10 SCC 664 2 2004 (3) ALD 400 3 2008 (1) ALD 161

covered by Section 147 of the Motor Vehicles Act, 1988 which states that the specific policy is not required to cover the compensation payable under the Workmen's Compensation Act in respect of a) an employee engaged in driving the vehicle; b) an employee engaged as a conductor or ticket examiner of the public vehicle; c) an employee being carried in a goods carriage. It is his contention that Section 147 of M.V. Act itself provides the coverage and therefore, there is no need to specifically take a policy nor is there a necessity to pay a special pre9-mium or enter into a specific contract. The learned counsel for the respondents/applicants also argued that only for coverage of persons over and above those specified in Section 147 of M.V. Act, a specific policy may be necessary and a seperate premium should be paid. His argument is that the driver; ticket examiner and a person carried in the goods carriage are eligible to receive compensation.

This Court after a review of the submissions notices the following that the policy in question is issued to a "goods carrying commercial vehicle". The same is visible from a reading of the policy itself. The witness who deposed on behalf of the insurance company clearly admitted that the policy was in force as on the date of the accident. The only point urged is that separate premium was not paid by the owner to cover the employee in question. Even in the crossexamination, he admits that policy is in force.

Therefore, the short and simple point that is argued is about the coverage of the deceased second driver under Ex.B.1-insurance policy. Admittedly, the deceased in this case is a driver of the vehicle in question. Therefore, a plain language reading of Section 147 of M.V. Act makes it clear that his case is covered by the 'Statute' itself and that a separate policy or premium is not required to be paid in case of the deceased driver.

The learned counsel for the appellant/insurance company argued that the second driver is not eligible for any compensation whatsoever and that his position is that of no better than a passenger in the vehicle and that therefore, the appellant cannot be made liable to pay any compensation whatsoever. On the contrary, the learned counsel for the respondents/applicants argued that the vehicle in question is a national permit lorry under which the second driver is being taken to aid or assist the first driver in driving the vehicle. The evidence shows that the vehicle in question has a national permit. Rule 90 (4) of the Central Motor Vehicles Rules, 1989 mandates that the vehicle shall have a minimum of two drivers on board along with a seat across the full width behind the drivers seat for the second driver to stretch himself and sleep. Hence, the presence of the second driver on board the vehicle is a statutory requirement. This Court on an examination of the entire submissions made noticed that the deceased was present at that point of

time on the day only, because he was on duty in the vehicle in question. Long distance driving is strenuous. A second driver often accompanies the first driver to relieve the earlier. Two drivers are necessary and essential in the national permit vehicle driving long distance. Rule 185 (x)(viii) of the Andhra Pradesh Motor Vehicles Rules, 1989 states that every vehicle which plys for more than eight hours shall have two drivers. Therefore, it cannot be argued that the second driver was in the position of a passenger. He was employed as a driver on the ill-fated vehicle and was in the ill-fated vehicle on that day at that point of time in the course of employment only. Because he was in the vehicle as a second driver, he met with a fatal accident.

Therefore, this Court is of the opinion that the driver of the vehicle is statutorily covered under Section 147 of MV Act, even if he is the second driver. There is no distinction in the Act for excluding a second driver. The judgment of a learned single Judge of this Court in United India Insurance Company Limited vs. Syed Anwar Ali4 also supports this view. The second driver is statutorily covered.

This Court is thus of the opinion that the deceased second driver is covered by the policy in question and therefore, this Court does not find any infirmity in the order passed by the Commissioner for Workmen's Compensation, Kadapa. As no arguments were advanced on the other points 4 2003 (6) ALD 174

like wages, age etc., this Court is also not going into these issues. Although a point relating to the interest is raised, this Court finds that the award of interest is in tune with the provisions of the Workmen's Compensation Act and also the decisions of the Hon'ble Supreme Court of India starting from Ved Prakash Garg v. Premi Devi and others5 and other subsequent judgments.

The learned counsel for the appellant also pointed out that the policy is subject to the Indian Motor Tariff (IMT) conditions and drew the attention of this Court to the policy which stated that the policy is subject to the Rules 7, 21, 20 and 17 of IMT 2002. He also drew the attention of this Court to IMT 17 and argued that the personal accident coverage to the paid drivers, cleaners and conductors can only arise when the additional premium is paid. He therefore argued that unless the additional premium is paid by the drivers, cleaners and conductors, they are not eligible for claiming compensation nor is second opposite party/appellant liable to pay compensation because of the restrictions contained in the policy.

In reply thereto, learned counsel for respondents/applicants argued that under Section 147 of M.V. Act for payment of compensation up to the limits specified and as per the Workmen's Compensation, there is no need for payment of premium for the category of 5 AIR 1997 SC 3854

employees mentioned in Section 147 of M.V. Act for the statutory coverage to claim compensation as per the Workmen's Compensation Act. If the owner wanted to pass on a greater benefit and also coverage over and above the provisions of Workmen's Compensation Act, then IMT 17 would apply for which specific preium is payable. The learned counsel for the respondents/applicants pointed out that as per the Workmen's Compensation Act, for the loss of one eye, the percentage of loss of earning capacity is fixed as 40%, but under IMT 17, the scale of compensation is fixed as 50%. Similarly, he argued that loss of one limb and one eye in IMT 17, the scale of compensation is 100% and the same differs from the schedule 1/2 of the Workmen's Compensation. Therefore, his argument is that for payment of compensation under IMT 17, additional premium is necessary since it allows for claiming of compensation at a rate and for reasons which are different from the schedule etc., as fixed under Workmen's Compensation Act.

The words used in IMT-17 are clear "in consideration of the payment of additional premium it is hereby understood and a agreed that insurer undertakes to pay compensation on the scale provided below" and also whilst mounting or dismounting from or travelling in the insured vehicle and caused by violent external means. This argument of respondents/applicants is convincing to this Court and as compared to the argument

advanced by learned counsel for appellant.

If additional premium is paid, the scale of compensation as fixed under IMT 17 dehors the provisions of Workmen's Compensation Act is payable for certain accidents as specified therein. In the case on hand, the compensation is claimed as per the Workmen's Compensation Act. Therfore, IMT 17 will not really apply.

For all the above reasons, this Court finds that there are no valid grounds made out in the appeal and the same is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs. As a sequel, miscellaneous Petitions, if any, pending in this appeal shall stand closed. ___________________________ D.V.S.S. SOMAYAJULU, J Date: 13.04.2018 Isn