Oral Order :(Per Smt.M.Shreesha, Honble Member)
Aggrieved by the order in C.C.No.158/2005 on the file of District Forum, Nellore, opposite parties 2 and 3 preferred this appeal.
The brief facts as set out in the complaint are that the first complainant is the wife and the second and third complainants are the daughters of late Sekhar Raju who is working as driver of lorry bearing registration no.AP26,WO9 and died in a motor accident on 4.7.2003. Owner of the said lorry insured the said vehicle with opposite parties 2 and 3 company vide policy No. VC 00008291000100 dt.27.2.2003. The policy covers the risk not only of the insured vehicle but also of its driver at the relevant point of time and the liability with regard to the death of the driver is Rs.5 lakhs. On 4.7.2003 while the deceased Sekhar Raju was driving the said vehicle at Sachendi of Kanpur, at about 1 a.m. an unknown truck driver in a rash and negligent manner dashed against the lorry as a result of which the driver died. Thereafter on information, the police registered a case and conducted an investigation and filed the Charge Sheet. The first opposite party sent intimation of the death of the said Sekhar Raju to the second and third opp.parties. The third opposite party sent an acknowledgement dt.24.3.04 containing the claim form with a request to send the claim form complying all the requirements for finalization of the claim of the legal heirs of the deceased driver. The claim form duly filled up with necessary particulars of the legal heirs of the deceased and also the salary particulars of the deceased as driver of first opposite party along with certified copy of the driving license and other relevant documents was submitted to the second opposite party on 10.6.2004 by the complainants and first opposite party. The complainants went to the second opposite party many times and enquired about their claim for which opposite party gave an evasive answer âclaim not yet settled. The complainants sent a representation to the third opposite party on 5.9.2005 with a request to inform them as to the stage of the claim but did not receive any intimation even from the third opposite party. Hence the complaint seeking direction to the opposite parties 1 to 3 to pay the insured amount of Rs.5 lakhs with interest @ 24% p.a. since the date of accident till the realization jointly and severally and to direct the opposite parties to pay a sum of Rs.10,000/- towards mental agony and also towards damages and costs of the petition.
Opposite party no.1 filed counter admitting that he is the owner of the lorry AP26W-09 and the same was insured with third opposite party company and the said policy covers not only the vehicle but also the driver of the vehicle at the relevant point of time. Opposite party submits that he had already sent intimation of death of driver Sekhar Raju to opposite parties 2 and 3 and the third opposite party acknowledged the same on 24.3.04. Opposite party submits that he has furnished the policy number with the insured to the complainants and has discharged his duties as an employer of the deceased and therefore there is no deficiency of service on his behalf and seeks for dismissal of the complaint with costs.
Opposite party no.3 filed counter admitting the insurance policy taken for the lorry by its owner and also death of the driver of the lorry Sekhar Raju in an accident but contends that the District Forum has no jurisdiction to entertain the complaint and it should have been filed before the Commissioner of Labour under Workmen Compensation Act. The opposite party submits that as per the policy conditions only the owner/driver is eligible for personal benefits and the liability of the company is limited to Rs.2 lakhs. The opposite party further submits that since the Forum has no jurisdiction, the complaint is liable to be dismissed .
Opposite party no.2 filed memo adopting the counter of opposite party no.3.
The District Forum based on the evidence adduced i.e. Exs. A1 to A9 and B1 and B2 and pleadings put forward partly allowed the complaint directing the opp.parties 2 and 3 to pay to the complainants insured amount of Rs.2 lakhs along with interest at 9% p.a. from the date of filing of the complaint and no order as to costs.
Aggrieved by the said order opposite parties 2 and 3 preferred this appeal.
The respondents 1 to 3 filed written arguments. Appellants/opposite parties also filed written arguments.
It is the case of the complainants that the insured i.e. opposite party no.1 had taken a comprehensive vehicle policy, the period of coverage being from 20.1.2003 to 19.1.2004 and the personal accident coverage for owner cum driver is for Rs.2 lakhs and that late Sekhar Raju died in a motor accident on 4.7.2003 during the course of his employment while driving the lorry bearing no.AP 26 W09 which is owned by E.Surendra, the insured. The complainants established accident and the death of the driver late Sekhar Raju vide Ex.A3 F.I.R., A7 death certificate and A1 and A2 which are the copies of Panchanama and Panchayatnama. It is the complainants case that Ex.A6 which is the copy of the Certificate of Insurance establishes that the deceased was covered under the insurance policy. It is the case of the appellants/opposite parties that there is no statutory liability on the insurance company and that the statutory liability is under Workmen Compensation Act and it is on the employer and the policy is a matter of contract between the insurance company and the insured. Section 4 of the Policy (Ex.B1) under the heading of the personal accident coverage for owner cum driver states that the compensation is payable directly to the insured only if the owner is driving his own vehicle. There is a clause in the policy i.e. IMT 28 under the heading âLegal Liability to the paid driver or Conductor. Here also the Clause relied upon by the District Forum will not apply to IMT 28. This clause reads as follows:
âThe company shall indemnify the insured against the insureds legal liability under the Workmens Compensation Act i.e. the insured has to satisfy the amount if any and then approach the Insurance Company for indemnification.
IMT 39 reads as follows
â The Company shall indemnify the insured against the legal liability under Workmen Compensation Actâ¦ in respect of the death or bodily injury (other than the paid driver) exceeding six in number.
There is no liability under this Section as six numbers are covered under IMT 39 and in the column âpaid driver/cleaner premium paid is â0. From the conditions in the policy copy Ex.B1 i.e. IMT.28 and 39 it is clear that the employer/insured should satisfy the claims under Workmen Compensation Act and then approach insurer by way of reimbursement.
The District Forum relied on Section 4 of Policy Ex.B1 and has awarded Rs.2 lakhs and this actually falls under Owner cum Driver wherein the liability arises only for personal accident when the owner himself is driving the vehicle which is not the case here. I.M.T.28 and I.M.T.39 reads as follows:
âI.M.T.28 LEGAL LIABILITY TO PAID DRIVER AND/OR CONDUCTOR AND/OR CLEANER EMPLOYED IN CONNECTION WITH THE OPERATION OF INSURED VEHICLE :
In consideration of an additional premium as stated in the schedule notwithstanding anything to the contrary contained in the Policy it is hereby understood and agreed that the company shall indemnify the insured against the Insureds legal liability under the Workmens Compensation Act,1923, the Fatal Accidents Act,1855 or at common law and subsequent amendments of these Acts prior to the date of this endorsement in respect of personal injury to any paid driver and/or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the vehicle insured herein and will in addition be responsible for all costs and expenses incurred with its written consent.â
âIMT 39 LEGAL LIABILITY TO PERSONS EMPLOYED IN CONNECTION WITH THE OPERATION AND/OR MAINTAINING AND/OR LOADING AND/OR UNLOANDING OF MOTOR VEHICLES.
In consideration of the payment of an additional premium as stated in the Schedule, it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the Company shall indemnify the insured against his legal liability under the Workmens Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this Endorsement, the Fatal Accidents Act,.1855 or at Common Law in respect of personal injury to any paid driver ( or cleaner or conductor or person employed in loading /or unloading but in any case not exceeding seven in number ( including driver and cleaner) whilst engaged in the service of the insured in such occupation in connection with the vehicle insured and not exceeding seven in number and will in addition be responsible for all costs and expenses incurred with written consent.â
Therefore we find force in the contention of the opposite party that it is the insured who has to seek settlement of the claim under the Workmen Compensation Act and claim reimbursement from the Insurance Company. Therefore we are of the considered view that the repudiation by the appellants/opposite parties is justified. As per the decision in RAJAK HAJI JUMMA vs. UNITED INDIA INSURANCE COMPANY LTD reported in 1995 (1) LLJ 168 (Bombay) the complainant can very well seek redressal under the Workmen Compensation Act and implead the Insurance Company therein if so advised.
In the result this appeal is allowed and order of the District Forum is set aside and consequently the complaint is dismissed. No costs.