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British India General Insurance Co. Ltd. Vs. Sabanna Sabanna and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 161 of 1965
Judge
Reported inAIR1967Bom416; (1963)65BOMLR162
ActsWorkmen's Compensation Act, 1923 - Sections 23 and 30; ;Motor Vehicles Act, 1939 - Sections 95(2) and 96(2); Code of Civil Procedure (CPC), 1908 - Sections 47
AppellantBritish India General Insurance Co. Ltd.
RespondentSabanna Sabanna and ors.
Appellant AdvocateD.S. Parikh and ;M.A. Mody, Advs.
Respondent AdvocateR.S. Chitre, ;M.L. Pendse and ;Sudhakaran, Advs.
Excerpt:
.....favour of the applicant and held the insurer liable to pay the sum awarded to the applicant. the insurer appealed. on the questions whether the judgment obtained against the respondent could be enforced against the insurer and whether the appeal filed by the insurer was competent as it was not added as a party to the proceedings before the commissioner :-; that the liability so far as the applicant was concerned was not covered by the policy of insurance as required under section 95(1)(b) of the act, inasmuch as none of the conditions mentioned in the first part of the proviso to section 95(1) was fulfilled and, therefore, the judgment could not be enforced against the insurer, and;that it was competent to the insurer to appeal against the order of the commissioner by virtue of section..........notice was not valid. the company pointed out that the policy covered the risk in respect of the insurer's liability arising out of the use of the vehicle in public places only. the third contention in the alternatives was that by virtue of the terms of the policy the company is entitled to recover the sum awarded from the insured section 96(3) of the motor vehicles act. no application was made by the insurance company for being added as a party.(4) appropriate issues were raised and the commissioner held that sabanna was employed by krishna nair and that he received the injury by an accident arising out of and in the course of his employment. the commissioner further held that sabanna fell within the wage-group of 80-100 rupees. he also held that the extent of his loss of earning.....
Judgment:

(1) This is an appeal by the British India General Insurance Co. Ltd. against the order passed by the Commissioner for Workmen's Compensation awarding a sum of Rs. 5,880, Rs. 150 for costs + Rs. 1,000 for penalty against Opposite Party No. 2 (who would hereafter be called Krishna Nair) The material facts leading to the application for compensation may be stated as follows:-

(2) One Sabanna was employed by Krishna Vulcanising Works, of which Krishna Nair is the propritor, for doing the work of loading stones at the quarry. On 23-1-1964 while Sabanna was loading stones in the truck belonging to Krishna Nair, a stone flew off from the quarry where the process of blasting was going on, and hit his leg Sabanna was hit by stone on his leg resulting in a severe injury . Sabanna was admitted in the Lokmanya Tilak Hospital at Sion. His leg eventually came to be amputated. Sabanna, therefore, made an application before the Commissioner for Workmen's Compensation for awarding him a sum of Rs. 6,860. Originally the application was filed against one Bhaskaram Nair who was described as the proprietor of Krishna Vulcanising Works. Bhaskaram Nair, by hiw written-statement, denied having employed Sabanna at any time. He also asserted that he was not a proprietor of Krishna vulcanising Works. He also stated that he was not the owner of the truck BMQ 2027. In view of the contentions raised by Bhaskaran Nair, Krishna Nair came to be added as the proprietor of Krishna vulcanising Works. Krishna Nair by his written-statement contended that Sabanna was not employed by him as a workman and that Sabanna was an independent contractor with 7 person working under him. He did not however, deny that lorry No. BMQ 2027 belonged to him. He admitted that the lorry had gone to the Nenshi Munshi Quarry for transporting stones thereforem. According to him, blasting operations were going on in the quarry and a stone flew accidently from the blasting and hit the applicant's leg. According to him, the accident did not arise out of and/or in the course of the employment. It may be mentioned that Sabanna had asserted that he fell within the wage group of 100-150 rupees Krishna Nair denied that Sabanna fell within the wage-group of 100-150 rupees. According to him, his wages did not exceed Rs. 60 per month.

(3) ON 9-12-1964, a notice was issued to the British General Insurance Co (hereinafter to be called 'the insurer') under Section 96(2) of the Motor Vehicles Act. The Company appeared on 14-12-1964 and raised a number of contentions. The first was that the notice was not maintainable in law as the accident did not fall within the purview of the liabilities mentioned in Section 95 of the Motor Vehicles Act and also because the workman was not carried in the vehicle. The second contention was that the alleged accident took place at a private place, and therefore, the notice was not valid. The Company pointed out that the policy covered the risk in respect of the insurer's liability arising out of the use of the vehicle in public places only. The third contention in the alternatives was that by virtue of the terms of the policy the Company is entitled to recover the sum awarded from the insured Section 96(3) of the Motor Vehicles Act. No application was made by the Insurance Company for being added as a party.

(4) Appropriate issues were raised and the Commissioner held that Sabanna was employed by Krishna Nair and that he received the injury by an accident arising out of and in the course of his employment. The Commissioner further held that Sabanna fell within the wage-group of 80-100 rupees. He also held that the extent of his loss of earning capacity came to 70 per cent and consequently. awarded Rs. 5,880 along with costs and an additional sum of Rs. 1,000 by wavy of penalty. It is against that order that the insurance company have come up in appeal.

(5) Mr. Pendse, who appears for Krishna Nair the insured, has raised a preliminary objection that the appeal does not lie. Mr. Chitre, who appears for Sabanna, supports Mr. Pendse on this contention, I propose to discuss this question, not as a preliminary objection, but while discussing the other questions of law that arise in this appeal. For the time being, it is sufficient to note that Krishna Nair did not press the contention originally raised by him in his written-statement, viz., that Sabanna was not his employee. In his deposition he admitted that Sabanna was engaged by him for doing the work of loading and unloading lorry belonging to them. Before discussing the questions of law arising in this appeal, it may be necessary to refer to two points. They are hardly disputed. The first is that it is not Sabanna's case that he suffered the accident while he was being carried in the lorry. There is also no dispute that he suffered the accident near the site of the quarry. It is nobody's case that the accident took place on a public road. It appears that a stone flew from the quarry while Sabanna was engaged in the process of loading the lorry with stones on the site of the quarry. It is in the light of these facts over which there is no dispute that we have to consider the questions of law raised in this appeal.

(6) Section 94 of the Motor Vehicles Act lays down that no person can be allowed to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle a policy of insurance complying with the requirements of this Chapter Section 94 lays down the necessity for insurance against third party risk. Section 95, sub-section (1) speaks of the requirements of policies and the limits of the liability. Section 95 runs thus:

'(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-

(a) is issued by a person who is an authorised insurer. . .

(b) insures the person or classes of person specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place.'

Then there is the important proviso which runs thus-

'Provided that a policy shall not be required

1. to cover liability in respect of the death, arising out of and in the course of his employment, of the e employee of a person insured by the policy or in respect of bodily injury sustained by such an e employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee-

(a) engaged in driving the vehicle, or

(b) . . .

(c) if it is a good vehicle, being carried in the vehicle, or

(ii) . . .

(iii) . . . .

2. Subject to the provisio to sub-section (1) a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely:-

(a) Where the vehicle is a goods vehicle limits of twenty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to employees (other than the driver), not exceeding six in number, being carried in the vehicle;

(b) . . .

(c) . . .'

The provisions of Section 95 are of mandatory character. The policy of insurance must fulfil the conditions laid down in Section 95. The first condition is that the insurer is an authorised insurer and the second is that the insurance relates to the person or classes of persons specified in the policy to the extent set out in sub-section (2).

(7) Liability,. referred to in Section 95, of the insurer is in respect of the death or bodily injury to a third party who has been mentioned in the policy or class of persons as described in the policy. The proviso to Section 95 (1) relates to the case of the e employee of the insurer. Under the provisions of the Workmen's Compensation Act, 1923,. the employer is liable for compensating the loss arising out of the death or the bodily injury sustained by an employee when that death or injury have arisen out of or in the course of the employment. The proviso thus is intended to extent the scope of the liability placed on the insurance company. The proviso covers the case of teh insured. named individually and also as a class and the insurance company is rendered liable for the injury sustained by the e employee of the insured in the course of the employment . Certain conditions, however, have been laid down before attracting the first part of the proviso. The first one is that the e employee must have been engaged in driving the vehicle. The second is, if it is a public service vehicle, then the person is engaged as a conductor of the vehicle or in examining tickets on the vehicle. The third is if it is a goods vehicle, the person is question in the present case is a goods vehicle. Sabanna was not engaged in driving the vehicle, nor was he being carried in the vehicle at the material time. Therefore, neither the first nor the third condition is fulfilled I have already pointed out that it is an admitted fact that Sabanna suffered the injury while he was engaged in loading the truck with stones. That means he was not being carried in the vehicle at the relevant time Sub-section (2) was relied by mr. Parikh in support of his contention, viz., that unless the number of persons engaged in the work is specified as six, provisions of Section 95 would not be attracted. According to him the policy of insurance must mention that the number of persons engaged does not exceed six. I am unable to accept this line of argument. All that sub-section 2(a) Provides is that the upper limit of the liability arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, employees must be confined to the number of injured persons not exceeding 6. We are not concerned to see what was the number of persons employed by the employer in the particular operation. Mr. Parikh conceded that it is not necessary that the names of the workers be stated in the policy. That means that whatever the number of persons employed and whatever the number of persons who have actually suffered death or bodily injury, the liability in respect of death or injury does not extent beyond 6 persons.

(8) That takes me to Section 96. Section 96(1) provides:

' If after a certificate of insurance has been issued under su -section (4) of Section 95 in favour of the person by whom a policy has been effected judgment in respect of any such liability as is required to be covered by a policy under c. (B) of sub-section (1) of Section 95 (being a liability covered by the terms of the Policy) is obtained against any persons insured by the Policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.

2. No sum shall be payable by an insurer under sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings, in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, viz.:-

(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed or that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of Section 105 or

(b) that there has been an breach of a specified condition of the policy, being one of the following conditions, namely:-

(i) a condition excluding the use of the vehicle-

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organised racing and speed testing, or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

(d) without side-car being attached, where the vehicle is a motor cycle; or

(ii) a condition excluding driving by a named person or persons or by any person who is not dully licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or

(iii) a condition excluding liability for injury caused or contributed to by conditions of war civil war, riot or civil commotion; or

(c) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular. ' Section 96(1) provides that if any judgment had been obtained against the insurer in respect of a liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 95 (being a liability covered by the terms of the policy) in which case the insurer shall be liable to pay to the persons entitled to the benefit of the decree, the sum not exceeding the sum assured, as if he were the judgment-debtor in respect of the liability. That means that although the insurer has not been added as a party to a proceeding where a judgment has been obtained only against the insured the insurer would still be liable to make payment to the extent of sum assured as if the decree has been passed against him, provided that the judgment is in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 95. In other words, the main question for consideration is whether the judgment has been obtained in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 95 (being a liability covered by the terms of the policy). That means that in the first place it must be a liability covered by the terms of the policy. In the second place, it must be a liability which is required to be covered by a policy under clause (B) of sub-section (1) of Section 95. Clause (b) of Section 95 (1) must be read along with the proviso, Clause (b) of Section 95(1) generally provides that the policy must be one which insures the person or classes of persons specified in the policy against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place. The words 'any person' are significant. The liability arising out of death or bodily injury suffered by any person out of the use of vehicle would be covered by the insurance of a particular person or classes of person specified in the policy upto the particular limit mentioned in sub-section (2). The proviso extends the scope of insurance risk to another category of persons, namely to those who are the employees of the insured and in respect of whom the insured is under aq liability to pay compensation under the Workmen's Compensation Act. The proviso therefore, lays down that if the risk is to extend to an e employee of the insured then certain conditions laid down therein must be fulfilled. The relevant condition with which we are concerned in this case is laid down in clause (c) of the first part of the proviso which says that he, i.e. injured person must be carried in the vehicle. This condition is not fulfilled in the present case. That being the case, the liability so far as the present e employee is concerned cannot be said to have been covered by the Policy as required under clause (b) of sub-section (1) of Section 95. If that condition is not fulfilled, then it follows that the judgment cannot be enforced against the insurer as if he were a judgment-debtor. We are not concerned in this case with the question as to whether the insurer would be liable in any other proceedings. The only question for consideration is whether the judgment obtained against the insured can be enforced against the insurer, i.e. the Insurance Company. In my opinion, it cannot be enforced against the said company.

(9) I will now consider the questions to whether it would be open to the insurance company to prefer an appeal from the judgment against the insured. For this purpose we have to consider the provisions of sub-section (2) of Section 96. Sub-section (2) in substance provides that the judgment cannot be enforced against the insurer unless(1) before or after the commencement of the proceedings in which the judgment is given the insurer had notice, or (2) in respect of any judgment so long as execution is stayed thereon pending an appeal. That means that the notice can be given before the starting of the proceedings or after the commencement of the proceedings, but before the judgment is deliverd, or it can be given after the judgment ahs ben given and the execution has been stayed pending an appeal. In the present case the notice of proceedings has been given to the Company, after the proceedings were commenced but before the delivery of judgment. Now the last clause of sub-section (2) of Section 96 provides that the insurer to whom notice had been given relating to the commencement of the proceedings, shall be entitled to be made a party thereto. In the present case after the notice was given, the Company appeared and put in a written-statement contending that the Company is not liable by reason of the fact that the incident is not in respect of the liabilities mentioned in Section 95 of the Motor Vehicles Act and that the accident has taken place in a private place. It is true that the Company has not prayed that it should be added as a party to these proceedings. Mr. Pandse contended that unless the insurance company, to whom notice of the commencement of the proceedings has been given asked for being added as a party, they cannot be treated as parties to the proceedings and it is only parties to the proceedings who have a right to prefer an appeal. In considering this aspect of the argument, it is necessary to note that although the insurer has a right to get himself added as party to the proceedings, his right to defend the action is restricted within the ambit of clauses (a) to (c) of sub-section (2). The only defences which are open to it have been set out in clauses (a) to (c). No other defence is open to the Insurance Company in spite of the fact that it has been added as a party to the proceedings at its own instance. The defence which the insurance company has raised in clauses (a) to (c) of sub-section (2) of Section 96. The defence raised by him is of a fundamental character. It is clear that the defence which the insurer has now raised in appeal would also be open to him in execution proceedings. That being the case, the only question to be considered is whether the insurance company can raise the same question by preferring an appeal. Provisions of the Code of Civil Procedure are not applicable except to the extent laid down in Section 23 of the Workmen's Compensation Act. Under Section 23 of the said Act, the Commissioner has been given powers of a Civil Court under the Code of Civil Procedure for purposes of taking evidence on oath and enforcing the attendance of the witness and compelling the production of documents and material object. The section further provides that the Commissioner shall be deemed to be a Civil Court for the purposes of Section 195 and of Chapter XXXV of the Code of Criminal Procedure, 1898. Similarly there is no provision in the Workmen's Compensation Act as to who has a right to prefer an appeal from the order passed by Commissioner. Workmen's Compensation Act. Section 30 only speaks about the forum to which an appeal lies and the scope of the appeal. Decisions on questions relating to execution discharge or satisfaction of a decree under Section 47. C. P. C., are appealed by the decree-holder or judgment-debtor. Section 96(2) places the insurer on the same footing as a judgment-debtor. In Section 96(2) the insurer is referred to as if he were a judgment-debotr. That being the case it would be open to the insurer to prefer an appeal instead of raising the contention in execution proceedings. There would be some difficulty in the ways of the insurer in raising the question which he has raised in this appeal in execution proceedings. The learned Commissioner for compensation has decided the question relating to the extent of the liability of the insurer although he has not referred to the contentions put in the written-statement by the insurer and although the insurer has not been added as a party. I must, therefore, hold that the appeal is competent.

(10) The result is that the appeal succeeds. The order of the Commissioner holding the insurance company liable to pay to the applicant the sum awarded in the order on the basis of the judgment in his favour, is hereby set aside. The question as to whether the Insurance Company is liable in other property constituted proceedings between the insurer and the insured is left open. In the peculiar circumstances of the case. I direct the parties to bear their costs. The Insurance Company is at liberty to withdraw the amount deposited by them for the purposes of enabling them to prefer the present appeal.

GK/MVJ/D.V.C.

(11) Appeal allowed.


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