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The New India Assurance Co. Ltd. Vs. Chairman, Board of Directors, Orissa Mining Corporation Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtOrissa High Court
Decided On
Case NumberA.H.O. No. 44 of 1975
Judge
Reported inAIR1977Ori91; 43(1977)CLT201
ActsMotor Vehicles Act, 1939 - Sections 95; Orissa Motor Vehicles Rules, 1940 - Rule 95
AppellantThe New India Assurance Co. Ltd.
RespondentChairman, Board of Directors, Orissa Mining Corporation Ltd. and ors.
Appellant AdvocateG.B. Mohanty, Adv.
Respondent AdvocateJ.K. Mohanty, ;S.C. Ray, ;R. Mohanty and ;N. Patra, Advs.
DispositionAppeal dismissed
Cases ReferredJayalahshmi v. Ruby
Excerpt:
.....smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - keeping in view the normal consideration of age, earning, size of the family, service prospects and the like, and giving discount for the normal deductions, we do not think, the assessment of compensation at rs. in fact, the tribunal while quantifying compensation nowhere clearly indicated that he took into account the prospects of future promotion. 4,900/-,on the other hand, ext, 1/a clearly specifies that the board of directors of the corporation have decided to pay a compensation of rs. in these circumstances, we have not though it either necessary or useful to make reference to the citations,..........policies and limits of liability--(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; or by a co-operative society allowed under section 108 to transact the business of an insurer, and(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place......
Judgment:

K.N. Misra, J.

1. The Insurer has carried this Letters Patent Appeal against the appellate decision of a learned Single Judge arising out of a claim under the Motor Vehicles Act. The owner of the vehicle has filed a memorandum of cross-objection.

2. The following facts are no more in dispute. The Orissa Mining Corporation Limited (hereinafter called the Corporation) owns two mines namely Uliburu Chromite Mines and Sakradihi Chromite Mines -- Both located within the district of Keonjhar. A private carrier truck bearing registration number ORJ 1377 of which the Corporation was the registered owner had been allotted to the Sakradihi Chromite Mines. One K. R. Dora, the deceased, employed as Mines Manager under the Corporation was the Manager of the Uliburu Chromite Mines. On 25-2-1964, Dora had come to Barbil to encash certain bills relating to his mines. While returning from Barbil, he found the aforesaid truck at Barbil and on his request, the driver of the truck accommodated him for the return journey. Though there is an independent route from Barbil to Sakradihi, the truck proceeded to Uliburu to drop Dora at his place. On the way from Barbil, the truck met with an accident which led to the death of Dora.

The legal representatives of Dora claimed compensation of Rs. 70,000/- in a proceeding under the Motor Vehicles Act before the Claims Tribunal and im-pleaded the Corporation as also the present appellant who was the Insurer of the vehicle as respondents in the case.

3. The Corporation denied its liability by contending that Dora had boarded the truck of his own accord and was not travelling in course of employment. The claim laid by Dora's heirs did not come within the purview of the Workmen's Compensation Act or the Fatal Accidents Act. Notwithstanding this position in law, the Corporation has already granted ex gratia payment of Rs. 3,900/- to the legal representatives of the deceased. The truck was insured only against third party risk and Dora being a passenger in the truck was not covered by the risk.

The truck was insured with the Orissa Co-operative Insurance Society Limited against third party risk only. The original insurance had been made in 1962-63 and at the relevant time the renewed policy was in force. The Insurer took the plea that death did not arise out of, and/or in course of, employment under the insured and, therefore, the insured had no liability to compensate and the Insurer had also no liability to meet the compensation either in whole or in part. Insurance being against third party risk only, Dora was not covered by the insurance and the claimants had thus no cause of action against the Insurer.

4. Before the Claims Tribunal, all parties led oral and documentary evidence. The Tribunal came to hold that the deceased was travelling in the truck in course of employment; the vehicle was driven in a rash and negligent manner and the employer was, therefore, liable to compensate for the death. The Tribunal fixed the compensation at Rs. 50,000/-and deducted Rs. 2,900/- out of it as payment already made by the employer to the claimants and quantified the net compensation at Rs. 47,100/-. He further found that the vehicle had an 'Act only Policy' and the Insurer had no liability at all to bear any part of the compensation. Accordingly, the Tribunal dismissed the claim against the Insurer and directed the employer-Corporation to bear the liability of entire compensation of Rs. 47,100/-.

5. Against the Tribunal's decision, Miscellaneous Appeal No. 132 of 1972 wag carried to this court by the employer and the learned Single Judge who heard the appeal formulated four propositions for examination on the basis of the contentions of counsel for parties before him:--

(1) Whether in the facts and circumstances of the case, the master-appellant was vicariously liable for the tortious act of the driver who has been found to be rash and negligent in driving the vehicle?

(2) Whether or not the victim while boarding the truck was doing any act connected with his service under the Corporation?

(3) Whether in view of the clause in the Policy disentitling any employee under the insured to claim damages, the Insurer is liable in law to bear any part of the compensation payable to the claimants?

(4) Whether the compensation awarded is either low or exorbitant so as to call for interference?

The learned Single Judge found that the employer had vicarious responsibility for the tortious act of the driver and that at the time the accident took place, the driver as also the deceased were acting in course of employment. It was further found that the compensation as assessed by the Tribunal was appropriate and out of the compensation, the Insurer had liability to the tune of Rs. 20,000/- as limited fey statute and the balance amount of Rs. 26,100/- (a finding having been recorded that the claimants had been paid Rs. 3,900/- and not Rs. 2,900/-) was to be borne by the employer.

6. Against this decision of the learned Single Judge, the Insurer has carried this Letters Patent Appeal and contends that the Tribunal was right and the learned Single Judge is wrong in fastening liability to it. The employer has preferred a memorandum of cross-objection challenging award of any compensation and alternatively the quantum of it.

7. Three questions arise for consideration:--

(1) Is any compensation payable?

(2) If so, what is the amount? and

(3) Who is to bear the same?

There is no dispute that Dora was an employee of the Corporation which was the owner of the ill-fated vehicle. There is also no dispute' that Dora had gone to Barbil in' connection with encashment of some bills of his mine. Merely because the truck was allotted to the Sakradihi Mines and Dora was manager of the Uliburu Mines, it cannot be said that Dora was not travelling in discharge of his duties under the Corporation at the time the mishap took place. Though counsel for the employer argued that there was no connection between the two Mines as such and they are two independent units of the Corporation, from the standpoint of the Corporation as the common owner of the Mines as also the vehicle, we do not think there could be any force in the submission that the driver had exceeded his authority in taking Dora in the vehicle and Dora was not travelling in discharge of his official duties. We thus agree with the learned Single Judge's conclusion that at the relevant time, Dora was travelling in course of discharge of his duties.

8. The next point for consideration is what would be the appropriate compensation. Dora was a graduate in Geology and had worked under the Universal Mineral Company at Bezwada for about three years before he came to be employed under the Corporation in February, 1960. He was a young man of about 35 and was drawing a salary of Rs. 310/-. His family consisted of himself, his wife and two young children--a son and a daughter. Keeping in view the normal consideration of age, earning, size of the family, service prospects and the like, and giving discount for the normal deductions, we do not think, the assessment of compensation at Rs. 50,000/-is in any manner excessive. In fact, the Tribunal while quantifying compensation nowhere clearly indicated that he took into account the prospects of future promotion. Keeping in view the qualification which the deceased possessed and the prospects of service in the line in which he was serving, we are prepared to agree with Mr. Mohanty for the claimants that the compensation should have been more liberal than what had been assessed. In the absence of any appeal by the claimants, the question of considering the escalation of compensation does not arise. We, however, affirm the finding that compensation payable has been appropriately assessed at Rs. 50,000/-. The Tribunal had deducted Rs. 2,900/- out of it relying on Ext. 1/a. The learned Single Judge has given a further deduction of Rs. 1,000/-on the basis of the award of compensation of Rs. 3,900/- by the Board of the Corporation. It appears, Dora had drawn an advance of Rs. 1,000/- from the Corporation which has also been adjusted. In the written statement, the Corporation had claimed payment of Rs. 4,900/-. Its witness has also stated that way. There is, however, no documentary evidence to justify the claim of payment of Rs. 4,900/-, On the other hand, Ext, 1/a clearly specifies that the Board of Directors of the Corporation have decided to pay a compensation of Rs. 3,900/- out of which Rs. 1,000/- was adjusted. In these circumstances, we would hold that the Corporation had paid Rs. 3,900/- and not Rs. 4,900/- as claimed in the written statement as also in the memorandum of cross-objection in the present appeal, in that view of the matter, the total compensation payable has been rightly reduced by Rs. 3,900/- and an award for Rs. 46,100/- has been passed,

9. Next comes the main question raised in appeal-- the liability of the Insurer to share a part of the compensation in terms of the statutory provision in the Motor Vehicles Act. We have already indicated that a renewed policy was in force at the time of the incident and it is not disputed that Ext. A-1 contained the terms of the policy. Therein, the following endorsement appears;--

'Endorsement No. IMT 2 (a) attaching to and forming part 'of Policy No. 19942.

Liability to the Public Risks Only It is hereby understood and agreed that Section I and Section III of this Policy are deemed to be cancelled.' The Policy Bond has three sections and Section II alone is operative. The heading of that section is Liability to Third Parties'. The material portions of that section may now be extracted:--

'1. Subject to the Limits of Liability the Company will indemnify the Insured against all sums including claimant's costs and expenses which the Insured shall become legally liable to pay in respect of

(i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the Motor Vehicle

(ii) damage to property caused by the use (including the loading and7or unloading) of the Motor Vehicle Provided always that:--

(a) ......... .........

(b) Except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act 1939 the Company shall not be liable in respect of death of or bodily injury to any person in the employment of the Insured arising out of and in the course of such employment.

(c) Except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act 1939 in relation to liability under the Workmen's Compensation Act 1923 the Company shall not be liable in respect of death of or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or mounting or alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises,

(d) ......... .........

(e) ......... .........

(f) ......... .........

(g) ......... .........'

It is thus clear from the Policy Bond that the insurance covers only liabilities included in Section 95 of the Motor Vehicles Act and no other.

10. Section 95 of the Motor Vehicles Act (hereinafter referred to as the Act) provides:--

'Requirements of Policies and limits of liability--

(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; or by a co-operative society allowed under Section 108 to transact the business of an insurer, and

(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)--

(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. /'Explanation-- ...... ...... ...... ......'

Provided that the policy shall not be required--

(i) to cover liability in respect of the death arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an 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) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or

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

(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or

(iii) to cover any contractual liability.'

A Full Bench of the Madras High Court in the case of Jayalahshmi v. Ruby-General Insurance Co., AIR 1971 Mad 143 (FB), analysed the requirements of the section thus:--

'Section 95 (1), Clause (b) makes it the first requirement of a policy under the Act, in general terms, that the policy must be one which insures against any liability 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 second requirement under Clause (b) is that the person or classes of persons who effect insurance are specified in the policy and are insured against the above liability which may be incurred by him or them, that is, the policy gives to such person or persons or to the members of the class of persons specified in the policy the right to enforce against the insurer the undertaking which the policy gives. The third requirement is that the insurance against liability specified in the clause must be to the extent specified in Sub-section (2) of Section 95. Section 95 (1) (b) after imposing an obligation for insurance against any liability which the insurer may incur in respect of the death of, or bodily injury to any person by proviso excepts certain liabilities which because of the use of the words 'death or bodily injury to any person' would otherwise have to be insured against. Generally speaking provisions relating to third party insurance do not extend to persons carried in the vehicle,

The proviso fo Section 95 (1) (b) first brings out that feature and then engrafts exceptions thereon, on the provisos. Proviso (i) exempts from the requirements of insurance cover for liability in respect of death arising out of and in the course of his employment, of the employee of a person insured by the policy, or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment. Proviso (ii) exempts from requirement of insurance to cover liability in respect of the death or bodily injury to persons toeing carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which the claim arises. Proviso (iii) exempts from the requirement of insurance to cover any contractual liability. The proviso without the exceptions or savings from their operation, stated that compulsory insurance need not be effected against liability to voluntary passengers and against liability to persons who would have a claim against the insured as their employer,

The saving clause introduced to proviso (i) provides for compulsory insurance in favour of three classes of persons for liability arising under the Workmen's Compensation Act-- (1) an employee driving a vehicle, (2) conductors and ticket examiners in case of public service vehicle and (3) an employee carried in a goods vehicle......... With the provisos and exceptions therefrom, it specifies what are liabilities that may be incurred in respect of the death or bodily injury to a person arising out of the use of the vehicle which must be covered by insurance for due compliance with the requirements of Ch. VIII.'

We agree with the analysis made by the Full Bench of the Madras High Court of the statutory provision. In the present case, the deceased was not a third party. A claim under the Workmen's Compensation Act so far as the deceased is concerned was not tenable. Undoubtedly, the vehicle in which he was travelling at the time of accident was a goods vehicle and if he was a person entitled to be carried in the goods vehicle, the insurance is bound to cover him,

Rule 95 of the Orissa Motor Vehicles Rules (hereinafter referred to as the Rules) makes provision for carriage of persons in goods vehicles and the following provision appears under the Rule:--

'Carriage of persons in Goods Vehicles--

(a) Save in the case of a stage carriage in which goods are being carried in addition to passengers no person shall be carried in goods vehicle other than a 'bona fide employee of the owner or the hirer of the vehicle, and except in accordance with this rule.

(b) No person shall be carried in the cab of a goods vehicle beyond the number for which there is sitting accommodation at the rate of 45 centimetres measured along the seat, excluding the space reserved for the driver, for each person, and not more than six persons in all in addition to the driver shall be carried in any goods vehicle.

(c) No person shall be carried upon the goods or otherwise in such a manner that such person is in danger of falling from the vehicle, and in no case shall any person be carried in a goods vehicle in such a manner that any part of his person, when he is in a sitting position, is at a height exceeding 3 metres from the surface upon which the vehicle rests.

(d) ...............

(e) Nothing contained in this rule shall be deemed to authorise the carriage of any person for hire or reward on any vehicle, unless there is in force in respect of the vehicle a permit authorising the use of the vehicle for such purpose, end save in .accordance with the provisions of such permit,'

11. Dora was an employee of the owner and, therefore, is covered by Rule 95 (a) of the Rules, It is not the case of the Insurer that at the relevant time more than the authorised number of persons were travelling in the truck. In; these circumstances, we are not prepared to agree with the contention advanced by Mr. Mohanty for the Insurer-appellant that Dora would not be covered by Clause (i) (c) of the Proviso occurring in Section 95 (1) (b) of the Act. At any rate, the Insurer has not been successful to establish the stand that in respect of Dora a statutory insurance would not be necessary. Accordingly, in terms of the condition in the Policy read in the background1 of the statutory provision, the insurance must be held to cover the case of Dora. There is no dispute before us that if Dora's risk would be covered by the Policy, the Insurer's liability under the Act at the relevant time would be Rs. 20,000/-. The learned Single Judge, therefore, rightly apportioned the liability to meet the compensation between the Insurer and the owner of the vehicle, A number of authorities had been cited by counsel for parties before us, but we are of the view that on this elementary analysis of the statutory provision and on a true construction of the terms of the Policy Bond in question, the dispute raised in appeal can be appropriately disposed of Many of the cases cited at the Bar are not relevant and some others were in fact dealing with the statutory provision from a different angle. In these circumstances, we have not though it either necessary or useful to make reference to the citations,

12. The appeal must, therefore, fail and we dismiss the appeal. We direct parties to bear their own costs before us.

13. Before we leave the matter, it is proper to indicate that at one stage, counsel for the claimants and the owner of the vehicle had entered into an agreement of settlement. It appears, however, that the claimants have not ratified the arrangement and it is, therefore, mentioned to us that the same is not enforceable. We have thus not relied upon or referred to the settlement.

N.K. Das, J.

14. I agree.


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