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New India Assurance Co. Vs. Budhei Bewa and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 261 of 1977
Judge
Reported inAIR1985Ori191
ActsMotor Vehicles Act, 1939 - Sections 95 and 95(1); Workmen's Compensation Act, 1976
AppellantNew India Assurance Co.
RespondentBudhei Bewa and ors.
Appellant AdvocateP. Roy and ;M. Sinha, Advs.
Respondent AdvocateP.K. Misra, ;J.K. Tripathy, ;B.K. Pal, ;N. Prusty and ;B. Pal, Advs.
DispositionAppeal allowed
Cases ReferredOriental Fire and General Insurance Co. Ltd. v. Gurdev Kaur
Excerpt:
.....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]. - 3, it has been clearly stated in paras 6, 11 and 26 that the deceased was employed as a workman under the registered owner benudhar behera on daily wage basis......for the appellant is that the policy of insurance which is ex. a in this case being a third party insurance taken out under sub-section (1) of section 95 of the motor vehicles act, it covers liability in respect of the workman to the extent as provided in workmen's compensation act. it is relevant to quote section 95 of the motor vehicles act in this connection : --'95. 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.....
Judgment:

P.C. Misra, J.

1. This appeal arises out of the judgment of the Motor Accident Claims Tribunal, Dhenkanal in Motor Accident Claim Misc. Case No. 6 of 1974. The petitioners before the Tribunal were the widow and the children of deceased Bidura Behera who claimed a compensation under Section 110A of the Motor Vehicles Act.

2. The case of the petitioners, in short, is that the deceased was working as a day labourer in loading and unloading bamboos in the truck bearing registration No. ORC/4925. On 13-5-74 at about 7.00 p.m., the deceased was proceeding to Hindol Road Railway Station depot in the truck to unload the bamboos. The truck had to pass through the western level crossing of the railway line and while going through the said level crossing a railway engine running without light andwhistle dashed against the aforesaid truck as a consequence of which the truck was dragged on to a distance and resulted in instantaneous death of the deceased. It was claimed that at the relevant time, the deceased was 35 years old and was having a monthly income of Rs. 150/-. A total compensation of Rs. 35,500/-was claimed deducting Rs. 500/- paid by the Railway to meet the funeral expenses of the deceased. Opposite Party No. 1 is the South Eastern Railway. The vehicle having been registered in the name of Opposite Party No. 2, he was impleaded and it is said that Opposite Party No. 3 had temporarily become the owner of the vehicle at the relevant time. Opposite Party No. 4 is the driver of the truck and Opposite Party No. 5 is the Insurance Company.

3. Opposite Party No. 1 filed a written statement contending that no liability can be fixed against the Railway and the claim is thoroughly misconceived. It was also stated that the driver of the truck was expected to stop the vehicle and watch if any train was approaching specially because of the fact that it was an unmanned level crossing. It was further pleaded that the engine while moving was giving whistle and the driver of the vehicle should have been more careful.

4. Opposite Party No. 3 filed a written statement and disputed the claim of the petitioners on various grounds. The occurrence of the accident was admitted, but it was contended that the accident was caused due to the negligence of the Railway administration. Opposite Party No. 3 further pleaded that if at all any liability was to be found, opposite party No. 2 being the real owner of the vehicle would be liable and not Opposite Party No. 3. According to him, he was looking after the truck at times and used to transport his goods on payment of higher charges. The deceased was a Watchman under Opposite Party No. 2, the registered owner. The age of the deceased at the time of his death was also disputed and it was said that he was 50 years old at the relevant time. As to his income, it was contended that his daily income was Rs. 3/-and he was contributing Rs. 90/- per month to his family. That the level crossing was unmanned was admitted by Opposite Party No. 3, but his case was that the railway engine was moving without any light and it being a dark night, the driver of the truck could notget the slightest indication of the railway engine which was moving on the line.

5. The other Opposite Parties do not appear to have filed any written statement.

6. The learned Accident Claims Tribunal after examining the evidence adduced by both the parties allowed a compensation of Rs. 18,940/- to the petitioners. It was conceded at the trial that no compensation could be claimed against the Railway, Opposite Party No. 1. The claim was, therefore, allowed on contest against Opposite Party No. 3, and ex parte against Opposite Party No. 5. It was ordered that Opposite Party No. 5 being the Insurance Company, shall pay the compensation of Rs. 18,940/- to the petitioners together with future interest at the rate of 6% per annum from the date of judgment till the date of payment.

7. The Insurance Company impleaded as Opposite Party No. 5 in the Court below is the appellant in this appeal. It has been urged on behalf of the appellant that the deceased was a workman as defined in the Workmen's Compensation Act and the liability of the Insurance Company could not be more than the amount permitted in the Schedule given in the Workmen's Compensation Act.

Before proceeding to discuss about the merits of the contention of the appellant, the findings of the Accident Claims Tribunal may be summarised as follows : --

(i) The truck driver was rash and negligent for the unfortunate accident and as such, the owner of the vehicle is vicariously liable for compensating the petitioner. The Opposite Parties Nos. 2 and 3 being the permanent and temporary owners of the vehicle would be liable to pay the compensation. The age of the deceased at the time of death was about 40 years and his contribution to the family was at the rate of Rs. 90/- per month.

(ii) The deceased could have contributed to the family at the aforesaid rate for a period of 20 years and the compensation works out to Rs. 21,600/- in all, but taking into consideration the various other factors, the compensation is reduced by 10% and further reduced by Rs. 500/- which the petitioners have received from the Railways. Thus, the total compensation payable is Rs. 18,940/-.

(iii) Even Opposite Parties Nos. 2 and 3 arevicariously liable for payment of the aforesaid compensation, it was covered by insurance as per Ext. A with the Insurance Company, Opposite Party No. 5. The liability will pass on to the Insurance Company under Section 95 of the Motor Vehicles Act.

8. There has been no appeal by the owners, Opposite Parties Nos. 2 and 3 against the aforesaid judgment of the Accident Claims Tribunal. Thus, the finding of the Tribunal as to the manner in which the accident took place, the liability of Opposite Parties Nos. 2 and 3 and the quantum of compensation on the basis of the monthly contribution of the deceased at Rs. 90/- to his family stands unchallenged and has become final as between the parties.

9. The Insurance Company in this appeal disputes its liability on the ground that the deceased was an employee of the registered owner on daily wage basis and therefore he comes within the definition of 'Workman' as given in the Workmen's Compensation Act. It is contended that the liability of the Insurance Company is limited to the compensation permissible under the Workmen's Compensation Act as the deceased was a workman and died in the course of his employment.

10. The primary question that falls for consideration is as to whether the deceased was a workman as defined in the Workmen's Compensation Act. The word 'Workman' has been defined in Section 2(1)(n) of the Workmen's Compensation Act, the relevant portion of which is extracted below : --

'(n) 'workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is-

(i) a railway servant as defined in Section 3 of the Indian Railways Act, 1890, not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II,

whether the contract of employment was made 'before or after the passing of this Act and'whether such contract is expressed, or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them.'.

The relevant portion of Schedule II of the Workmen's Compensation Act, 1923 is as follows : --

'The following persons are workmen within the meaning of Section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is- (i) employed, otherwise than in a clerical capacity or on a railway in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle; or.........'

In the application filed by the petitioners, it has been stated that the deceased was a day labourer normally working in the jungle in connection with loading of bamboos in the truck involved in accident. In the written statement of Opposite Party No. 3, it has been clearly stated in paras 6, 11 and 26 that the deceased was employed as a workman under the registered owner Benudhar Behera on daily wage basis. The learned Tribunal in para 5 of his judgment has come to the conclusion that the deceased was working in the said truck as a labourer being under the employment of the owner. It has been argued by Mr. Misra appearing for the respondents that the deceased was a casual worker and not a workman. From the definition of the word 'workman' in Section 2(n) of the Workmen's Compensation Act, it would appear that the employment of a casual nature by itself is not sufficient to take the deceased out of the definition. In order to take a person out of the 'said definition, it is necessary that two conditions, namely :

(i) that the employment was of casual nature and

(ii) that the employment was for a purpose other than the employer's trade or business, must co-exist.'

It has nowhere been disputed that the employment of the deceased was not for the employer's trade or business. Therefore, the contention of the respondents that thedeceased was not a workman as defined in the Workmen's Compensation Act merits no consideration.

The aforesaid exposition of law finds support from the decisions reported in 1968 ACJ 73 : (1968 Lab IC 748) (Mys), Narayan Laxman Mulerkhi v. Post Master General, Bangalore and 1973 ACJ 432, Jasimuddin v. Hafiza Bibi. In the decision reported in 1975 ACJ 196 : (1976 Lab IC 371) (Ori), Orissa Co-operative Insurance Society Ltd. v. Sarat Chandra Champati, Sri S.K. Ray, J. (as he then was) held that a 'Khalasi' who was employed for the purpose of loading and unloading of the truck was a 'workman'.

11. The next contention of Mr. Ray, learned Counsel appearing for the appellant is that the policy of insurance which is Ex. A in this case being a third party insurance taken out under Sub-section (1) of Section 95 of the Motor Vehicles Act, it covers liability in respect of the workman to the extent as provided in Workmen's Compensation Act. It is relevant to quote Section 95 of the Motor Vehicles Act in this connection : --

'95. 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. XX XX XX'

The rest portion of the section is not necessary for the purpose of the present case. A plain reading of the said sub-section indicates that a policy of insurance which has been granted to comply with the requirements of Section 95(i) shall not be required to cover liability in respect ofthe death arising out of and in course of the employment, of an employee of a person insured by the policy or in respect of bodily injury sustained by such employee arising out of and in course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 in respect of the death or bodily injury to any such employee. It means that the 'Act policy' must cover the liability which would arise under the Workmen's Compensation Act. Thus, Section 95 of the Motor Vehicles Act creates a statutory duty upon the Insurance Company to indemnify the insured any liability to pay the compensation to its employee which he would have been required to pay under the Workmen's Compensation Act. This position of law has been elaborately dealt with and discussed in the decision reported in 1975 ACJ 196 : (1976 Lab IC 371), Orissa Cooperative Insurance Society Ltd. v. Sarat Chandra, wherein reference has also been made to earlier cases on the subject.

12. Reliance was placed by Mr. P. K. Misra, Advocate for the respondents, that proviso to Sub-section (1) of Section 95 would not apply 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 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. This is exactly what has been provided in Clause (ii) of the proviso to Sub-section (1) of Section 95 of the Act. His contention is that the phrase, 'contract of employment' appearing in the said clause refers to the word Vehicle' and not to the word 'passengers' carried therein. A plain reading of the said clause of the proviso leaves no doubt that the phrase, 'contract of employment' is to be read with the word 'passenger' and not with the word 'vehicle'. It would make no sense at all if the said words are to be read qualifying the word 'vehicle'. If the argument of Mr. Misra is accepted, the normal and ordinary grammatical meaning employed in the statute has to be deviated. In a decision reported in 1967 ACJ 158 : (AIR 1967 Punj & Har 486) (FB), Oriental Fire and General Insurance Co. Ltd. v. Gurdev Kaur, the very same question arose for consideration and theirLordships in unequivocal terms have negatived an identical contention.

13. The amount of compensation in case of death of a workman has to be worked out as shown in Schedule IV of the Act. The monthly wage of the deceased in this case has been determined at Rs. 150/- and therefore Schedule IV of the Act fixes compensation at Rs. 7,000/-.

14. In view of the aforesaid discussion, the liability of the Insurance Company, the appellant, would be Rs. 7,000/- and not Rs. 18,940/-. Thus, the appeal is allowed so far as the liability of the Insurance Company is concerned and the judgment of the Accident Claims Tribunal is modified to that extent. There would be no order as to costs.


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