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General Assurance Society Ltd., Madras Vs. N.A. Mohammed HussaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 175 of 1964 and Objections
Judge
Reported inAIR1966Mad388; [1966]36CompCas340(Mad)
ActsMotor Vehicles Act, 1939 - Sections 95, 95(2), 96 and 96(2); Workmen's Compensation Act, 1923
AppellantGeneral Assurance Society Ltd., Madras
RespondentN.A. Mohammed HussaIn and anr.
Excerpt:
.....out of his employment - employer has got liability under general law to pay compensation to injured person - since employer happens to be insured as per provisions of motor vehicles act insurance company has to indemnify employer inspite of fact that there are provisions in policy to exclude liability of this claim - held, insurance company liable to pay compensation not only to owner of vehicle for loss or damage but also to pay compensation to injured person who will be entitled to get compensation under motor vehicles act - appeal dismissed. - - (a) where the vehicle is a good vehicles, a limit 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..........exclusion, under the third party liability, as stated by batten and dindsale in their book 'motor insurance' 3rd edn. at page 182. learned counsel for the appellant has contended that under the provisions of the policy, the liability of the third party is completely excluded not only under the terms of the contract but also under section 95(2) of the motor vehicles act. the injured person has no claim against the insurance company. he has to look for his compensation to the employer that is the insured and he has to take appropriate proceedings under the workmen's compensation act. it is further contended that when there is a definite contract between the insured and the insurance company to exclude certain persons who are employed under him, then such injured persons cannot claim.....
Judgment:

(1) This appeal arises out of an order passed by the Motor Accidents Claims Tribunal (District Judge), Chingleput, awarding compensation in a sum of Rs. 4500 to the first respondent who sustained an injury, in an accident which occurred on 24-12-1961, while he was returning from Nagore to Madras in the delivery van of the second respondent--snuff factory (P) Ltd., MSX 6134, driven by one Jayavelu, and which van has been insured with the appellant, Messrs. The General Assurance Society Ltd, Madras, under a comprehensive policy including third party risk.

(2) Tre General Assurance Society Ltd., have preferred the appeal, on the grounds that they are not liable to pay compensation to the first respondent, that their obligation rests only with recompensing the insured company for the loss or damage caused to the insured car, that the accident did not occur while the first respondent was in the course of his employment and that the injured person was not the third party as per the provision of the Motor Vehicles Act. They further contend that the injured person being a passenger is not a third party and there is no statutory liability on the part of the Insurance Company to give compensation to the insured person and that the policy itself does not cover risk to the passenger of the car.

(3) In the appeal before me, learned counsel for the appellant took me through the relevant provisions of the term of the policy. Sec. II of the term of the policy deals with liability to third parties. Clause 1 is as follows:

'Subject to the limits of the liability the Society 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 (1) death of or bodily injury to any person caused by or arising out of the use...........of the Motor Vehicles:

(ii).....................................

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

Learned counsel for the appellant contends that the insurance company is not liable to pay compensation, according to the provisions of the policy, to the injured person, even assuming that the accident arose out of and in the course of his employment. Further, the injured person is not either a driver or conductor or any person in pursuance of contract of employment travelling in the vehicle at the time of the accident.

(4) It is usual for the insurance companies to insert the above said provisions that is the customary exclusion, under the third party liability, as stated by Batten and Dindsale in their book 'Motor Insurance' 3rd Edn. at page 182. Learned counsel for the appellant has contended that under the provisions of the policy, the liability of the third party is completely excluded not only under the terms of the contract but also under Section 95(2) of the Motor Vehicles Act. The injured person has no claim against the insurance company. He has to look for his compensation to the employer that is the insured and he has to take appropriate proceedings under the Workmen's Compensation Act. It is further contended that when there is a definite contract between the insured and the insurance company to exclude certain persons who are employed under him, then such injured persons cannot claim compensation from the insurance company in respect of injuries caused to them. There may be some force in the contention urged by learned counsel for the appellant; still, we have to consider and examine the provisions in the Motor Vehicles Act, which provide for the insurance of third parties. In this connection, it is useful to refer to the provisions of S. 95 of the Act.

'(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--(a)....... (b) insures the person or classes of person specified in the policy to the extent specified in sub-sec. (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;

Provided that a 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....'

Learned counsel for the first respondent stresses on the words '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.' Sub-sec. (2)(a) of S. 95 is as follows:

'Subject to the proviso to sub-sec (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely;

(a) where the vehicle is a good vehicles, a limit 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';

This section has been introduced by the Amending Act 100 of 1956. The injured person can always get a remedy in the common law to claim compensation for tortious liability. He has also got a further right to claim compensation under the Workmen's Compensation Act. In the instant case, when the injured man is employed under one who has insured his vehicle and when he sustains an injury in the course of an accident to the vehicle, though he has right to get compensation under the Workmen's Compensation Act, it is not necessary for him to go to the Workmen's Compensation tribunal, when he has the right to claim compensation along with his employer under the Motor Vehicles Act. Though the employer has got a liability under the general law to pay compensation to the injured person, since the employer happens to be the insured as in this case, as per the provisions of the Motor Vehicles Act, the insurance company has to indemify the employer, in spite of the fact that there are provisions in the policy to exclude a liability of this claim. It has been specifically stated that under S. 95 of the Act, in order to comply with the requirements of Chapter relating to insurance of Motor Vehicles against third parties, the policy of insurance must be a policy which should comply with the requirements of the Act. Therefore, no useful purpose will be served by inserting in the policy the condition that they are not liable to pay compensation to the persons employed who would be entitled to get compensation under the workmen's Compensation Act. In effect, if the employee is injured in an accident arising out of his employment under the employer, the insurance company is liable to pay compensation not only to the owner of the vehicle for the loss or damage but also pay compensation to the injured person who will be entitled to get compensation, under the Motor Vehicles Act. I am therefore of opinion that under the provisions of the Motor Vehicles Act, the insurance company is liable to pay compensation both to the insured and the injured, of course within the limited liability prescribed under the Act.

(5) It is contended, and rightly in my view, by learned counsel for the first respondent, that the appellant is not entitled to question the award of compensation given by the Motor Accidents Claims Tribunal, in view of the recent decision of the Supreme Court in B.I.G. Insurance Co. Ltd., v. Itbar Singh, : [1960]1SCR168 . It is true that S. 96 of the Act gives the insurance company the right to be made a party to defend the action. But the insurance company cannot avoid its liability, except by establishing such defences as are catalogued in sub-sec. (2). In the instant case, I do not think that the appellant could defend on any of the grounds mentioned in S. 96(2). The principle that has been laid down in the Supreme Court decision is that, on the construction of S. 96(2), the insurance company, whenever they are made a party in a claim petition, have only the defences enumerated in S. 96(2) and beyond that they cannot question the award of compensation. I am, therefore, of opinion that the appellant is liable to pay compensation not only to the owner of the vehicle but also to the employee, who is injured in an accident arising out of his employment, the employee being a person who is entitled to get compensation under the Workmen's Compensation Act.

(6) In the result, the appeal is dismissed.

(7) The injured employee, the first respondent in the main appeal, has preferred a cross-appeal. There appears to be no reason to interfere with the quantum of compensation awarded by the tribunal. The cross objector has claimed enhanced compensation to the extent of Rs. 55,500 on various heads, viz., expenses incurred and liable to be incurred in regard to the injury, pain and suffering inflicted on the victim, loss of time during the cure and permanent injury and consequent pecuniary loss. It is true that the injured person could claim under the Workmen's Compensation Act, under the various heads mentioned in his appeal, as against his employer but not as against the insurance company. Having got a relief under the Motor Vehicles Act, it is not open to him to claim under the Workmen's Compensation Act. Further, he has sailed with his employer in preferring a claim against the insurance company, the liability of which company is limited to the extent prescribed under S. 95(2)(a) of the Motor Vehicles Act. The cross-appeal is also dismissed. There will be no order as to costs in both the appeal and the cross appeal.

(8) Appeal and cross-appeal dismissed.


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