1. Appellant was the insurer of bus bearing registration No. K.A. 02 9900. The said bus has met with an accident on 7.05.2000, on account of which one Raja @ Raju having sustained fatal injuries, has later succumbed. His legal representatives, respondent 3 to 7 herein, had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short the Act) against the appellant in the Motor Accident Claims Tribunal-V, Bangalore City (for short 'Tribunal') claiming compensation. The Tribunal considering the said claim petition along with another claim petition, filed by another injured person in the said accident, by its common judgment and separate award, has awarded in favour of the L.Rs of Raja @ Raju, Rs. 3,61,400/- with interest at 8% per annum, fastening the liability to pay, on the appellant. Being aggrieved, the appellant has filed this appeal.
2. Heard Sri R. Jaiprakash, learned Counsel for the appellant and Sriyuths Rajanna and Sripad V. Shastry, learned Counsel for the respondents 3 to 7. We also perused the record maintained by the Tribunal.
3. Sri R. Jaiprakash, learned Counsel appealing for the appellant contended that the vehicle involved in the accident is a public service vehicle, the deceased admittedly was a cleaner in the vehicle and hence the appellant was not required to cover the risk of a cleaner under Section 147 of the Act. Learned Counsel relied upon the decision of the Hon'ble Supreme Court in the case of Ramashray Singh v. New India Assurance Co. Ltd and Ors. reported in : (2003)IIILLJ740SC , to contend that the risk of the cleaner working in a public service vehicle cannot be, held to leave been covered under the policy. Learned Counsel contended that the Tribunal without examining the relevant provisions, has illegally fastened the liability on the appellant Learned Counsel submitted that in pursuance of the suo motu order passed by this Court on 27.06.2006, the appellant has produced the policy issued in respect of the said vehicle covering the period from 24.12.1991 to 23.12.2000, from the perusal of which, it is clear that the risk of a person employed as a cleaner is not covered.
4. Per contra, learned Counsel fur respondents 3 to 7 contended that, in the facts and circumstances of the case, considering the cover note issued by the appellant in respect of the vehicle in question, the tribunal is justified in fastening the liability on the appellant. Learned Counsel contended that the appellant having not produced the insurance policy in respect of the vehicle in question before the Tribunal, it is not entitled to produce the same in the appeal. Learned Counsel contended that the appellant has not satisfied the mandatory requirements of Order 41 Rule 27 CPC and hence the policy produced by the appellant should not be considered. Learned Counsel further contended, by relying upon the decision of the learned Single Judge passed in MFA 1266/2004, disposed on 5.1.2006, in the case of Oriental Insurance Co. Ltd. v. Ananda and Anr. that the liability of a cleaner would get included in the coverage of two more workman and hence the appellant - insurer is liable to pay compensation.
5. Considering the rival contentions and the record of the case, the points that arise for our consideration are:
1. Whether the policy produced by the appellant in this appeal can be received on record and considered for deciding the appeal?
2. Whether the risk of a person employed as a cleaner in a public service vehicle is covered under the policy?
3. Whether the Tribunal is justified in fastening the liability on the appellant?
Regarding Point No. 1:
6. With regard to the production of additional evidence in the appellate Court, Sub-rule (1) of Rule 27 of Order 41 of CPC states that, the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, except under certain circumstances enumerated in Clauses (a), (aa) and (b) therein. Said provision enables the appellate court to allow evidence or document to be produced, to enable it to pronounce judgment or for any other substantial cause. The order passed by this Court on 27.06.2006 reads as follows:
Having heard both sides for some time, we feel that it is in the fitness of things to direct the appellant-Insurance Co. to produce the policy in question.
Let that be produced within one week from this date by the counsel for the Ins. Co. Sri Jaiprakash..
Office may list this matter week after next.
(underlining is by us)
It is clear that, the said order has been passed by this Court suo-moto in exercise of the power conferred under Clause (b) of Sub-rule (1) of Rule 27 of Order 41 CPC. Pursuant to the said order, appellant has produced the relevant policy of the vehicle in question. The said order has been passed, in order to enable the Court to pronounce the judgment and for substantial cause. Hon'ble Supreme Court in its decision in the case of P. Purushotham Reddy and Anr. v. Pratap Steels Ltd., reported in : [2002]1SCR586 , considering the scope of Clause (b) of Rule 27 of Order 41 CPC has held as follows:.yet we should not be understood as depriving the High Court of its power to require any document to be produced, or any witness to be examined to enable it to pronounce judgment, or for any oilier substantial cause, within the meaning of Clause (b) of Sub-rule (1) of Rule 27 of Order 41. That power inheres in the Court and that court alone which is hearing the appeal It is the requirement of Court (and not of any of the parties) and the conscience of the Court feeling inhibited in satisfactory disposal of is which rule the exercise of this power.
In the case of K. Venkataramadah v. A. Seetharama Reddy and Ors. reported in : [1964]2SCR35 , Hon'ble Supreme Court has held as follows:.Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other' substantial cause' There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence 'to enable it to pronounce judgment', it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one of allowing additional evidence 'for any other substantial cause' under Rule 27(1)(b) of the Code.
(17) It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any oilier substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. That is why in Parsotim Thakur v. Lal Mohar Thakur the Privy Council while discussing whether additional evidence can be admitted observed:
It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.'
(18) As the Privy Council proceeded to point out:
It may well be that the defect may be pointed out by a party, or that a party may move the Court Co supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands.
Hence, the contention put forth by the learned Counsel for the respondents, has to be held as devoid of merit, in view of the fact that the policy has been produced by the appellant, pursuant to the suo motu order passed by this Court. Consequently the policy can be received on record as additional evidence. Since there is no dispute about the authenticity and custody of the said policy, the same can be considered for deciding the appeal.
Regarding Point Nos. 2 and 3:
7. First petitioner in the Tribunal has deposed as PW 1 and has slated that the 2nd and 3rd petitioners are her minor daughters, that her husband was aged about 33 years at the time his death, was earning Rs. 5,000/- to Rs. 6,000/- per month and was spending upto Rs. 4,000/- for their maintenance. There is no dispute that the deceased was a cleaner of the bus, which was a public service vehicle.
8. Chapter XI of the Act covers the subject insurance of Motor Vehicles against 'Third Party Risks'. Section 146(1) provides that no person shall use a motor vehicle in public, unless there is a valid policy of insurance which complies with the requirements of the chapter. Section 147 mandates the requirements of policies and limits of liability. It stipulates that the insurer shall not be required, to cover the liability in respect of death, arising out of and in the course of employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of or bodily injury to, any such employee engaged in driving the vehicle or if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets of the vehicle or if it is a goods carriage goods being carried in the vehicle or to cover any contractual liability.
9. Considering the said provisions, hi the case of Ramuhray Singh (supra), Hon'ble Supreme Court has held as follows:
10. The appellant's first submission was that Shashi Bhushan Singh was a passenger. The appellant's submission that the phrases 'any person' and 'any passenger' in Clauses (i) and (ii) of Sub-section (b) to Section 147(1) are of wide amplitude, is correct. (See New India Assurance Co. v. Satpal Singh and Ors. : AIR2000SC235 . However, the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely, employees of the insured, in other words, if the 'person' or 'passenger' is an employee, then the insurer is required under the statute to cover only certain employees. As slated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to Section 147(1)(b), it is clear that for the purposes of Section 146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the person insured unless; lust; the liability of the insured arises under the Workmen's Compensation Act, 1923 and second. If the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description of 'any person' or 'passenger'. If this were permissible, then there would be no need to make special provisions for employees of the insured. The there mention of the word 'cleaner' while describing the sealing capacity of the vehicle does not mean that the cleaner was therefore a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmen's Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passenger.
The Tribunal though had framed issue No. 3 with regard to the right of the petitioners to claim compensation, how much and from whom, still by merely noticing that the appellant had issued the policy, it has held the appellant to be liable to indemnify the 1st respondent/owner of the bus. The Tribunal has not considered the admitted fact that the deceased was a cleaner, there was no statutory coverage for a cleaner and in view of the decision of the Hon'ble Supreme Court in Ramashray Singh (supra), the appellant cannot held to be liable to pay the compensation amount awarded by it.
10. The deceased was a cleaner and nut being a driver or a conductor or examiner of tickets, the petitioners could not maintain any claim against the appellant and hence the Tribunal is not jus tilled in fastening the liability on the appellant. Learned Counsel for the respondents 3 to 7 relying on the decision in MFA 1266/2004 disposed of on 5.01.2006 contended that this Court has held that, if the terms of the policy are clear and unambiguous, despite collection of a lesser premium, the liability of the Insurer should be interpreted as per the clear terms of the policy and not by the amount of premium collected. Learned Counsel for the claimants/respondents 3 to 7 contended that, the appellant has collected Rs. 30/- as premium towards employee 1 and 2 and hence the decision in the case cited supra applies and consequently the impugned award fastening the liability on the appellant, as sustainable. We do not find any merit in the contention, considering the fact that there is no statutory coverage for a cleaner. Learned Single Judge in the said case has held that two additional workmen are covered by a contractual liability and hence liability of a clean would get included in the special coverage of two wore workmen and thus the Insurer was liable to pay compensation as per the terms of Workmen's Compensation Act. In the facts and circumstances of this case, there is a clear admission that the deceased was a cleaner in a public service vehicle and since there is no statutory coverage for a cleaner and as there was also no contractual liability undertaken by the appellant, to cover the liability of a cleaner of the bus in question, the decision has no application.
11. For the foregoing discussion and reasons, the appeal is allowed. Consequently the judgment and award passed against the appellant only, is liable to be set aside and is accordingly hereby set aside. The amount if any deposited by the appellant is hereby ordered to be refunded to it. In the facts and circumstances of the case, parties are directed to bear their respective costs.