K. Sreedhar Rao, J.
1. The insurer has taken permission under Section 170 of the Motor Vehicles Act, 1988 and has filed this appeal seeking avoidance of liability on the ground that the cleaner is not covered under the policy and also challenged the quantum.
2. The petitioner in M.V.C. No. 128 of 1999 is a cleaner in a public service bus. He sustained fracture of acromial end of left clavicle and fracture of ulna on the right fore arm. The total body disability to be assessed at 5%. The income of the petitioner to be assessed at Rs. 2,000/-per month.
3. Petitioner is entitled to a sum of Rs. 40,000/- for pain and agony, Rs. 10,000/- for medical and incidental expenses, Rs. 10,000/- for loss of amenities and discomfort, Rs. 20,400/- (100 x 12 x 17) for loss of future income on account of disability and Rs. 6,000/- for loss of income during laid up period. In all the petitioner is entitled to a compensation of Rs. 86,400/- with interest at 6% p.a. from the date of petition till payment as against Rs. 1,56,600/- with interest at 8% p.a. awarded by the Tribunal,
4. The petitioner is said to be a cleaner. The policy of insurance marked at Ex. R.1 shows coverage for the paid driver/conductor/ workman No. 2 and a premium of Rs. 307- is collected. The Supreme Court in Ramashray Singh v. New India Assurance Company Limited and Ors. : (2003)IIILLJ740SC , has observed that the insurer is at liberty to cover the risk of employees other than the driver, conductor, cleaner and the ticket examiner by a special contract. The contention that the premium of Rs. 30/- collected would only satisfy the liability of the driver and conductor and therefore, there is no coverage for cleaner is an untenable argument.
5. When the terms of policy covers the risk of other employees in addition to the statutory coverage and the premium collected for such special coverage is not proportionate to the premium prescribed in the Tariff Regulations, it is not necessary that the liability of the insurer should be judged from the point of the premium collected. 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. It is also possible that lesser premium might have been collected by mistake or inadvertently. If there is conflict between the terms of policy and the amount of premium collected, the terms of policy shall prevail. In the instant case, the terms of policy covers two more employees in addition to driver and conductor by way of a special contract. No doubt for a passenger vehicle, there is no statutory coverage for a cleaner. But when two additional workmen are covered by a contractual liability, the liability of a cleaner would get included in the special coverage of two more workmen.
6. In that view, the insurer is liable to pay the compensation as per the terms of the Workmen's Compensation Act, 1923.
7. The reckonable income of the petitioner is Rs. 1,200/-. The relevant factor is 219.95. The disability being 10%, the liability of the insurer is Rs. 26,394/- rounded off to Rs. 26,400/- with interest at 12% p.a. from 2-12-1998 till payment. The balance of compensation shall be payable by the owner.
The amount in deposit to be transferred to the Tribunal for payment.