Judgment:
R.K. Abichandani, J.
1. These four appeals raise a common question and are argued together since they arise from the same judgment and award in consolidated claim petitions arising out of a vehicular accident that occurred on 3-9-1992 in the evening around 8.00 p.m. when a jeep car driven by Karansinh Ranarammed into the stationary public carrier which according to the claimants was parked at night without any reflectors or lights to indicate that it was lying on the road in a stationery condition. In the jeep car were travelling one Bhupendrabhai Fulchand Maniyar, a Deputy Executive Engineer who died in the accident and other injured claimants who were the employees of the Gujarat Water Supply and Sewerage Board to which the jeep belonged. The accident had occurred on the Kandla-Ahmedabad National Highway.
2. The Tribunal, on the basis of the material on record, came to a finding that there was negligence on the part of the driver? of both the vehicles. It was held that the driver of the public carrier which was parked on the road, ought to have affixed indicators to show that it was lying there while the jeep driver ought to have stopped his vehicle on seeing the public carrier. The Panchanama Exh. 68 indicates that there were neither reflectors nor back-lights or indicators to show that the public carrier was lying in a stationary condition on the national highway at night. The injured persons who were examined, narrated the incident and the Tribunal, in our opinion, has rightly found that there was contributory negligence to the extent of 50% on the part of both the drivers.
3. On the basis of the material on record, the Tribunal awarded a sum of Rs. 9,20,000/- in MAC Petition No. 1016/95 (relatable to FA No. 4226/98) which was apportioned on the basis of the contributory negligence, in equal shares between the owners and insurers of the two offending vehicles. In MAC Petition No. 1017/95 (relatable to FA No. 4227/98), the Tribunal awarded a total amount of Rs. 15,000/- apportioned in the same manner. In MAC Petition No. 1018/95 (relatable to FA No. 4228/98), it awarded a total amount of Rs. 50,000/- payable in equal shares by the owners and insurers of the two vehicles. In MAC Petition No. 1019/95 (relatable to FA No. 4229/98), a sum of Rs. 25,000/- was awarded to be paid in the same manner.
4. The only contention that was raised before us on behalf of the appellant in all these appeals is that the appellant Insurance Company which had insured the jeep car should not have been held liable under the policy in question, because, in view of the proviso to Sub-section (1) of Section 147 of the Motor Vehicles Act, 1988, the liability in respect of the employees of the insured carried in the insured's vehicle, was not statutorily required to be covered. It was submitted that the limited liability that too only in respect of categories of employees mentioned in Clauses (a), (b) and (c) of Proviso (i) of Section 147 was required to be statutorily covered. Reliance was placed by the learned counsel in support of this contention on a Full Bench decision of this Court in the case of New India Assurance Co. Ltd. v. Thakor Bhemaji Ganeshji, reported in (1993) XXXIV (2) Guj LR 1051 in which it was held that in deciding the case of State of Gujarat v. Hansa Visanji Rana, reported in 1988 (2) TAG 135, the Division Bench had proceeded on an unwarranted assumption that sub-Clause (i) of Section 95(2)(b) prescribes limit for a third party only and it erroneously held that the persons carrieo' by reason of or in pursuance of the contract of employment would be covered by Sub-section (2). The Full Bench agreed with the view taken by the earlier Division Bench in the case of Oriental Fire and General Insurance Co. v. Canchi Ramanlal Kantilal, reported in (1979) 20 Guj LR 134 holding that it had taken a correct view by impliedly determining the liability for the employees under Sub-clause (i).
5. The accident had occurred on 3-9-1992 after the coming into force of the Motor Vehicles Act, 1988 and, therefore, the provisions of Section 147 thereof will govern the field. The relevant provision that falls for our consideration reads as under:--
'147. 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) and (b) xxxx xxx xxx(i) and (ii) xxx xxx xxx 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 (8 of 1923), in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle,
(b) if it is a public service vehicle engaged in a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(d) to cover any contractual liability.
Explanation:-- xxxx xxxx xxxx (2) Subject to the proviso to Sub-section (1), a policy of insurance referred to in Sub-section (1), shall cover any liability incurred in respect of any accident up to the following limits namely :--
(a) save as provided in Clause (b), the amount of liability incurred. (b)xxxx xxxx xxxx(3) to (5) xxxx xxxx xxxx
5.1 The requirements of Chapter XI of thesaid Act must reflect in the policy of insurance asindicated in Section 147. Such a policy must insurea person or classes of persons specified therein tothe extent specified in Sub-section (2) against anyliability which may be incurred by the personinsured in respect of a death of or bodily injury toany person. The policy, however, shall not berequired to cover liability in respect of a death ofan employee or bodily injury sustained by theemployee arising out of and in the course ofemployment of the person injured other than aliability arising under the Workmen's Compensation Act, 1923 in respect of such death of orbodily injury. Clauses (a), (b) and (c) of theproviso specify types of employees to whomthese provisions apply and these are the employees engaged in driving the vehicle, or engaged asa conductor of the public service vehicle or inexamining tickets on the public service vehicle oremployees who are carried in the vehicles whichis a good carriage. It will be seen from the aboveproviso that it does not carve out the employeesof the insured as an exception to a liability arisingin respect of death of or bodily injury to anyperson as contemplated under Sub-section (1) of Section 147, but only limits the liability to the extentthat would arise under the provision of the Workmen's Compensation Act, 1923 in respect of thethree specified categories of the employeesnamely; driver, conductor or ticket examiner,and those who are carried in a goods carriage.This proviso does not deal with the question ofthe liability arising in respect of the other categories of employees who would fall under the expression 'any person' occurring in Section 147(1)(b)(i) of the Act. The employees other than those falling in the said three specified categories in Sub-clauses (a), (b) and (c) of Proviso (i) to Section 147(1) of the Act are simply not dealt with in this proviso and to construe this proviso so as to include all the employees of the insured would amount to enlarging its scope to a field not intended to be covered by it and to unduly reduce the efficacy of the main provision contained in Section 147(1)(b)(i) of the Act which requires the policy to cover any liability in respect of the death of or bodily injury to any person, which expression will, a fortiori, include everyone including the employees towards whom the liability of the insured arises out of the use of vehicle in a public place. On its true interpretation under the said proviso (i) the extent of liability, which otherwise would be the 'amount of liability incurred' by virtue of the expression 'any liability' in Sub-section (1)(b)(i) of Section 147 read with Sub-section (2)(a) thereof, is limited to the extent provided under the Workmen's Compensation Act, 1923 in the cases of the three categories of employees specified in the said proviso (i). If all the employees of the insured were intended to be covered, there was no need to specify these three categories of employees in proviso (i). The statutory liability of the insurer in respect of these three specified categories of the employees seems to have been limited due to the nature of their employment as driver, conductor or as an employee carried in a goods carriage and it could not be the intention of the legislature to exclude a large number of the employees who fall outside these three categories and would be covered under the main provision of Section 147(1)(b)(i) since they would fall in the expression 'any person'. We are, therefore, of the view that barring these categories of the employees who are mentioned in sub-clauses (a), (b) and (c) of the Proviso (i) of Section 147(1), in respect of all other employees, the extent of the liability of the Insurance Company will be the 'amount of liability incurred' as contemplated by Clause (a) of Sub-section (2) of Section 147 of the Act.
6. Reliance placed on the Full Bench judgment of the Court in the case of New India Assurance Co. Ltd. v. Thakor Bhemaji Ganeshji (1992) 34 (2) GUI LR 1051) (supra) is wholly misconceived because it was rendered in the context of the proviso (ii) to Section 95(1)(b) which proviso is absent in the corresponding provisions of Section 147 of the Act. It would also be seen that under the new provisions subject to the proviso to Sub-section (1) of Section 147, a policy of insurance referred to therein shall cover any liability incurred, in respect of any accident up to the amount of the liability incurred as laid down in Sub-section (2)(a) of Section 147 of the Act, in respect of a death of or bodily injury to any person.. Therefore, the new corresponding provision relating to the limit of liability does not specify the monetary limits which were earlier specified in Sub-section (2) of Section 95 of the Act of 1939 in respect of the death of or bodily injury to any person arising out of the use of a vehicle in a public place. In the case of New India Assurance Co. Ltd. v. Thakor Bhemaji, (1993) 34 (2) Guj LR 1051) (supra), it was contended on behalf of Insurance Company that even if the victim of the accident was assumed to be carried in a vehicle by reason of or in pursuance of a contract of employment, liability of Insurance Company in respect of such passenger would be limited to Rs. 50,000/- as per Sub-clause (iii) of Section 95(2)(b) of the Act and not under Sub-clause (i) of Section 95(2)(b) which according to the Insurance Company applied in the case of a third party risk. The Full Bench observed that in view of the limited scope of contrbversy, it was not necessary to consider the implications of Sub-section (1) of Section 95 and the proviso thereto which provided for compulsory insurance coverage against any liability which may be incurred in respect of the death of or bodily, injury to any person including the passengers of a public service vehicle and employees of the insured and any passenger carried in a vehicle. These observations occur in para 4 of the judgment of the Full Bench. It is thus clear that the decision in New India Assurance Co. Ltd. v. Thakor Bhemaji (1993) 2 Guj LR 1051) (supra) which was in the context of the provisions of Section 95 of the Act of 1939, cannot assist the appellant especially when the Full Bench itself made it clear that it did not consider it necessary to go into the implications of the provisions of subsection (1) and proviso thereto of Section 95 of the Act. As observed by the Supreme Court in the case of Smt. Mallawwa v. Oriental Fire and General Insurance Co. Ltd. reported in JT 1988 (8) SC 217 : (AIR 1999 SC 589). The Motor Vehicles Act, 1939is now replaced by 1988 Act and Section 147 which corresponds to the old Section 95 has been substantially altered by the legislature.
In view of what we have said above, there is no substance in the only point which was canvassed in these appeals. All these appeals are, therefore, summarily dismissed with no order as to costs.