Judgment:
T.S. Sivagnanam, J.
1. Heard Mr. K.S. Narasimhan, Learned Counsel for the Insurance Company and Mr. M. Swamikannu, Learned Counsel for the Claimant.
2. The above Appeals have been filed against the award passed by the Motor Accidents Claims Tribunal, Chennai in MACTOP No. 4200 of 2002 dated 9.9.2002. CMA. No. 436 of 2006 has been filed by the Claimant not being satisfied with the award, and CMA.No.1094 of 2006 has been filed by the Insurance Company. The facts which are necessary for deciding the above Appeals are as hereunder.
3. On 14.07.2005 at about 03.00 hours, the Claimant, S.Murugan was proceeding as a Co-Driver in a Container Lorry from North to South in G.S.T. Road. Due to the negligence of the driver, the Lorry dashed against the left side parapet Wall which resulted in the Claimant sustaining multiple fractures and injuries all over his body. The Claimant claimed compensation of Rs. 23,00,000/- under various heads. The Claimant contended that the Driver of the Lorry was solely and directly responsible for the accident and the owner of the Vehicle and the Insurer of the vehicle were jointly and severally liable to pay compensation.
4. This was resisted by the Insurance Company, which contended that the Claim Petition was not maintainable before the Tribunal and the proper forum was the Workmen Compensation Forum, if the Claimant is a workman. The Insurance Company stated that the policy did not cover the present claim. The allegation that the Claimant was a Co-driver was denied and it was stated that the Claimant was a gratuitous passenger in the vehicle. The Claimant examined himself as PW1 and three other witnesses, PW2 to 4 were examined. The Claimant marked 6 documents exhibits P1 to P6. The Assistant Manager of the Insurance Company was examined as RW1 and the Insurance Policy was marked as exhibit R1.
5. The Tribunal framed two issues for consideration, namely, the issue of negligence and whether the Claimant was entitled for compensation and if so what was the quantum. The Tribunal rejected the plea raised by the Insurer that the Insurance Policy, exhibit R1, did not cover the claim and proceeded to hold that the Claimant having been employed as a Spare Driver was entitled for compensation in terms of the conditions of the Insurance Policy. The Tribunal awarded a total compensation of Rs. 4,28,000/- together with interest at the rate of 7.5%. This award is subject matter of challenge in the above appeals.
6. Learned Counsel for the appellant submitted that there is evidence to show that in the container vehicle, apart from the driver, there was one Gopalan who had accompanied the goods and in addition to these two, if the injured had travelled as a co-driver, the insurer was not liable to indemnify the liability of the insured. There was no coverage for a co-driver as per the policy. The learned Counsel submitted that, therefore, the insured could only have been a gratuitous passenger and the vehicle in question being a goods vehicle, the insurance company is absolved of its liability. Therefore, the learned Counsel submitted that the appeal filed by the insurance company must be allowed.
7. Learned Counsel for the respondent submitted that the Tribunal was not in error in making the Insurance Company liable. The injured was definitely there as a co-driver and his license had also been marked as Exhibit P1. Thereafter, without prejudice to his above contention, he submitted that the Insurance Company cannot in any way deny that the claimant was in the vehicle 'in the course of employment'.
8. We have considered the rival submissions and also the materials on record.
9.The moot point which arises for consideration in this appeal is whether the claim Petition is maintainable and whether the Insurer is liable to settle the compensation award. To decide this issue it is necessary to peruse the Insurance Policy which has been marked as exhibit R1. In the schedule of premium under Clause B : Liable To Public-Basis, the following has been mentioned. 'Legal Liability to Driver Coolies / other employees in connection with the operation & / or maintaining & / or unloading of Motor Vehicle'. Thus that the policy covers the employees who have been engaged in connection with the operation, maintenance or unloading of the Motor Vehicle.
10. The claimant was aged about 21 years when he met with the accident. His disability was assessed at 50% and the Tribunal awarded the compensation as follows:
1. Loss of Income Rs. 36,000.002. Transport to Hospital Rs. 3,000.003. Extra-Nourishment Rs. 8,000.004. Medical Expenses Rs. 10,000.005. Attender Charges Rs. 20,000.006. Amenities Rs. 25,000.007. Mental Agony Rs. 20,000.008. Pain, Shock & Suffering Rs. 20,000.009. Disability Rs. 70,000.0010. Loss of earning capacity Rs. 2,16,000.00(3000 x 12 x 6) ----------------Rs. 4,28,000.00----------------
We are unable to find any serious error in this compensation awarded against injured Veenainathan. To arrive at the loss of earning capacity, the Tribunal had adopted a very low multiplier of 6, though the claimant was only 25 years old. Therefore, we add the sum of Rs. 70,000/- over disability to the sum of Rs. 2,16,000/- awarded under the loss of earning capacity. We cannot award compensation both under loss of earning capacity and under disability.
11. We have seen the Insurance Policy (Ex.R.1) and we find therefrom that the insured had paid premium for the driver, coolies and other employees. There is, however, no coverage for co-drivers. The words 'any person' or 'passenger' occurring in Section 147 of the Motor Vehicles Act are of wide amplitude. But they do not cover employees other than those mentioned in the proviso to Sub-section (b) of Section 147(1).
12. The Supreme Court, in 2003 A.I.R. S.C.W. 3601 [Ramshray Singh v. New India Assurance Co. Ltd.] held that if the ''person' or 'passenger' who is an employee other than the category of employees insured is required under the statute to cover, the plea that as the policy was a comprehensive one, it would cover all risks including the death of the Khalasi was unacceptable. It was clarified that comprehensive policy merely means that the loss sustained by such person will be payable upto the insured amount irrespective of the actual loss sustained. Even if the deceased and the injured did not belong to that category of employee which was covered by the premium, he was definitely in the vehicle 'in the course of employment'. Therefore, we are of the opinion that even if the Insurance Company cannot be made liable in accordance with the provisions of the Motor Vehicles Act, they will definitely have to satisfy the requirements of the Workmen Compensation Act. Even in the grounds of appeal, this is tacitly admitted.
13. In : (2003)ILLJ536Mad [Oriental Insurance Co. Limited v. Kalaiya Pillai], the driver was found negligent and the parents of the claimant made a claim under the Motor Vehicles Act. The Division bench held that when the deceased himself is the tort-feasor, the claimants cannot claim any compensation from the owner and therefore, they cannot claim any compensation from the Insurance Company. The Division Bench observed that Section 167 of the Motor Vehicles Act gives the claimants an option regarding claims for compensation in certain cases that the person entitled to compensation may claim such compensation either under the Workmen Compensation Act or under the Motor Vehicles Act, but not under both. Therefore, the Division Bench held that
6....
However, the insurer's liability is to be determined not only with reference to the provisions under the Motor Vehicles Act, but also with reference to the contract of insurance which would extend to the liability of the insured under the Workmen's Compensation Act. There is a specific finding by the Tribunal that deceased tractor driver died in the course of his employment. Further, it is not disputed that there was a valid insurance on the date of the accident, and accordingly the insurer was liable to the extent of liability under the Workmen's Compensation Act. In other words, we hold that even though the insurance company was not liable under the provisions of the Motor Vehicles Act, it would be proper to assess the compensation under the Workmen's Compensation Act and award the same in favour of the claimants. On this ground, instead of now directing the respondents-claimants to go before the Commissioner under Workmen's Compensation Act in order to shorten the litigation and also in the interest of justice, we decide to dispose of the appeal by determining the appropriate compensation in favour of the claimants.
We will assess the compensation in accordance with this decision.
14. Definitely the spare driver, viz. the claimant had sustained his injuries during the course of his employment. He had been an in-patient for 33 days. There was a metal implant in his leg and his disability was assessed at 50%. The medical opinion is that he will not be able to drive heavy vehicle. His avocation was only that of a heavy vehicle driver, we will bear this in mind. We have to ignore the compensation assessed by the Tribunal under the Motor Vehicles Act and proceed to assess the compensation as per the provisions of the Workmen Compensation Act. The maximum wages under the Act is Rs. 4,000/- per month. In view of the injury sustained and the impact it will have on his employment, i.e., as a driver, we may apply the formula under the Workmen Compensation Act and fix the disability at 55% and using the factor for 25 years, viz. 216.91, the compensation works out to Rs. 2,86,321/-. Accordingly, the liability of the appellant Insurance Company is fixed at Rs. 2,86,321 as against the award of Rs. 4,28,000/-.
15. We are informed that the entire amount has been deposited and 50% has been withdrawn. Considering the fact that the claimant was a driver and that is his avocation and since the injury suffered by him has resulted in shortening of one of his limbs and since the records show that he had been an inpatient for 33 days and metal implant has been done for him we would permit him to withdraw the balance allowing the insurer to proceed against the insured for recovering the excess amount namely the amount by which the award of the Tribunal exceeds the award as passed by us.
16. Accordingly, the C.M.A. No. 1094 of 2006 is allowed as follows:
a) C.M.A. No. 1024 is allowed. The award against the Insurance Company is modified to Rs. 2,86,321/- with interest. The Insurance Company may proceed against the insured for recovery of Rs. 1,41,679/-, since we have permitted the claimant to withdraw the entire award amount.
b) C.M.A. No. 436 of 2006 is dismissed. No costs.