United India Insurance Company Limited Vs. Nachimuthu and ors. - Court Judgment

Excerpt:
- s. jagadeesan, j.1. the insurance company has filed the above appeals against the award in m.c.o.p. nos. 422 and 384 of 1992 on the file of motor accident claims tribunal, karur. since both the o.ps. arise out of a single accident, the appeals can be disposed of by a common judgment.2. the claimants in o.p. no. 384 of 1992 are the father and brother of one balu who died in the accident. the claimant in o.p. no. 422 of 1992 is the injured in the accident. the claimants' case is that the deceased balu and the claimant in o.p. no. 422 of 1992 while travelling in a delivery van on 24.2.92 at about 8.10 p.m. in trichy karur main road, near kalipalayam, the van dashed against the bus which came in the opposite direction, the said deceased was employed as the person to deliver the goods and another claimant nachimuthu was the salesman and both of them were travelling in the van as employees of the owner of the goods, since they were entrusted by their employer the work of delivering the articles to the respective persons. the respondents 3 and 4 in c.m.a. no. 487 of 1995 and 2 and 3 in c.m.a. no. 486 of 1995 are the owner of the van as well as the goods and the owners of the bus respectively.3. the tribunal, after elaborately considering the evidence, has awarded a sum of rs. 1,26,000 for the claimants in o.p. no. 384 of 1992 respondents 1 and 2 in c.m.a. no. 487 of 1995 and a sum of rs. 3,70,000 for the claimants in o.p. no. 422 of 1992 (first respondent in c.m.a. no. 486 of 1995). as against this, the insurance company has preferred these appeals.4. the learned counsel for the appellant contended that the deceased as well as the claimant in m.c.o.p. no. 422 of 1992 are not covered under the insurance policy. the deceased was employed as a delivery person and the claimant in o.p. no. 422 of 1992 in the salesman. whereas the policy covers only three coolies for which the extra premium has been paid by the owner of the van. the salesman and the delivery person cannot be construed as collies. in any event, the compensation awarded is on the higher side and the quantum has to be reduced.5. the counsel for the respondent contended that the policy covers three coolies and the extra premium has been paid to cover those three coolies. though the word coolie has been referred to the same has to be construed under the context in which it is used. the context means relating to the vehicle which has been insured and the persons who would be employed or empowered to travel in such a vehicle. admitted no coolies had been employed in the delivery van by the owner of the goods as well as the vehicle. so far as the quantum is concerned, it is not open to the insurance company to challenge the same in view of the statutory bar, under section 149(2)(a) of the motor vehicle act, 1988.6. i carefully considered the rival contentions of both the counsel. in order to appreciate the contention of the counsel for the appellant, it is necessary to refer to the two heads in the policy cover which are as follows:add : for l.l. to non fare paying passengers as for imt 14 3 cooliesrs. 45.00add : for l.l. to persons employed in connection with the operation and/or loading, unloading of motor vehicle l.m.t. 17rs. 15.00.the extra premium of rs. 45 has been paid with reference to the three coolies instead of the non-fare paying passengers. an additional sum of rs. 15 towards premium has been paid with regard to the liability to persons employed in connection with the operation and/or loading, unloading of motor vehicle. so far as the delivery man is concerned, he has been employed to deliver the goods under the direction of the salesman who is also accompanying him in the van in order to deliver the goods to the consignee or under the direction of the employer. his duty is to unload the goods either fully or partly in piece meal at different places and deliver the same to the concerned persons. considering the nature of the work of the delivery man, i am of the view that he can be called either as a coolie or he may fall within the clause as the person employed in connection with the operation and/or loading/and unloading of the motor vehicle. hence the counsel for the appellant is unable to substantiate his contention on that the delivery man cannot be considered as a coolie. as pointed out already even if he is not a coolie, he will fall under the next category of the person employed in loading or unloading of motor vehicle. hence, the insurance company is liable to pay the compensation for the claimants in o.p. no. 384 of 1992.7. so far as the claimant in m.c.o.p. no. 422 of 1992 is concerned, he is a salesman. the vehicle insured is a deliver van. it is the normal practice that the owner of the goods would depute the salesman as well as the delivery man in order to deliver the goods to the several consignees. in the delivery van, except the driver, only these two persons would travel, as the employees of the owner of the goods. it is not clear as to when the insurance company made entries with regard to the words '3 coolies and whether it has informed the owner of the vehicle who is also the owner of the goods in this case, that the extra premium is paid only for the coolies and who are all the persons covered under this term 'coolie. it has been repeatedly held by the courts that the insurance had been made compulsory, since it is a beneficiary provisions. when the court has to consider the beneficiary enactment, it has to construe the same more liberally than to give the narrow interpretation to the words used. if the matter is viewed in this angle, the word 'coolie cannot be given a narrow interpretation of covering those who received the daily wages alone or the persons who are employed in a lower grade. when normally no coolies were employed, in a delivery van, the word 'coolie would cover the other persons who are employed by the owner of the goods or the owner of the vehicle. if the insurance company has let in evidence to the effect that the insured has been put on notice about the words 'coolies used in the policy and the persons who would be covered under that word, then the matter will be standing on a different footing. in the absence of any such material and considering the nature of the litigation, the courts have given a liberal interpretation, the courts have given a liberal interpretation to cover the employees of the owner of the goods as well as employees of the owner of the vehicle. hence i hold that the claimant in o.p. no. 422 of 1992 who is the salesman is also covered under the policy and as such the insurance company is liable to pay the compensation.8. then comes the question of quantum raised by the counsel for the appellant. section 96(2) of the act prior to the amendment and section 149(2) of the amended motor vehicles act, 1988 is almost identical. since the accident took place in the year 1992, subsequent to the amended act, i refer to the section 149 of the motor vehicles act, 1988, which is as follows:149. duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks : (1) ...(2) no sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice throughout the court, or, as the case may be, the claims tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely;(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:(1) a condition excluding the use of the vehicle;(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or(b) for organized racing and speed testing, or(c) for a purpose not allowed by the permit under which the vehicles is used, where the vehicle is a transport vehicle, or(d) without sidecar being attached, where the vehicle is motorcycle; or(ii) a condition excluding driving by named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or(b) that the policy is void on the ground that it was obtained by the non-disclosure of material fact or by a representation of fact which was false in some material particular.as per this section, it is clear that the insurance company can challenge the award only in case of any breach of specific condition in the policy. in fact the argument of the learned counsel for the appellant as to whether the salesman as well as the delivery man would cover under the word 'coolie referred to in the policy is a defence open to the insurance company. except this the insurance company is not entitled to raise the question with regard to the quantum, since the quantum in this case cannot be said to be breach of condition of the policy. only in case where the liability has been fixed or limited under the policy then only it may be a defence.9. in the recent judgment reported national insurance co. limited v. roy george , the full bench of the kerala high court had an occasion to deal with' this question which is as follows:whether under section 96(6) of the motor vehicles act, 1939, the insurance company is not entitled to take a defence that its liability is to be limited to the statutory liability mentioned in section 95(2) and whether thankamanis case 1984 a.c.j. 791 (ker.), is not correctly decided? this point does not present much difficulty in view of the decisions of the supreme court already referred to. before doing so, we shall ref6r to the facts in thankamanis case 1984 a.c.j. 791 (ker.). in that case, two persons suffered injuries while travelling as passengers in a stage carriage vehicle on 23.10.1976 when the bus dashed against a tree. the two persons filed two separate suits. in one suit, the plaintiff claimed rs. 30,000 while in the other suit, the plaintiff claimed rs. 20,000. negligence of the driver was established and the civil court passed a decree against the vehicle owner, the driver and the conductor as also the insurance company. however, the vehicle owner was held liable in a sum of rs. 10,000 in each of the two suits. the vehicle owner and his servants did not prefer any appeal to the high court. the appeal was preferred only by the insurance company. in that appeal, it was argued for the insurance company that its liability to a passenger was only rs. 5,000 under section 95(2)(b)(ii) and that, therefore, the award of the tribunal was liable to be modified to conform to the statutory limits prescribed in the act. the division bench of this court rejected the said contention of the insurance company by holding that under section 96(2) of the act, the statute specified the various defences which an insurance company could take. the said defence were exhaustive as stated by the supreme court in british india general insurance co. limited v. capt. ibtar singh (1958) 65 a.c.j. 1 (s.c.). the division bench took the view that in view of the said decision of the supreme court in capt. itbar singh case, no other defence could be taken by the insurance company. according to the division bench, a defence based on the limits specified in section 95(2) is not one of the defences enumerated in section 96(2) of the act. accordingly, the division bench dismissed the appeal and held that the insurance company was liable for the amount of rs. 10,000 each for each of the passengers instead of rs. 5,000 each as provided in section 95(2)(b)(ii). it is the correctness of this view is in question before us.in the above reported case, the learned judges had an occasion to deal with the limited liability under the policy and held that since the compensation awarded by the tribunal is in excess of the terms of the conditions, it is open to the insurance company to dispute the quantum. otherwise it has been categorically held that only the defence provided under section 95(2) of the earlier act corresponding to section 149(2) of the motor vehicles act, 1988 are available to the insurance company.10. yet another judgment of the division bench reported in new india insurance co. limited v. lad kanwar , wherein the learned judges have held as follows:it is well-established that an insurer cannot take pleas beyond the scope of section 96(2) of the motor vehicles act. its right is confined to the matters enumerated therein. in british india general insurance co. v. capt. ibtar singh (1958) 65 a.c.j. 1 (s.c.), the same law had been laid down. it should be remembered that it is not open to the insurance company to question the quantum of compensation. see. raddipalli chinnarao v. reddi lorurdu 1980 a.c.j. 470 (a.p.).11. in view of the above referred judgments, it is clear that it is not open to the insurance company to raise the defences not provided under the statute as well as the policy. in the case in hand, there is no restriction with regard to the quantum of compensation in respect of the liability of the insurance company. hence it is not open to the insurance company to raise the plea of quantum.12. for the reasons stated above, i am of the view that there is no merit in these appeals and accordingly both the appeals are dismissed, however, there will be no order as to costs.