National Insurance Company Limited Vs. Arumugham, - Court Judgment

F.M. Ibrahim Kalifulla, J.

1. The Insurance Company is the appellant. The challenge is to the award of Commissioner for Workmen's Compensation (Deputy Commissioner of Labour) Salem, dated 07.06.2004 in W.C. No. 558 of 2002.

2. One Mr. Anandavel was employed as Driller cum Helper in the rig unit fitted on a lorry bearing Registration No. CNP 4779. On 16.09.1996, when the rig unit was in operation, the said Anandavel was stated to have been electrocuted and died. The third respondent is the owner of the said rig unit. Respondents 1 and 2, who are the parents of the deceased Anandavel, filed a claim petition before the Commissioner for Workmen's Compensation claiming a sum of Rs. 5,00,000/-. The said claim was resisted by the appellant contending that it had not issued any policy of insurance for the rig unit lorry in favour of the first opposite party covering the period of accident and that any award passed has to be satisfied by the 3rd respondent herein.

3. It is now reported by the learned counsel appearing for respondents 2 and 3 that during the pendency of this appeal, the first respondent passed away and therefore, whatever compensation awarded will have to be paid to the 2nd respondent alone, who is the mother of the deceased.

4. The Commissioner for Workmen's Compensation reached a conclusion that the deceased Anandavel got electrocuted and died while in the course of his employment and since the lorry along with the rig unit was covered by Ex. P4 policy, by virtue of the age of the deceased and the application of the relevant factor, the appellant is liable to pay a sum of Rs. 1,81,879/- by way of compensation. Accordingly, the appellant was directed to deposit the compensation amount within 30 days failing which, to pay 12% interest from the date of claim petition.

5. Mr. Ramesh, learned counsel appearing for the appellant contended that Ex.P4 policy did not cover the accident which resulted in the death of the deceased Anandavel inasmuch as there was no premium paid, specifically covering such nature of employment like that of the one for which the deceased Anandavel was employed by the 2nd respondent. Learned counsel placed heavy reliance upon the Division Bench Judgment of this Court in National Insurance Company Limited v. Ayyadurai and S. Subramani reported in 2003 (2) Law Weekly 601. Since the controversy centres around the contention raised by the learned counsel appearing for the appellant which is more or less supported by the above referred Division Bench Judgment, it will be appropriate to make a detailed reference to the said decision as well as the relevant policy conditions involved in that decision viz-a-viz the one involved in the case on hand.

6. In the case on hand, the description of the vehicle as mentioned in the policy Ex.P4 is a rig unit of Ashok Leyland make, Under the heading 'important notice', the specific stipulation mentioned in the policy is to the following effect:-

subject to Terms Exception and Conditions of the Commercial vehicles Insurance B-Policy and IMT Endorsement mentioned herein 17,14,24,26 and 70.

The other particulars relating to the Policy that are required to be mentioned are under the column B Liability. The premium paid was:

------------------------------------------------------------------------1.Basic premium Rs. 120/-2.Add : for Legal ability to passengers asper ENDT.12 Rs. 50/-3.Add : for Legal ability to Driver & for cleaneras per ENDT.19 Rs. 15/-4.Add: for increased T.P. Property damage limitsunder Section II-I-Rs...as per ENDT.70 Rs. 75/-5. 5 Workman Rs. 75/-------------------------------------------------------------------------Total (B) Rs. 335/-------------------------------------------------------------------------

That apart, amongst the conditions contained in 'Insurance 'B' policy' which have been specifically referred to in the certificate of insurance namely, 17, 14, 24, 26 and 70, condition No. 17 is relevant for our purpose which reads as under:

IMT-17 LEGAL LIABILITY TO PERSONS ;EMPLOYED IN CONENCTION WITH THE OPERATION AND/OR MAINTAINING AND/OR UNLOADING OF GOODS CARRYING COMMERCIAL VEHICLES

In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the Company shall indemnify the Insured against his legal liability under the Workmen's Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this Endorsement the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver or cleaner of persons employed in loading/or unloading but it any case not exceeding seven in number including driver and cleaner whilst engaged in the service of the insured in such occupation in connection with the goods carrying commercial Vehicles and will in addition be responsible for all costs and expenses incurred with its written consent.

The premium have been calculated at the rate of Rs. 15/- per driver and or cleaner and or person employed in loading and/r unloading but not exceeding seven in number including driver and cleaner. Provided always that

1. this Endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurance company a Policy of Insurance in respect of liability as herein defined for his general employees.

2.the insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations.

3.the insured shall keep a record of the name of each driver cleaner conductor or person employed in loading and/or unloading and the amount of wages salary and other earnings paid to such employees and shall at all times allow the Company to inspect such record.

4.In the event of the Policy cancelled at the request of the Insured no refund of the Premium paid in respect of this Endorsement will be allowed. Subject otherwise to the terms exceptions conditions and limitations of this Policy.

7. As compared to the above particulars contained in the certificate of Insurance, as well as the relevant conditions in the 'B' policy, in the Division Bench judgment relied upon by the learned counsel for the appellant which also related to an accident wherein, one of the workman employed in a rig unit got injured who made a claim under the Workmen's Compensation Act, the Division Bench has extracted the relevant clause namely Condition No. 37 in the 'B' Policy. The said condition No. 37 was to the following effect:

Condition No. 37:

Mobile Cranes/Drilling Rigs.

It is hereby declared and agreed notwithstanding anything to the contrary contained in this policy that in respect of the Motor Vehicle the Company shall be under no liability.

a) Under Section I of this Policy in respect of loss or damage resulting from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto except or loss or damage arising directly from fire, explosion, self ignition or lightning or burglary, housebreaking or theft.

b) Under Section II except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988, in respect of liability incurred by the Insured arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto.

8. By virtue of the said condition No. 37 contained in the policy, the Division Bench held as under in Para 9 and 10:-

9. The contents of the claim petition clearly show that the vehicle was not in use as a vehicle at the time the claimant sustained injury. What the claimant has said is that the bore well lorry was in operation. The operation referred to therein is the use of the rig which was being used as a rig for the purpose of drilling a bore well. It was in that process that the air pipe got separated and thrown out, causing grievous injuries to the eye and nose of the claimant. The injury so caused cannot be regarded as an injury caused cannot be regarded as an injury caused by the use of the vehicle as the vehicle at that point of time was used only as a platform on which the compressor and part of the rig rested and it was the use of the rig as a rig which led to the accident and the consequent injury.

10. A drilling rig mounted on a vehicle does not become a road transport vehicle as has been held by the Court in the case of Commissioenr of Income tax v. Popular Bore Well Service Vol : [1992]194ITR12(Mad)

9. Therefore, whatever stated in the said Division Bench decision was with particular reference to Condition No. 37 attached to the Policy which covered the accident. In that case, since Condition No. 37 was specific to the effect that the Insurance Company shall be under no liability under Section II except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988 in respect of liability incurred by the insured arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto, the Division Bench took the view that inasmuch as the vehicle was not in use as a Motor Vehicle at the time when the claimant sustained the injury in an accident and since the injury was sustained when the rig was in operation while drilling the bore well, the accident was not covered by the policy. In contra distinction to condition No. 37 above referred to which governed the policy in that case, in the case on hand, the policy was governed by Condition No. 17 of the Commercial Vehicles Insurance 'B' Policy. In Condition No. 17 of this Policy, which has been extracted in the earlier part of this order, in the opening part, the legal liability to persons employed in connection with the operation and/or maintaining and/or unloading of goods carrying commercial vehicles, is specifically provided. The said part of condition No. 17 also provides that the Company indemnifies the insured against his legal liability under the Workmen's Compensation Act to any paid driver or cleaner or persons employed in loading/ or unloading, but in any case, not exceeding seven in number including driver and cleaner whilst engaged in the service of the insured in such occupation in connection with the goods carrying Commercial Vehicle. It has to be remembered that the Certificate of Insurance of the Policy concerned was in respect of the vehicle namely 'Ashok Leyland rig unit'. The payments made under the 'B' liability Policy include the premium paid for the driver and/or cleaner.

10. As per the claim statement, the deceased Anandavel was employed with the third respondent as Driller/Helper in the Borewell rig unit lorry bearing Registration No. CNA 4779 and that he was working as such for the past two years prior to his death. It is not the case of the appellant or the third respondent that there was any other cleaner who was employed in the rig unit lorry other than the deceased Anandavel. In any case, in the order impugned in this appeal, there is no reference to any such specific stand taken on behalf of the appellant or the third respondent. It is true that in the claim petition, it is stated that the deceased Anandavel was employed as Driller/Helper in the 'rig unit lorry'. Therefore, in the absence of any contra evidence, it can be safely concluded that the deceased Anandavel apart from performing his duties as a Driller, was also working as a Helper in the 'rig unit lorry'. In the Certificate of Insurance, the premium paid is for the driver and the cleaner who is covered by Endorsement 17. In common parlance a Helper to a Driver of a rig unit lorry would certainly come within the scope of the performance of duties of a cleaner of such a vehicle. Therefore, in the light of the fact that there was no specific denial of any other cleaner having been exclusively employed in the 'rig unity lorry' and the fact that the deceased Anandavel is stated to have been employed as a helper in the rig unit lorry, no fault can be found in the conclusion of the Commissioner for Workmen's Compensation that the deceased Anandavel was duly covered by the premium paid for a 'cleaner' along with the driver who was covered by Endorsement 17. When once his employment as a cleaner would cover the deceased Anandavel and thereby the Certificate of Insurance would cover his liability, the only other question would be whether based on the stipulations contained in Endorsement 17 the liability could be fastened on the appellant in regard to the claim made over the death of the said deceased Anandavel by respondents 1 and 2.

11. On this aspect, Mr. Ramesh learned counsel for the appellant, would strenuously contend that even assuming Endorsement 17 could be invoked for making a claim, that would not govern the case of the deceased Anandavel. According to the learned counsel, neither the premium paid for four coolies nor under the caption of cleaner, the claim of the deceased Anandavel can be countenanced. According to him, if any claim on the ground that the person worked as a cleaner is to be granted, such claim could only be in respect of a transport vehicle, for the maintenance of which such person can be construed of having acted as a cleaner and certainly, the scope of such coverage cannot be extended to a person who acted as a Helper for the operation of the rig unit. He also contended that the deceased Anandavel cannot also be covered under the heading 'Coolie' since the terms contained in Endorsement 17 will only relate to a coolie whose services were engaged in a goods carrying commercial vehicle for the purpose of loading/unloading operation and not otherwise.

12. In the first blush, such a contention of the learned counsel though appears to be sound and forceful, on a close reading of Endorsement 17 vis-a-vis the Certificate of Insurance, I am not in a position to accept the said submission of the learned counsel for the appellant. In my considered opinion, Endorsement 17 cannot be read in isolation. If it is read in isolation, certainly the submissions made on behalf of the appellant looks quite attractive. In the case on hand, since the Certificate of Insurance related to the vehicle, namely Ashok Leyland rig unit, certainly, at the time of taking the Policy and issuance of Certificate, it must have been in the contemplation of both the insurer as well as the third respondent that the coverage should encompass not only the avocation of driver and cleaner, in the ordinary context of operation and driving of the 'Motor vehicle' carrying the rig unit separately, but it would take within its fold even the operation and maintenance of the rig unit on the whole along with the Motor Vehicle on which it is mounted. As rightly contended by the learned counsel for the appellant, if there had been an Endorsement like Endorsement No. 37 as was available in the Division Bench decision relied upon by the learned counsel appearing for the appellant, it would have made a whole lot of difference. In the absence of such an Endorsement available in the Certificate of Insurance in this case and when Endorsement 17 alone is available for consideration vis-a-vis the payment of premium for a driver and a cleaner, it will have to be necessarily held that the cleaner engaged in respect of the lorry loaded with the rig unit would include his avocation as a cleaner in respect of the lorry as well as the rig unit.

13. In my view any other construction of Endorsement 17 vis-a-vis the payment of premium relating to a driver and a cleaner would not further the purpose and the intent of the Certificate of Insurance and the coverage made by the appellant at the instance of the third respondent. In the said circumstances, the set of expressions used in Endorsement 17 providing for the persons employed in connection with the operation and/or maintenance of the goods carrying commercial vehicles will have to be given an expanded meaning to include the lorry with the rig unit embedded on it. The cleaner who was engaged in such a lorry with the rig unit would certainly be covered by the policy issued by the appellant under Ex.P.4. The construction so made by me on Endorsement No. 17, in my view, would be the proper way of determining the application of the said clause, in view of the well known canon of construction to be made as set down by the various decisions relating to the subject.

14. Reference can be had to the following cases.

15. In the Judgment reported in : [2003]1SCR397 State of karnataka v. Vishwabharathi House Building Coop. Society and Ors., the Hon'ble Supreme Court while dealing with the constitutional validity of some of the provisions of the Consumer Protection Act, noted that it is one of the beneficial pieces of legislation and held in para 48 that- 'the provisions of the said Act are required to be interpreted as broadly as possible....'

16. In the Judgment reported in : (1985)IILLJ564SC Workmen of Messrs Binny Ltd. v. Management of Binny Ltd. and Anr., the Hon'ble Supreme Court, while interpreting the provision of Payment of Bonus Act, has held as under in para 9:-

9. ...It is trite law that in matters of welfare legislation, especially involving labour, the terms of contracts and the provisions of law should be liberally construed in favour of the weak....

17. In the Judgment reported in : (1965)ILLJ473SC The Regional Provident Funds Commissioner Punjab v. Shibu Metal Works, the Hon'ble Supreme Court, while dealing with the provisions of Employees Provident Funds Act, observed as under in para 13:

13. ... The object which the Act purports to achieve is to require that appropriate provision should be made for the employees employed in the establishments to which the Act applies; and that means that in construing the material provisions of such an Act, if two views are reasonably possible, the courts should prefer the view which helps the achievement of the object. If the words used in the entry are capable of a narrow or broad construction, each construction being reasonably possible, and it appears that the broad construction would help the furtherance of the object, then it would be necessary to prefer the said construction. This rule postulates that there is a competition between the two constructions, each one of which is reasonably possible. This rule does not justify the straining of the words or putting an unnatural or unreasonable meaning on them just for the purpose of introducing a broader construction.

18. In the Judgment reported in : [2002]SUPP2SCR324 Union of India and Anr. v. Hansoli Devi and Ors. the Constitutional Bench of the Hon'ble Supreme Court has this to say in para 9:

9. ...It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute....

19. In the decision of the Privy Council reported in ILR (1879) 3 Bom 422 Sayad Mir Ujmuddin Khan v. Ziaulnisa Begum, wherein, the Hon'ble Justice Sir James Colville has stated as to how in construing a remedial statute, a court ought to give to it 'the widest operation which its language will permit. They have only to see that the particular case is within the mischief to be remedied and falls within the language of the enactment.' Again in '(1875) 1 Ch D 182 (Gover's Re, Coal Enonomising Gas Co.)', it was held that- 'the words of such a statute must be so construed as ' to give the most complete remedy which the phraseology will permit'. The said ratio was followed by the Hon'ble Supreme Court also in the Judgment reported in : (1988)ILLJ235SC International Ore and Fertilizers (India) Pvt. Ltd. v. Employees State Insurance Corporation by stating that 'in the field of labour and welfare legislation, the provisions have to be broadly and liberally construed'.

20. In the Judgment reported in : (1963)IILLJ638SC Buckingham and Carnatic Co. Ltd. v. Venkatiah and Anr., the Hon'ble Mr. Justice Gajendragadkar observed that-

The liberal construction must ultimately flow from the words used in the section. If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, courts would be justified in preferring that construction to the other which may not be able to further the object of the Act. But on the other hand, if the words in the section are reasonably capable of only one construction, the doctrine of liberal construction can be of no assistance.

21. Therefore applying the above well settled principles on interpretation of statutes and covenants, I am convinced that Clause 17 can only be interpreted to include the avocation of deceased Anandavel as Driller/Cleaner of the Lorry with the Rig Unit and the Commissioner for Workmen's compensation was fully justified in awarding the compensation under the impugned award. Therefore, I am not in a position to interfere with the order impugned in this appeal and the appeal has to necessarily fail.

22. If according to the appellant the contract as between the appellant and the third respondent was on a different footing, at best, it can only be said that it is for the appellant to work out his remedy as against the third respondent in appropriate proceedings in a manner known to law. This appeal however fails and the same is dismissed. No costs.

23. Since the first respondent is no more, the second respondent/mother of the deceased shall be permitted to withdraw the entire balance amount with accrued interest on production of a copy of this order.