MACA.No.747 OF 2015(C) AGAINST THE AWARD DATED 10-11-2014 IN OP(MV) NO.582/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** ## **MACA.No.747 OF 2015(C)** **AGAINST THE AWARD DATED 10-11-2014 IN OP(MV) NO.582/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/2ND RESPONDENT:** **CHINNAMMA JACOB,W/O.JACOB, KAVALAMPUTHUPARAMBIL HOUSE, KAVALA,CHANGANACHERRY-686 101.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 3:** - **1 BIJU GEORGE,S/O.GEORGE, VALLAKUZHI VALUVELIL HOUSE, ANICKADU VILLAGE,MALLAPPALLY.** - **2 BABU ABRAHAM,S/O.ABRAHAM, CHENEPARAMBIL HOUSE,KARUKACHAL, KANGAZHA POST-686 541.** - **3 THE ORIENTAL INSURANCE CO.LTD., CHEERENVELI BUILDINGS, KANJIRAPPALLY-686 507.** - **R1 BY ADV. SRI.MATHEW SKARIA R3 BY ADV. SMT.REKHA NAIR R3 BY ADV. SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.747/2015 : 2 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 17[th] day of June, 2020**_ The 2[nd] respondent-owner of offending vehicle in OP(MV) No.582/2013 of the Motor Accidents Claims Tribunal, Pala is before this Court in appeal, aggrieved by Award dated 10.11.2014. The short question that comes up for consideration is as to whether the liability of the 3[rd] respondent-insurer to pay compensation should be limited to the amount due under Workmen's Compensation Act. 2. The 1[st] respondent was the Conductor of a stage carriage owned by the appellant. When the bus reached TR & T Estate main gate on 29.05.2013, the driver took the bus at a very high speed and applied sudden break. The 1[st] respondent-Conductor, who was doing his work, fell down and sustained injuries. The 1[st] respondent filed OP(MV) MACA No.747/2015 : 3 : claiming a compensation of ₹1,25,000/-. 3. The 2[nd] respondent-driver remained _ex parte_ . The appellant in her written statement, _inter alia,_ contended that she had paid special premium to the insurer to cover the liability of the Driver and Conductor. In their written statement, the 3[rd] respondent-insurer stated that the 1[st] respondent-Conductor ought to have filed his claim before the Commissioner for Workmen's Compensation. The 3[rd] respondent further stated that the petitioner is an employee of the bus and therefore not covered by the insurance policy. 4. Exts.A1 to A13 were marked by the 1[st] respondent/petitioner. Exts.B1 to B5 were marked by the respondents in OP(MV). No witnesses were examined. 5. The Tribunal held that the accident was due to the negligence of the 2[nd] respondent-driver. The Tribunal assessed the compensation amount at ₹97,240/-. Treating the 1[st] respondent/petitioner as an employee of the 2[nd] respondent, the Tribunal held that the liability of the 3[rd] MACA No.747/2015 : 4 : respondent-insurer would be ₹48,576/-, which is the amount arising under Workmen's Compensation Act. The appellant was directed to pay the remaining amount. 6. The learned counsel for the appellant submitted that the liability to pay compensation in respect of death or bodily injury to an employee should not be restricted to that payable under the Workmen's Compensation Act. The appellant has paid additional premium amount of ₹100/- to cover the liability towards Driver, Conductor, Cleaner unlimited. The said additional premium was made apart from the statutorily payable amount of ₹100/-. Therefore, by accepting ₹100/- by way of extra premium, the insurer has made itself liable to the Conductor without any limit on compensation. This aspect, though was brought to the notice of the Tribunal, the same was not considered. The omission of the Tribunal has substantially affected the appellant, it was contended. 7. I have heard the learned counsel for the appellant MACA No.747/2015 : 5 : and learned Standing Counsel for the 3[rd] respondent. 8. Regarding the compensation amount payable to an employee involved in a motor accident, the Hon'ble Apex Court considered the issue in _**Ramachandra v. Regional Manager, United India Insurance Co. Ltd.** [(2013) 12 SCC 84]_ . The Apex Court observed that the liability to pay compensation in respect of death or bodily injury to an employee should not be restricted to that under the Workmen's Compensation Act, but should be more or unlimited. However, the determination would depend whether a policy has been taken by the vehicle owner by making payment of extra premium and whether the policy also contains a clause to that effect. It cannot be said that the compensation should be restricted to be paid only to the extent which is payable under the Workmen's Compensation Act by making a sweeping generalisation. The liability of the insurer would depend upon the contracted document which is the policy of insurance. MACA No.747/2015 : 6 : 9. The Hon'ble Apex Court further held that, it is although correct that limited statutory liability cannot be extended to make it unlimited or higher, it is also manifestly clear that in so far as the entitlement of the claimant/deceased cleaner of the vehicle is concerned, the same cannot be restricted to the compensation under the Workmen's Compensation Act and is entitled to compensation even under the Motor Vehicles Act, which will depend upon the terms and conditions of the policy of insurance. In view of the law as explained by the Hon'ble Apex Court in the judgment in _**Ramachandra** (supra)_ , it is evident that the liability of the insurance company towards an injured employee in a motor accident would depend upon the policy document. If the insurer has collected additional premium, then depending upon the terms and conditions of the policy, the insurer will be liable to pay the entire compensation due to the employee. 10. In the present case, the respondents have MACA No.747/2015 : 7 : produced Ext.B1, copy of policy certificate. Ext.B1 certificate would show that the appellant has made the following payments:- ## **SCHEDULE OF PREMIUM** ## **B. LIABILITY** |**B. LIABILITY**|| |---|---| |ADD: BASIC TP COVER|25,681.00| |BASIC TP TOTAL|25,681.00| |ADD:PA FOR OWNER DRIVER-GR36A|100.00| |ADD:LL-PAID DRIVER, CONDUCTOR, CLEANER-IMT-40|100.00| |TP TOTAL|25,881.00| |TOTAL PREMIUM|48,843.00| |ADD:SERVICE TAX|6,037.00| |STAMP DUTY|0.50| |TOTAL AMOUNT|54,880.00| The above data would show that apart from a premium for personal accident for Owner Driver, the appellant has paid additional premium for Driver, Conductor and Cleaner. Whether the 3[rd] respondent-insurer is liable to satisfy the entire compensation amount is a matter to be looked into in the context of payment of the afore additional premium. 11. The Tribunal, while considering the issue, has not MACA No.747/2015 : 8 : adverted to the factum of payment of additional premium. In paragraph 4 of the Award, the Tribunal has noted the argument of the appellant to the effect that the appellant has paid special premium to cover the liability of the Driver and Conductor. In paragraph 5, the argument of the 3[rd] respondent-insurer that the appellant is an employee of the owner of the bus and therefore he is not covered by the insurance policy, has also been noted. However, the Award does not show any discussion on this aspect. The Award in paragraph 14, after recording the arguments of the 3[rd] respondent-insurer, comes to the following finding at paragraph 15:- “15. I have already found that the petitioner is entitled to get an amount of Rs.97,040/- under the MV Act. The liability of the 3[rd] respondent is limited to Rs.48,576/-. The owner shall pay the remaining amount. Issue No.3 is found accordingly.” The Tribunal has omitted to take note of and consider the impact of payment of additional premium by the appellant, MACA No.747/2015 : 9 : which ought to have been considered, especially in the light of the judgment of the Apex Court in _**Ramachandra** (supra)._ 12. In the afore circumstances, this Court feel it necessary to remand the OP(MV) back to the Tribunal for deciding the issue. Accordingly, the OP(MV) is remitted back to the MACT, Pala. The Tribunal shall, with due notice to the parties, assess the impact of the additional premiums paid by the appellant and decide as to whether the insurer is liable to pay only amount due under Workmen's Compensation Act or the entire compensation awarded by the Tribunal. The parties will be permitted to adduce additional pleadings/evidence, if necessary, on this issue. MACA is disposed of on the above lines. Sd/- **N. NAGARESH, JUDGE** aks/16/06/2020