Singh Vs. New India Assurance Co. Ltd & Ors  Insc 303 (22 July 2003)
Pal & B.N.Srikrishna.
out of SLP(C) No. 20600 Of 2002) RUMA PAL, J
appellant is the owner of a vehicle, described as a "trekker", in which
passengers are carried for hire. He employed Shashi Bhushan Singh as a "khalasi"
of the vehicle.
21.10.1998 the vehicle met with an accident as a result of which Shashi Bhushan
Singh died. The legal heirs of the deceased employee filed a claim in the
Workmen's Compensation Court against the appellant, as the owner of the
vehicle, and against the respondent insurance company. The Workmen's
Compensation Court held that the vehicle had been comprehensively insured with
the respondent and that since the accident had occurred during the period of
insurance, the insurance company was liable to pay the compensation on account
of the death of the employee. The respondent was, therefore, directed to
deposit the compensation determined under the provisions of The Workmen's
Compensation Act, 1923.
decision was challenged by the respondent before the High Court at Patna under Article 226. The High Court
allowed the writ petition. It held that in the absence of any special contract
between the appellant and the respondent , the rights of the parties were
governed by statute which did not require the respondent to cover liability in
respect of an accident to a khalasi. The statute in question is the Motor
Vehicles Act, 1988 (referred to hereinafter as the Act).
appellant has impugned the decision of the High Court before this Court,
primarily on the ground that the High Court had misconstrued the provisions of
the Act and in particular clause (b) of subsection (1) of section 147. It was
contended that the insurance policy expressly covered the death or injury to
the khalasi. Our attention was drawn to the insurance certificate where under
the heading "Particulars of the vehicle insured" there is a column
which refers to "Seating capacity including driver and cleaner".
Under this sub-head the figure "13+ 1" has been inserted. A cleaner,
as accepted by both parties before us, would include a khalasi. The appellant
submitted that he had paid premium on the basis of 13+1 to cover the liability
has refuted the claim that any additional premium was paid to cover the risk
pertaining to a khalasi. It is contended that in terms of the insurance policy,
as also under the provisions of Section 147 (1) (b), no employee of the insured
apart from the driver was covered.
XI of the Act covers the subject 'Insurance of Motor Vehicles Against Third
Party Risks' under Section 146(1) of which no person shall use a motor vehicle
in public unless there is a valid policy of insurance which complies with the
requirements of the Chapter. The mandatory requirements of such insurance
policy have been provided in Section 147.
relevant extract of Section 147 is reproduced with emphasis on the words on
which the appellant's case rests :
147: Requirements of policies and limits of liability. –
order to comply with the requirements of this Chapter, a policy of insurance
must be a policy which –
xxx xxx xxx xxx
insures the person or classes of persons specified in the policy to the extent
specified in sub-section (2) –
any liability which may be incurred by him in respect of the death of or bodily
injury to any person or damage to any property of a third party caused by or
arising out of the use of the vehicle in a public place;
the death of or bodily injury to any passenger of a public service vehicle
caused by or arising out of the use of the vehicle in a public place:
that a policy shall not be required –
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-
in driving the vehicle, or
it is a public service vehicle, engaged as a conductor of the vehicle or in
examining tickets on the vehicle, or (b) If it is a goods carriage, being
carried in the vehicle, or
cover any contractual liability".
and above the risks which are covered by this statutory provision, parties may
of course enter into a contract by which the insurer agrees to cover additional
risks. It is not the appellant's case that apart from the policy of insurance
there was any contract between the appellant and the insurance company. The
policy has a clause which defines the limits of liability in respect of death
or bodily injury to any person caused by or arising out of the use of the motor
vehicle under Section II(i) of the terms and conditions of the Policy. In
proviso (b) to Section II (1), it has been expressly stated that "Except
so far as is necessary to meet the requirements of the Motor Vehicles Act, the
Company shall not be liable in respect of death of or bodily injury to any
person in the employment of the insured arising out of and in the course of
of the original policy was produced by the respondents in the course of
arguments. The appellant has objected to the production of the policy at this
stage. We would have understood and upheld the submission had the appellant not
based his claim on the policy. Indeed, in the absence of the policy, we could
not have entertained the appellant's claim at all. [See: Dr. T.V. Jose V. Chacko
P.M. alias Thankachan 2001 (8) SCC 748.] The appellant's first submission was
that Shashi Bhushan Singh was a passenger. The appellant's submission that the
phrases 'any person' and "any passenger" in clauses (i) and (ii) of
sub section (b) to Section 147(1) are of wide amplitude, is correct. [See: New
India Assurance Company V. Satpal Singh and Others 2000 (1) SCC 237 ]. However,
the proviso to the sub-section carves out an exception in respect of one class
of persons and passengers, namely, employees of the insured. In other words, if
the "person" or "passenger" is an employee, then the
insurer is required under the statute to cover only certain employees. As
stated earlier, this would still allow the insured to enter into an agreement
to cover other employees, but under the proviso to Section 147 (1)(b), it is
clear that for the purposes of Section 146(1), a policy shall not be required
to cover liability in respect of the death arising out of and in the course of
any employment of the person insured unless: first : the liability of the
insured arises under the Workmen's Compensation Act, 1923 and second : if the
employee is engaged in driving the vehicle and if it is a public service
vehicle, is engaged as conductor of the vehicle or in examining tickets on the
vehicle. If the concerned employee is neither a driver nor conductor nor
examiner of tickets, the insured cannot claim that the employee would come
under the description of "any person" or "passenger". If
this were permissible, then there would be no need to make special provisions
for employees of the insured. The mere mention of the word "cleaner"
while describing the seating capacity of the vehicle does not mean that the
cleaner was therefore a passenger. Besides the claim of the deceased employee
was adjudicated upon by the Workmen's Compensation Court which could have
assumed jurisdiction and passed an order directing compensation only on the
basis that the deceased was an employee. This order cannot now be enforced on
the basis that the deceased was a passenger.
decision of the Full Bench of the Kerala High Court relied on by the appellant
National Insurance Co. Ltd. v. Philomena Mathew : 1993 ACJ 1116 was based on a
construction of Section 95 of the Motor Vehicles Act, 1939 the corresponding
section to which under the present Act is section 147. The relevant provisions
of the two sections which are otherwise in pari materia are materially
different in one respect. Section 95 covered a fourth category of employee
after the three now mentioned in clauses (a)(b) and (c) to the proviso to
Section 147 (1)(b) viz.,:
the vehicle is a vehicle in which passengers are carried for hire or reward or
by reason of or in pursuance of a contract of employment, to cover liability in
respect of the death of or bodily injury to persons being carried in or upon or
entering or mounting or alighting from the vehicle at the time of the
occurrence of the event, out of which a claim arises". (emphasis supplied)
So a person carried in pursuance of a contract of employment would be a
passenger and would be covered as such. The exclusion of this clause in the
proviso to Section 147(1)(b) of the present Act bolsters our reasoning that
employees other than the three mentioned are not covered by Section 147 (1)(b).
appellant's next submission was that the concerned employee was a 'conductor'.
It is doubtful whether a 'khalasi' and a conductor are the same. But assuming
this were so, there is nothing to show that the appellant had paid any
additional premium to cover the risk of injury to a conductor.
contrary, the policy shows that premium was paid for 13 passengers and 1 driver.
There is no payment of premium for a conductor.
appellant's final submission was that as the policy was a comprehensive one, it
would cover all risks including the death of the khalasi. The submission is
unacceptable. An insurance policy only covers the person or classes of persons
specified in the policy. A comprehensive policy merely means that the loss
sustained by such person/persons will be payable upto the insured amount
irrespective of the actual loss suffered. [See: New India Insurance Co. Ltd. v.
J.M. Jaya 2002 (2) SCC 278; Colinvaux's: Law of Insurance (7th Edition) p.
although the appellant's claim under the insurance policy arose under the
Workmen's Compensation Act, since the concerned employee was not engaged in the
capacity of driver in respect of whom alone premium was paid apart from the
passengers, his claim is unsustainable.
appeal is accordingly dismissed without any order as to costs.