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Judgment
This appeal is filed against the judgment and award passed by Motor Accident claims Tribunal, D.K. Mangalore, in MVC No.1516 of 2006 dated 02.04.2013.
Injured claimant met with an accident on 29.01.2006 and filed claim petition under Section 166 of Motor Vehicles Act claiming compensation of Rs.8,00,000/-. Tribunal considered the entire evidence on record and granted Rs.1,49,000/- with interest rate of 6% per annum from date of petition till realisation.
Aggrieved by the said order, insurance company has preferred this appeal and mainly contended that the policy issued was a motor policy of insurance and hence, the motor vehicle deserves to be used only in public place. Insurer cannot be made liable to pay compensation if the vehicle is used in a private land. Accident occurred at a private land which had no right of access either to the petitioner-claimant or to any other member of the public. As such, there is no liability on the insurer. It is further contended that the liability of the insured in respect of the employee would be as provided under Workmen Compensation Act (WC Act). Liability of the insurer as per Section 147 of the MV Act deserves to be restricted to the provisions of the WC Act. Determination of compensation under the provisions of MV Act is not sustainable as per the judgment of Apex Court in the case of National Insurance Company Ltd. v. Premabai Patel and others reported in (2005)6 SCC 172. It is further contended that the claim under Provisions of WC Act could be maintainable only under Section 4(1)(d) of the WC Act and the compensation could not have been granted more than Rs.10,000/-. Therefore, determination of compensation at the rate of Rs.1,48,624/- is erroneous. It is also contended that there is no documentary proof to show that the claimant was an employee working under second respondent. As per the police documents, the claimant was member of the public who has gone to the spot with curiosity to watch the digging process of the borewell. Therefore, requested the court to set aside the order.
Heard the arguments of learned counsel appearing for both sides.
The manner of accident as mentioned by the petitioners is that, on 29.01.2006, the petitioner was standing by the side of the lorry bearing registration No. KA.01/MJ.9966 used for digging borewell at Kuthur Mangalore and on account of the rash and negligent handling of the vehicle which was mounted with rig, an iron rod had fell on the head of the petitioner. As a result, he sustained grievous head injury and shifted to the hospital in an unconscious state. He was admitted in the hospital as an injured from 29.01.2006 and discharged on 25.02.2006 and he has undergone surgery twice and catheter was inserted for removal of the bad blood. While discharging the petitioner, doctor advised him to take follow-up treatment and to continue the drugs. He was again admitted in the hospital on 13.03.2006 and discharged on 15.03.2006 with an advice to follow up and during that period catheter was removed. He spent Rs.1,00,000/- towards medical expenses. It is stated that accident occurred only due to the negligence of the driver of the lorry and it is owned by respondent No.1 before the Tribunal and insured with respondent No.2, i.e. appellant herein. As such, both of them are jointly liable to pay the compensation.
Respondent No.1 appeared before the Tribunal through his advocate but not filed any written statement. Respondent No.2 in his written statement denied all the averments and stated that the driver of the lorry could not have seen the risk involved in spite of due care and caution and there was no rashness or negligence in handling the vehicle. Petitioner himself was negligent and responsible for the accident. He contributed much for the accident. As such, he is not entitled to any compensation. It is contended that the lorry in question was parked in the private place at the time of the accident and the accident was not in public place. Petitioner is not a third party. He is claiming compensation as employee under respondent No.1. Therefore, he should have approached the Tribunal under WC Act and he cannot claim compensation under MV Act before the Tribunal. It is further stated the vehicle was not driven by a person having valid and effective driving licence and thus, there is violation of terms and conditions of the policy.
Petitioner before the Tribunal contended that he was working as a cleaner and an assistant in the borewell company i.e. respondent No.1 since 2003. One Purushottam Shetty is the owner of respondent No.1. It is stated that respondent No.1 owns 10 lorries mounted with rig. About 50 persons are working under him and he is also getting salary of Rs.4,000/-per month and Rs.80/- as daily batta. PW1 stated one Narayana and Sheena were looking after him and he did not know as to who is Padmanabha and who lodged FIR. He further stated that he was about 30 feet away from the lorry. It was further stated at the time of the accident, the casing pipe of about 300 feet was already inserted in the borewell. Each casing pipe was measuring about 20 feet in length and the casing pipes will be dropped one after another inside the well and when the last casing pipe was being removed, the incident happened. The casing pipe will be inserted in the well with the help of the chain. They were stored in the nearby open space. When operator has lifted the casing pipe, it has fallen on the head of the petitioner. Respondent examined RW1-Deputy Manager of their Divisional Office at Mangalore and also examined RW2-Investigator appointed by them.
RW2 stated that one Rama V. Shetty was the owner of the place where the alleged accident took place and he recorded her statement and it is a private place which has no access to the public. He further stated that owner has not obtained any license to dig the borewell. But, in the cross examination, RW2 admitted that he has not recorded the statement of the persons whom he enquired. He has not filed any application before concerned panchayat as to whether any license was obtained for digging the bore well or not, and he does not know the door number of Smt. Rama Shetty. Exhibit P1 is the FIR and Exhibit P2 is the complaint. Statement of Padmanabha was recorded by Ullala Police. Rajeev Shetty was taking treatment at Omega Hospital. He was not in a position to give any statement. Padmanabha stated that he along with Rajeeva Shetty attended the work of his employer Vivek Shetty. The cleaner of the lorry Rajeeva Shetty was standing by the side of the lorry. Due to the negligence of the operator, the casing pipe used for borewell had fallen on his head and he sustained grievous injuries and he was not in a position to talk. Based on his complaint, Crime No.33 of 2006 is registered against the operator of the lorry. As per Exhibit P3, the land was surrounded by a compound wall. The charge sheet under Exhibit P6 was filed against the driver and against one Sundaram P., accused pleaded guilty and paid fine of Rs.1,000/-. Respondent No. 2 marked Exhibit R3 RTC in respect of Survey No. 74/2P10 of Munnoor Village of Mangalore to show that land is in the name of Smt. Rama V. Shetty and three photographs of the borewell were also filed to show that there was compound wall and coconut trees were near the borewell. It was observed by the Tribunal that operator and driver are not two different persons. The rig was mounted on the lorry. He was involved either in digging or cleaning the borewell in the land belonging to Rama V. Shetty. PW1 was standing at a distance of 30 feet from the lorry. He was an employee. As such, he has access to the land in which the borewell was dug.
The Tribunal extracted the definition of ‘Public Place’, which reads as follows
“Section 2 Sub-Section 34 of M.V. Act defined the word Public Place as road, street, way or other place where through fair or not the public have right of access.”
The Tribunal also relied upon several citations and held that the land where the borewell was dug was accessible to the public and to the staff of the borewell department. Therefore, the contention of the insurance company cannot be accepted. RW1 stated that they insured commercial vehicle under package policy was for the period from 20.06.2005 to 19.06.2006 and it was insured by respondent No.1 -M/s.Yamuna Rock Drills, Bangalore. The policy issued was miscellaneous and special type of 'B' package policy. The vehicle in question was fitted with rig unit. The copy of the policy was marked as exhibit R1. The Tribunal discussed at length about the IMT endorsements mentioned in it and held that separate premium was paid for covering the risk of the employees and there is no exclusion clause by incorporating Endorsement No.37 and held that insurance company is liable. It is further stated as per the schedule of the premium attached to the policy, the risk of 3 employees under WC Act is covered and premium of Rs.75/- is paid. Clause (D) was also extracted by the Tribunal and held that IMT 47 is applicable but not IMT 52. As per Exhibit R1, Ashok Leyland fitted with rig unit. Policy is miscellaneous and special type of vehicle policy 'B' package. Therefore the argument of the learned counsel for insurance company that they are not liable to pay compensation cannot be accepted. Moreover, it was held that petitioner was not in the lorry and he was standing outside at the time of the incident. Therefore, he can be considered as third party. It was also stated regarding amendment to the WC Act. Section 4 and 4A is amended with effect from 15.09.1995 and they have no retrospective effect. But they came into force with effect from 18.01.2010 and accident occurred in the year 2006. Therefore, it is held that the provisions of WC Act will not come into operation. The learned counsel for the insurance company relied upon a citation in Premabai Patel’s case( supra), it was held as follows:
“it is permissible for owner/employer to take out such a policy whereunder entire liability in respect of death of or personal injury to any such employee, as described in sub-clauses (a), (b) or (c) of proviso (i) to S. 147(1)(b), may be fastened upon the insurance company and insurance company may become liable to satisfy f entire award under S. 166, 1988 Act. For this purpose, owner/employer must take a policy of that particular kind, for which he may be required to pay additional premium, and policy must clearly show, with a clause to that effect, that liability of insurance company is not limited to that provided under the 1923 Act, Where policy mentions "a policy for Act Liability" or "Act Liability", liability of insurance company, as in the present case, would be limited to that arising under the 1923 Act Appellant Insurance g Company given liberty to recover amount paid in excess of liability under 1923 Act to dependants of victim, from respondent owner/employer -Labour Law”
In the said judgment, in which it was also held as follows:
“A person, who has sustained injury or where death has resulted from an accident all or any of the legal representatives of the deceased can claim compensation by moving an application under Section 166 of the Act by filing a claim petition before the Motor Accident Claims Tribunal. Section 3 of the Workmen's Compensation Act lays down that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter II of the said Act. Section 167 of the Motor Vehicles Act, 1988 lays down that notwithstanding anything contained in the Workmen's Compensation Act, 1923 where the death of, or bodily injury to, any person gives rise to a claim for compensation under the Act and also under the Workmen's Act, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. The claim petition had been filed by respondents 3 to 6 claiming compensation for the death of Sunder Singh, who was an employee of respondent No. 2, in an accident arising out of and in the course of his employment. Therefore, they could claim compensation under either of the Acts. But they chose the forum provided under the Motor Vehicles Act. In a petition under the Workmen's Act the injured or the legal heirs of the deceased workmen have not to establish negligence as a pre-condition for award of compensation. But the claim petition before the Motor Accident Claim Tribunal is an action in tort and the injured or the legal representatives of the deceased have to establish by preponderance of evidence that there was no negligence on the part of the injured or deceased and they were not responsible for the accident. The exception to this general rule is given in Section 140 of the Act where the legislature has specifically made provisions for payment of compensation on the principle of no fault liability.”
So, in view of the above citation, it is clear that it is for the workman to file claim petition either under WC Act or under MV Act.
In this case, the petitioner opted to file MVC under the Motor Vehicles Act. The tribunal after lengthy discussion has clearly held that the provisions of WC Act are not applicable and also held that the policy covers the risk of the petitioner and the insurance company is liable to deposit the compensation. Therefore, the argument of insurance company that their liability is only restricted to the provisions of WC Act to an extent of Rs.10,000/- is not sustainable. Therefore, insurance company is liable to deposit. Rs.1,49,000/- with interest at the rate of 6% per annum within one month from the rate of the order.
In the result, this appeal filed by the insurance company is devoid of merits and is dismissed. Insurance company is directed to deposit Rs.1,49,000/- with interest at the rate of 6% per annum within one month from the rate of the order. On such deposit, the claimant is permitted to withdraw the entire amount along with interest accrued on it. The amount in deposit is transferred to the Tribunal.