New India Assurance Co. Ltd. vs Rajamani and Others

Prabha Sridevan, J.—The insurance company has challenged the award passed by the Commissioner for Workmen''s Compensation,

Tirunelveli on the ground that it has no liability to indemnify the insured, for the accident to respondent No. 1.

The respondent No. 1 was engaged as a loadman for transfer of crushed stones into the lorry belonging to the respondent No. 3 from the

crusher unit belonging to the respondent No. 4. The lorry was driven by the respondent No. 2 and insured by the appellant. At the time of loading

the crushed stones a wall standing in the quarry fell down resulting in an injury to respondent No. 1''s right leg and so, a claim was filed and an

award of Rs. 54,191 was passed. Aggrieved by this, the insurance company has filed the appeal.

The following questions were raised by the learned Counsel for the appellant at the time of arguments:

(1) Whether the insurance company is liable when the policy does not cover injuries under the Workmen''s Compensation Act?

(2) Whether the insurance company is liable under the Motor Vehicles Act, when the lorry was nowhere near the spot where the accident

occurred?

(3) Whether the injury caused by the wall toppling down would be an accident arising out of the use of motor vehicle? and finally,

(4) Whether a quarry would be a ''public place'' to bring in the operation of the provisions of the Motor Vehicles Act?

The matter was argued over several dates and this court records its appreciation of the matter in which both the Counsel for the appellant and

the respondent No. 1 performed their duty as true officers of court in arriving at the solution. The learned Counsel for the appellant has narrated

the following facts so that the questions could be decided easily.

On 6.12.1995, the respondent No. 1 and three others, at the request of the respondent No. 3, boarded his lorry bearing registration No. TN 69-

0568 to collect the crushed stones from the respondent No. 4''s crusher. The lorry was parked at the entrance to the quarry about 250 ft. from

where the accident occurred. When the respondent No. 1 was loading the crushed stones, a wall fell down and the accident occurred. The

respondent No. 1 having approached the forum constituted under the Workmen''s Compensation Act, cannot expect to receive compensation

from the appellant who is only liable to indemnify the insured in respect of accidents that come within the purview of Motor Vehicles Act. He

further submitted that when the accident occurred because the wall fell down, it cannot be held to be an accident that happened on account of the

use of a motor vehicle. Finally, he submitted that there is oral evidence to show that no one can enter the crushing quarry as a matter of right and,

therefore, the accident did not occur in ''a public place'' and hence the provisions of the Motor Vehicles Act are not attracted. He relied on the

judgment reported in Mangalam v. Express Newspapers Ltd. 1982 ACJ (Supp) 203 (Madras), where the Division Bench of this court held that

the Express Newspaper Estate which is a place where entry of public is regulated is not a public place and the insurance company is not liable. It

was also urged by the learned Counsel for the appellant that the policy is an Act only policy and it covers compensation due to road accident only

and that is why originally, appellant was not made a party to the claim and was impleaded only thereafter.

Mr. Rajan, learned Counsel appearing for the respondent No. 1, on the other hand, submitted that both Motor Vehicles Act and the

Workmen''s Compensation Act are welfare legislation and should be construed liberally. He submitted that the words ''arising out of use of motor

vehicle'' would also be given a wider interpretation and when the accident occurred because the respondent No. 1 was engaged in loading stones

into the motor vehicle, it would be covered by the words ''arising out of the use of motor vehicle''. He also submitted that the factual finding is that

the respondent No. 3 had engaged the respondent No. 1 as a loadman. The policy is in the name of the respondent No. 3 and that is not in

dispute. Therefore, when the accident occurred both out of the use of the motor vehicle and in the course of employment, the insurer of the

respondent No. 3 must definitely be made liable. As regards the words ''public place'', he would submit that the Full Bench of this court has held

that the words ''public place'' should receive a broader construction to take within its ambit, places where public can enter, whether the entry is

uncontrolled, restricted or regulated. He has relied pn the following judgments:

(i) New India Assurance Co. Ltd. Vs. Ajoy Medhi and Another, ; (ii) New India Assurance Co. Ltd. Vs. Dalibai, (iii) Babu Vs. Remesan and

Others, ; (iv) Oriental Insurance Co. Ltd. v. Vasantha Pitambar (v) State of Kerala Vs. Ramaniamma and Another, (vi) United India Insurance

Co. Ltd. Vs. Parvathi Devi and Others, ; (viii) G. Bhuvaneswari and 3 others Vs. M. Sornakumar and 2 others, .

The distinction that was sought to be placed by learned Counsel for the appellant with regard to the choice of forums for obtaining a decision on

the claim for compensation had received the attention of the Supreme Court in Smt. Rita Devi and Others Vs. New India Assurance Co. Ltd. and

Another, In that case, the claim for compensation was made for the death of the driver of an autorickshaw which was the insured vehicle. The

driver was murdered. A claim petition was filed under the Motor Vehicles Act. The Apex Court considered the legal import of the words

''accidents arising out of the use of motor vehicle'' and held that the murder was due to accident arising out of the use of motor vehicle. In arriving

at this conclusion the Apex Court held thus:

We do not see how the objects of the two Acts, namely, the Motor Vehicles Act and the Workmen''s Compensation Act are in any way different.

In our opinion, the relevant object of both the Acts are to provide compensation to the victims of accidents. The only difference between the two

enactments is that so far as the Workmen''s Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief

provided under Chapters X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion

of ours, we are supported by Section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim

compensation under Workmen''s Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly

establishes that both the enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word

''death'' in Workmen''s Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also.

In this case, instead of death, the compensation was claimed on account of the injuries. It is no doubt true that the respondent No. 1 chose the

forum constituted under the Workmen''s Compensation Act. That his injury occurred during the course of employment is established beyond

doubt; that his employer was insured by the appellant is also not in dispute. In these circumstances, if it is established that the accident occurred ''in

a public place'' and arose out of the use of a motor vehicle, then Section 167 permits the choice of claiming compensation under either of the two

Acts as per the decision cited above.

In New India Assurance Co. Ltd. Vs. Ajoy Medhi and Another, , driver of a car was dragged by the police personnel and assaulted. He

claimed compensation under Workmen''s Compensation Act. The insurance company challenged his liability on the ground that the injuries were

not sustained in an accident. Learned Judge of the Assam High Court held that the insurance company was liable.

In New India Assurance Co. Ltd. Vs. Dalibai, the driver was given a blow while he had parked his truck, as a result of which, he had died. The

insurance company challenged the award on the ground that the accident did not occur in the course of employment. This will not apply to this

case.

The decision reported in Babu Vs. Remesan and Others, , was a case where the claimants were engaged in loading a goods vehicle. When the

rope was thrown to the other side to gather the goods, it came in contact with some live wire resulting in burn injuries. Claim was made under the

Motor Vehicles Act. The question was raised whether this was an accident that arose from the use of the motor vehicle. The Division Bench of the

Kerala High Court (which included Justice K.T. Thomas as he then was) held thus:

The expression ''use of a motor vehicle'' covers accidents which occur both when the vehicle is in motion and when it is stationary. The word ''use''

has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of

the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident. Such use need not necessarily be so

intimate and closely direct as to make it ''a motor accident'' in the sense in which that expression is used in common parlance. The expression

employed by the legislature is ''accident arising out of the use of a motor vehicle'' in the place of ''accident caused by the use of a motor vehicle''.

Evidently the legislature wanted to enlarge the scope of the word ''use'' and not to restrict it for denying compensation in deserving cases. The test

should be whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then.

In Oriental Insurance Co. Ltd. v. Vasantha Pitambar the driver took the vehicle for oiling and greasing and put the vehicle on jack. The vehicle

slipped. The question was raised whether the accident arose in the cause of an employment. It was held in favour of the claimant. This decision

also may not strictly apply to this case.

The decision reported in State of Kerala Vs. Ramaniamma and Another, was a case where the workman suffered chest pain and died of heart

attack. This also may not apply to this case.

In United India Insurance Co. Ltd. Vs. Parvathi Devi and Others, , the Full Bench of this court, while considering what a ''public place'' is for

the purpose of understanding Section 2(24) of the Motor Vehicles Act, 1939 followed the decision of the Full Bench of the Bombay High Court

and held thus:

The definition of ''public place'' is very wide. A perusal of the same reveals that the public at large has a right to access though that right is regulated

or restricted. It is also seen that this Act is beneficial legislation, so also the law of interpretation has to be construed in the benefit of public. In the

overall legal position and the fact that if the language is simple and unambiguous, it has to be construed in the benefit of the public, we are of the

view that the words ''public place'' wherever used as a right or controlled in any manner whatsoever, would attract Section 2(24) of the Act. In

view of this, as stated, the private place used with permission or without permission would amount to be a ''public place''.

An extract of the para from Bombay High Court judgment in Pandurang Chimaji Agale v. New India Life Insurance Co. Ltd. 1988 ACJ 674

(Bom), may be useful to decide the question:

(9) It is also necessary to bear in mind the distinction between the expression ''right of access'' and ''access as of right''. The latter expression

denotes a place where the members of public have a right of its use as members of public and as a matter of right, whether regulated, restricted or

not. They cannot, however, be denied the said right except on legal grounds. On the other hand, where there is only a right of access, the owner of

the place, if he happens to be a private owner may deny the access to any members of the public on any ground which he chooses. In other

words, in the former case, the right of the members of the public to use the place is restricted com pared to their right to use in the latter case. The

definition under the Act uses the expression ''right of access'' as pointed out earlier. What is, therefore, significant to note is that under the present

definition even a place the right to use of which is restricted is a public place. Once this is borne in mind much of the controversy raised before us

around the correct meaning of the expression ''public place'' loses its edge.

In this case, the Division Bench judgment reported in Mangalam v. Express Newspapers Ltd. 1982 ACJ (Supp) 203 (Mad), cited by the learned

Counsel for the appellant was also relied on. But yet, the Full Bench held that ''public place'' for the purpose of Chapter 8 of the Motor Vehicles

Act will cover all the places even those which are privately owned where public have access, whether free or controlled.

The decision in G. Bhuvaneswari and 3 others Vs. M. Sornakumar and 2 others, is one where the Division Bench of this court, following the

above Full Bench decision, has held that the accident which occurs in a factory premises is one which occurred in a public place.

In Shivaji Dayanu Patil and another Vs. Smt. Vatschala Uttam More, a petrol tanker overturned as a result of collision with a truck and after

few hours, it exploded causing death. The Supreme Court held that the word ''use'' has a wider connotation and the use of a vehicle does not

cease merely because the vehicle had been rendered immobile for various reasons. The Supreme Court also considered the effect of the

expression ''caused by'' and ''arising out of with reference to motor accidents and held that latter had a wider connotation than the former and it

held thus:

In Section 92-A, Parliament, however, chose to use the expression ''arising out of which indicates that for the purpose of awarding compensation

u/s 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required

to be direct and proximate and it can be less immediate. This construction of the expression ''arising out of the use of a motor vehicle'' in Section

92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the

enactment.

In United India Insurance Co. Ltd. v. Thimmawwa 1989 ACJ 149 (Kar), coolies employed for loading and unloading of the trailer attached to

a tractor met with an accident resulting in death of some and injuries to others. The insurance company challenged its liability. The Division Bench

of Karnataka High Court held thus:

A motor policy-a document pertaining to a contract, it is needless to point out, cannot be interpreted so as to restrict its operation as would defeat

the very purpose for which it had been taken. We are, therefore, not left in any doubt that the policy under consideration has been rightly

interpreted by the Claims Tribunal so as to make the insurer liable to indemnify the insured against latter''s legal liability to coolies employed in

connection with loading and/or unloading of the tractor-trailer while they were carried in tractor-trailer for the purpose of its loading and/or

unloading.

In National Insurance Co. Ltd. Vs. Balawwa, the Division Bench of Karnataka High Court again held in favour of the claimant, who died after

loading stones on a tractor trailer when he went to answer the call of nature, due to heart failure.

The case of the appellant is that the insurance company is liable to indemnify the insured only when accident has occurred out of the use of

motor vehicle in a public place. In view of the Full Bench judgment, the inescapable conclusion is that the crushing quarry is a public place. One

particular phrase from the decision reported in G. Bhuvaneswari and 3 others Vs. M. Sornakumar and 2 others, is relevant. The Division Bench

held that the factory premises which is accessible to and available for the use of public who have dealings with the factory is a public place. In this

case, the public who have dealings with the stone crushing spot have access to the quarry, and, if at all, entry is only regulated. Hence, the spot of

occurrence is definitely a public place within the meaning of Section 2(24) of the Motor Vehicles Act, 1939. As held by the Full Bench of the

Bombay High Court, this was a place where the public had a right of access though not a legal right of access and the place was accessible to the

members of public for their use, enjoyment, avocation or other purposes. In this case, the place was accessible for the persons who quarried the

stone and transported it for their use. As stated earlier, the accident also occurred in the course of employment.

The various judgments relied on by the learned Counsel for the respondent No. 1 also come to his aid. The use of the vehicle need not be

inextricably connected with the accident. As referred to above the words ''arising out of also give a much wider scope for advancing the beneficial

purpose of the Motor Vehicles Act and the Workmen''s Compensation Act. The para cited above from the decision of the Apex Court in Smt.

Rita Devi and Others Vs. New India Assurance Co. Ltd. and Another, would also show how the relevant object of both the Acts are to provide

compensation for the victims of accident. It would indeed be unjust to hold that falling down of the wall was an incident and not an accident. The

respondent No. 1 went to the quarry to load the motor vehicle and at that time, met with the accident. Therefore, the nexus between the use of the

motor vehicle and the accident cannot be said to be remote. The fact that the lorry was parked 250 ft. away from the quarry is irrelevant. The

connection between the spot where the accident occurred and the activity of loading provides the close link between the accident and the use of

motor vehicle.

Further, Section 147(1) of Motor Vehicles Act requires compulsory coverage in respect of death/injury to driver and employees carried in a

goods vehicle to the extent of liability under the Workmen''s Compensation Act. The learned Counsel for the appellant produced a sample policy

in which the insurer covers the liabilities under the Workmen''s Compensation Act, and the true certified copy of the policy in this case to show that

such a cover was not extended by the insurer. It is true that the two policies are different. But the policy on hand shows that the policy does not

cover use for carrying passengers in the vehicle except employees (other than the driver) not exceeding six in number coming under the purview of

Workmen''s Compensation Act, 1923. The respondent No. 1 is an employee and there is nothing to show that there were more than 6 person in

the vehicle. So this limitation also does not exclude the respondent No. 1. In these circumstances, all the questions raised by the appellant are

answered in favour of the respondent No. 1. The quantum is purely an issue of fact and was not seriously challenged and, therefore, that is not

interfered with C.M.A. is, therefore, dismissed. No costs. C.M.P. Nos. 17965 of 1999 and 4214 of 2001 are closed.