T M VENKATARAJAN Vs. T ABDUL MUNAF SAHIB
LAWS(MAD)-1970-2-18
HIGH COURT OF MADRAS
Decided on February 06,1970

T M VENKATARAJAN Appellant
VERSUS
T ABDUL MUNAF SAHIB Respondents

JUDGEMENT

- (1.) THE first appellant is the owner, and the second appellant, the insurer, of, a lorry bearing registration number, MDU 5679, which was involved in an accident, as a result of which Hayat Basha, the cl eaner of the lorry, sustained injuries and died on the spot. Respondents Nos. 1 to 8 who are the heirs and legal representatives of the deceased, filed an application 1under section 110a of the Motor Vehicles Act before the Motor A he driver, because the lef t side of the lorry had come into violent collision with the right extremity of a stationary vehicle and the violence of the impact was such that Hayat Basha, the. cleaner. who was in the lorry. was thrown off his seat in front of the vehicle by the side of the driver of the vehicle and the vehicle itself lurched on its right side, and consequently the death of the cleaner was the result of negligence on the part of the driver of the lorry.
(2.) THE learned judge fixed the compensation payable at Rs. 5, 000 and directed the same to be divided among the claimants in the same ratio as they would be entitled to if Hayat had died leaving this fund as his property. THE contention of the insurance company that their liability was specifically excluded under section 95 of the Motor Vehicles Act, as well as under the specific terms of the policy, *as also overruled by the Tribunal. It is against this order that the present appeal has been filed by the owner of the vehicle and the insurer It is contended on behalf of the insurance company that inasmuch as the deceased was an employee of the owner of the vehicle, the insurance company is not liable to pay compensation for his death either under the terms of the insurance policy or under section 95 of the Motor Vehicles act. 1 am unable to accept this contention. Section 2 of the policy of insurance provides that the company will indemnify the insured against all sums which the insurex has become, legally liable to pay in respect of (i) death of or bodily injury to any person caused by or arising out of the use of the motor vehicle. THEre are seven provisos to this clause, of which provisos (b) and (c)are relevant. Proviso (b) runs as followsexcept so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939. the company shall not be liable in respect of death or bodily injury to any person in the employment of the insured arising out of and in the course of such employment Proviso (c) runs as follows "except so far as is necessary to. meet the requirements of section 95 of the Motor Vehicles Act, 1939, in relation to liability under the Workmen's Compensation Act, 1923, the company shall not be liable in respect of death of or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment)being carried in or upon or entering or mounting or alighting from the motor vehicle at the time of the occurrence of the event out of which any claim arises. " * The effect of the provisions quoted above is this. The insurance company has undertaken to indemnify the insured against any expenses which the insured shall become legally liable to pay in respect of death of or bodily injury to any person caused by or arising out of the use of the motor vehicle. This general stipulation is followed by an exception in proviso (c) as well as an exception to the exception, the effect of which is that the company undertakes to indemnify the insured to the extent necessary to meet the requirements of section 95 of the Motor Vehicles Act in relation to liability under the Workmen's Compensation Act Section 3 of the Workmen's Compensation Act provides 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 Il As admittedly the deceased, hayat, was employed under the insured and personal injury was caused to him by accident arising, out of and in the course'of his employment, there can be little doubt that the insured, would be liable to pay to Hayat the compensation payable under the Workmen's Compensation Act. When proviso (c) says that, except so far as is necessary to meet the requirements of section 95 of the motor Vehicles Act in relation to liability under the Workmen's Compensation act the company shall not be liable in respect of death of or bodily injury to any person, it means that the company has undertaken to indemnify the insurerd against any liability to pay compensation under the Workmen's Compensation Act in his capacity as employer of the deceased. In fact, it is only the requirement of section 95 of the Motor Vehicles Act which has been reproduced word for word in proviso (c) to clause (i) of section 2 of the policy. Section 95 of the motor Vehicles Act prescribes that a policy of insurance must be a policy which insures the person specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him or them in respect of the death of or bodily. injury to any person caused by or arising oul of the use of the vehicle in a public place. This requirement is followed by proviso (1) which says that the policy shall not be required to 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, in respect of death of, or bodily injury to, any such employee. It is, therefore, manifest that, under section 95 of the Motor Vehicles Act, a statutory duty is cast upon the insurance company to indemnify the insured against. any liability, to pay compensation to his employee under the Workmen's compensation Act, and it is in pursuance of this duty that the insurance company has framed clause (1) and provisos (b) and (c) in section 2 of the insurance policy. The contention that the insurance company is not liable to indemnify the insured in respect of the compensation payable under the Workmen's compensation Act. is therefore untenableit is next contended on behalf of the insurance company that even'assuming that it is liable to pay compensation under the Workmen's Compensation Act, the claims tribunal under the Motor vehicles Act would have no juris iction to. pass an awa:rd against the insurance company, and that'only in proceedings before the Cowmissioner for workmen's Compensation under the Workmen's Compensation Act such an award can be made. It is also contended that once proceedings have been initiated under the, Motor Vehicles Act before the claims tribunal, not only the remedy under the Workmen's Compensation Act but also the liability to enforce it has been lost, and hence the insurance company is no longer liable in this behalf. In support of this contention my attention is drawn to the great difference that exists in the nature of the proceedings before the two tribunals, and the capacity of the persons entitled to claim compensation under th@ Workmen's compensation Act and the Motor Vehicles Act. It is pointed out, for instance, that under the definition of "dependants" in section 2,. clause (d), of the Workmen's Compensation Act, the persons, who would be entitled to claim compensation under that Act, would be different from those entitled to claim compensation under section 1 10a of the Motor Vehicles Act. It is further pointed out, that, under section 8 of the Workmen's Compensation Act, no payment of compensation shall be made in respect of a workman otherwise than by deposit with the commissioner, and that it is only the receipt of the commissioner that will be a sufficient discharge in respect of any compensation payable under that Act. It is true that the Workmen's Compensation Act, which is a special enactment intended to provide for payment by certain classes of employers to their workmen of compensation for injury by accident, prescribes a special forum and a special procedure before the forum and entitled only a special class of dependants (indeed some of the claimants in this case would be dependants within the meaning of section 2, clause (d), of the Workmen's compensation Act) to claim compensation under that Act. But clause (5) of section 3 of the Workmen's Compensation Act gives an option to the claimants to choose either the forum prescribed by the Workmen's Compensation Act or the civil court, and once the claimants elect either forum, they would be precluded under that clause from resorting to the other forum. There is nothing in section 3 of the Workmen's Compensation Act to indicate that the liability of the insurance company to indemnify the employer against compensation payable to the employee under the Workmen's Compensation Act would be lost the moment the claimants of the employee in exercise of their option resorted to the civil court or the claims tribunal, which under section 110f of the Motor Vehicles act, has substituted the civil court in the matter of adjudicating upon any question which may be adjudicated by the claims tribunal under the Motor vehicles Act. Nor is there anything in the insurance policy which says that the insurance company would be liable to the insured only if proceedings are instituted under the Workmen's Compensation Act and an award is made thereunder. The language of the insurance contract is clear and it says that the insurance company undertakes to indemnify the insured in so far as it is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939, in relation to liability under the Workmen's Compensation Act. The limitation is with reference to the quantum of the liability under the workmen's Compensa. tion Act, and not with reference to the forum in which the liability is to be quantified. For instance, under section 4 of the Workmen's compensation Act, where death results from the injury and the deceased workmen has been in receipt of monthly wages falling within the limits shown in the first column of schedule IV, the amount of compensation shall be the amount shown against such limits in the column thereof. If the deceased was getting wages exceeding Rs. 1 00 per mensem and below Rs. 150 per mensem, the amount of compensation for. death would be 7, 000. It may be noted that this amount would be payable even without proof of any negligence, if proceedings were initiated under the Workmen's Compensation Act. On the contrary, if proceedings were instituted before the claims tribunal and the claimants are able to prove negligence, it is conceivable that they might get a far larger amount by way of compensation. Where the amount fixed under the Motor Vehicles Act is larger than the amount payable under the Workmen's Compensation Act, the insurance company would be liable'only to ay the amount payable under the Workmen's compensation Act, because under the insurance contract its liability is limited to the one under the Workmen's Compensation Act.'1 therefore hold that the insurance company cannot plead non-liability merely on'tlie gr'ound'ihat the proceedings have been initiated in this case under the : Motor Vehicles Act. It is, open to the claims tribunal to interpret the contract of insurance, quantify the liability of the insurance company in the light of section 4 and schedule IV of the Workmen's Compensation Act and pass an award apportioning liability as between the insurer and the insuredlearned counsel for the appellants contends that the claims tribunal the under the Motor Vehicles Act would have no jurisdiction to split award or to pass two awards. I am unable to agree.'on a proper construction of section 110f of the Motor Vehicles Act, it is plain that no such limitation has been imposed upon the jurisdiction or power'of the claims. tribunal. I may also refer in this connection to a decision of Venkatadri J. in General Assura, nce Society Ltd. v. Md. Hussain 1. In that case the jurisdiction of the claims tribunal to adjudicate upon a claim against the insurance company-under the Workmen's Compensation Act was upheld by implication The respondents have filed cross-objections claiming enhancement of the amount of compensation As the order of the court below does not show that it has computed the compensation payable in the light of the relevant legal principles, I set aside the award and remand the matter to the tribunal for fixation and apportionment of the amounts of compensation payable by the insurer and the insured in the light of the observations made in his order and on the basis that both of them are liable to pay compensation. The tribunal will give an opportunity to both the parties to lead additional evidence upon the quantum of compensation as well as upon the entitlement of each of the respondents to compensation either as dependants under the Workmen's compensation Act or as claimants under the Motor Vehicles Act. The appellants will pay the respondents half the costs of this appeal.;


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