Protik Prakash Banerjee, J. - (1.) This appeal has been filed by the insurer under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred as to the "Act of 1998") questioning the correctness of a judgment and award dated September 28, 2010 passed by the Learned Judge, Special Court (E.C. Act)-cum-Addl. District & Sessions Judge, Hooghly (hereinafter referred to as "the Tribunal"). By its order passed in M.A.C. No. 64 of 2007 filed under section 166 of the said Act of 1988, the Tribunal passed an award to the tune of Rs. 10,99,080/- in favour of the respondentsclaimants who are widow and daughters of one late Pritish Kumar Chakravarty, an officer id est employee of the company which was the owner of the car. He is referred to hereinafter as "the victim". The victim died in a road accident on October 23, 2006 while travelling in a vehicle insured in the name of his employer, GNB Motors Limited. At the material time of the alleged accident, the concerned vehicle bearing registration No. WB-20/G-6230 was insured as a private car in the name of the employer-company under an insurance policy which covered third party liabilities. It is not in dispute that the victim died in the said accident, or that the said vehicle was involved in the said accident, or that the vehicle was subject to an insurance policy of the Appellant Insurance Company or that the victim was travelling in his employer's car.
(2.) The only point raised by the Learned Counsel appearing on behalf of the appellant is that the concerned vehicle was registered and insured as a "private car" under the Act of 1988 and therefore no statutory liability can be imposed upon the insurer for the death or injury of any employee of the owner traveling in it, apart from the driver and that insurance premium had been paid on that basis and the policy had been accepted by the appellant on that basis. In support of this contention, reliance has been placed upon section 147 of the Act of 1988. Section 147 lays down the following: 147 Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against 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: Provided that a policy shall not be required- (i) 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 (8 of 1923) in respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation. -For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
(3.) The appellant contends that apart from its liability towards the driver of the vehicle in question under the Employees' Compensation Act, 1923, and at best under the policy itself, no liability in respect of any other employee of the owner who died in the accident could be imposed upon them. The line of arguments adopted by the appellant seems to suggest that the victim was merely an occupant of the said vehicle in his capacity as an officer of the insured and therefore stands in no better position than a gratuitous passenger.;