The Patna High Court, while dismissing an appeal filed by Shri Ram General Insurance Co. Ltd. against the judgment/award dated 08.04.2019 passed by the learned Additional District Judge whereby the learned Tribunal was pleased to direct the appellant/Insurance Company to pay Rs.11,93,000/- with interest @ 6 % per annum, held that the risk of paid driver and cleaner would be covered under the insurance policy; only when the additional premium is not paid, liability would be as per the Employee Compensation Act, 1923.
Brief Facts:
An accident took place near Vaura Bridge on Gangta Main Road. The Tractor with trailor was turned down due to rash and negligent driving by the driver resulting in the death of cleaner Premshankar Modi of the said tractor on the spot. A case under Section 279/304A of the Indian Penal Code was lodged, a post-mortem of the deceased was conducted, and after investigation charge sheet was submitted against Phantoosh Kumar, driver of the offending tractor. After hearing the parties, the learned Tribunal held that claimants are entitled to compensation.
Contentions of the Appellant:
Learned Counsel for the Appellant submitted that the learned Tribunal failed to consider that the deceased was not a cleaner, as the tractor has the sitting capacity of one person only, he was a gratuitous passenger, and the liability cannot be imposed on the Insurance Company. He argued that the tractor was insured only for agriculture purposes and it was being used for commercial purposes as Iron rods were loaded on the tractor trailor.
Contentions of the Respondents:
Learned Counsel for the Respondents submitted that the claimants proved their case by examining witnesses as well as the documentary evidence exhibited on their behalf in support of their claim. He argued that the deceased was the cleaner of the tractor who was not a gratuitous passenger and there is no evidence in this case that the deceased was a gratuitous passenger.
Observations of the Court:
The Court noted that there is no dispute as to the occurrence. The only question that remains to be decided is whether the appellant is liable to pay the compensation and the quantum of compensation awarded with respect to the monthly income of the deceased and prospects as raised on behalf of the appellant.
The Court observed that the assessment of compensation cannot be done with mathematical precision. The Motor Vehicle Act, 1988 provides for the assessment of just and fair compensation. The Court said that if the owner of a vehicle pays an additional premium and the same is accepted by the Insurance Company, the liability of the Insurance Company gets extended under the Motor Vehicle Act, 1988. Section 147 of the Act prescribes statutory liability to cover the risk of paid drivers and cleaners under the insurance policy, which is a matter of contract. On payment of such additional premium by the owner, the liability of the owner shifts upon the insurance company. Thus, the risk of paid drivers and cleaners would be covered under the insurance policy. Only when the additional premium is not paid, liability would be as per the Employee Compensation Act, 1923.
The decision of the Court:
The Patna High Court, dismissing the appeal, held that the appeal is devoid of merit and the Judgment and award dated 08.04.2019 passed by the Learned Tribunal stands confirmed.
Case Title: Shri Ram General Insurance Co. Ltd. vs Radha Devi & Ors.
Coram: Hon’ble Mr. Justice Sunil Dutta Mishra
Case No.: Miscellaneous Appeal No.443 of 2019
Advocate for the Appellant: Mr. Alok Kumar
Advocate for the Respondents: Mr. Raj Kumar Choudhary
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