Sri Raja Ram Yadav @ Raja Yadav And ... vs Sri Ram Charan Yadav And Another
2019 Latest Caselaw 1725 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 41
 

 
Case :- FIRST APPEAL FROM ORDER No. - 273 of 2014
 

 
Appellant :- Sri Raja Ram Yadav @ Raja Yadav And Others
 
Respondent :- Sri Ram Charan Yadav And Another
 
Counsel for Appellant :- V. C. Dixit,C.K.Pai,Pradeep Yadav
 
Counsel for Respondent :- Chanchal Kumar Rai
 
AND
 
Case :- FIRST APPEAL FROM ORDER No. - 4048 of 2017
 

 
Appellant :- Sri Laldev Yadav And Others
 
Respondent :- Sri Ram Charan Yadav And Another
 
Counsel for Appellant :- V. C. Dixit,Pradeep Yadav,Satya Deo Ojha
 
Counsel for Respondent :- Chanchal Kumar Rai,Rajeev Ojha,Rajesh Kumar,Rajiv Ojha
 

 
Hon'ble Saral Srivastava,J.

1. Heard learned counsel for the parties.

2. These two appeals arises out of the same accident and therefore, both the appeals are being decided by a common judgment.

3. First Appeal From Order No. 273 of 2011 has been preferred by the appellants (Raja Ram Yadav @ Raja Yadav & Others) challenging the judgment and order dated 31.8.2009 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 4 Azamgarh in Motor Accident Claim Petition No. 276 of 2000, whereby the claim petition of the appellants claiming the compensation for death of one Laljeet Yadav has been rejected.

4. First Appeal From Order No. 4048 of 2017 has been preferred by the appellants (Laldev Yadav & Others) challenging the judgment and order dated 31.8.2009 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 4 Azamgarh in Motor Accident Claim Petition No. 275 of 2000, whereby the claim petition of the appellants claiming the compensation for death of one Rajendra Yadav.

5. The brief facts of the case are that Laljeet Yadav, was employed as driver and Rajendra Yadav, was employed as co-driver/cleaner on Truck No. W.B. 19-2351 (Tata Trailer) (hereinafter referred as "truck"). On the instructions of the owner of the truck, Laljeet Yadav was driving the truck along with Rajendra Yadav from Calcutta to Jamshedpur, and when the truck reached near Somwati Puliya Picket Check post Goldeeh Kekhadiya Colony Rashtriya Rajmarg No. 33, the truck was looted by some unscrupulous persons, and Laljeet Yadav, the driver of the truck, and Rajendra Yadav, co-driver/cleaner of the truck, were murdered. The deceased Laljeet Yadav was aged about 26 years and was earning about Rs.9,000/- per month. The deceased Rajendra Yadav was aged about 21 years and was earning about Rs. 7,000/- per month.

6. In the aforesaid backdrop, the appellants in F.A.F.O. No. 273 of 2014 instituted a claim petition no. 276 of 2000, wherein they prayed for a compensation of Rs.18,61,000/- along-with 18% interest for the death of Laljeet Yadav (driver); and the appellants in F.A.F.O. No. 4048 of 2017 instituted claim petition no. 275 of 2000 praying for a compensation of Rs.13,01,000/- along-with 18% interest for the death of Rajendra Yadav (cleaner).

7. The insurance company contested the claim petition by filing written statement contending therein that the cause of the death of deceased was due to accident arising out of use of motor vehicle, and in fact it was a case of an act of felony by unscrupulous persons with an intention to kill the driver and cleaner and, therefore, the insurance company is not liable to pay compensation.

8. The owner of the truck also filed written statement wherein he admitted that Laljeet Yadav & Rajendra Yadav were murdered while they were traveling on the truck on the instructions of the owner. He further stated that he was paying the salary of Rs.9,000/- per month and Rs. 7,000/- per month to deceased Laljeet Yadav, driver of the truck and deceased Rajendra Yadav cleaner of the truck respectively.

9. The Tribunal framed as many as 5 issues.

10. On the issue as to whether the deceased Laljeet Yadav and Rajendra Yadav were murdered on 2.10.2010 at Somwati Puliya Picket Check post Goldeeh Kekhadiya Colony Rashtriya Rajmarg No. 33; the Tribunal returned a finding that the Laljeet Yadav and Rajendra Yadav were murdered on 2.10.2010 by some unscrupulous persons. Further, on the issue no. 4 framed by the Tribunal regarding quantification of compensation, the Tribunal has held that though it was a case of accident during the use of motor vehicle, but the claim petition having been instituted under Section 166 of the Motor Vehicle Act,1988 [hereinafter referred as Act,1988] was not maintainable as there was no negligence of the driver of truck in the accident, whereas the appellants are required to prove negligence of driver which is essential for maintaining a claim petition under Section 166 of Act 1988.

11. Challenging the finding, learned counsel for the appellants has contended that the deceased were driver and cleaner of offending vehicle at the time of accident and were killed by the miscreants and the accident had taken place during use of motor vehicle. Thus, he submits that it was a case of accidental murder and the cause of death of deceased were injuries suffered by them during the use of Motor Vehicle.

12. He further submitted that in the case in hand, the insurance policy in respect to offending vehicle, though was an 'Act policy', but the insurance company is mandated by Proviso to Section 147 of the Act, 1988 to cover the risk of driver and cleaner of a good carriage vehicle, and in pursuance thereof the insurance company has charged the premium covering the risk of employees which includes driver and cleaner of the offending vehicle, and as the liability of insurance company flows from the contract, therefore, it can not deny its liability to pay compensation on the ground that as the cause of death was on account of an act of felony by some unscrupulous persons and not due to negligence of the driver of truck.

13. I have considered the rival submissions of the parties and perused the record.

14. It is established from the record that the truck was looted and deceased were shot and died during the use of motor vehicle which is substantiated by the finding of the Tribunal. The only ground on which the claim petition was rejected was that the claimant failed to proved the negligence of the deceased in the accident as the claim petition under Section 166 of the Motor Vehicles Act, 1988 can be decreed only when the owner or the driver of the offending vehicle is negligent.

15. It is relevant to notice Section 147(1) of the Motor Vehicles Act 1988 which reads as under:

"Section 147 of The Motor Vehicles Act, 1988

Section 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 1 [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."

16. Thus, as per the proviso of Section 147(1) of the Act, 1988, the policy of a vehicle is compulsorily required to cover the liability, which arise under the Workmen's Compensation Act, 1923 [hereinafter referred as Act,1923], of an employees in respect of death of, or bodily injury to, or any such employee; (a) engaged in driving the vehicle, (b) engaged as conductor on a public service vehicle or examining the tickets on such vehicle, (c) in case of goods carriage vehicle, the employee carried in the vehicle.

17. The Apex Court in the case of The Oriental Insurance Company Limited vs Meena Variyal and others 2007 (5) SCC 428 had consider the scope of Section 147 of the Motor Vehicles Act, 1988. Para 13 and 14 of the aforesaid judgment is relevant in the context of the present case and are extracted herein below:

"13. As we understand Section 147 (1) of the Act, an insurance policy thereunder need not cover the liability in respect of death or injury arising out of and in the course of the employment of an employee of the person insured by the policy, unless it be a liability arising under the Workmen's Compensation Act, 1923 in respect of a driver, also the conductor, in the case of a public service vehicle, and the one carried in the vehicle as owner of the goods or his representative, if it is a goods vehicle. It is provided that the policy also shall not be required to cover any contractual liability. Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last forgoing to the effect that the policy must cover a liability arising under the Workmen's Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 147, (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act.

14. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods. On this plain understanding of Section 147, we find it difficult to hold that the insurance company, in the case on hand, was liable to indemnify the owner, the employer Company, the insured, in respect of the death of one of its employees, who according to the claim, was not the driver. Be it noted that the liability is not one arising under the Workmen's Compensation Act, 1923 and it is doubtful, on the case put forward by the claimant, whether the deceased could be understood as a workman coming within the Workmen's Compensation Act, 1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be clear that the Insurance Company is not liable to indemnify the insured in the case on hand."

18. Thus, From the paragraph 14 of the Apex Court judgment in the case of Meena Variyal (supra), it can be safely culled out that the risk of the employees mentioned in the proviso to Section 147 are to be compulsory covered under the insurance policy to the extent of liability arising under Act,1923.

19. In the present case, it is explicit from the insurance policy of the offending vehicle that the insurance company has taken premium for covering the risk of employees, which fact is further corroborated from the statement of Sanjay Singh, Development Officer in M.A.C.P. No. 275 of 2000 arising out of the same accident wherein he has admitted coverage of insurance of driver and one employee. Thus, it is established that the driver and one employee of the offending vehicle was covered under the insurance policy.

20. It is not in dispute that the deceased were murdered during the use of motor vehicle. It is also established from the record that the insurance company under the contract of insurance has undertaken to cover the risk of driver and an employee. Thus, in the event death or bodily injury to the driver of the offending vehicle, the insurance company is liable to pay compensation as the liability to pay compensation flows from the agreement and the insurance company cannot resile from the liability which it had taken under the insurance policy.

21. Section 167 of the Act, 1988 gives option to the claimant to choose either of the two forum as provided under the Act, 1988 or under Act, 1923 but not under both.

22. The appellants (claimants) in the present case has opted to approach the Motor Accident Claims Tribunal. Since the liability of the insurance policy covering the risk of employees under the proviso of Section 147(1) of Act 1988 to the extent of liability arising under Act,1923 is statutorily in nature, and the insurance company has taken premium to cover the risk of one driver and one employee, therefore, the insurance company cannot back off from paying the compensation .

23. It is worth mentioning that in cases where the insurance company has charged premium and has undertaken to cover the risk of driver and cleaner, the liability of insurance company emanates from the terms of the contract of insurance, and it cannot deny the payment of compensation to the dependents of the deceased driver and cleaner on the pretext that there was no negligence of driver in the accident.

24. Thus, for the reasons given above, in the opinion of the Court, the Tribunal has erred in dismissing the claim petition on the ground that the claim petitions having been filed under section 166 of Act, 1988 and the claimants have failed to prove the negligence of the driver in the accident, therefore, claim petitions are not maintainable.

25. Thus, for the reasons given above, both the appeals are allowed. The judgment and award of the Tribunal are set-aside on the issue no. 4 to the extent it has held that the appellants (claimants) are not entitled to compensation. The matter is remanded back to the tribunal to decide issue of quantification of compensation afresh within a period of three months from the date of production of the certified copy of the order.

Order Date :- 27.3.2019

Ishan