Gauhati High Court
Page No.# 1/13 vs Smti Tulsi Devi And Anr on 18 March, 2025
Page No.# 1/13
GAHC010035112019
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MFA/10/2022
CHOLAMANDALAM M S GENERAL INSURANCE CO. LTD
CHOLAMANDALAM M S GENERAL INSURANCE CO. LTD.,
Address - HAVING ITS REGISTERED OFFICE AT SHAW WALLACE BUILDING
NO. 154, 2ND FLOOR, THAMBU CHETTY STREET, CHENNAI- 600001, AND
NORTH EAST STATE OFFICE AT ASTHA PLAZA, 4TH FLOOR, OPPOSITE TO
DEORAH COLLEGE, BORA SERVICE, ULUBARI, G.S. ROAD, GUWAHATI-
781005.
VERSUS
SMTI TULSI DEVI AND ANR
SMTI. TULSI DEVI AND ANR
Address - W/O- LATE LAKHAN KARKI @ LEKHOK, R/O- VILL.- NURBARI
TEA ESTATE, P.O.- NIKAMUL SATRA, P.S. TEZPUR, DIST.- SONITPUR,
ASSAM, PIN- 784154
2:SRI ARUN BISWAKARMA
S/O- SRI CHANDRA MAN BISWAKARMA
R/O- VILL. H/NO. 10 AMRIT NAGAR
NEPALI BASTI MAIDAN GAON
BELTOLA
DIST.- KAMRUP (M)
GAUHATI- 781029
Advocate for the Petitioner : MR K K BHATTACHARYYA, MS. R DEVI,MS JONA
TALUKDAR,MR J JOHN
Advocate for the Respondent : MR. K BHATTACHARJEE (R1), MR. S KHAN (R1),MS. A
BARMAN (R1),MS B TALUKDAR (R1),MR. M H LASKAR
Page No.# 2/13
Linked Case : I.A.(Civil)/117/2022
CHOLAMANDALAM M S GENERAL INSURANCE CO. LTD.
CHOLAMANDALAM M S GENERAL INSURANCE CO. LTD.
Address - HAVING ITS REGISTERED OFFICE AT SHAW WALLACE BUILDING
NO. 154
2ND FLOOR
THAMBU CHETTY STREET
CHENNAI- 600001
AND NORTH EAST STATE OFFICE AT ASTHA PLAZA
4TH FLOOR
OPPOSITE TO DEORAH COLLEGE
BORA SERVICE
ULUBARI
G.S. ROAD
GUWAHATI- 781005.
VERSUS
SMTI. TULSI DEVI AND ANR
SMTI. TULSI DEVI AND ANR
Address - W/O- LATE LAKHAN KARKI @ LEKHOK
R/O- VILL.- NURBARI TEA ESTATE
P.O.- NIKAMUL SATRA
P.S. TEZPUR
DIST.- SONITPUR
ASSAM
PIN- 784154.
2:SRI ARUN BISWAKARMA
S/O- SRI CHANDRA MAN BISWAKARMA
R/O- VILL. H/NO. 10 AMRIT NAGAR
NEPALI BASTI MAIDAN GAON
BELTOLA
DIST.- KAMRUP (M)
GAUHATI- 781029.
------------
Advocate for : MR K K BHATTACHARYYA
Advocate for : appearing for SMTI. TULSI DEVI AND ANR
Linked Case : I.A.(Civil)/1216/2019
Page No.# 3/13
CHOLAMANDALAM M S GENERAL INSURANCE CO. LTD.
HAVING ITS REGISTERED OFFICE AT SHAW WALLACE BUILDING NO. 154
2ND FLOOR
THAMBU CHETTY STREET
CHENNAI- 600001
AND NORTH EAST STATE OFFICE AT ASTHA PLAZA
4TH FLOOR
OPPOSITE TO DEORAH COLLEGE
BORA SERVICE
ULUBARI
G.S. ROAD
GUWAHATI- 781005.
VERSUS
SMTI. TULSI DEVI AND ANR
W/O- LATE LAKHAN KARKI @ LEKHOK
R/O- VILL.- NURBARI TEA ESTATE
P.O.- NIKAMUL SATRA
P.S. TEZPUR
DIST.- SONITPUR
ASSAM
PIN- 784154.
2:SRI ARUN BISWAKARMA
S/O- SRI CHANDRA MAN BISWAKARMA
R/O- VILL. H/NO. 10 AMRIT NAGAR
NEPALI BASTI MAIDAN GAON
BELTOLA
DIST.- KAMRUP (M)
GAUHATI- 781029.
------------
Advocate for : MR. K K BHATTA
Advocate for : MR. S ROY appearing for SMTI. TULSI DEVI AND ANR
BEFORE
HONOURABLE MRS. JUSTICE MARLI VANKUNG
JUDGMENT
Date : 18.03.2025
Heard Mr. K.K. Bhatta, learned counsel for the appellant. Also heard Mr. K.
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Bhattacharjee, learned counsel for the respondent No. 1 and Mr. S. Roy, learned counsel for
the respondent No. 2.
2. The instant appeal is filed against the judgment and order passed by the learned
Assistant Labour Commissioner-Cum-Commissioner for Employee's Compensation, Sonitpur,
Assam in SWC Case No. 09/2015 dated 28.11.2018, wherein the learned Commissioner,
Employee's Compensation had awarded the sum of Rs. 9,94,469 (Rupees Nine Lakh Ninety
Four Thousand Four Hundred Sixty Nine) only to the claimant to be paid by the present
appellant Cholamandalam MS General Insurance Co. Ltd with an interest @ 12% per annum
to be borne by the appellant compensation from the date of the accident i.e., 18.02.2015.
Aggrieved by the said judgment and award, the instant appeal is filed by the appellant
Insurance Company.
3. Facts of the case in brief is that on 18.02.2015 Sh. Lakhan Karki was proceeding with
truck Registration No. AS/01FC/9951 as a second driver, when they reached the Rattchjara
NH 44, due to mechanical defect, the vehicle capsized and the driver who drove the vehicle
died on the spot, while the second driver/Sh. Lakhar Kachi succumbed to his injuries and died
on 08.07.2015. An accident case was registered under Umkiang GDE No. 03 dated
18.02.2015. The accident vehicle was insured with the Cholamandalam MS General Insurance
Co. Ltd vide policy No. 3379/01135080/000/00 which was valid from 27.12.2014 to
26.12.2015 and thus was valid when the accident occurred on 18.02.2015. The claimant who
is the wife of Sh. Lakhan Karki/second driver claimed for compensation which was registered
as SWC Case No. 09/2015. The Insurance Company arrayed as opposite party No. 2
submitted their written statement and questioned the claim of the second driver.
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4. The learned trial court framed the following issues:-
i) Whether the claimant was workman within the meaning of the Employee's
Compensation Act 1923 as amended?
ii) Whether the accident arose out of and in the course of the employment?
iii) Whether the said claimant is entitled to get compensation; if so, what shall be the
quantum and from whom?
5. Both the parties adduced their evidence and after hearing both the parties, the
impugned award as mentioned above was duly made by the learned Commissioner for
Employees Compensation, by deciding all the issues in favour of the claimant. Aggrieved by
the said, the instant MFA has been filed by the appellant.
6. The substantial questions of law framed by this Court on 18.01.2021 are:-
1. Whether the learned Commissioner was justified to fasten liability upon the
appellant in as much as in the insurance policy there was no coverage for the 2 nd
driver?
2. Whether extra premium of Rs. 50/- paid by the insured cover the risk of 2 nd driver
or it cover the wider liability of the 1st driver?
7. Mr. K.K. Bhatta, learned counsel for the appellant submitted that the Motor Vehicles Act,
1988, before amendment is applicable herein, since the accident happened before the
amendment of the Motor Vehicles Act, the proviso of Section 147 of the Act states that- "
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
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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 not a goods carriage , being carried in
the vehicle or
(ii) To cover any contractual liability"
He submitted that the learned Commissioner failed to take into account that the
deceased was a second driver who was not driving the accident vehicle, and coverage for the
second driver of the truck was not taken by the owner of the vehicle (Respondent No.2), nor
was it provided under the policy issued by the appellant, therefore, the second driver being
not covered by the policy, no liability can be fastened upon the appellant-insurer.
8. The learned counsel for the appellant submitted that the learned Commissioner ought to
have considered that the deceased was a second driver on the truck and in the absence of
coverage for a second driver in the policy, the liability to pay compensation was that of the
employer-owner of the vehicle and this aspect was completely ignored by the Learned
Commissioner.
9. The learned counsel for the appellant further submitted that the learned Commissioner
erred in concluding that the extra premium of Rs. 50/- paid by the insured covered the risk of
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a second driver, whereas the additional premium was solely for extending the coverage to the
first paid driver and as such, the Commissioner's interpretation is erroneous and contrary to
the policy terms.
10. It was also submitted by the learned counsel that the learned Commissioner
misconstrued the provisions of IMT-40, which does not provide that payment of Rs. 50/- as
an additional premium for a paid driver automatically covers the risk of a second driver.
11. The learned counsel relied on the decisions of the Hon'ble Supreme Court and various
High Courts, wherein it was held that an insurance company is not liable for a risk not
covered by the policy. In New India Assurance Co. Ltd. v. Asha Rani, reported in
(2003) 2 SCC 223, the Supreme Court held that liability cannot be imposed on the insurer
beyond the scope of the insurance policy. Similarly, in Oriental Insurance Co. Ltd. v.
Meena Variyal & Ors., reported in (2007) 5 SCC 428, it was observed that the insurer
cannot be held liable for a person who is not covered under the policy.
12. The learned counsel thus submitted that the impugned award imposes liability upon the
appellant-insurer beyond the terms of the policy contract, wherein it is a settled legal
principle that insurance liability cannot be extended beyond the scope of contractual coverage
and submitted that the impugned award is unsustainable and is liable to be set aside.
13. Per contra, Mr. K. Bhattacharjee, learned counsel for the respondent/claimant submitted
that the appeal is liable to be dismissed on the ground that the appellant did not follow the
statutory provision of the section 30 and has not deposited any amount before the this court
as the award is a money decree. He submitted that under section 30 of the Act in the proviso
it is stated the memorandum of appeal must be accompanied by certificate by the
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commissioner to the affect that the appellant has deposited with the amount payable under
the order appeal against. The learned counsel relied upon the Judgment of the
Apex Court in CHANDRA KISHOR JHA V. MAHAVIR PRASAAD & ORS, reported in 1999
(8) SCC 266, wherein the apex court had held as in many other cases that:
"It is a well settled statutory principle that if a statute provides for thing to be
done in a particular manner that is to be done in no other manner."
14. The learned counsel for the respondent further submitted that regarding the substantial
questions of law involved in the instant case, in spite of two drivers involved in the accident
dated 18.02.2015, the present claim is for one driver and as such respondent is entitled to
receive compensation under the statutory provision sec. 147 of the MV Act 1988, since
accident vehicle was insured with the appellant /Cholamandalam MS General Insurance Co.
Ltd vide policy No. 3379/01135080/000/00 which was valid at the time of the accident.
15. The learned counsel for the claimant/ respondent further submitted that the extra
premium of Rs.50/- was also paid by the insured which cover the risk of the second driver
under the Rule 40 of the Indian Motor Tarriff Act (IMT).
The learned counsel has produced an abstract which reads as follows:-
"IMT 40 Legal Liability to paid driver and/or conductor and/cleaner employed in
connection with the operation of Motor vehicle. (For buses, taxis and motorized three/four
wheelers under commercial vehicles tariff)
In consideration of the payment of an additional premium it is hereby understood and
agreed that notwithstanding anything contained herein to the contrary the insurer shall
indemnify insured against his legal liability under the Workmen's Compensation Act, 1923 and
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subsequent amendments of that Act prior to the date of this endorsement, the Fatal
Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver and/or
conductor and/or cleaner whilst engaged in the service of the insured in such occupation in
connection with the vehicle insured and will in addition be responsible for all costs and
expenses incurred with its written consent
The premium to be calculated and paid while taking insurance of the vehicle concurred at the
rate of Rs. 25/- per driver and/or conductor and/or cleaner.
Provided always that:
(1) this Endorsement does not indemnify the insured in respect of any liability in cases where
the insured holds or subsequently effects with any insurer or Group of Underwriters a Policy
of Insurance in respect of liability as herein defined for his general employees.
(2) the insured shall take reasonable precautions to prevent accidents and shall comply with
all statutory obligations.
(3) the insured shall keep a record of the name of each driver cleaner conductor or person
employed in loading and/or unloading and the amount of wages salary and other earnings
paid to such employees and shall at all times allow the insurer to inspect such record.
(4) in the event of the Policy being cancelled at the request of the insured no refund of the
premium paid in respect of this Endorsement will be allowed.
Subject otherwise to the terms exceptions conditions and limitations of this Policy except so
far as necessary to meet the requirements of the Motor Vehicles Act, 1988.
16. The learned counsel submitted that since the second driver was also an employee of the
owner of the accident vehicle who died in the vehicular accident, he is covered by the
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insurance policy by paying the extra premium which will cover his legal liabilities (LL). The
learned counsel has relied on the following judgments:-
1. 1995 (0) Supreme (KAR) 582 Oriental Insurance Co. Ltd. Vs. Kashim.
2. 1998 STPL 363, National Insurance Co. Vs. Thimmareddy & ANR. Para.-3,4,
3. 2008 (0) Supreme (Gau) 196, National Insurance Co. Ltd. Vs. Konjenbam IBO Singh and
Anr. Para.-10
4. 2022 STPL 7960 SC Shahajahan Vs. Shri ram General Ins. Co. Ltd. Para.-2,3,4,6,
5. 2022 (0) Supreme (KAR) 370 The Branch Manager, Oriental Insurance Co. Ltd. Vs.
Tahaseentaj w/o Shamiulla @ Guilab & Ors. Para.-17,18
6. 2013 (0) Supreme (MAD) 3329 The National Insurance Co. Ltd. Chennai vs. Jayapal &
ANR Para.- 19.
17. Having considered the submissions made by the learned counsels for both the parties,
this court finds that it is not a disputed fact that the claimant's husband Sh. Lakhan
Karki(Late) was employed by the owner of the accident vehicle registration No. AS/
01FC/9951 as the second driver at the time of the accident on 18.02.2015. The fact that the
accident vehicle was having a valid insurance policy with the appellant/Cholamandalam MS
General Insurance Co. Ltd vide policy No. 3379/01135080/000/00 is also not disputed.
18. This court finds it appropriate to consider both the substantial questions of law together
i.e., whether the appellant can be held liable if there is no coverage for the 2 nd driver in the
insurance policy and whether extra premium of Rs. 50/- paid by the insured can cover the
risk of 2nd driver.
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19. It is seen that the respondent has produced an abstract of the Indian Motor Tarriff Act
to show that an additional premium paid will cover the second driver.
This Court finds it appropriate to reproduce herein IMT - 40 of the India Motorcycle
Tariff, which reads as under:-
"Legal Liability to paid driver and/or Conductor and/or cleaner employed in connection
with the operation of Motor vehicle. (For buses, taxis and motorized three/four wheelers
under under IMT15 covers the risk of the insured or any named person other than paid driver
or cleaner."
Thus, from the reading of the above provisions of law it appears that the Extra
Premium of Rs.50/- paid by the insured under IMT 40 would cover the second driver, unless
proved otherwise.
20. A Coordinate Bench of this Court in National Insurance Co. Ltd. Vs. Konjenbam
IBO Singh and Anr. (supra) had also observed and held that :-" 10. The clause of the
policy with respect to legal liability of the insurance company (quoted ibid in the Judgment), I
am of the view that this condition is to be understood having read the same harmoniously
with proviso (i) and (ii) of Section 147 (1) (b) of the Motor Vehicles Act. Under proviso (i) the
liability of insurance company for certain employees of the vehicles, including that of driver is
statutory whereas under proviso (ii) the insurer is at liberty to cover any additional
contractual liability. Hence, stretching of the liability on payment of additional premium @ Rs.
15/- per driver etc. Indicates the extension of the liability for the additional driver or cleaners
etc., which are otherwise not covered under proviso (i) Even at the risk of repetition, I hold
that the driver of the vehicle as well as conductor and ticket examiner of passenger bus are
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already covered under proviso (i) and there is no necessity to pay additional premium for
these employees, whose liability is covered under Workmen's Compensation Act, 1923."
21. It was also opined by the Karnataka High Court in National Insurance Co. Vs.
Thimmareddy & Anr.( supra) that "that even in the case of a spare driver who is not
actually driving the vehicle at the time of the accident that the statutory cover in Section
147(1) and (i)(c) as an employee of the owner of the vehicle travelling in the course of
employment, the claimant would be entitled to compensation under the Workmen's
Compensation Act."
22. The Karnataka High court in The Branch Manager, Oriental Insurance Co. Ltd. Vs.
Tahaseentaj w/o Shamiulla @ Guilab & Ors. (supra) made the following observations
and held that "With regard to the other defence that Insurance Company is not liable to pay
compensation in respect of the second driver and the owner being made the statement
before the police that Shamiulla was the first driver and his son is the second driver and on
perusal of Ex.R.2 no separate premium is paid in respect of the second driver and in view of
the judgment of this Court relied upon by the learned counsel for the claimants in UNITED
INDIA INSURANCE COMPANY VS. SMT. SHANTHAVVA AND OTHERS supra wherein in similar
circumstances this Court held that the spare driver is also very much a person engaged in
driving the vehicle. may be on shift basis and that the word 'engaged in driving the vehicle'
should not be interpreted to mean only the driver on the steering excluding a spare driver,
the insurer is very much liable to pay compensation in respect of a spare driver under Section
147 of Motor Vehicles Act if there is only one claim under the policy. However, if there are
two separate claims in respect of driver and spare driver unless additional premium is paid
the insurer may not be liable to pay for both the drivers.[If the claim is in respect of only one
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driver even if he is not actually driving at the time of the accident still the insurer is liable to
pay under Section 147 of MV Act as a statutory liability."
23. In the present case, it is noted that there is no evidence to the effect that the first driver
has claimed any compensation from the owner of the accident vehicle and since the claim is
only for one driver, the insurer company is liable to pay under the provisions of section 147 of
the MV Act, further it is seen that an extra premium of Rs. 50/- was paid in the insurance
policy which could also cover the risk of 2nd driver under IMT 40.
24. Thus, on considering the above provision of law under the Indian Motor Tarriff Act and
the findings of the courts in judgments highlighted above, which are found aptly applicable in
the present case, this court finds that the learned Commissioner was justified to fasten
liability upon the appellant to paid the awarded amount of Rs. 9,94,469/- to the
claimant/respondent No. 1.
25. In view of the above, this court finds no grounds to interfere with the judgment and
order passed by the learned Assistant Labour Commissioner-Cum-Commissioner for
Employee's Compensation, Sonitpur, Assam in SWC Case No. 09/2015 dated 28.11.2018 and
accordingly, the appeal MFA No.10 of 2022 stands dismissed and disposed of.
No costs.
JUDGE
Comparing Assistant
