Madras High Court

Vijendran vs Kavundiannan on 4 February, 2021

                                                                             C.M.A.No.1771 of 2009

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 04.02.2021

                                                        CORAM

                            THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                C.M.A.No.1771 of 2009
                                                        and
                                                  M.P.No.1 of 2008

                     Vijendran                                                 ..Appellant

                                                          Vs.

                     1.Kavundiannan
                     2.The National Insurance Company Limited,
                       13, Minu Complex,
                       Main Road, Kasabadi,
                       Korba,
                       Korba District - 4956779                                ..Respondents

                     Prayer : Civil Miscellaneous Appeal filed under Section 30 of the
                     Workmen's Compensation Act, against the order dated 31.08.2007 in
                     W.C.Case No.404/2005 passed by the Deputy Commissioner of Labour,
                     Salem.
                                      For Appellant     : Mr.R.Nalliyappan
                                      For Respondents : Mr.Ravichandran[For R2]
                                                        No appearance[For R1]

                                                      JUDGMENT

The Award dated 31.08.2007 passed in W.C.No.404 of 2005 is

under challenge in the present Civil Miscellaneous Appeal. https://www.mhc.tn.gov.in/judis/

C.M.A.No.1771 of 2009

2. The claimant filed the appeal on the ground that he was

working as a driller with the first respondent prior to one year from the

date of accident. On 22.01.2005 at about 7.30 p.m, as per the

instructions of the first respondent, the appellant set a point to dug up a

bore well at Laxmi Traders, Jakkad Nakka, Valsad Road, Dharampur in

Gujarat State. He sustained injuries on account of the accident and was

taken to Vikramsingh Hospital at Dharampur and first aid was given.

Thereafter, the appellant was shifted to L.K.M.Hospital at Erode and

admitted as an inpatient. The petitioner took treatment from 25.01.2005

to 31.01.2005 and thereafter, had taken treatment as out patient.

3. The application was filed, claiming compensation. The Deputy

Commissioner of Labour adjudicated the issues with reference to the

documents and evidences elaborately. The ground raised by the

appellant is that exoneration of the second respondent Insurance

company from liability is erroneous. The Deputy Commissioner of

Labour fixed the liability on the first respondent, who was the owner of

the vehicle and therefore, the claimant has preferred an appeal. Though

the aggrieved person is the owner of the vehicle, the appellant has https://www.mhc.tn.gov.in/judis/

C.M.A.No.1771 of 2009

chosen to file the appeal, supporting the contentions of the first

respondent/owner of the vehicle.

4. As far as the liability is concerned, the Deputy Commissioner

of Labour elaborately adjudicated the issues. The Second respondent

Insurance company disowned their liability for compensation on the

basis of the exclusion clause in the policy as per the India Motor Tariff

clause 52. The certificate of Insurance (Ex.R1) together with the India

Motor Tariff Endorsement No.52, the liability for paymnet of

compensation by the 2nd respondent Insurance company becomes upside

down. The policy contains endorsement No.52, which reads as under:

“IMT 52. EXCLUSION OF DAMAGE WHILE IN USE AS A TOOL OF TRADE:

It is hereby declared and agreed that except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988, the insurer shall be under no liability under Section II of this policy in respect of liability incurred by the insured arising out of the operation as a tool of the motor vehicle or of plant forming part of the vehicle insured or attached thereto.”

https://www.mhc.tn.gov.in/judis/

C.M.A.No.1771 of 2009

5. The liabilities covered by the policy were the liabilities

required to be covered by the Motor Vehicles Act. Section 147 of the

Motor Vehicles Act, 1988 sets out the requirements of the policies and

the limits of the liabilities. The proviso to Section 147(1)(b) sets out the

requirements of the policies and the limits of the liabilities. The proviso

to Section 147(I)(b) sets out some of the liabilities that the insured may

incur, but which would still not mandatorily required to be covered by

the policy for the purpose of compliance with Section 147. The

exclusion extends to the death or bodily injury to the employees of the

owner except the person driving the vehicle in case of a public service

vehicle, its conductor all the ticket examiner and in case of goods

carriage, the employees being carried in the vehicle.

6. A Drilling Rig mounted on a vehicle does not mean a road

transport vehicle as per the provisions of the Act. The said legal position

was also considered by this Court. The Deputy Commissioner of Labour

relied on teh judgment of the Madras High Court in the case of

Commissioner of Income Tax Vs. Popular Bore Well Services

(Vol.194 ITR) and further relied on the judgment of the Hon'ble

Division Bench of the High Court of Madras in the case of National https://www.mhc.tn.gov.in/judis/

C.M.A.No.1771 of 2009

Insurance Company Ltd., Salem Vs. Iyadurai and another, reported in

(2003) II L.W.601 and the relevant paragraphs are extracted hereunder:

“When a Policy obtained by an insurer which limits the coverage to that which the provisions of the Motor Vehicles Act require to be covered, one has to look to that Act to ascertain the extent of liability of the insurer. If some thing is not mandatorily required to be covered then the policy cannot be read as covering such a liability. Of course, it is always open to the insured to obtain additional coverage by paying the additional premium therefore and obtaining an appropriate policy.

The exclusion clause in the Policy, which specifically provides that in case of drilling rigs the liability incurred by the insurer arising out of its operation as a tool or by the use of the plant forming part of the vehicle or attached to the vehicle cannot be ignored.”

7. The Judgment of the Apex Court in the case of Oriental

Insurance Company Ltd., Vs. Sony Cheriyan, reported in (AIR 199 SC

3252) is also quoted by the Deputy Commissioner of Labour, which

reads as under:

“The insurance policy between the insurer and the https://www.mhc.tn.gov.in/judis/

C.M.A.No.1771 of 2009

insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein.”

8. Relying on the provisions of the Motor Vehicles Act and based

on the principles laid down by the Courts as stated above, the Deputy

Commissioner of Labour arrived a conclusion that because of the

exclusion clause in IMT Endorsement No.52, the Insurance company is

not liable to compensate the appellant who happens to be a driller

employed in the rig unit of the vehicle. Accordingly, the burden was

shifted on the shoulders of the 1st respondent, who is the owner of the

rig unit as well as the employer in the present case.

9. This Court is of the considered opinion that when the Deputy

Commissioner of Labour has relied on the provisions of the Motor

Vehicles Act and the principles settled by the High Court as well as the

https://www.mhc.tn.gov.in/judis/