Rajasthan High Court
Reliance General Insurance ... vs Suresh Parjapati S/O Shri Gopal ... on 17 November, 2021
Bench: Sanjeev Prakash Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No.300/2020
Reliance General Insurance Company Ltd., Regional Office,
Meker Tower, Vaishali Nagar, Jaipur At Present At Man Upasana
6Th Floor, Sardar Patel Marg, C-Scheme, Jaipur Through Its
Authorized Signatory (Insurer Of Vehicle Rj 20 Ea 0612)
----Appellant
Versus
1. Suresh Parjapati S/o Shri Gopal Prajapat, Resident Of
Village Garad Da, Tehsil And District Bundi.
2. Smt. Anwar Kahan Qureshi W/o S R Qureshi, Resident Of
B Folorance, Green-Gyan Sarovar Colony, Behind Saint
Johns School, Bundi Road, Kota. (Owner Of Vehicle Rj 20
Ea 0612)
----Respondents
Connected With
S.B. Civil Miscellaneous Appeal No. 228/2020
Suresh Prajapat S/o Gopal Prajapat, Aged About 28 Years, R/o
Village Garadda, Tehsil And Distt. Bundi
----Appellant
Versus
1. Smt. Anwar Jahaan Kureshi W/o S.r. Kureshi, R/o B
Florence Green, 34 Gyan Sarovar Colony, Behind Sent
Jones School, Bundi Road, Kota (Employer/owner Of
Vehicle)
2. Reliance General Insurance Company Limited, Through
Regional Office, makertower, Vaishali, Nityanand Nagar,
Jaipur (Insurer Of Vehicle)
----Respondents
For Appellant(s) : Mr. Rizwan Ahmed
For Respondent(s) : Mr. Ram Singh Rathore
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Order
17/11/2021
(2 of 7) [CMA-300/2020]
1. These appeals are preferred against the award dated
06.11.2019 passed by the Commissioner, Employees'
Compensation Act, Bundi, Headquarter, Kota whereby the amount
of Rs.11,89,800/- was awarded as compensation to the injured-
respondent who suffered amputation resulting in 65% permanent
disability while working at the mines and doing work on the loader
vehicle which was duly insured under the Reliance Miscellaneous
and Special Types of Vehicles Package Policy Certificate cum Policy
Schedule issued by the appellant-company namely Reliance
General Insurance.
2. Learned counsel appearing for the appellant submits that
there is a gross perversity in the order passed by the
Commissioner, Employees' Compensation while passing of the
award. Learned counsel firstly submits that the income and
compensation calculated is erroneous and does not go in
confirmity with the Employees' Compensation Act, 1923.
3. Learned counsel further submits that the policy does not
cover person who has suffered injuries while working on the
loader and it is only the driver alone who can claim compensation
under the Employees' Compensation Act and if at all claim could
have been filed the same could be as a third party claim to be set
up under the Motor Vehicles Act before the Motor Accident Claims
Tribunal and the Employees' Compensation Commissioner has
acted beyond his jurisdiction to hear the petition and pass an
award. Learned counsel further submits that the injured claimant
was not working as a driver on the vehicle and was shown to have
been caused injuries while he was screwing the bolts of the loader
when the driver of the vehicle without information started the
vehicle resulting in causing severe injury to his hand which was
(3 of 7) [CMA-300/2020]
amputated. Therefore he submits that the claimant cannot be said
to be actually working as a driver on the vehicle.
4. Learned counsel has relied on the judgment passed by the
Supreme Court dated 10.11.2006 in the case of Shakuntala
Chandrakant Shreshti vs Prabhakar Maruti Garvali & Anr. :
Appeal(civil) 4778 of 2006.
5. Per contra, learned counsel appearing for the claimants
submits that admittedly a policy Exhibit-11 was issued after
receiving a huge premium of sum of Rs.5,789/- known as a
Reliance miscellaneous special type of vehicle package policy. The
conditions of the said policy not only covered the driver but also
under the limits of liability it covered death of or bodily injury to
any person so far as it is necessary to meet the requirements of
Motor Accidents Act. Learned counsel submits that apart from
premium for driver and legal liability premium the actual total
liability premium company also charged package premium of
Rs.5,248/-. Thus it covers even an employee who was severely
injured while working on the loader(vehicle) if the vehicle is
insured as above and the Insurance Company cannot absolve itself
from the liability of payment. The respondent had rightly
approached the Employees' Compensation Commissioner as he
was admittedly an employee working in the mines and would be
covered under the Employees Compensation Act, 1923 for the
payment of compensation.
6. I have considered the submissions and find that the
appellants had exhibited the policy certificate which was issued for
the vehicle by the name of Reliance Miscellaneous Special Types of
Vehicles Package Policy Certificate cum Policy Schedule. As per the
said policy following conditions were laid down:-
(4 of 7) [CMA-300/2020]
Limitation as to use
The policy covers use for any purpose other than a.
Organized racing b. Pace making c. speed testing, d.
Reliability trials e. Use for carriage of passengers for
hire or reward
Person/Classes of Persons entitled to drive:
Any person including the insured provided that a
person driving holds an effective driving license at
the time of the accident and is not disqualified from
holding or obtaining such a license provided also that
the person holding an effective learner's license may
also drive the vehicle and that such a person satisfies
the requirements of Rule 3 of the Central Motor
Vehicle Rules, 1989
Limits of Liability
a. Under Section 11-1(i) of the Policy-death of or
bodily injury to any person so far as it is necessary to
meet the requirements of the Motor Vehicle Act, 1989
b. Under Section 11(1)(ii) of the Policy-Damage to
property other than property belonging to the insured
or held in trust or in the custody of control of the
insured up to the limits specified Rs.7.5 lakhs.
Deductible under Section-
(i) Compulsory deductable Rs.2859.3/-(ii) Additional
compulsory deductable Rs.0/-(iii) voluntary
deductable Rs.0/- PA Cover for owner-driver under
section IV CSI Rs.200000/-
Special conditions:
INSURANCE BY THIS POLICY COVERNOTE IS
SUBJECT TO RECOMMENDATIONS IN PRE
INSPECTION REPORT WHEREVER APPLICABLE
consolidated Stamp Duty paid vide Receipt No. 48545
dated 25-March-2010."
7. Thus, a premium of Rs.5,789/- was collected as for basic
liability premium, legal liability LLP paid on one person, legal
liability premium, total liability premium and package premium.
Keeping in view, thereto, this Court is satisfied that the Insurance
Policy takes into its ambit even those person who may suffer
death or bodily injury while working on the vehicle or gets injured
by the vehicle.
(5 of 7) [CMA-300/2020]
8. Keeping in view above, admittedly as per the evidence which
has come on record, the claimant had suffered injuries while
working on the vehicle and his hand was amputated hence the
submission of learned counsel for the appellant that the Insurance
Company was not liable for the injuries caused to the respondent
is held to be misconceived and is accordingly rejected.
9. So far as the claim amount of compensation is concerned, it
shall be governed as per Section 4 of the Employees'
Compensation Act, 1923 which lays down the amount of
compensation which is required to be paid and for the calculation
required to be conducted for the purpose Section 4(i)(b)b and
Section 4(i)(c) of the Act of 1923 need to be noticed and are
quoted as under:-
"(b) where permanent total an amount equal to sixty per
disablement results from cent of the monthly wages
of the injury injured employee multiplied
by the relevant factor;
or
an amount of one lakh and
forty thousand rupees,
whichever is more;
Provided that the Central Government may, by notification in the
Official Gazette, from time to time, enhance the amount of
compensation mentioned in clauses (a) and (b);
Explanation I.--For the purposes of clause (a) and clause (b),
"relevant factor", in relation to a employee means the factor
specified in the second column of Schedule IV against the entry in
the first column of that Schedule specifying the number of years
which are the same as the completed years of the age of the 1
[employee] on his last birthday immediately preceding the date
on which the compensation fell due.
(c) where permanent (i) in the case of an injury
partial disablement specified in Part II of
result from the injury Schedule I, such percentage
of the compensation which
would have been payable in
the case of permanent total
disablement as is specified
(6 of 7) [CMA-300/2020]
therein as being the
percentage of the loss of
earning capacity caused by
that injury; and
(ii) in the case of an injury
not specified in Schedule I,
such percentage of the
compensation station
payable in the case of
permanent total disablement
as is proportionate to the
loss of earning capacity (as
assessed by the qualified
medical practitioner)
permanently caused by the
injury;
Explanation I.--Where more injuries than one are caused by the
same accident, the amount of compensation payable under this
head shall be aggregated but not so in any case as to exceed the
amount which would have been payable if permanent total
disablement had resulted from the injuries.
Explanation II.--In assessing the loss of earning capacity for the
purposes of sub-clause (ii), the qualified medical practitioner shall
have due regard to the percentages of loss of earning capacity in
relation to different injuries specified in Schedule I;"
10. As per aforesaid explanation I appended to 4(1)(b) it is
apparent that the relevant factor has to be taken to count as per
the 2nd column of Schedule 4 the respondent was of age of 20
years and the relevant factor as per the Schedule would be 224.
Monthly income of the injured has been assessed as
Rs.8000/-. Accordingly as per joint reading of Section 4(1)(b) &
a(1)(c)(i) it is apparent that the income calculation has to be done
for a person suffering 65% permanent partial disability is same as
for total disablement. Hence, the calculation is to be done as per
Section 4(1)(b) i.e. an amount equal to 60% of the monthly
wages of the injured to be multiplied by the relevant factor.
Accordingly following calculation is made out;
(8000 X 60)/100=4,800/-) i.e. 60% of the amount
of monthly wages.
(7 of 7) [CMA-300/2020]
Rs.4800X224=Rs.10,75,200 plus medical expenses
=Rs.25,000 (Total Rs.11,00,200/-)
11. Relevant factor is 224 accordingly the compensation which
shall be available is 10,75,200/- along with aforesaid
compensation as a sum of Rs.25,000/- has been released for
medical expenses. Accordingly a total sum of Rs.11,00,200/- is
found to be payable to the claimant. This amount was liable to be
paid from the date of accident that is 21.01.2011.
12. It is noticed that the amount has not been released even till
date. Keeping in view, it is now directed that the aforesaid amount
of Rs.11,00,200/- shall be paid in terms of Section 4A(3)(b). The
submission of learned counsel for the appellant is that the interest
is payable by the employer and not by the Insurance Company is
also wholly misconceived. The Insurance company acts for the
insured and therefore, on default of the insured the Insurance
Company has to pay and hence the amount of interest is also
required to be paid by the Insurance Company.
13. That apart, this Court finds that there was no reasonable
justification for delay in payment and this present appeal does not
raise any question of law and accordingly this Court, considering
that the injured has been waiting for his compensation since 2011
and 10 years have passed, deem it appropriate to also direct the
Insurance Company to pay a cost of Rs.2.5 lacs, in addition to the
aforesaid compensation and interest. The appellant-company shall
release the amount positively in favour of the claimant within a
period of three months.
14. These appeals are accordingly stand disposed of. All pending
application, if any, stand disposed of.
(SANJEEV PRAKASH SHARMA),J
Saurabh/57-58
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