Madras High Court

Madras High Court

M/S.Oriental Insurance vs (4Th on 24 September, 2010
DATED :24.09.2010
CORAM:
THE HON'BLE MR.JUSTICE B.RAJENDRAN
C.M.A.No.700 of 2006
M/s.Oriental Insurance
Company Limited
8-1-210, P.H.Road
Opp.to District Court
Post Box No.18
Chithoor 1
.. Appellant
-vs-
1. Balasaraswathi
2. Ganesan
3. Srinivasan
4. Thiyagarajan
(4th respondent ex-parte
in the lower court)
.. Respondents
Ci vi l Mi scel l aneous Appeal fi l ed agai nst t he Judgment and Decree dat ed 3. 12. 2004 made i n
MCOP.No.72/2004 on the file of the Motor Accident Claims Tribunal (Additional District Judge),
Vridhachalam. For Appellant : Mr.K.S.Narasimhan
For respondents : Mr.B.Balachandran for
R1 to R3
R4 ex parte
*******************
M/S.Oriental Insurance vs (4Th on 24 September, 2010
Indian Kanoon - http://indiankanoon.org/doc/1611726/ 1
J U D G M E N T
The Insurance Company is the appellant. Aggrieved against the grant of award of Rs.5,53,425/- in a case of
fatal accident, the Insurance Company has come forward with this appeal.
2. The accident is admitted. The liability is also admitted. But, only the quantum is questioned. The learned
counsel for the appellant would argue that though the court below has applied the theory as formulated under
the Workmen's Compensation Act, while fixing wages, it has fixed the wages at Rs.5,000/- and thereafter
arrived at the compensation. But, even as per the Workmen's Compensation act, as per the Schedule, if it is
more than the minimum wages, it will be restricted only upto Rs.4,000/- per month, whereas in this case, the
lower court has taken into consideration Rs.5,000/- as wages per month, which under law is not permissible.
Therefore, if a fresh calculation is arrived at the rate of Rs.4,000/- per month, then it will be a correct
calculation. Since there is a deviation in the adoption of the monthly wages, the appellant questions the award
only on this sole ground. Though originally the question of liability was raised, as it is contended that he was
only an additional Driver and for the additional Driver, the Insurance Company may not be held liable, the
same was not later on pressed.
3. The learned counsel for the respondents 1 to 3/claimants would submit that insofar as the liability of the
Insurance Company in respect of an Additional Driver, the matter has already been covered by a Division
Bench as per the judgment in S.Murugan and another vs. M.Veenainathan reported in 2009 (1) TN MAC 458
(DB), wherein it has been held that words "any person" or " passenger" occurring in
Section 147 of the Motor Vehicles Act are of wide amplitude. The co-driver even if not belonged to category
of employees covered by premium, he was definitely in vehicle "in course of employment".
Therefore, the insurer is held to be liable. This is based on the judgment of the Supreme Court in Ramshray
Singh v. New India Assurance Company reported in 2004 (2) TN MAC 43 (SC). Therefore, inasmuch as the
Division Bench has held this position, the Insurance Company will be held liable. He would further contend
that even though the income claimed was Rs.5,000/-, he was actually earning more. Therefore, taking into
consideration that it is a fatal accident, according to the respondents/claimants the award granted by the court
below is reasonable.
4. Heard both sides.
5. The short point for consideration in this case is whether the Insurance Company would be held liable in
respect of an Additional Driver and whether the compensation paid by the lower court is reasonable?
6. As far as the question of liability is concerned, even though the Insurance Company originally raised a plea
that the Additional Driver is not covered under the policy, the matter is no more res integra, as it has been
already decided by the Supreme Court followed by the Division Bench of this Court in S.Murugan and
another vs. M.Veenainathan reported in 2009 (1) TN MAC 458 (DB), wherein this Court held in paragraphs
12 and 13 as follows: "12. The Supreme Court, in Ramshray Singh vs. New India Assurance Co. Ltd.,
2204 (2) TN MAC 43 (SC): AIR 2003 S. C. W. 3601, hel d t hat i f t he &quot ; person&quot ; or
"passenger" who is an employee other than the category of employees insured is required under
the statute to cover, the plea that as the policy was a comprehensive one, it would cover all risks including the
death of the Khalasi was unacceptable. It was clarified that comprehensive policy merely means that the loss
sustained by such person will be payable upto the insured amount irrespective of the actual loss sustained.
Even if the deceased and the injured did not belong to that category of employee which was covered by the
premium, he was definitely in the vehicle "in the course of employment". Therefore, we are of the
opinion that even if the Insurance Company cannot be made liable in accordance with the provisions of the
Motor Vehicles Act, they will definitely have to satisfy the requirements of the Workmen Compensation Act.
Even in the grounds of Appeal, this is tacitly admitted.
M/S.Oriental Insurance vs (4Th on 24 September, 2010
Indian Kanoon - http://indiankanoon.org/doc/1611726/ 2
13. In Oriental Insurance Company Limited v. Kalaiya Pillai, 2003, A.C.J. 1021, the driver was found
negligent and the parents of the claimant made a claim under the Motor Vehicles Act. The Division Bench
held that when the deceased himself is a tort-feasor, the claimants cannot claim any compensation from the
owner and therefore, they cannot claim any compensation from the Insurance Company. The Division Bench
observed that Section 167 of the Motor Vehicles Act gives the claimants an option regarding claims for
compensation in certain cases that the person entitled to compensation either under the Workmen
Compensation Act or under the Motor Vehicles Act, but not under both. Therefore, the Division Bench held
that "6.......
However, the Insurer's liability is to be determined not only with reference to the provisions under the Motor
Vehicles Act, but also with reference to the contract of Insurance which would extend to the liability of the
insured under the Workmen's Compensation Act. There is a specific finding by the Tribunal that deceased
tractor driver died in the course of his employment. Further, it is not disputed that there was a valid Insurance
on the date of the accident, and accordingly the Insurer was liable to the extent of liability under the
Workmen's Compensation Act. In other words, we hold that even though the Insurance Company was not
liable under the provisions of the Motor Vehicles Act, it would be proper to assess the compensation under the
Workmen's Compensation Act and award the same in favour of the claimants. On this ground, instead of now
directing the respondents-claimants to go before the Commissioner under Workmen's Compensation Act in
order to shorten the litigation and also in the interest of justice, we decide to dispose of the Appeal by
determining the appropriate compensation in favour of the claimants". We will assess the compensation
in accordance with the decision.:
Therefore, following the Division Bench judgment, the Insurance Company is liable to pay the compensation
for the Addition Driver.
7. Insofar as the quantum is concerned, the lower court has adopted the theory or the factor method as per the
Workmen's Compensation Act. No doubt, it is the case arising under the Motor Vehicles Case, but once the
Court adopts the theory of the Workmen's Compensation Act, it should follow the guidelines or the Rules
framed thereunder.
8. Under the Workmen's Compensation Act, Section 4 contemplates that in respect of the amount of
compensation under the Act, which categorically states, where death results from the injury, the amount equal
to 50% of the monthly wages of the deceased workman employed by a relevant factor or an amount of
Rs.80,000/- is more. In explanation II to Section 4, it categorically states that where the wages of a workman
exceeds Rs.4,000/-, his monthly wages for the purpose of Clause (a) and Clause (b) shall be deemed to be
Rs.4,000/- only. That means even if he is able to prove that he is receiving more amount as wages, yet for
calculation purpose under the Act, it will be restricted to Rs.4000/- per month and then as per the Clause (a), it
will be half month with multiplier factor. Therefore, in this case, the lower court even though considered that
he was earning Rs.5,000/- per month, when adopting the Workmen's Compensation Act, it should have also
correspondingly under the Section reduced to only Rs.4,000/- and not Rs.5,000/- as rightly pointed out by the
learned counsel for the appellant. Therefore, accepting the contention raised by the learned counsel for the
appellant, this Court comes to the conclusion that the calculation shall be made on the basis that he drew
salary at the rate of Rs.4,000/- per month. In that case, the calculation will be arrived by half month salary, i.e.
Rs.2,000/- x 221.37, which comes to Rs.4,42.740/- instead of Rs.5,53,425/-.
9. In the result, the appeal is partly allowed, reducing the compensation from Rs.5,53,425/- awarded by the
court below to Rs.4,42,740/- along with interest at 9% per annum from the date of filing of the petition till the
date of deposit. Since the Insurance Company has paid the entire amount, they are permitted to withdraw the
excess amount and the balance amount shall be withdrawn by the claimants. No costs. 24.09.2010
ajr
M/S.Oriental Insurance vs (4Th on 24 September, 2010
Indian Kanoon - http://indiankanoon.org/doc/1611726/ 3
To
1.Motor Accident Claims Tribunal
(Additional District Judge), Vridhachalam.
2.Section Officer, V.R.Section.
B.RAJENDRAN J,
ajr
C.M.A.No.700 of 2006
24.09.2010
M/S.Oriental Insurance vs (4Th on 24 September, 2010
Indian Kanoon - http://indiankanoon.org/doc/1611726/ 4