1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 139 OF 1997 Shri Sakharam Kanu Kamble, ) since deceased through his legal heirs : ) 1) Smt. Sayabai Sakharam Kamble, ) Age 40 years, Occ. Household. ) 2) Shri Rama Sakharam Kamble, ) Age 20 years, Occ: Labour. ) 3) Miss Jayashree Sakharam Kamble, ) alias Mrs. Jayashree Ramdas Gajbhav, ) age 18 years. ) 4) Miss Sushma Sakharam Kamble, ) Minor through her legal Guardian ) mother, Applicant No.1 Smt. Gayabai ) Sakharam Kamble. ) All residing at Vithal Nagar Zopadpatti, ) Near Bhimjyoti Mitra Mandal, Pimpri, ) Pune – 18. ).. Appellants Vs 1. Shri A.D. Pawar, ) Residing at Pimpri, Pune – 411 018. ) ( Dismissed as against R.No.1 as per ) Order dt. 22/12/98.) ) 2. The National Insurance Co. Ltd., ) 1248, Shivaji Nagar, Pune 411 005. ).. Respondent -- Shri D.S. Sawant for the Appellants. Shri D.R. Mahadik for Respondent No.2. -- 2 CORAM : A.S.OKA, J. DATE : 4TH MARCH, 2010 ORAL JUDGMENT : . Heard the learned counsel appearing for the Appellants and the learned counsel appearing for Respondent No.2. 2. The Appellant-Applicant is the original Claimant. The accident occurred on 19th November, 1987. A vehicle owned by the 1st Respondent is involved in the accident which was admittedly insured with the 2nd Respondent. The Appellant suffered injuries. The finding of the Tribunal is that the Driver of the vehicle was an employee of the 1st Respondent. The Tribunal also held that the appellant himself was an employee of the 1st Respondent (owner of the truck ). The Tribunal accepted the case of the Appellant that he suffered 40 per cent of permanent disability. The Tribunal adopted formula under Section 4 of the Workmen’s Compensation Act, 1923 ( hereinafter referred to as “the said Act of 1923” ) and has granted compensation of Rs.25,371/- with interest thereon. 3. The learned counsel appearing for the Appellant submitted that the formula under the said Act of 1923 could not have been adopted. He pointed out that the Appellant suffered three fractures and there was a substantial loss of earning capacity. He submitted that compensation granted is on the lower side. 3 4. The learned counsel appearing for the 2nd Respondent/Insurance Company submitted that it is an admitted position that the Appellant was working as a labourer on the offending truck owned by the 1st Respondent. He submitted that there is no extra premium paid for covering liability of the Appellant. He placed reliance on a decision of the Apex Court in the case of National Insurance Co. Ltd. v. Prembai Patel & Others, [(2005)6 SCC 172 ] and submitted that the liability of the 2nd Respondent is restricted to the amount payable as per the said Act of 1923. The learned counsel appearing for the Appellant submitted that the liability under the policy is unlimited. 5. I have carefully considered the submissions. It will be necessary to consider the law laid down by the Apex Court in the case of National Insurance Co. Ltd. (supra). It is true that the Apex court has referred to a policy which mentions “a policy for Act Liability” or “Act Liability”. In Paragraph 13 of the said decision, the Apex Court observed thus:- “13. The insurance policy being in the nature of a contract, it is permissible for an owner to take such a policy whereunder the entire liability in respect of the death of or bodily injury to any such employee as is described in sub-clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) may be fastened upon the insurance company and insurance company may become liable to satisfy the entire award. However, for this purpose the owner must take a policy of that particular kind for which he may be required to pay additional premium 4 and the policy must clearly show that the liability of the insurance company in case of death of or bodily injury to the aforesaid kind of employees is not restricted to that provided under the Workmen’s Act and is either more or unlimited depending upon the quantum of premium paid and the terms of the policy.” ( Emphasis added ) 6. In Paragraph 15, the Apex Court proceeded to observed thus:- “15. Though the aforesaid decision has been rendered on Section 95(2) of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear that in case the owner of the vehicle wants the liability of the insurance company in respect of death of or bodily injury to any such employee as is described in sub-clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) should not be restricted to that under the Workmen’s Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the policy should also contain a clause to that effect. However, where the policy mentions “a policy for Act Liability” or “Act Liability”, the liability of the insurance company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen’s Act.” 7. In Paragraph 13, the Apex Court observed that the owner must take a policy of that particular kind for which he is required to pay additional premium and the policy must show that the liability of the insurance company in case of death of or bodily injury to the employees is not restricted to what is provided under the said Act of 1923. In the present case, it is not shown that the policy is of the kind referred to in Paragraph 13 of the decision of the Apex Court. It is true that in view of the 5 finding on the issue of negligence, the Appellant can recover more amount from the 1st Respondent than what is payable under the policy of insurance of the 2nd Respondent. However, the appeal has already been dismissed as against the 1st Respondent way back in the year 1998. 8. In the circumstances, the Tribunal was right in holding that the liability of the 2nd Respondent was restricted to the liability in accordance with the provisions of the said Act of 1923. There is no merit in the appeal and the same is accordingly dismissed. If any amount deposited by the Appellant is pending in this Court, the same shall be transferred to the concerned Tribunal. The concerned Tribunal shall pass an appropriate order for disbursement and/or withdrawal of the amount in accordance with law. (A.S.OKA, J )