IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 MFA.No. 27 of 2006() ----------------------------- WCC.53/1994 of W.C.C.,ERNAKULAM .................... APPELLANT/1ST OPPOSITE PARTY IN W.C.C.NO.53/1994 -------------------------------------------------------------------------------- M/S.BENZ AUTOMOBILES LTD., (NOW KNOWN AS M/S.FOCUZ CORPORATION PVT. LTD). FOCUZ TOWERS, EDAPPALLY, COCHIN-682 024, REPRESENTED BY ITS AUTHORISED OFFICER AND LEGAL SECTION-IN-CHARGE, SRI.C.V.JOHNY. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.AJITH MURALI 1ST RESPONDENT/APPLICANT IN W.C.C.NO.53/1994/2ND RESPONDENT/2ND OPPOSITE PARTY IN W.C.C.NO.53/1994 : ------------------------------------------------------------------------------------------------------------- 1. P.D.THOMAS, S/O.DEVASSY, PANJANA HOUSE, KOZHIKUNNU, MULAMKUNNATHUKAVU, THRISSUR. 2. THE ORIENTAL INSURANCE CO.LTD., MTPC OFFICE, VETTUKATTIL BUILDING, M.G.ROAD, KOCHI-682 016, REPRESENTED BY THE ASST.MANAGER, MOTOR THIRD PARTY CLAIMS CELL, REGIONAL OFFICE, NORTH RAILWAY STATION ROAD, ERNAKULAM, COCHIN-18. ADV. SRI.P.RAMAKRISHNAN FOR R1 ADV. SRI.T.C.KRISHNA FOR R1 ADV. SRI.M.JACOB MURICKAN FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B.KOSHY & P.N.RAVINDRAN, J J. ====================================== M.F.A.(WCC)No.27 of 2006 ====================================== Dated this the 18th day of July 2008 JUDGMENT Koshy, J. The appellant was the owner of a motor cycle bearing Reg.No.KCF 322. The first respondent, a Field Officer of the appellant company was provided with the above motor vehicle for carrying out the work in connection with the employment. He sustained injuries in an accident while driving the above motor vehicle during the course of employment. He applied for compensation under the Workmen's Compensation Act. Workmen's Compensation Commissioner allowed the claim and directed the Insurance Company which insured the motor cycle to pay the amount. The Insurance Company filed an appeal and the matter was remanded. The contention of the Insurance Company is that the liability of the Insurance Company is excluded in view of Clause 3(b) of General Exceptions, wherein it is stated the company has no liability if the motor cycle is driven by any person other than 'a driver'. According to the Insurance Company, the conditions of the policy make MFA (wcc) 27/2006 2 it clear that only if the vehicle is driven by 'a paid driver', it is liable to pay the amount. But in the general exception made in the policy, it is not mentioned only if a person engaged as 'a paid driver' is covered. However, since only the workmen compensation liability is covered, the person driving the vehicle must be employed by the insured. In fact driver is specifically included in Section II(3) of the conditions of the policy. A driver who is driving the motor cycle with permission of the injured is specifically covered. But the contentions of Insurance Company was accepted by the Commissioner after remand and the award amount was directed to be paid by the appellant who was the employer of the injured. Hence this appeal was filed. It is the Insurance Company which drafted the policy. It is the settled law that if there is any ambiguity, it should be interpreted against the person who drafted the terms. In United India Insurance Co.Ltd. v M/s Pushpalaya Printers (AIR 2004(2) SC 1700) Apex Court held that If there is any ambiguity in the terms and conditions of the policy issued by the Insurance Company, one that is MFA (wcc) 27/2006 3 beneficial to the insured should be accepted. Contention of the Insurance Company is that since the Field Officer is not a paid driver, their liability is excluded cannot be accepted on the plain terms of the policy. As per the policy condition driver was covered and Insurance Company is liable to pay compensation as provided under the Workmen Compensation Act. Here, it is not disputed that the appellant was employed by the insured as a Field Officer and accident occurred during the course of the employment. Field Officer was bound to drive the company's motor cycle for official duties. A `driver' means a `duly licenced driver'. Conditions of Section-II of the Motor Cycles Comprehensive Policy reads as follows: “Subject to the Limits of Liability, the Company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Cycle against all sums including Claimants costs and expenses which the insured shall become legally liable to pay in respect of a) death or bodily injury to any person including person conveyed in or on the motor cycle provided such person is not carried for hire or reward but except so far as is necessary to meet the requirements of Section 92A and Section 95 of the Motor Vehicles Act, 1939, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured and excluding liability to any person being conveyed in or on the Motor Cycle unless such person MFA (wcc) 27/2006 4 is being conveyed by reason of or in pursuance of a contract of employment. b) damage to property other than property belonging to the insured or held in trust by or in the custody or control of the Insured or any member of the Insured's household or being conveyed by the Motor Cycle. PROVIDED ALWAYS that the Company shall not be liable in respect of death injury or damage caused or arising beyond the limits of any carriageway or thoroughfare in connection with the bringing of the load to the Motor Cycle for loading thereon or the taking away of the load from the Motor Cycle after unloading therefrom. 2. The Company will pay all costs and expenses incurred with its written consent. 3. In terms of and subject to the limitations of the indemnify which is granted by this Section to the Insured the Company will indemnify any driver who is driving the Motor Cycle on the insured's order with his permission provided that such driver. a) is not entitled to indemnity under any other policy. b) shall as though he were the Insured observe fulfill and be subject to the terms exceptions conditions and limitations of this Policy so far as they can apply. 4. In terms of and subject to the limitations of the indemnity which is granted by this Section the Company will indemnify the Insured whilst personally driving a Motor Cycle not belonging to him and not hired to him under a Hire Purchase Agreement. 5. The Company may at its own option (A) arrange for representation at any inquest or Fatal inquiry in respect of any death which may be subject of indemnify under this Section and (B) may undertake the defence of the proceedings in any Court of Law in respect of any act or alleged offence causing or relating to any event which may be the subject of indemnity under this Section. MFA (wcc) 27/2006 5 6. In the event of the death of any person entitled to indemnity under this Policy the Company will in respect of the liability incurred by such person indemnify his personal representatives in the terms of and subject to the limitations of this Policy provided that such personal representatives shall as though they were the Insured observe fulfill and be subject to the terms exceptions and conditions to this policy insofar as they can apply.” In view of the conditions in the policy in question, we are of the opinion that here the Insurance Company is liable to indemnify the workmen compensation liability of the insured for the injuries suffered by the driver. In National Insurance Co.Ltd. V Prem Bai Patel and others (2005(6) SCC 172) which was heard by a 3 member bench of the Supreme Court held that even statutory liability of insurance company in an 'Act Policy' to the driver is limited to compensation payable under the Workmen Compensation Act. Here, claim is only for the workmen compensation liability. Section 147(1) of the Motor Vehicles Acat and Section 3(1) of the Workmen Compensation Act read with Section II(3) of the conditions of policy makes clear that the liability of the Insurance Company to indemnify the workmen compensation liability of the injured towards its employee - driver who sustained injuries in an accident during the course of MFA (wcc) 27/2006 6 employment. He is not a gratuitous passenger. Therefore the appeal is allowed. Award is modified accordingly. The insurance company is directed to deposit the amount awarded. The amount deposited by the appellant should be refunded and on deposit of the awarded amount by the Insurance Company, it shall be disbursed to the claimant. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE css/