HONOURABLE SRI JUSTICE GHULAM MOHAMMED MA C.M.A.No. 1013 of 2003 JUDGMENT: Oriental Insurance Company is the appellant who filed the appeal challenging the award and decree passed in MVOP No. 520 of 1997 dated 26.3.2002 on the file of the Motor Accidents Claims Tribunal, Guntur, filed under Section 166 of the Motor Vehicles Act, claiming a compensation of Rs. 1,85,000/- as against which, the Tribunal granted Rs. 1,80,000/- with interest at 9% per annum on account of death of Kodamagunda Anjaneyulu in an accident that occurred on 28.2.1996. 2. The brief facts of the case are as follows: On 28.2.1996, first respondent-owner of the tractor engaged the deceased Kodamagunda Anjaneyulu for earth leaving on his tractor bearing No. AP 7 U 2250, trailor bearing No. AP 7U 2251 attached to the tractor and due to rash and negligent driving of the first respondent, the tractor went to a distance of one kilometer to the south of the poultry and at the cross road of Vepakampelly, the deceased fell down from the tractor and the tractor ran over upon him, as a result of which, he died instantaneously. The deceased was doing business of different varieties to maintain his family and attending coolie works on contract basis and earning in all an income of Rs. 2,000/- per month. The wife and children of the deceased filed the above OP under Section 166 of the Motor Vehicles Act, claiming compensation of Rs. 1,80,000/- from the owner and insurer of the tractor and trailer involved in the accident. 3. The third respondent-driver of the tractor and trailer was set ex parte. The first respondent-owner of the tractor and trailer filed written statement contending that the vehicle was insured with the second respondent-Insurance company and the same was valid from 24.12.1995 to 23.12.1996. The driver of the tractor was having valid driving licence. The tractor and trailer was running with the permitted route. The second respondent is liable to indemnify the first respondent. The second respondent – National Insurance Company filed counter denying the averments of the petition and contended that the driver of the tractor and trailer had no valid and effective driving licence at the time of the accident and there is no rashness and negligence on the part of the driver of the tractor. It is stated that since the negligent act of the deceased had resulted death either the second respondent or other respondents are not liable to pay compensation. The 4th respondent-Oriental Insurance Company also filed written statement contending that the compensation amount claimed is excessive and the driver of the vehicle had no valid and effective driving licence at the time of the accident. 4. Basing on the averments made by the parties, the Tribunal framed the following issues: 1. Whether the accident occurred due to the rash and negligent driving of the Tractor bearing No. AP 7U 2250 and Truck bearing No. AP 7U 2251 by its driver? 2. Whether there is any violation of policy conditions by the first respondent? 3. Whether the petitioners are entitled to compensation and so, to what amount and from whom? 4. To what relief 5. On behalf of the claimants PW-1 was examined and Ex. A1 to A5 were marked and on behalf of the respdnents RW-1 was examined and Ex. B-1 was marked. 6. The Tribunal having considered both oral and documentary evidence adduced on either side, partly allowed the claim awarding compensation of Rs. 1,80,000/- against the first respondent-owner of the tractor and trailer and the 4th respondent –Oriental Insurance Company. Aggrieved by the same, the Oriental Insurance Company filed the present appeal. 7. It is no doubt true that the accident occurred on 28.2.1996 due to rash and negligent driving of the tractor and at that time the deceased was sitting by the side of the driver of the vehicle for transporting earth and the Tribunal taking into consideration of all the facts observed that the accident was occurred due to rash and negligent driving of the driver of the tractor bearing No. AP7U 2250 and Trailer bearing No. AP7U 2251 and following the judgment of the Supreme Court reported in NEW INDIA ASSURANCE COMPNAY, SHIMLA VS. KAMLA AND OTHERS[1] held that the Insurance Company has to indemnify the third party then recover the same from the insured and therefore, respondents 1 and 4 being owner and insurer of tractor and trailer are jointly and severally liable to pay the compensation. 8. The learned counsel appearing for the appellant is not disputing the facts of the case and the amount of compensation awarded. He submits that the owner of the vehicle had followed the terms of the policy by allowing a person to travel on the Macguad. Hence, the Insurance Company is not liable to indemnify the insurer of the loss. He also submits that the policy covered only the driver of the vehicle and the deceased was not covered by the policy. He has drawn our attention to the judgment of the Supreme Court reported in RAMASHRAY SINGH VS. NEW INDIA ASSURANCE COMPANY LIMITED[2] 9. I have perused Ex. B-1 policy. The policy covers only the risk of the ‘driver’ and there is no premium paid to the ‘deceased’ and the deceased was not covered by the policy. In RAMASHRAY SINGH VS. NEW INDIA ASSURANCE COMPNAY (Supra-1), the Supreme Court at paragraphs 10, 13, 15 observed as under: “10.The appellant's first submission was that Shashi Bhushan Singh was a passenger. The appellant's submission that the phrases 'any person' and "any passenger" in Cls. (i) and (ii) of sub-section (b) to S. 147(1) are of wide amplitude, is correct. (See New India Assurance Company v. Satpal Singh and others, 2000 (1) SCC 237. However, the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely, employees of the insured, in other words, if the "person" or "passenger" is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to S. 147(1)(b), it is clear that for the purposes of S. 146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the person insured unless; first; the liability of the insured arises under the Workmen's Compensation Act, 1923 and second. If the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description of "any person" or "passenger." If this were permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word "cleaner" while describing the seating capacity of the vehicle does not mean that the cleaner was therefore a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmen's Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passenger. AIR 2000 SC 235 : 1999 AIR SCW 4337 13. The appellant's next submission was that the concerned employee was a 'conductor.' It is doubtful whether a 'khalasi' and a conductor are the same. But assuming this were so, there is nothing to show that the appellant had paid any additional premium to cover the risk of injury to a conductor. On the contrary, the policy shows that premium was paid for 13 passengers and 1 driver. There is no payment of premium for a conductor. 15. Consequently, although the appellant's claim under the insurance policy arose under the Workmen's Compensation Act, since the concerned employee was not engaged in the capacity of driver in respect of whom alone premium was paid apart from the passengers, his claim is unsustainable. 10. Following the above judgment, the appeal filed by the Insurance Company is allowed and the Insurance Company is excluded from its liability of payment of compensation and the third respondent alone-owner of the Tractor cum Trailer is liable for payment of compensation, as the Ex. B-1 policy covers only driver and there is no premium paid for the deceased. There shall be no order as to costs. _____________________ GHULAM MOHAMMED, J Date: 1.7.2010 KA [1] AIR 2001 SC 1419 [2] AIR 2003 SC 2877