F.A.O.NO. 4503 OF 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 4503 OF 2009 Date of decision:30th August, 2010 National Insurance Company Limited .......Appellant Versus Munshi Ram and another ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. R.C.Kapoor, Advocate, for the appellant. Mr. Vivek Singla, Advocate, for respondent No. 1. Mr. Sandeep Kotla, Advocate, for respondent No. 2. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurance Company is in appeal challenging the award passed for the death of a driver in a motor accident. There were 10 passengers in the vehicle at the time of accident and there were claim petitions for death as well as for injuries to the claimants. It appears that the claim petitions were dismissed against the insurer holding that the owner had committed a violation of the terms of the policy by using the vehicle for hire or reward. F.A.O.NO. 4503 OF 2009 2 2. The Insurance Company would therefore, contend if there was a justification for the Tribunal to reject the claim by excluding the liability of the insurer for claims arising out of the passengers' injuries, the same logic must have also been applied to the death of the driver who had caused the accident by negligence, by dashing against the bridge and therefore, no claim would have been possible under Section 163(A) of the Motor Vehicles Act. Under the terms of the policy the liability that had been covered was for compulsory personal accident claim to owner-driver and liability to a driver as per the Workmen Compensation Act. If the liability is covered for the driver as workman in the Workmen's Compensation Act, then the claim petition at the instance of the representatives ought to have been allowed against the insurer for the death arising out of to the workmen in the course of and out of employment. Learned counsel would contend that if the liability for the insurer could be relatable to a contract for an insurance cover to a workmen, the claim itself could have been prosecuted only before the Workmen Compensation Commissioner. 3. I have no difficulty in accepting the contention that if the claim were to be pursued under the terms of policy having arisen under the Workmen Compensation Act(hereinafter referred to as the 'Act'), the compensation could have been claimed as per the scale of the compensation given under the Act. The liability for the negligence of the driver himself for causing the accident under Section 163(A) of the Act, will not arise, unless terms of F.A.O.NO. 4503 OF 2009 3 the policy were sufficient to cover the risk to another driver under a package policy. In this case, it was a liability only policy and an additional premium had been only for personal accident cover to owner-driver. I cannot understand from this expression owner-driver as owner or driver. If it should be therefore, understood as a personal accident cover to the owner in his capacity a driver then it will exclude a personal accident cover to a person appointed as a driver who was a workman under the owner. However, in case where a claim is made by the representatives stating that the deceased was a driver in the car owned by the vehicle involved in the accident, if it were to be contended by the insurer that the driver was not a workman at all, it ought to have been stated so, no matter that the petition had not been filed under the Workmen Compensation Act but under the Motor Vehicles Act. An expression of limitation of liability is invariably to be pleaded by the insurer in express terms and it ought not to have depended on the choice of forum for adjudication. 4. I would treat this case as having been instituted before the Workmen Compensation Commissioner since this Court is a Court of Appeal under Section 30 of the Workmen Compensation Act. The deceased was a driver who was said to have been employed on salary of Rs. 3,000/- per month and the Tribunal found that at the time of his death, he was 22 years of age. If the case were to be therefore, reckoned as a claim as one arising under the Workmen Compensation Act, the appropriate factor F.A.O.NO. 4503 OF 2009 4 that would be applicable under Schedule IV would be 221.37. The claim of compensation under Section 4 would have therefore, meant (Rs.3000 x 50 /100 x 221.37)Rs. 3,32,055/-,amount payable. The Tribunal has awarded only Rs. 1,56,500/-. Consequently there will be an additional liability in the manner referred to above. 5. I increase the award for the representatives of the driver by invoking the powers of the Court to provide for enhanced compensation even without a specific prayer for the same. The issue that would require to be resolved would be whether the owner will have a right of full indemnity for the violation of the terms of the policy by allowing the vehicle to use for hire or reward. The insurer's liability to satisfy the representatives of the driver arises by the term of the policy covering the risk to a driver under the Act. However, if there is a violation of the terms of policy, the defences which fall under Section 149(2) of the Act cannot be lost. The terms of the policy itself contain limitations to use which states in clause A “the policy covers the use of vehicle for any purpose other than for hire or reward”. The insured will therefore, have a right of indemnity, if he had not put it to any use which was in violation of the terms of the policy. As far as the representatives of the deceased are concerned they will not come to any harm for, they will have the benefit under the terms of the policy but as far as the owner/insured is concerned, the liability of the insurer is only half story. The remaining half is entitlement to recover the same F.A.O.NO. 4503 OF 2009 5 from the insured who had allowed the commission of violation of the terms of the policy. The amount shall therefore, be paid by insurance company which shall be recovered from the owner. 6. The award of the Tribunal is modified and it is sustained on a different ground which is available to this Court as an Appellate Authority under the Act and at the same time providing for a right of recovery of the amount to the insurer against the insured. The appeal is disposed of on the above terms. 7. The amount which is deposited before this Court may be sent to the Trial Court which could be permitted to be withdrawn by the claimant as in part satisfaction of the award granted by the Tribunal. [K.KANNAN] JUDGE 30th August, 2010 Shivani Kaushik