AI Structured Summary
Not yet generated for this judgment
Judgment
N.H. Bhatt, J.—This is an appeal by the original claimant of the Motor Accident Claim Petition No. 40/79 decided by the learned Motor Accident Claims Tribunal at Bhavnagar. The applicant appellant who was working at the relevant time i.e. 11th December 1978 as a labourer on the No. GTD 5252 driven by the respondent No. 1 and belonging to the respondent No. 2 had come to sustain injuries when the truck plying between Tajpur and Lathidad in Bhavnagar District. When Lathidad was about a K.M. away from the place of the unfortunate accident the driver got the axle between the front wheels broken by his unduly fast and rash driving, with the result that the petitioner appellant who was sitting in the body of the truck got a violent jerk with the result that the spare-wheel also jumped and violently fell on his back causing serious injuries to him. He had, therefore, filed the claim petition for Rs. 70,000/- in all under various heads detailed by him in his application. The learned Tribunal ultimately accepted the claim application and directed payment of Rs. 70,000/- by way of total compensation, but the liability was kept confined to the driver and the owner of the truck in question. Having little to rejoice about this exoneration of the Insurance Company (the respondent No. 3) the original claimant had presented the present first Appeal.
The only question that would survive for our consideration in this First Appeal would be, whether the insurance company was liable or not. We have devoted our very anxious thought to this question. Mr. B.R. Shah appearing for the Insurance company submitted that as far as the statutory liability in respect of this loader was concerned, the Insurance could not disown the same, but here there was an attempt to saddle the Insurance company on the basis of a contract of Insurance covering the risk over and above the one statutorily provided for. His argument was that this extension of the liability being a matter of contract was required to be specifically pleaded and proved and the contract of insurance evidenced by the policy of Insurance in his submission left little doubt that the loader was not so specially covered. It is this question which we would say is not free from doubt on our own assessment calls for a closer examination. The front page of the Policy of Insurance mentions the Schedule of premium which is reproduced below:
Basic Premium Rs. 1861.00 +UN Ltd. PI & PD Rs. 1,50,000/- Rs. 39.00 +Riot & Strike Rs. 100.00 +WC to a paid driver and a cleaner. Rs. 16.00 _____________ Rs. 2016.00 --15% N.C.B. Rs. 301.50 _____________ Rs. 1714.50 --10% Sp. Dis. Count. Rs. 171.45 _____________ Rs. 1543.05 NET ROUNDED OFF PREMIUM: Rs. 1543.00 The limit of liability is set out there in and the further endorsements are also reproduced herein below:
Limits of Liability. | Limit of the amount of the Company''s | liability Under Section 11-1 (i) in respect | of any one accident. | Unlimited Personal Injury. | Limit of the amount of the Company''s | liability Under Section 11-100 in respect | of any claim of series of claims arising | out of one event. | 1,50,000/- property damage. Subject to clause mvc and Endorsement Nos. 23, 16, 21, 26 & RED slip as annexed.
This would mean that over and above the statutory liability, because of the Bndorsements Nos. 23, 16, 21, 26 and Red slip there was some additional contract between the insurer and insured. We, on our part, are concerned with the Endorsement No. 16, the whole of which is required to be reproduced below:
Endorsement No. 16:
...In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything continued herein to the contrary the Company shall indemnify the Insured against his legal liability under:
The Workmen''s Compensation Act, 1923 and subsequent amendments of that act prior to the date of this Endorsement the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading and/or unloading) whilst engaged in the service of the Insured in such occupation in connection with the--and will in addition be responsible for all costs and expenses insured with its written consent.
The premium having been calculated at the rate of Rs. 8/- per driver (and/or cleaner or conductor and/or person employed in loading arid/or unloading) the Insured shall certify at the expiry of each period of Insurance the maximum number of drivers and/or cleaners and/or conductors and/or persons employed in loading and/or unloading employed at any one time during such period in connection with the...belonging to him and the premium shall be adjusted accordingly....
Mr. Shah''s argument was that there was no evidence to show that the additional risk in respect of the person employed in loading and/or unloading was provided for because additional premium at the rate of Rs. 8/- per person employed in loading and/or unloading is not shown to have been paid. Inviting out pointed attention to the front page of the Insurance Policy he said that additional premium of Rs. 16/- was paid only qua the driver and the cleaner. The above quoted schedule of premium, however, does not show that that was the additional premium paid for covering the additional liability but it is the premium worked out for covering the liability arising under the Workmen''s Compensation Act. The word ''WC'' in the context of this law can reasonably be understood to mean ''Workmen''s compensation''. Unfortunately, for the Insurance company no evidence was led on its behalf to explain this contract. So, the payment of Rs. 16/- noted on the front page of the Insurance Policy exh. 37 cannot be said to be referring to this ''wider coverage'', and therefore, the argument of Mr. Shah that this additional premium was paid only to cover the driver and the cleaner in terms of the Endorsement No. 16 is difficult to be entertained. The basic premium of Rs. 1861/- may be including some additional premium referred to in Clause 16 of the Insurance policy. We are constrained to say so because the Insurance document itself mentions that the Endorsement No. 16 is a part and parcel of this agreement. We have already quoted above that slip No. 16 and its specifically mentions that in consideration of the payment of an additional premium (which unfortunately had not been specified separately any where in this document exh. 37, but which is to be presumed to have been paid because of the annexation of this slip No. 16), the Insurance Company has agreed to indemnify the insurer against his liability in respect of all persons specified therein, namely, the driver, the conductor and the persons employed in loading and/or unloading work. There is no escape from the fact that there was a contract for giving wider coverage than the one envisaged by the statute namely, Section 95 of the Motor Vehicles Act. In view of the text of that Endorsement No. 16 it is required to be assumed that this endorsement No. 16 was inserted to cover all persons including the driver, the conductor and the loader i.e. a person employed in the act of loading or unloading.
This type of interpretation is not coming up for the first time be fore us. On as many as two earlier occasions similarly word polices had come to be considered by the Division Benches of this Court. The first is the case of the Gujarat Mineral Development Corporation Limited v. Varjubhai Lallubhai Bhil and Ors. 20 G.L.R. 123, and the other is the case of Punjabhai Prabhudas and Company and Others Vs. Sakinaben Mohamadbhai and Others, . In the case of the Gujarat Mineral Development Corporation (Supra) the Insurance policy mentioned specifically that additional premium was charged at the rate of Rs. 5/- for the conductor and the driver and it was so specifically stated in the schedule of Premium also. In the instant case, this additional amount is mentioned as the extra premium paid for covering the E.C. liability". The Endorsement No. 16 was as blank there as it is before us and in those circumstances the Division Benches held that because of the Endorsement No. 16 the liability was fully covered and the payment of monies was a matter which could have been elaborated by the Insurance Company. Similar is the situation in PunjabhaVs case (supra). In order to be satisfied about the ratio in those two cases, we had called for the original record before those two respective Tribunals, one at Baroda and the other at Ahmedabad (Rural) at Narol and amazingly we have found that despite this endorsement No. 16 in those two policies and despite the situation being of the type which is presented to us in this First Appeal, the Division Benches had interpreted those endorsement slips likewise. We find no way out, but, to follow the same line of refaring of the strength of almost identity of the terms of the Insurance Policies.
In above view of the matter we allow this appeal by directing that the Insurance company, the respondent No. 3 herein also shall be liable to make good the entire amount of the award passed in favour of the claimant appellant. The appeal stands accordingly allowed, but in the facts and circumstances of the case we say that the parties shall bear their own costs of this first appeal.