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CASE NO.: Appeal (civil)  5147 of 2003

PETITIONER: Ramashray Singh                                  

RESPONDENT: Vs. New India  Assurance Co. Ltd & Ors.              

DATE OF JUDGMENT: 22/07/2003

BENCH: Ruma Pal & B.N.Srikrishna.

JUDGMENT:

        J U D G M E N T  

(Arising out of SLP(C) No. 20600 Of 2002)

RUMA PAL, J

Leave granted.

The appellant is the owner of a vehicle, described as a  "trekker", in which passengers are carried for hire.  He  employed Shashi Bhushan Singh as a "khalasi" of the vehicle.   On 21.10.1998 the vehicle met with an accident as a result of  which Shashi Bhushan Singh died.  The legal heirs of the  deceased employee filed a claim in the Workmen’s  Compensation Court against the appellant, as the owner of the  vehicle, and against the respondent insurance company.  The  Workmen’s Compensation Court held that the vehicle had been  comprehensively insured with the respondent and that since the  accident had occurred during the period of insurance, the  insurance company was liable to pay the compensation on  account of the death of the employee.  The respondent was,  therefore,  directed to deposit the compensation determined  under the provisions of The Workmen’s Compensation Act,  1923.  The decision  was challenged by the respondent before  the High Court at Patna under Article 226.  The High Court  allowed  the writ petition.  It held that in the absence of any  special contract between the appellant and the respondent , the  rights of the parties were governed by statute which did not  require the respondent to cover liability in respect of an  accident to a khalasi. The statute in question is the Motor  Vehicles Act, 1988 (referred to hereinafter as the Act).         The appellant has impugned the decision of the High  Court before this Court, primarily on the ground that the High  Court had misconstrued the provisions of the Act and in  particular  clause (b) of subsection (1) of section 147.  It was  contended that the insurance policy expressly covered the  death or injury to the khalasi.    Our attention was drawn to the  insurance certificate where under the heading "Particulars of  the vehicle insured" there is a column which refers to "Seating  capacity including driver and cleaner".  Under this sub-head the  figure "13+ 1" has been inserted.  A cleaner, as accepted by  both parties before us, would include a khalasi.  The appellant  submitted that he had paid premium on the basis of 13+1 to  cover the liability in question. The respondent has refuted the claim that any additional

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premium was paid to cover the risk pertaining to a khalasi.  It is  contended that in terms of the insurance policy, as also under  the provisions of Section 147 (1) (b), no employee of the  insured apart from the driver  was  covered.   Chapter XI of the Act covers the subject ’Insurance of  Motor Vehicles Against Third Party Risks’ under Section 146(1)  of which no person shall use a motor vehicle in public unless  there is a valid policy of insurance which complies with the  requirements of the Chapter. The mandatory requirements of  such insurance policy have been provided in Section 147. The relevant extract of Section 147 is reproduced with  emphasis on the words on which the appellant’s case rests :         "Section 147: Requirements of policies  and limits of liability. â\200\223 (1) In order to comply  with the requirements of this Chapter, a policy  of insurance must be a policy which â\200\223   (a) xxx xxx             xxx     xxx             xxx          (b) insures the person or classes of persons  specified in the policy to the extent specified in  sub-section (2) â\200\223  

(i)     against any liability which may be  incurred by him in respect of the death of  or bodily injury to any person or damage  to any property of a third party caused by  or arising out of the use of the vehicle in  a public place;

(ii)    against the death of or bodily injury to  any passenger of a public service  vehicle caused by or arising out of the  use of the vehicle in a public place:

Provided that a policy shall not be required â\200\223

(i)     to cover liability in respect of the death,  arising out of and in the course of his  employment, of the employee of a  person insured by the policy or in respect  of bodily injury sustained by such an  employee arising out of and in the course  of his employment other than a liability  arising under the Workmen’s  Compensation Act, 1923 ( 8 of 1923), in  respect of the death of, or bodily injury  to, any such employee-

(a)     engaged in driving the vehicle, or

(b) if it is a public service vehicle,  engaged as a conductor of the vehicle  or in examining tickets on the vehicle, or

(b)     If it is a goods carriage, being carried  in the vehicle, or

(ii)    to cover any contractual liability".

       Over and above the risks which are covered by this

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statutory provision, parties may of course enter into a contract  by which the insurer agrees to cover additional risks.  It is not  the appellant’s case that apart from the policy of insurance  there was any contract between the appellant and the  insurance company.    The policy has a clause which defines  the limits of liability in respect of death or bodily injury to any  person caused by or arising out of the use of the motor vehicle  under  Section II(i)  of  the  terms  and  conditions of the   Policy.   In  proviso (b)  to  Section  II (1), it has been  expressly stated that "Except so far as is necessary to meet  the requirements of the Motor Vehicles Act, the Company  shall not be liable in respect of death of or bodily injury to any  person in the employment of the insured arising out of and in  the course of such employment".    A copy of the original policy was produced by the  respondents in the course of arguments.  The appellant has  objected to the production of the policy at this stage.  We  would have understood and upheld the submission had the  appellant not based his claim on the policy.  Indeed, in the  absence of the policy, we could not have entertained the  appellant’s claim at all.  [See:  Dr. T.V. Jose V. Chacko P.M.  alias Thankachan 2001 (8) SCC 748.]   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 clauses  (i) and (ii) of sub section (b) to  Section 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 Section 147  (1)(b), it is clear that for the purposes of Section 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. The decision of the Full Bench of the Kerala High Court  relied on by the appellant National Insurance Co. Ltd. v.  Philomena Mathew : 1993 ACJ 1116 was based on a  construction of Section 95 of the Motor Vehicles Act, 1939 the  corresponding section to which under the present Act is  section 147.  The relevant provisions  of the two sections  which are otherwise in pari materia are  materially different in  one respect.  Section 95 covered a fourth category of

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employee after the three now mentioned in clauses (a)(b) and  (c) to the proviso to Section 147 (1)(b) viz.,: "where the vehicle is a vehicle in which  passengers are carried for hire or reward or by  reason of or in pursuance of a contract of  employment, to cover liability in respect of the  death of or bodily injury to persons being  carried in or upon or entering or mounting or  alighting from the vehicle at the time of the  occurrence of the event, out of which a claim  arises".  (emphasis supplied)

So a person carried in pursuance of a contract of  employment would be a passenger and would be covered as  such.  The exclusion of this clause in the proviso to Section  147(1)(b) of the present Act bolsters our reasoning that  employees other than the three mentioned are not covered by  Section 147 (1)(b).    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.  The appellant’s final submission was that as the policy  was a comprehensive one, it would cover all risks including  the death of the khalasi.  The submission is unacceptable.  An  insurance policy only covers the person or classes of persons  specified in the policy.  A comprehensive policy merely means  that the loss sustained by such person/persons will be  payable upto the insured amount irrespective of the actual  loss suffered.  [See: New India Insurance Co. Ltd. v. J.M.  Jaya 2002 (2) SCC 278;  Colinvaux’s:  Law of Insurance  (7th Edition) p. 93-94].  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.   The appeal is accordingly dismissed without any order  as to costs.