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Monday, August 12, 2013

M.V. ACT - WORKMEN'S COMPENSATION ACT= whether the appellant/insurance company was liable to pay the entire amount of compensation awarded to the claimants or its liability was restricted to that which was prescribed under the Workmen’s Compensation Act. = the liability to pay compensation in respect of death or bodily injury to an employee should not be restricted to that under the Workmen’s Compensation Act but should be more or unlimited. However, the determination would depend whether a policy has been taken by the vehicle owner by making payment of extra premium and whether the policy also contains a clause to that effect.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 8725 OF 2012



RAMCHANDRA                                    ..Appellant
                                   Versus
REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.               ..Respondent




                               J U D G M E N T

GYAN SUDHA MISRA, J.

            The judgment and order dated 17.4.2007 passed by the High  Court
of  Karnataka  at Bangalore in M.F.A.No.  6711/2004  (MV)   is  the  subject
matter of challenge in this appeal whereby the learned single Judge  of  the
High Court  was pleased to allow the  appeal  preferred  by  the  respondent
No.1- United India Insurance  Company  Ltd.  through  its  Regional  Manager
holding therein that the  liability  of  the  respondent  No.1-United  India
Insurance Company Ltd. (shortly referred to as ‘the Insurance  Company’)  to
pay compensation is restricted to one under the Workmen’s Compensation  Act,
1923 and the amount to  which the respondent No.1 herein will be  liable  to
 pay  is Rs.32091/- (Rupees Thirty Two Thousand and  Ninety  One  Only)  and
the balance amount will have to be borne  by   the  insured  -owner  of  the
vehicle who had been impleaded by the appellant/claimant as  respondent  No.
2  herein but was allowed to be deleted by this  Court  from  the  array  of
parties at the risk of  the  appellant/claimant   herein.   The  High  Court
vide its impugned order was thus pleased  to hold that the liability of  the insurance company/respondent  No.1  is  restricted  to  the  one  under  theWorkmen’s Compensation Act, 1923  only and hence was not  liable to pay  any compensation under the Motor Vehicles Act, 1988.
2.          The substantial question of law  in  this  appeal  therefore  is
confined to determination of the question as to
whether the  learned  single
Judge of the High  Court  could  have  passed  the  impugned  order  holding therein that when the  labourer/employee is injured during  the  course   of employment due to negligence of  the driver of the vehicle which caused  the accident, then whether the compensation could  be  limited   to  the  amount
admissible under the Workmen’s Compensation Act or  compensation would  also be payable under the Motor Vehicles Act ?
The appellant/claimant has raised this question  relying  specially  on  the
ratio of the judgment of this Court in Suresh Chandra vs. State  of  U.P.  &
Anr. reported  in 1996 ACJ 1 
wherein this Hon’ble Court  has held that
when
the  labourer sustains injuries during the course  of  his   employment  due to negligence of the driver which met with an accident   and  the  claim  is made under the Motor Vehicles Act, the compensation could not be limited  to the amount admissible under the Workmen’s Compensation Act.
3.          Relevant factual details giving  rise to the aforesaid  question
in  this   appeal  disclose  that  the  appellant/claimant   filed  a  claim
petition claiming compensation for the injuries sustained by him in  a  road
traffic accident  which took  place on 10.9.1996 about 4.00  p.m.  when  the
claimant was travelling in a Swaraj Mazda Matator  bearing registration  No.
KA-01-2337 as a cleaner.   
According to  the  case  of  the   claimant,  the
driver of the vehicle drove the same in a  rash  and  negligent  manner  and
when the  said vehicle came near  Doddabande Crossing,  the  vehicle  dashed
against the lorry bearing  registration No. TN-28B-8397  which  was   parked
on the road as a result of which the appellant who  was  travelling  on  the
said vehicle as a cleaner sustained grievous  injuries.  
The  injured  was,
therefore,  taken for the  first  aid  treatment  at   Penukonda  Government
Hospital and was later shifted   to  Victoria  Hospital,  Bangalore  as   an
inpatient.  
The 2nd respondent  in this appeal was Mr. S. Sathyamurthy  who
  admittedly  is the owner  of  the vehicle   Swaraj  Mazda   and  the  said
vehicle  was insured  with  the  1st  respondent  herein  the  United  India
Insurance Company Ltd.   
Hence, the claimant  laid claim  against  both  the
respondents before the Motor Accident Claims Tribunal  
and  
Court  of  Small Causes at Bangalore wherein he urged that the   respondents  are  liable  to pay just and adequate compensation.
4.          The respondent No.1-  insurance  company    appeared  and  filed
objections contending therein that the vehicle was being driven  without   a
valid and effective driving license  in contravention of the  provisions  of
the Act due to which the insurance company  was  not  required  to  pay  any
compensation.  It was further contended  by the insurance company  that  the
vehicle in question is a passenger carrying  vehicle   and  the  policy   of
insurance issued was only an act coverage in which  the  claimant  appellant
was proceeding as a cleaner.  Hence the policy   of  insurance   issued   by
the respondent  does not cover the risk  of the   cleaner  as  per   Section
147 of the Motor Vehicles Act since the policy  of  insurance  covering  the
accident vehicle  being an act of coverage does not cover the risk  of   the
cleaner; hence the respondent insurance  company   was  not  liable  to  pay
compensation.   The  respondent  -insurance  company,   therefore,    sought
dismissal of the claim petition.
5.          The respondent No.2/the owner of the  vehicle   herein  although
was served with the notice, he failed to appear   before  the  tribunal  and
hence the matter proceeded only against the respondent – insurance  company.

6.          The Motor  Accident Claims Tribunal  on a scrutiny and  analysis
of the evidence  led by the contesting parties,  was  pleased  to  record  a
finding  that the appellant/claimant was travelling in the Matadar  van  and
the accident took place due to rash and negligent driving  of the  said  van
by  its driver  due  to  which  the  appellant  herein   sustained  grievous
injuries.  On the basis  of the evidence  it was further recorded  that  the
appellant sustained fracture  of right shaft femur.  He was an inpatient  at
Victoria Hospital for a period of one and a half month wherein his  leg  was
operated and  rod was  fixed   to  the  fractured  bone,  head  injury   was
sutured and  treated  conservatively.   After  discharge,  he  also  had  to
undergo follow up treatment  by  visiting  the hospital for a period of  one
year once in 15 days a month    as advised by the  doctors.  
The  tribunal
on an assessment of the injury sustained  by the claimant and  the  expenses
incurred on the treatment was  pleased  to  hold   that  the   claimant  was
entitled to a sum of Rs.1,42,800/- towards compensation.
7.          Since the quantum of compensation  is  not  under  challenge  in
this appeal, it is inessential to go into  the  details  of  the  nature  of
injury and the amount awarded to the claimant.  In  addition,  the  plea  of
the insurance company that the driver was not holding a  valid  license  had
also been rejected by the tribunal which finding  is  not   under  challenge
and hence it is equally inessential  to deal with this aspect.
8.          The  principal ground of  challenge   at  the  instance  of  the respondent-insurance company was that 
the   appellant was  travelling  in  a matador van as a cleaner; hence   his  remedy  was  to  claim  compensation under the Workmen’s Compensation Act and 
the tribunal  had  no  jurisdiction to entertain the claim filed by the cleaner.
9.          However, the tribunal referred to the law laid down by the  full
Bench of the Karnataka High Court  in  the  case  of  Karnataka  State  Road
Transport Corporation and Ors. Vs. R. Maheshwari and Ors.  reported  in  ILR
2003 Kar 3562,   wherein it was held that the insurer  shall  be  liable  to
indemnify  the person or  classes of persons  specified  in the  policy   in
respect of  any  liability  which the  policy  purports  to  cover  even  in
proceedings  under the Motor Vehicles Act  without  such  liability   having
been first determined or adjudged under the Workmen’s Compensation Act.   
In
view of the ratio of this decision, the tribunal was pleased  to  hold  that
the respondent-insurance company being the  insurer    was  liable   to  pay
compensation.   The  claim  petition    consequently  was  allowed  in  part
awarding compensation of Rs. 1,42,800/- together with costs and interest  at
6 per cent  per annum from the date of filing of  claim  petition  till  the
date of payment against the respondent – insurance company and   respondent-
insured/owner  of  the  vehicle   jointly   and  severally.
However,   the respondent-insurance company  being  the  insurer of the offending  vehicle,
it was  ordered to pay the entire compensation awarded.
10.         The  respondent-insurance  company  assailed  the  judgment  and
order of the tribunal by filing a first appeal bearing  MFA No.6711/2004  in
the High Court of Karnataka at Bangalore wherein the  learned  single  Judge
recorded that the only grievance  of  the  appellant-insurance  company  was
that while allowing the claim petition, the  first  respondent/claimant  had
put the entire burden  on the  appellant   to  satisfy  the  amount  of  Rs.
1,42,800/- which was awarded to the claimant. The counsel  representing  the
insurance company  submitted before the  High  Court  that  it  was  not  in
dispute that the claimant was travelling as a cleaner in the matador van  in
question and, therefore,  the liability of  the  appellant   ought  to  have
been restricted under the Workmen’s Compensation Act.  As such,  the   order
of the tribunal  could not be  sustained in law to the extent  of  liability
 over and above the liability under the Workmen’s Compensation Act.
11.   The learned single Judge  of the High Court  almost summarily  allowed
the appeal as he was of the view that the claimant having been a cleaner  in
the matador van insured with the appellant herein, the liability  could  not
have been over and above  the liability  under  the  Workmen’s  Compensation
Act.  The learned single Judge  in support of  his  view   relied  upon  the
judgment and order reported in the case of  National Insurance Company  Ltd.
Vs. Lagamanna & Ors. reported in 2007 ACJ  50.   The  learned  single  Judge
recorded that the Division Bench in the said decision had  held   that  when
no cover premium is  paid to cover larger liability, the  liability  of  the
insurance company  will  be  restricted  to  the  one  under  the  Workmen’s
Compensation Act.   It was, therefore,  held that  in  the  light  of   such
settled position of law,  the  tribunal   could  not  have  put  the  entire
liability on the appellant.  The learned single Judge,  therefore,  directed
that the liability  of the insurance company was  restricted  to  one  under
the Workmen’s Compensation Act which would be Rs.32,091/-  and  the  balance
will have to be shouldered by the insured/owner  of  the  vehicle.   It  was
further ordered that  the rate of interest  will be as  per  order   of  the
Motor Accident Claims Tribunal.  The appeal was allowed to this  extent  but
a further direction was given that if excess amount had been deposited,  the
same will be refunded to the insurance company.
12.   Since, the insured/owner of the vehicle  had   never  appeared  either
before  the  tribunal  or  the  High  Court,  the  claimant-appellant   felt
aggrieved and has, therefore, come up in appeal before this court  assailing
the judgment and order of the High Court  wherein  the  directions  recorded
hereinabove is under challenge.
13.   Learned counsel  for the appellant/claimant   in  substance  contended
that the High Court ought not to have passed the impugned order in  view  of
the ratio of the judgment and order passed by this Court in  Suresh  Chandra
vs.  State of U.P. & Anr. reported in  1996  ACJ  1   wherein  this  Hon’ble
Court  has held  that when  the  labourers  sustain    injuries  during  the
course of his employment due to the negligence of the driver  and the  claim
 is made under  the Motor Vehicles  Act,  the  compensation   could  not  be
limited to the amount admissible   under  the  Workmen’s  Compensation  Act.
Therefore, it was submitted that the impugned order  is  liable  to  be  set
aside  by this Court.  The counsel had further submitted that  the  tribunal
was justified  and rightly directed  the  respondent-insurance  company   to
pay  the compensation  together with costs and interest at 6  per  cent  per
annum from the date  of petition to the  date  of   payment  and  the  first
respondent/insurance company  being the insurer of the vehicle  was  rightly
directed to pay the entire  compensation.   The  learned  single  Judge  was
thus in error in allowing  the appeal of the  respondent  insurance  company
in part which is fit to be struck down  as illegal and invalid.
14.   Learned counsel representing  the   insurance  company  repelled   the
arguments   advanced  by  the  counsel  for  the   claimant/appellant    and
essentially  submitted that the liability of the insurance company to    pay
 compensation to the claimant cleaner who was injured during the course   of
employment due to negligence of the driver  would not be entitled  to  claim
compensation under the Motor Vehicles Act  but  his  compensation  would  be
limited  to the amount  admissible  under the  Workmen’s  Compensation  Act.
Learned counsel  while  elaborating  his submission however yielded  to  the
extent that although the  insurance company  may  be  held  liable   to  pay
compensation under the Motor Vehicles Act beyond what is  admissible   under
Workmen’s  Compensation  Act,  the  same  would  be  payable  provided   the
insured/owner of the vehicle had paid higher premium to cover the  liability
of its employees and only then the insurance company  would  be  liable   to
pay  the compensation   to the  employees  over  and  above   the  liability
under the Workmen’s Compensation Act.   In  absence  of  payment  of   cover
premium, the liability  of insurance company will be restricted only to  the
one  which is payable  under  the  Workmen’s  Compensation  Act.    It  was,
therefore, submitted   that the High  Court  was  correct  in  allowing  the
appeal of the  insurance  company  by  restricting   its  liability  to  Rs.
32,091/-  only  and   rightly  ordered  refund  of  the   amount    by   the
claimant/appellant which has been assailed by the claimant herein.
15.   In support of his submission, counsel for the  insurance  company  has
invited the attention of this Court  to  the  case  of   National  Insurance
Company vs. Prembai Patel & Ors., reported in (2005) 6  SCC  172.   In  this
matter, the claim petition had been filed by the respondent/claimant 3 to  6
claiming  compensation for the  death  of  one   Sunder  Singh  who  was  an
employee of the insured/owner  of the vehicle who died in the  accident   in
course  of  his  employment  and  a  claim  petition  was  filed    claiming
compensation under the  Motor Vehicles Act.  The main question  which  arose
for consideration in the said appeal  was
whether  the  appellant/insurance
company was liable to pay the entire  amount of compensation awarded to  the
 claimants or its liability  was restricted  to that  which  was  prescribed
under the Workmen’s Compensation Act.
The learned  Judges  in  this  matter
observed  as under:

“The  insurance  policy   being  in  the   nature  of  a  contract,   it  is
permissible for an  owner  to  take  such  a  policy   wherein  the   entire
liability  in respect of  the  death   of  or  bodily  injury  to  any  such
employee as is described   in sub clauses (a) or (b) or (c)  of the  proviso
1 to Section 147 (1)(b) of the Motor Vehicles Act may be fastened  upon  the
insurance company and the insurance company may  become  liable  to  satisfy
the entire award.  However, for this purpose, the owner must take  a  policy
of that particular kind for which he may  be  required  to   pay  additional
premium  and the policy  must  clearly   show  that  the  liability  of  the
insurance company in case of death of or  bodily  injury  in  the  aforesaid
kind of  employee is not restricted to that  provided  under  the  Workmen’s
Compensation Act and is either more or unlimited depending upon the  quantum
of premium paid and the terms of  the policy.”


The learned Judges in this  ruling  held  that  this  interpretation  is  in
consonance with the view expressed by a Constitution Bench    in  New  India
Assurance Company Ltd. vs.  C.M. Jaya & Ors.,  reported in (2002) 2 SCC  278
wherein while interpreting  the provisions of Section 95 (2)  of  the  Motor
Vehicles Act 1939, the Court held as under in para 10 of the report :-

“……………………The liability could be   statutory  or  contractual.   A  statutory liability cannot be more  than what is required under  the  statute  itself.
However, there is nothing in  Section  95  of  the  Act    prohibiting   the parties from contracting to create unlimited or higher liability   to  cover wider risk.  In such an event, the insurer is bound  by the  terms   of  the contract  as specified  in the policy in regard  to  unlimited    or  higher liability as the case may be.   In the absence of such  a term or clause  in
the policy,  pursuant  to the contract of  insurance,  a  limited  statutory liability cannot be expanded  to make it unlimited  or  higher.   If  it  is so done, it amounts to rewriting the statute  or the contract  of  insurance which is not permissible.”


Several  other  authorities  were also relied upon which  were  rendered  in
New India Assurance  Co. Ltd. vs. Shanti Bai  & Ors. (1995) 2  SCC  539  and
Amrit Lal Sood vs. Kaushalya Devi Thapar & Ors., (1998) 3 SCC  744   wherein
it was held that  in  case  of   insurance  policy  not  taking  any  higher
liability by accepting a higher premium,  the  liability  of  the  insurance
company is neither unlimited nor higher than the statutory  liability  fixed
under Section 95 (2) of the Motor Vehicles Act 1939.  It  was  further  laid
down that it is open to the insured to make  payment  of  additional  higher
premium  and get higher risk covered  in respect of 3rd party also.  But  in
the absence  of any such clause in the insurance policy,  the  liability  of
the insurer  cannot be unlimited in respect of 3rd party and it  is  limited
only to the statutory liability.
16.   The learned Judges therefore held  that  in  case  the  owner  of  the
vehicle  wants the  liability of the insurance company in respect of   death of or  bodily injury to any such employee as is described in clauses (a)  or (b) or (c)  of proviso (i) to Section 147  (1) (b), the same  should not  be restricted to that under the Workmen’s Compensation Act  but should be  more  or unlimited, but he must take such a policy by  making  payment  of  extra premium and  the policy  should  also  contain  a  clause  to  that  effect.
However, where the policy  mentions  “a policy for Act Liability”   or  “Act Liability”, the liability  of the insurance company  qua  the  employees  as aforesaid would not be unlimited but  would   be  limited  to  that  arising under the Workmen’s Compensation Act.   The learned Judges were,  therefore,
pleased to hold that  the  liability of the insurance  company   to  satisfy
the  award  would  be  restricted  to  that  arising  under  the   Workmen’s
Compensation Act and the owner of the vehicle was held  liable   to  satisfy
the  remaining  portion  of the award.
17.   A perusal of the aforesaid  judgment  and order of  this  Court   thus
indicate that this Court has  clearly  held   that
the  liability   to  pay
compensation in  respect of  death or bodily injury  to an  employee  should not be restricted to that  under the Workmen’s Compensation Act  but  should be more or unlimited.  However, the determination  would  depend  whether  a policy has been taken by the vehicle owner  by   making  payment   of  extra
premium and whether  the policy also contains a clause to that effect.
18.   Thus in so far as the view of the High  Court   is  concerned  to  the
extent that the compensation  would be restricted to be paid   only  to  the
extent which is payable   under the Workmen’s Compensation Act by  making  a
sweeping generalisation, the same is clearly contrary to the view  taken  by
this Court even in the judgment and order on which reliance has been  placed
by the counsel for the respondent-insurance company as it  is   sufficiently
clear and unambiguously  laid down which is recorded  hereinbefore that  the
 compensation  payable to  the employee cannot be restricted   merely  under
the  Workmen’s  Compensation  Act  and  it  can  be  expanded  provided  the
contractual document which is the  policy  of  insurance  incorporates  such
clause regarding the premium to be paid taking into account  the  nature  of
the policy.
19.   In the light of the aforesaid  legal position, it is  clear  that  the
High Court was not correct in holding that the claimant/appellant   was  not
entitled to  any  compensation  over  and  above  the  liability  under  the
Workmen’s Compensation Act and hence the direction issued by the High  Court
that the appellant/insurance company, respondent herein, will be  liable  to
pay only Rs. 32091/-  and the balance will have to  be   shouldered  by  the
insured/owner of the  vehicle is fit to be struck down  as  invalid  as  the
High Court had failed to examine the nature and clauses of the policy  which
was not produced even before the Tribunal.
20.    The   claimant/appellant  is  surely  entitled  to  the   amount   of
compensation over and above the Workmen’s Compensation Act in  view  of  the
ratio of the decisions referred to hereinbefore.    
The  rider    no  doubt
is that the statutory liability cannot be more than what is  required  under the statute under Section 95 of the Motor Vehicles  Act  which  cannot  bind the parties or prohibit them  from  contracting  or  creating  unlimited  or higher liability to cover wider risk and  the  insured  is   bound   by  the terms of the contract specified in the policy  in  regard  to  unlimited  or higher liability   as the case may be.  
Thus, it is  although  correct  that
limited statutory  liability cannot be extended to  make  it   unlimited  or
higher,  it is also manifestly clear that insofar as the entitlement of  the
claimant/deceased cleaner of the  vehicle is concerned, the same  cannot  be
restricted to the compensation under the Workmen’s Compensation Act  and  is
entitled to compensation even  under  the  Motor  Vehicles  Act  which  will
depend upon the  terms and conditions of the policy of insurance.
21.   From this legal position it is also equally clear that in the  instant
matter insofar as the entitlement of the claimant to the compensation  under
the Motor Vehicle Act is  concerned,  the  right  of  the  claimant  is  not
affected.  However, the respondent/insurance company  had  filed  an  appeal
in the High Court contending that the order of the  Tribunal  could  not  be
sustained in law to the extent of liability over  and  above  the  liability
under the Workmen’s Compensation Act and on this point   the  contention  of
the appellant/company has been accepted by the High  Court  overlooking  the
more  important  fact  that  the  Respondent  insurer  company  had  neither
produced the policy of insurance before the High Court nor led any  evidence
to establish that as per terms and conditions of policy extra  premium   had
not been paid.
22.    The question, therefore, is whether the amount of compensation  could
rightly  be  apportioned  between  the  insurer/insurance  company  and  the
insured/owner of the vehicle.  However, the  owner of the  vehicle  had  not
appeared before the tribunal  but the insurance company  allowed the  matter
to be proceeded before the  tribunal  and   when  the   respondent/insurance
company filed  an appeal  in  the  High  Court,  the  insured/owner  of  the
vehicle once again failed to appear but the  Respondent-  Insurance  Company
did not pursue  for  his  appearance.   The  High  Court,  however,  further
overlooked that the apportionment of  the  amount  of  compensation  between
the owner of  the vehicle   and  the  insurance  company  was  an  inter  se
dispute between insurance company and the insured/owner of the vehicle  and,
therefore,  the order due to non-appearance  of  the  insured/owner  of  the
vehicle could not have been passed to the detriment of the claimant  as  the
claimant  in any case is entitled to the amount of  compensation  determined
by the tribunal.  If the insurance company  acquiesced  with  the  situation
and  allowed  the  proceeding  to  continue   even   in   absence   of   the
insured/owner of  the vehicle who has been held liable  to  pay  the  amount
even though the insured might have been liable to pay  higher  premium,  the
consequence of the same obviously will have to be  borne  by  the  insurance
company and the claimant cannot be made to suffer.
23.   Hence,  at the stage of appeal before  the  High  Court,  we  find  no
legal justification for the High Court to leave it  open  to  the  insurance
company to realize the amount of compensation beyond  Rs.32,091/-  from  the
insured/owner as the plea  of  the  respondent/insurance  company  althrough
was that the claimant  is not entitled   to  any  compensation  beyond   the
extent  of  liability  under  the  Workmen’s  Compensation   Act   and   the
respondent/insurance company had not  taken  the  alternative  plea   either
before the tribunal or the High Court that in  case  the  claimant  is  held
entitled  to  compensation  beyond   the  extent  of  liability  under   the
Workmen’s Compensation Act, the same  was not payable as  no  extra  premium
was paid by the insured/owner under the policy of insurance.  The  insurance
company had failed to raise any plea before the  courts  below  i.e.  either
the Motor Accident Claims Tribunal or the High Court and  it  did  not  even
contend that in case  the claimant  is entitled  to any compensation  beyond
what  was payable under the Workmen’s Compensation Act, it  is  the  insured
owner who was liable to pay as it had no  contractual  liability  since  the
insured/owner of the vehicle had not  paid any extra  premium.   Thus,  this
plea was never put to test  or  gone  into  by  the  Motor  Accident  Claims
Tribunal since the insurance company neither took this plea nor adduced  any
evidence to that effect so as to give a cause to the High  Court  to  accept
this plea of the insurance company straight away at the appellate stage.
24.   Consequently,  the  High  Court’s  view  impliedly  holding  that  the
claimant/appellant was not entitled to  any  compensation  under  the  Motor
Vehicles Act beyond the entitlement under the Workmen’s Compensation Act  so
as to leave it open to the Respondent/Insurance Company to realise  it  from
the owner of the vehicle at the belated stage  of  appeal  before  the  High
Court when the respondent/insurance company had  failed  even  to  urge  the
alternative plea regarding non-payment of extra premium by the owner of  the
vehicle and had even reconciled to the fact that the owner  of  the  vehicle
had failed to appear in spite of  service  of  notice,  is  not  fit  to  be
sustained.
25.   At this stage, we deem it appropriate to take  note  of  an  important
step which the insurance company generally fail to take and that is  related
to non appearance of the owner  of  the  vehicle  in  spite  of  service  of
notice.  The insurance companies although contend before the Motor  Accident
Claims Tribunal and even at the appeal stage that it is  the  owner  of  the
vehicle which is liable to bear a part or the  entire  liability  of  making
the payment of compensation to  the  claimant  in  view  of  the  nature  of
policy, or even due to invalid licence by the driver of  the  owner  of  the
vehicle, the insurance company fails to lead any evidence  to  establish  as
to how the owner and  not  the  insurance  company  is  liable  to  pay  the
compensation and even submits to non appearance of the owner of the  vehicle
whose appearance is vital in view of inter se contest between the  owner  of
the vehicle and the insurance company.  In  absence  of  the  owner  of  the
vehicle, when the Motor Accident Claims Tribunal or the  High  Court  leaves
it open to the insurance company subsequently to  realise  the  amount  from
the owner of the vehicle by instituting a fresh proceeding in  view  of  the
ratio  of  the  case  of  General  Manager,  Kerala  State  Road   Transport
Corporation, Trivandrum Vs. Sussama Thomas, (1994) 2 SCC 176, it gives  rise
to a fresh proceeding between the owner and the  insurance  company  putting
unnecessary burden on the Motor Accident Claims Tribunal to  try  the  issue
all over again.  In fact, if  the  insurance  company  were  to  succeed  in
establishing by leading cogent evidence at the initial stage  itself  before
the Tribunal that it is the owner of the vehicle  which  is  liable  to  pay
even if the evidence is ex parte in nature, it  would  at  least  facilitate
the  issue  in  the  subsequent  proceeding  when  the   insurer   initiates
proceeding for realising the amount from the owner/insured.  But in  absence
of such evidence, the insurer/companies are a loser and enures advantage  to
the owner who happens to gain by choosing  not  to  appear.   The  Insurance
Companies would fair better if they were to address this  issue  before  the
Tribunal itself instead of becoming wiser at the stage of appeal.   What  is
wished to be emphasized is that if the owner chooses not  to  appear  before
the Tribunal although his appearance is  necessary  in  a  given  case,  the
insurance company would do well instead of acquiescing  with  their  absence
to their detriment giving an upper edge to the owner at their own peril.
26.   In the instant matter, we have noted that the High Court although  had
granted liberty to the insurance company to  realise  the  amount  from  the
owner of the vehicle, it failed to  record  expressly  that  the  respondent
insurance company shall pay the amount to the appellant/claimant  determined
by the Motor Accident Claims Tribunal although impliedly the High Court  has
not denied the amount to  the  claimant/appellant.   But  in  absence  of  a
categorical direction to the respondent/insurance company to pay the  entire
amount  to  the  appellant  as  determined  by  the  Motor  Accident  Claims
Tribunal, the appellant is bound to confront impediments  in  realizing  the
amount.  Hence, the direction of the High Court is clarified to  the  extent
by recording that the respondent/insurance company  shall  pay  the  balance
amount  also  beyond  Rs.32,091/-  along  with  interest  to  the   Claimant
expeditiously but not later than a period of six  weeks  from  the  date  of
receipt of this order.
27.   We are , thus,  pleased to hold that the judgment  and  order  of  the
High Court which impliedly held that the employee/claimant  is  entitled  to
compensation only under the Workmens’ Compensation Act  and  not  under  the
Motor Vehicle’s Act  stands  set  aside  and  the  liberty  granted  to  the
Respondent/Insurance Company to realise the amount from the owner without  a
corresponding direction to  the  Respondent/Insurance  company  to  pay  the
amount to the Claimant/Appellant making the appellant liable to  realise  it
from the owner of the vehicle stands  modified  as  indicated  hereinbefore.
The appeal accordingly is allowed but we refrain from making  any  order  as
to costs.


                                                             ………………………………..J
                                                              (G.S. Singhvi)



                                                             ………………………………..J
                                                          (Gyan Sudha Misra)


New Delhi,
August 2, 2013


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