B. Rajendran, J.@mdashThe insurance company has come forward with this appeal against the grant of an award of Rs. 2,97,410/- for the death
of K. Palanisamy, son of the claimant/first Respondent herein during the course of his employment with the second Respondent herein.
2. The facts of the case was that the deceased Palanisamy was working as a driller with the rig mounted lorry under the second Respondent herein.
The claimant/first Respondent is the mother of the deceased Palanisamy. The rig was a special type vehicle and it was insured with the Appellant
insurance company during the time of accident. According to the claimant, when the deceased was attending to the repair work of the said vehicle,
bearing Registration No. KA 01 MF 9855 at Selvam Workshop, Tiruchengode on 21.08.2004, at about 1.30 am on 22.08.204, the deceased
felt pain in his heart. Immediately, he was rushed to the Government Hospital and treated, but he died at 2.00 am. According to the claimant, his
son Palanisamy died during the course of his employment as Driller with the second Respondent and while attending to the repair works to the
vehicle and therefore, both the employer and the insurance company are jointly and severally liable to pay Rs. 7,00,000/-, being the compensation
claimed in the claim petition. It was also contended that the Tiruchengode Town Police Station have registered a case in Crime No. 618 of 2004
u/s 174 of Code of Criminal Procedure.
3. The insurance company resisted the claim on the ground that the alleged accident occurred when the vehicle was on the workshop for some
alleged repairs. The deceased, as Driller, did not do any work or attended to the repairs of the vehicle. Furthermore, the vehicle was left in the
workshop for painting works and during the course of such work, the deceased died due to heart attack. The death was a natural one and not due
to any accident by reason of operation of the rig.
4. On the basis of the evidence let in, the Deputy Commissioner of Labour passed an award of Rs. 2,97,410/- payable by the insurance company.
Aggrieved by the same, the present appeal has been filed by the Appellant/insurance company mainly on the ground that at the time of the death of
the deceased, he was not attending to any work in the rig. In fact, the rig was kept idle in the workshop for the purpose of repairing works. The
deceased went to the workshop only to oversee the painting works. In fact, as per the evidence, the deceased was sleeping when the painting
works was going on and during that time, he developed heart attack and died. In the claim form, the employer himself has stated that the deceased
died due to heart attack. The first information report registered by the police only indicate that the deceased died due to heart attack in the
workshop. Therefore, even if the deceased had gone to the workshop as per the instructions of his employer, during the course of his employment
with his employer the death occurred, when the death has not occurred due to operation of rig or in any other form, but a natural death, the
insurance company cannot be fastened with any liability. Under those circumstances, the policy which cover only the vehicle and the risk that might
cause during the course of operation of the vehicle by a driver, the claimant is not entitled to make any claim and the insurance company is not
liable to pay any amount for the death of the deceased, especially when he was employed only as a driller. When once the policy is not covered
and no premium was paid for the risk that might be incurred by a driller, the insurance company cannot be held responsible or liable. At best, the
owner can alone be fastened with the liability to pay especially, in this case, the deceased died during the course of his employment with the
employer died due to heart attack.
5. The learned Counsel for the employer/second Respondent herein contended that policy was taken for covering the risk that might be caused
due to the operation of the vehicle. At the time of the death of the deceased, the policy was in force. The vehicle was left in the workshop for
carrying out repairs which was supervised by the deceased as instructed by the second Respondent. Therefore, naturally, as per the policy
condition, the insurance company alone is liable to pay the compensation, which was rightly determined by the learned Commissioner and prayed
for dismissal of the appeal.
6. On behalf of the claimant/first Respondent herein, it was contended that she is the mother of the deceased, who was employed as a driler with
the second Respondent and died during the course of his employment with his employer. The deceased attended to the work in the late night as
instructed by the second Respondent alone and stayed in the workshop. Inasmuch as the death of the deceased occurred during the course of his
employment, both the owner and the insurer have to be directed to pay the compensation amount.
7. Heard both sides. At the time of admission of this appeal, the following substantial questions of law are framed for consideration:
1. Whether the Deputy Commissioner of labour was correct in holding that theappellant is liable inspite of the fact that the policy does not cover
the said risk.
2. Whether the Deputy Commissioner of labour was correct in holding that the Appellant is liable to pay compensation for the death occurring
outside the purview of Section 3(1)?
3. Whether the Deputy Commissioner of Labour was correct in applying Section 147(1)(b)(i) of the Motor Vehicles Act, when admittedly the
deceased was not on wheel at the time of his death.
8. It is seen from the records that the vehicle was kept idle in the workshop. The vehicle was registered in the State of Karnataka and brought to
the State of Tamil Nadu for the purpose of carrying out repairs in the workshop. In fact, in the claim petition filed by the owner, in column V, it
was clearly stated that the ""vehicle was parked"". It was further stated that ""the Driller of the motor rig Unit K. Palanisamy was overseeing the
painting operation in the night at about 1.30 am on 22.08.2004 and during that time, he suffered a heart attack. Immediately, he was taken to the
Government Hospital, where died. Thus, the accident."" In column No. 7 under the heading whether it was a case relating to death or injury or
property damage, it was clearly stated in column (c) that the deceased died due to heart attack. In column No. 8 relating to injury to driver/owner
it was stated ''Nil''. Therefore, as per the admission of the owner himself in the claim form, it has been categorically stated that due to heart attack,
the deceased died. Further, it was also stated that in the workshop, where the rig was undergoing painting, the deceased was instructed by his
employer to oversee the painting operation and at that time, the rig was not in operation. It is also not the case of the claimant that the deceased
was a driver. As a driller, he went to the workshop to supervise the painting work and since it was late night, he stayed there. At that time, the
deceased suffered heart attack and he was taken to the hospital where he died. It is also not in dispute that postmortem was conducted on the
deceased.
9. As contended by the learned Counsel for the Appellant, the policy covers only the OD i.e., ""own damage"" for which basic premium paid. The
policy also covers third party basic, for which also premium was paid. Apart from these two headings specified in the policy, nothing else is
covered. The policy of an insurance company is a contract in nature and if at all anything is to be covered, it will have to be specifically described in
the policy between the parties.
10. In this context, it is relevant to refer to Section 147(1)(i) Sub-clauses (a) to (c) of the Motor Vehicles Act wherein it is clearly stated that the
coverage of the policy of the insurance company is available for a person who is (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 (c) if it is a goods carriage,being carried in the vehicle or (ii)
to cover any contractual liability. Therefore, Section 147 of the Motor Vehicles Act specifically would include only a driver and not a Driller, unless
there is a contract to the contrary. In this case, admittedly, there is no premium paid to the driller and therefore Section 147(1) of the Motor
Vehicles Act come to the rescue of the Appellant and consequently, the insurance company cannot be fastened with the liability to pay the
compensation amount.
11. Section 3(1) of the Workmen Compensation Act defines that ""if personal injury is caused to a workman by accident arising out of and in the
course of employment, the employer shall be liable to pay compensation in accordance with the provisions of this chapter."" In this case, the
accident had admittedly occurred arising out of and in the course of employment of the deceased with the second Respondent. Here, though as far
as the owner is concerned the accident or death was in the course of employment because he alone directed the deceased to supervise the painting
work, as far as the insurance company is concerned, the liability of the insurance company does not arise as the death was not caused due to any
risk arising out of the operation of the rig.
12. In the decision of the Division Bench of this Court reported in National Insurance Co. Limited, Salem v. Ayyadurai and Anr. injury was
sustained by a worker/coolie working in the borewell lorry when it was in operation at Suryapet Town behind RTS Bus Stand in Andhra Pradesh.
The accident occurred when suddenly the air pipe got separated and thrown out and the said pipe had caused grievous injuries on the left eye and
left side nose of the injured. Even then, the Division Bench of this Court held that the injury caused cannot be regarded as an injury caused by the
use of the vehicle as the vehicle, at that time, was used only as a platform on which the compressor and part of the rig rested and it was the use of
the rig as a rig, which led to the accidentand the consequent injury. Therefore, the Division Bhench held that the insurance company is not liable to
pay the compensation amount. In Para No. 7, it was held by the Division Bench as follows:
7. When a policy obtained by an insurer which limits the coverage to that which the provisions of the Motor Vehicles Act require to be covered,
one has to look to that Act to ascertain the extent of liability of the insurer. If some thing is not mandatorily required to be covered then the policy
can not be read as covering such a liability. Of course, it is always open to the insured to obtain additional coverage by paying the additional
premium therefore and obhtaining an appropriate policy.
13. In this case, the deceased was sleeping in the workshop where the rig was left for painting works and at that time, he suffered heart attack and
died on the way to the hospital.
14. The learned Counsel for the Appellant also relied on the constitutional bench decision of the Honourable Supreme Court reported in New
India Assurance Co. Ltd. v. C.M. Jaya and Ors. for the proposition that the liability of the insurance company is limited and it cannot be fastened
with the liability to pay compensation where there is no coverage. In para-7, it was held thus:
7. On a careful reading and analysis of the decision in Amrit Lal Sood it is clear that the view taken by the Court is no different. In this decision
also, the case of Jugal Kishore is referred to. It is held (i) that the liability of the insurer depends on the terms of the contract between the insured
and the insurer contained in the policy; (ii) there is no prohibition for an insured from entering into a contract of insurance covering a risk wider than
the minimum requirement of the statute whereby risk to the gratuitous passenger could also be covered; and (iii) in such cases where the policy is
not merely statutory policy, the terms of the policy have to be considered to determine the liability of the insurer. Hence, the Court after noticing the
relevant Clauses in the policy, on facts found that u/s 11(1)(a) of the policy, the insurer has agreed to indemnify the insured against all sums which
the insured shall become legally liable to pay in respect of death of or bodily injury to ""any person"". The expression ""any person"" would
undoubtedly include an occupant of the car who is gratuitously travelling in it. Further, referring to the case of Pushpabai Purshottam Udeshi it was
observed that the said decision was based upon the relevant Clause in the insurance policy in that case which restricted the legal liability of the
insurer to the statutory requirement u/s 95 of the Act. As such, that decision had no bearing on Amrit Lal Sood case as the terms of the policy
were wide enough to cover a gratuitous occupant of the vehicle. Thus, it is clear that the specific Clause in the policy being wider, covering higher
risk, made all the difference in Amrit Lal Sood case as to unlimited or higher liability. The Court decided that case in the light of the specific Clause
contained in the policy. The said decision cannot be read as laying down that even though the liability of the Insurance Company is limited to the
statutory requirement, an unlimited or higher liability can be imposed on it. 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.
15. In this case, when the contract does not cover when the rig was not in operation or there was any risk caused due to the operation of the rig,
the insurance company cannot be held liable. As held by the Honourable Supreme Court, a statutory liability cannot be more than what is required
under the statute itself. 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.
16. The learned Counsel for the employer/second Respondent would contend that when once there is a policy which was taken for the purpose of
covering any accident that might occur to an employee in the course of the employment, especially when the presence of the deceased was
established in the garage where the rig was left for maintenance work or painting work as instructed by his employer, then, the fastening of the
liability on the insurance company by the Commissioner cannot be said to be illegal.
17. A reading of the policy itself will make it clear that the risk that might be occurred to a driller has not been covered. Even u/s 147 of the Motor
Vehicles Act, a driver of the vehicle will be entitled to get compensated by the insurance company and not a driller. Further, as per Section 3(1) of
the Workmen Compensation Act, if any untoward incident had happened in the course of employment, the owner will be liable, but where there is
a contract to cover such accident with the insurance company, then the insurance company can be held liable. In this case, as mentioned above,
only a driver of the vehicle is covered by the insurance policy, if he is subjected to any injury arising out of the operation of the vehicle, whereas,
the rig was left for painting work in the garage which was not in operation at the relevant time at all. Therefore, the fastening of the liability against
the Appellant/insurance to pay the compensation amount is set aside.
18. In any event, even as per the admission of the employer/second Respondent herein, the deceased attended the work as instructed by him to
oversee the painting work done to the rig. Therefore, I hold that it is only the owner/second Respondent, who is liable to pay the compensation
amount to the claimant. Moreover, the quantum of compensation awarded by the Deputy Commissioner of Labour is not questioned either by the
Appellant/insurance company or by the owner/second Respondent herein. Further, the compensation awarded by the Deputy Commissioner of
Labour, for the death of the deceased, is also reasonable.
19. In the result, the award passed by the Deputy Commissioner of Labour is set aside only in so far as against the Appellant alone and all the
substantial questions of law are answered in favour of the Appellant. There will be a decree only as against the second Respondent/employer
alone. The second Respondent is directed to pay the amount as determined by the Deputy Commissioner of Labour to the claimant. The Appellant
is permitted to withdraw the amount, if any, deposited, The appeal is allowed. No costs.
