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United India Insurance Company Ltd., Anna Salai, v/s Selvi & Others


Company & Directors' Information:- UNITED INDIA INSURANCE COMPANY LIMITED [Active] CIN = U93090TN1938GOI000108

    C.M.A. No. 2551 of 2019 & C.M.P. No. 12185 of 2019

    Decided On, 10 September 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM

    For the Appellant: D. Bhaskaran, Advocate. For the Respondents: R1 & R2, C. Kulanthaivel, Advocates. For the Respondents:-------



Judgment Text

(Prayer: The Civil Miscellaneous Appeal is preferred under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 19.02.2018 passed in M.C.O.P. No.7 of 2015 on the file of the learned Sub Judge, Sub Court-cum-Motor Accidents Claims Tribunal, Sankari.)1. The judgment and decree dated 19.02.2018 passed in M.C.O.P. No.7 of 2015 by the learned Sub Judge, Sub Court-cum-Motor Accidents Claims Tribunal, Sankari, is under challenge in the present Civil Miscellaneous Appeal.2. The learned counsel appearing on behalf of the appellant- Insurance Company mainly questioning the liability fixed by the Tribunal to pay compensation. 3. The accident occurred on 11.10.2013 at about 18.00 Hours at Sankari Akkammapettai in front of Kayalaykadai at Sankari Taluk. The Sankari Police Station registered a case in Crime No.554 of 2013 under Sections 174 Cr.P.C.4. The Tribunal adjudicated the issues and arrived a conclusion that the Crane Helper who died due to the accident is to be treated as a third party for the purpose of grant of compensation and accordingly, fixed the liability on the Insurance Company. The Tribunal has mainly proceeded on the ground that the deceased was not sitting in the Crane and he was performing his duty by standing outside the Crane and therefore, he should be treated as a third party.5. The learned counsel appearing on behalf of the appellant- Insurance Company strenuously contended that the Tribunal committed an error in granting compensation of Rs.18,53,000/- with interest.6. The Tribunal has not adjudicated the issues regarding liability with reference to the terms and conditions of the policy as well as the Motor Vehicles Act, 1988. The Insurance Company policy was marked as Ex.R-1 and perusal of the insurance policy, it is unambiguous that there is no policy cover for the deceased. In the absence of policy cover, no amount can be claimed. This apart, there is no seating capacity in the Crane. The coverage is made available only through driver of the Crane and no premium had been paid for the Helper. This apart, the deceased cannot be designated as a third party. The Crane Helper, who is employed, cannot be treated as a third party for the purpose of fixing the statutory liability on the Insurance Company under the provisions of the Motor Vehicles Act, 1988. In the absence of any coverage in terms of Section 147(1) of the Motor Vehicles Act, 1988, the Insurance Company cannot be held statutorily liable to pay compensation to the Crane Cleaner in the present case.7. The learned counsel appearing on behalf of the respondent-claimant opposed the said contentions of the learned counsel for the appellant by stating that the deceased was working as Crane Helper and at the time of accident, he was not sitting in the Crane and he was standing outside the Crane and performing certain duties.8. In view of the fact that the deceased was doing some works by standing outside the Crane, the Tribunal considered him as a third party and accordingly, granted compensation. Thus, there is no error and the award of the Tribunal is to be confirmed and the Civil Miscellaneous Appeal is to be dismissed.9. Let us now consider the fact regarding the accident. The deceased Mr.Manikandan was working as Crane Helper in Escort Construction Equipment Crane (Lakshmi Crane Service) vehicle bearing Registration No.TN-52-Z-1563. On 11.10.2013 at about 18.00 Hours, at Sankari Akkammapettai in front of Theivam Kayalaykadai at Sankari Taluk, the deceased was after helping to get down the tipper body trhough the Crane, he was standing near the Crane. When the Crane Operator/third respondent herein, was getting down the tipper body with carelessness and negligently, the upper part of the Crane touched the Electric Power Line and electric power passed at the deceased Manikandan through the Crane chain. Due to the incident, the deceased was thrown out from there and he was rushed to the Sankari Government Hospital, where he succumbed to the electric shock and caused the accident. The postmortem was conducted in Sankari Government Hospital.10. The appellant-Insurance Company filed counter before the Tribunal wherein they have clearly stated that there is no FIR against the fourth respondent herein Tmt.Lakshmi and no negligence on the part of the driver of the fourth respondent herein. Thus, the claim petition is liable to be dismissed.11. It is clearly stated in the counter filed by the appellant- Insurance Company that the seating capacity of the Crane bearing Registration No.TN-52-Z-1563 as per RC is one and no premium was collected towards Helper. There is no insurance coverage for the Helper in the Crane. Thus, the appellant-Insurance Company is not liable to pay compensation.12. RW-1, Sub Inspector of Police, deposed before the Tribunal as under:-“TAMIL”13. With reference to the liability, the Tribunal has considered the deceased Crane Helper as a third party and the said finding of the Tribunal in this regard is extracted hereunder:-”TAMIL”14. This Court is of the considered opinion that the Motor Accident Claims Tribunal on receipt of the claim petition is bound to consider the maintainability raised by the parties. Once the question of maintainability is raised, then it is to be adjudicated with reference to the statutory liability as well as the coverage in terms of the policy. Two aspects are to be considered. Firstly, the policy coverage and its enforceability with reference to the parties to the policy. The Insurance policy is in contractual and the statutory coverage is to be considered beyond the contractual obligations. Thus, in the claim petition, the Tribunal has to find out whether the claimant is entitled to compensation in terms of the policy and under the provisions of the Motor Vehicles Act, 1988.15. In the present case, even in the claim petition, Column No.4, the occupation of the deceased has been stated in clear terms that he was working as a Crane Helper at Lakshmi Crane Service, Sanar Palayam, Tiruchengode Taluk, Namakkal District. In Column No.5, the name and address of the employer of the deceased person has been stated as Proprietor Lakshmi, Lakshmi Crane Service, Sanar Palayam, Tiruchengode Taluk, Namakkal District. When the claimant has stated that the deceased worked as Crane Helper and the nature of employment as well as the name of the employer are stated in clear terms, then the Tribunal ought not to have arrived a conclusion that the deceased is a third party. The deceased is to be considered as third party, so as to grant compensation.16. An employee in a particular firm and the accident occurred while performing the duties and responsibilities came to the works spot, then such an employee cannot be considered as a third party for the purpose of grant of compensation. In the present case, narration of the accident unambiguously portrays that the deceased was standing near the Crane when the Crane Operator was getting down the tipper body with carelessness and negligently, the upper part of the Crane touched the Electric Power Line and electric power passed at the deceased Manikandan through the Crane chain. Due to the incident, the deceased died on the spot and therefore, the deceased, who worked as a Crane Helper, was assisting the driver of the Crane and he was performing his duties in a particular works spot. Hence, the deceased cannot be construed as a third party. The employee may be entitled to claim compensation under the Workmen Compensation Act. However, to invoke the provisions of the Motor Vehicles Act, the coverage in the policy is to be established with reference to the provisions of the Motor Vehicles Act, 1988.17. Maintainability of the claim petition is to be made with reference to Section 147 of the Motor Vehicles Act. The statutory liability to be fixed in the insurance policy is to be ascertained with reference to the nature of the policy. The Tribunal itself found that the premium has been paid only to the driver of the Crane and there is no premium paid for the Crane Helper. The seating capacity of the Crane is also as per RC and its driver. There is no seating capacity for the Crane Helper. In the absence of any coverage under the policy, the liability cannot be fixed on the Insurance Company by merely stating that the other employee is a third party. If the employees are treated as third parties for the purpose of granting compensation, it is to be noted that such employees are entitled for compensation. Under various other heads, it is not as if they are remediless. The employees are certainly entitled for compensation under various other welfare legislations and not under the Motor Vehicles Act, 1988. To invoke the provisions of the Motor Vehicles Act, there must be policy coverage, more specifically, with reference to Section 147 of the Motor Vehicles Act and in the absence of coverage of payment of premium, the Insurance Company cannot be held statutorily liable to pay compensation.18. This apart, the Tribunal mostly considering such employees as third parties on misplaced sympathy. The Tribunals are under the impression that the death of the deceased person caused untold agony to the family and therefore, some amount of compensation is to be awarded. Such misplaced sympathy cannot be granted. It is pertinent to note that the employees working in Crane or as a matter of fact, any employees are entitled for compensation under various other legislations. Therefore, they are having remedy under other legislations and certainly not under Motor Vehicles Act, 1988. The exercise of such due restriction by treating the employees as third parties, the Tribunal by violat

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ing the provisions of the Motor Vehicles Act, 1988 and expanding the scope of fixing statutory liability on the Insurance Company, which is otherwise not provided under the policy. Insurance policy being contractual in nature. The liability is to be fixed with reference to the terms and conditions stipulated and in terms of Section 147 of the Motor Vehicles Act, 1988.19. This being the principles to be followed, the Tribunal has committed an error in granting compensation. However, the claimants are at liberty to approach the Competent Forum for the purpose of claiming the compensation under the Workmen Compensation Act or under any other legislations applicable to the employees working in a particular Company or in Crane Team.20. Accordingly, the judgment and decree dated 19.02.2018 passed in M.C.O.P. No.7 of 2015 by the learned Sub Judge, Sub Court-cum- Motor Accidents Claims Tribunal, Sankari stands set aside and consequently, CMA No.2551 of 2019 is allowed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
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