ARJANBHAI BHIKHABHAI Vs. BABUSING RAMSING

JUDGEMENT

(1.) 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.

(2.) 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 r espect | of any claim of series of claims ari sing | 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....

(3.) 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 Punjabhdi Prabhudas and Company v. Sakinaben Mahamadbhai and Ors. 1977 A.C.J. 44. 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.