NATIONAL INSURANCE CO LTD Vs. V VASANTHA

JUDGEMENT

(1.) SATHIADE V National Insurance Co. Ltd. , third respondent in MCOP No. 38 of 1979 on the file of the Motor Accidents Claims Tribunal, Coimbatore, is the appellant. Petitioners 1 to 3 and respondents 1 and 2 before it are the respondents herein. Ranking of parties is, as before Tribunal.

(2.) PETITIONERS claimed that they are entitled to a compensation of Rs. 75000 for the death of one Vyasarao, who died in a scooter accident on 13-9-1978, on the Avinashi Road , Peelamedu, Coimbatore . They stated as follows : On the fateful day when Vyasarao the husband of first petitioner and father of petitioners 2 and 3, was travelling on the pillion of the scooter TNB 5601, which was then being driven by the first respondent and belonging to the second respondent, it skidded, and as a result thereof, he was thrown off the pillion and he sustained injuries and later on he succumbed to the injuries in the hospital. This accident was due to the rash and negligent driving of the first respondent who was then on the scooter for the business of the second respondent. He was aged 44 years and drawing a monthly salary of Rs. 605, and he was entitled to annual increments and better prospects, and he could have normally lived up to 70 years, and the compensation, as claimed is fair. 2a. Respondents 1 and 2 stated that the scooter was driven with extreme caution and at moderate speed, and as the deceased was a heart patient and often used to get giddiness, he suddenly felt giddy and fell down from the pillion seat and sustained injuries and, therefore, they are not liable to pay compensation and that there was no rash driving by the first respondent.

(3.) MR. Santhanagopalan, learned counsel appearing for respondents 1 and 2, submits that, when a wider connotation is called for regarding contract of employment occurring in second proviso to S. 95 (1) of the act, and in the instant case, when the cashier had been taken on the scooter and died in the accident, he got injured only at the time when he was under the contract of employment. To strengthen this line of submission, he relies upon united India Insurance Co. Ltd. v. Nagammal, 1983 ACJ 541, wherein a Division bench of this Court held that the contract of employment occurring in the second proviso to S. 95 (1) should receive a wider connotation and not a narrow connotation of referring only to a contract of employment entered into between the occupant of the car and the injured. It further held that, even if there is no regular contract of employment, if the travel by the passenger in the vehicle has been necessitated by business considerations, then the person should be taken to have been carried by reason of or in pursuance of the contract of employment. When the deceased was taken by first respondent student, it was not for any contract of employment, connected with the insured, being the second respondent. In the petition it is claimed as follows -" * The second respondent who was the owner of the scooter and for his purpose and business or benefit, the vehicle was driven by the first respondent who is and deemed to be his agent, he is also vicariously liable. "first respondent, on being examined as R. W. 1, has stated that on that day, the deceased had come on the scooter in respect of the affairs of the college. Therefore, the petitioners having claimed that it was for the business of the second respondent who is the owner of the scooter, but no other evidence having been placed that deceased was in any manner connected with the second respondent in his avocations, and having not been in fact employed by him, merely because he was a cashier in the College which was not the insured. in applying a wider connotation, his employment in that capacity cannot be taken into account to fasten liability on the Insurance Co. He then referred to Vanguard Insurance Co. Ltd. v. Chinnammal, 1970 (1) Madlj 542 : 1970 AIR (Mad) 236 ) in which it was held that the words'contract of employment' will also cover persons who are on the vehicle in pursuance of a contract of employment with the owner of the goods carried in it. This conclusion was arrived at on the basis that, what is necessary is that for sufficient practical or business reasons, the person must be on the vehicle in pursuance of a contract of employment. Madras Motor and General Insurance Co. v. Katanreddi Subbareddy, 1974 AIR (AP) 310 is relied upon, but in the light of the decision of the Supreme Court and the decisions of the Division Bench referred to the view taken therein cannot any longer be relied upon. Oriental Fire general Insurance Co. v. V. Ganapati Ramalingam, 1981 AIR (Mad) 299 is relied upon for the limited propose to show as to how'comprehensive policy'could be understood. It is stated therein as follows -" * The limitation provided for in S. 95 (2) will not apply to vehicles which have been comprehensively insured to cover all risks. "though an attempt was made to plead that once a policy is captioned as a comprehensive policy', it could take all sorts of risks, it is apparent that the said decision has not gone to the extent of holding that irrespective of the terms and conditions agreed to between the parties, for specified areas in respect of which alone when risk is undertaken by the Insurance Co. yet, once a comprehensive policy is taken, it would take all the risks which could be conceived of. The expression'comprehensive'is used in Ex B2, to mean that, apart from the loss or damage suffered to the vehicle, it also assumes responsibility for third party liability. To what extent such liability is undertaken, would depend on the terms and conditions of that policy.