NEW INDIA ASSURANCE CO. LTD Vs. KAMPARAJU SUNKAMMA

JUDGEMENT

(1.) WHETHER an application under Section 110 -A of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Act') for compensation is maintainable in respect of death or bodily injury arising out of and in the course of employment of a person employed by the owner of the motor vehicle covered by policy of insurance against third party risk is the perplexing question that arises in this appeal.

(2.) THE facts giving rise to the question shortly stated are these. On the night of 24th May, 1976, the lorry A.P.A. 6261 met with an accident on the Cuddapah -Madras road. As a result, one Kampuraju Kumaraswamy (as Kumar), who was employed as a cleaner of the lorry, received injuries and died in the Cuddapah hospital on the next day. The mother and the minor brother of the deceased Kumar filed an application under Section 110 -A of the Act before the Motor Accidents Claims Tribunal -Cum -District Judge, Cuddapah claiming compensation of Rs. 15,000. The owner of the lorry, New India Assurance Company Limited, Anantapur, and the driver of the lorry were impleaded as Respondents 1 to 3 respectively to the petition. The third Respondent remained ex parte. The petition was resisted only by the Respondents 1 and 2. The first Respondent i.e., owner of the lorry, admitted that the deceased Kumar was a cleaner appointed under him on a monthly salary of Rs. 160. He also admitted that the third Respondent was employed as a driver. But, however, denied that the driver drove the vehicle in a rash and negligent manner. It was also pleaded that the amount of compensation claimed was excessive and that in any case he was not liable to pay any compensation since the vehicle was insured against Workmen's Compensation also. The second Respondent contended inter alia that the accident did not take place on account of rash and negligent act of the driver, but it took place beyond the control of the driver, that the deceased Kumar did not die on account of the accident but due to the reason that he jumped from the lorry and sustained injuries and that in any event the damages claimed were excessive. It was further pleaded that the Petitioners should prove regarding the actual income of the deceased per month at the time of accident, that the application under Section 110 -A of the Act against the assurance company was not maintainable and that the remedy of the claimants was only under the Workmen's Compensation Act.

(3.) IN this appeal by the second Respondent, New India Assurance Company Limited, the learned Counsel firstly submits that in view of the proviso to Section 95(1)(b) of the Act excluding the liability of insurer in respect of death or bodily injury arising out of and in the course of employment of an employee covered by the policy an application under the Act for compensation is not maintainable. According to him, compensation can be claimed only under the Workmen's Compensation Act and only for such compensation as is determined under the Workmen's Compensation Act, the assurance company can be made liable for the death or bodily injury to any such employee. He argues that the policy of insurance taken under Section 95(1) of the Act is only against third party risk and it does not cover the liability in respect of death or bodily injury of any workman employed in the motor vehicle at the time of accident. It is, therefore, necessary to read Section 95 of the Motor Vehicles Act.