NEW INDIA ASSURANCE CO LTD Vs. SHANTI DEVI

JUDGEMENT

(1.) All the five cases arise out of a common award. F.A.O. Nos. 539, 540, 541 and 541-A of 1992 are at the instance of the insurance company and F.A.O. No. 448 of 1992 is at the instance of one Khando Devi whose case by the insurance company is covered in F.A.O. No. 541-A of 1992. The case of the claimants was that they had all been employed to pluck peas and they were all taken in the tractor-trailer and the accident took place when during their course of employment, the trailer turned turtle and the persons who were seated in the trailer were injured in the accident. The insurance company took a defence that they were all passengers in a goods carriage and, therefore, the policy of insurance would not cover the risk for the injuries suffered by them. The Tribunal, however, held that all these persons were workmen, who were engaged by the driver on that day for doing the work on behalf of the employer and they were, therefore, entitled to make a claim in such capacity as workmen against the employer, who was the insured for the vehicle. The Tribunal held that the risk was to be compulsorily covered by virtue of the provisions of section 147 and, therefore, proceeded to assess the compensation on the basis of evidence adduced by the respective claimants and supported by medical evidence through PW 15. Learned counsel appearing for the insurance company states that claimants had not given any specific details of the nature of employment and who employed them. In the absence of a pleading relating to a contract of employment by the insured, the insurer could not be made liable. In the matter relating to contract of employment for plucking peas in a horticultural operation, the very nature of employment is informal and absence of written documents evidencing the contract, in my view, is not relevant. The Workmen's Compensation Act under section 2 (1) (n) admits of a flexible definition to include any employment specified in Schedule II, whether the contract of employment was express or implied, oral or in writing. The class of employment in Schedule II would answer the description as specified under entry (xxix), which includes the persons in horticultural operations, forestry, bee-keeping or farming by tractors or other contrivances driven by steam or other mechanical power or by electricity. The further clauses (xli) and (xl) also refer to the employment in cultivation of land and clearing jungles. Therefore, I have no doubt in my mind that all the claimants were 'workmen' under the Workmen's Compensation Act.

(2.) Although the accident arose out of the use of a motor vehicle, in order to make the insurer liable, it would require to be proved that the driver had been negligent in driving of the vehicle. In this case, the trailer seems to have turned turtle by the negligent driving of the driver and, therefore, by virtue of the provisions of section 167 of the Motor Vehicles Act, the claimants will have a right of option to proceed either under the Workmen's Compensation Act or under the provisions of the Motor Vehicles Act.

(3.) Learned senior counsel, Mr. Suri, argued that if they were all workmen, the claims could have been filed only under the Workmen's Compensation Act and not under the Motor Vehicles Act. This situation would arise in a case of claim by the representatives of the driver himself when it ensued death by the negligent driving of the workman himself. The principle is that a tortfeasor or his representative could have no rightful cause of action under Motor Vehicles Act. But if other workmen are injured by the negligent conduct of yet another workman, the jurisdiction of the Tribunal is attracted by the fact that the injuries have been caused by the use of a motor vehicle. Section 166 requires that the application for compensation should arise out of an accident in the nature specified under section 165 (1) by a person who had sustained the injuries. Section 165 (1) of the Motor Vehicles Act states that an adjudication for compensation shall be made in respect of accident involving the death or bodily injury to persons arising out of the use of motor vehicles. The entitlement of a workman to proceed under the Motor Vehicles Act, therefore, is not excluded and the claim before the Tribunal, under the circumstances, is justified.