GURMEET SINGH Vs. GURBAX

JUDGEMENT

(1.) The owner of a jeep, which was involved in the accident by a mechanical failure that resulted in capsizing of the vehicle is the appellant before this Court. It is an admitted case that the deceased was a passenger in the jeep and the Tribunal found the accident to be resultant to the negligence of the driver in the lack of care and proper upkeep of the vehicle. The owner was, therefore, vicariously made liable. The insurance company took up a plea that the deceased was a gratuitous passenger and since the policy was only an act policy to cover the risk to third parties, the legal representatives of the gratuitous passenger cannot enforce any claim against the insurance company. Learned Senior Counsel appearing for the owner of the jeep has argued by making reference to the averment in the petition that the deceased was not a gratuitous passenger but however, he was a workman motor mechanic under M/s Kranacx Private Limited. The said company had been engaged by the appellant to carry out some mechanical work at their site and the accident had taken place when he was being transported. The argument, therefore, was that since he was not a gratuitous passenger but a workman, he should be entitled to a full cover even under an act policy. The learned Senior Counsel would refer me to the clause in the insurance policy, which is a reproduction of a provision for compulsory cover for a workman brought through Section 147 of the Motor Vehicles Act. The statutory requirement of a policy is subject to certain exceptions which are set forth under Section 147 of the Motor Vehicles Act. The exception clause has a negative component as well which is in the nature of an exception to an exception. The proviso to Section 147(b)(ii) reads as follows:-

(2.) If there is a contractual liability, the policy shall not be required to cover such a contractual liability. However, if there is a liability for an employee arising out of and in the course of his employment, that would be required to be seen is if such an employee is a person, (a) who should be engaged in driving the vehicle; (b) if it was a public service vehicle, he should be a Conductor or a ticket examiner or (c), if it was a goods carriage, he was to be carried in the vehicle. The Act, therefore, provides for a compulsory insurance cover only to three classes of persons as workmen, which are set out in clauses (a) to (c). Any one else, who is taken in the vehicle under a contractual liability comes within an exception provided in clause 2(i) in the proviso, which means there shall be no compulsory insurance cover for a person, who is employed on a contract and who is travelling in a vehicle. In this case, the deceased precisely fits in that category of a workman through a contractor whose services the insured was availing of. The deceased was not a workman under the insured and therefore, the insurer in an act policy could not be made liable.

(3.) The issue could be answered by raising a different poser of whether it would have been possible for the legal representatives of the deceased to successfully prosecute a claim against the owner of the motor vehicle before the Workmen's Compensation Commissioner. The Workmen's Compensation Commissioner has a competency to entertain pleas for compensation only for claims arising out of and into the course of employment for a person, who is injured or deceased, employed by such employer. Such an employee could even be a casual employee from the definition of employee under the Workmen's Compensation Act. There ought to be, therefore, a nexus between the employer/insured and the deceased. There is no scope to make the insurer liable, for he was not an employer of the deceased. On the other hand, by their own showing in the claim petition of the claimants as well as the written statement of the insured, he was a workman under M/s Kranacx Pvt. Ltd. If a claim under the Workmen's Compensation Act could not have been successfully prosecuted against the insured, for the same reason, it should be held that the insurance company could not also be made liable in an act policy. The claim against the insured is normally sustainable under the Motor Vehicles Act before a Tribunal only by reason of the fact that the death has resulted from the use of motor vehicle in the manner contemplated under Section 166 of the Motor Vehicles Act. The insured is made liable not under any contract but by the fact that the death has resulted by the conduct of his driver for his negligent driving or by the conduct of the insured himself for having a defect in the vehicle that ultimately gave way to the accident. If the conduct of the driver was the immediate proximate cause for the death then by the principle of vicarious liability, the owner of the jeep becomes liable. If the jeep was not to be in a state of proper repair then the owner of the jeep becomes liable directly by the lack of care, which he owed to the deceased that resulted in his death.