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1990 SCC OnLine Raj 30 : (1991) 1 RLW 242 : 1991 ACJ 74 : (1991) 1 TAC 289
In the High Court of Rajasthan
(BEFORE MILAP CHANDRA JAIN, J.)
United India Insurance Co. Ltd.
Versus
Smt. Roop Kanwar
S.B. Civil Misc. Appeal No. 86 of 1985
Decided on August 1, 1990
(a) Workmen's Compensation Act, 1923 and Workmen's Compensation Rules, 1924 —
Claim petition filed — Motor Vehicle Act, 1939 — Sec. 2(24) — Public place — Is motor
garage a public place? — Yes, any place to which members of public use and to which they
have a right of access.
(Para 15)
(b) Motor Vehicle Act, 1539, Sec. 110-AA — Non-obstante clause of sec. 95 — Clearly
indicates that alternatives were provided — Compensation could be claimed under any of
these two Acts.
(Para 10)
(c) Workmen's Compensation Act, 1923, Sec. 14 — Compensation be paid when the
employer becomes insolvent? — First proviso to sub-sec. (1) of sec. 95 simultaneously used
two negatives, resulting in one positive.
(Para 9)
(d) Workmen's Compensation Act, 1923, Secs. 13 and 19 — Liability for the cleaner
besides the driver — Additional premium paid besides the basic premium — Insurance
Company is liable to indemnify the insured employer.
(Paras 10 & 11)
Appeal dismissed.
Case Law Referred:
(1) R.P. Moondra & Co. v. Bhanwari (197J ACJ 438 Raj.)
(2) National Insurance Co. v. Jabuni (1984 ACJ 741 MP.)
(3) United India Fire & General Insurance Co. Ltd. v. Joseph Marlam (1979 ACJ 349
Kerala)
(4) United India Fire & General Insurance Co. Ltd. v. P.M. Ishammal (1979 ACJ 448
Kerala)
(5) Gautam Transport v. Husain Ahmed (1989 (2) ACC 110)
(6) United India Insurance Co. v. Gangadharan (1988 (1) ACJ 296 and 1987 (2) ACC
199)
(7) Pandurang v. New India Insurance Co. (AIR 1988 Bombay 248 FB)
(8) Oriental Fire & General Insurance Co. v. Nani Bala Devi (1987 (1) ACC 553)
(9) Oriental Fire & General Insurance Co. v. Presiding Officer (1988 (2) ACC 1 Patna)
(10) Oriental Insurance Co. v. Jeva Ramma (1973 ACJ 115)
(11) National Insurance Co. Ltd. v. Narayan Nair (1988 ACC (ii) 412 Kerala)
(12) Motor Owners Insurance Co. Ltd. v. Jadavji Kesavji (1981 ACJ 507 (S.C.) para 25)
(13) Kamla Devi v. Navin Kumar (1973 ACJ 115 Raj.)
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(14) Northern India Insurance Co. v. Commissioner of Workmen's Compensation
(1973 ACJ 428 M.P.)
(15) Northern India Motor Owners Insurance Co. Ltd. v. Magan Shanaji Solanki (1974
ACJ 55 Gujarat)
(16) Shital Prasad v. Afsanri Begum (1977 ACJ 486)
(17) Premium Insurance Company v. C. Thomas (1984 (1) Labour Law Journal 149
Madras)
(18) Oriental Fire & General Insurance Company v. Mateen Burla (1986 ACJ 732
Orissa)
(19) Bibhuti Bhushan v. Dinamani Devi (1982 ACJ 338 Orissa)
(20) United India Insurance Co. v. Vasudevan (1989 TAC (1) 225 (FB) Kerala)
(21) Khwajabai v. Gulab Khan Jamal Khan Pathan (1979 ACJ 277 Bombay)
(22) National Insurance Co. v. Prembai (1987 ACJ 278 M.P.)
(23) United India Fire & General Insurance Co. v. Machinery Manufacturers (1986 ACJ
1079 Karnataka) (24) Bhajan Lal Patia v. Rajnath (1987 ACJ 572 Orissa)
Advocates Appeared
P.K. Bhansali, for Appellant
H.R. Panwar for Respondent No. 1
B.L. Maheshwary and Ratan Singh, for Respondent No. 4
The Judgment of the Court was delivered by
MILAP CHANDRA JAIN, J.:— This appeal has been filed against the judgment of the
Workmen's Compensation Commissioner, Jodhpur dated 16-02-1985 by which he has
awarded Rs. 25,200/- as compensation and Rs. 12,600/- as penalty with interest @
6% p.a. from 23-03-1981. The facts of the case giving rise to this appeal may be
summarised thus.
2. Bhagwan Singh, husband of Roop Kanwar (respondent No. 1) and father of
Sarwan Singh (respondent No. 2) and Smt. Keshaw Kanwar (respondent No. 3.), was
a cleaner in the truck No. RSN 5900, owned by Hari Singh (respondent No. 4). On
March 23, 1981, its driver Tulchha Ram took it to the work-shop of Kasim Khan, P.W. 3
for certain repairs. When it was being put in the garage of the said work-shop, its
stone-patties fell down over Bhagwan Singh. As a result thereof, he received serious
injuries, he was immediately taken to Mahatma Gandhi Hospital, Jodhpur and he
remained there for about four months for his treatment. On 8-7-1981, he filed a claim
petition under Rule 20, Workmen's Compensation Rules, 1924 before the Workmen's
Compensation Commissioner, Jodhpur for the recovery of Rs. 23,520/- as
compensation with cost, interest and penalty against Hari Singh (owner of the truck)
and United India Insurance Co. Ltd., Jodhpur (Insurer of the truck).
3. The owner of the truck Hari Singh filed his written-statement admitting the
claimant Bhagwan Singh was a cleaner in his truck No. RSN 5900, he was getting Rs.
200/- per month as pay, the truck was insured with the United India Insurance Co.
Ltd., Jodhpur (appellant), the accident had taken place, he received injuries, and the
Insurance Co. was duly informed of the accident.
4. The appellant Insurance Co. admits in its written-statement that the said truck
No. RSN 5900 was insured with it and a letter was received from the insured Hari
Singh informing about an accident. The remaining allegations of the claim petition
were denied. It has also been averred that the accident took place due to the
carelessness and negligence of the claimant himself, it did not arise out of his
employment and the insurance policy did not cover the risk of a cleaner.
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5. The Workmen's Compensation Commissioner framed five issues and recorded the
evidence of the claimant and the employer Hari Singh. The Insurance Co. did not
produce any evidence despite taking several adjournments During the pendency of the
case, the claimant Bhagwan Singh died on 07-05-1983 and his heirs (respondents No.
1 to 3) were brought on record. After hearing the parties, the said award was passed
by the Workmen's Compensation Commissioner, Jodhpur.
6. It has been contended by the learned counsel for the appellant that the
Workmen Commissioner has seriously erred to pass the award against the appellant
despite the fact that the accident took place in the garage of Kasim Khan which was a
private place and over which the public had no right of access he also contended that
the Insurance Company did not undertake the liability for a cleaner and the liability for
the driver was only undertaken. It was further contended by him that the
Commissioner had no jurisdiction to pass the award against the Insurance Company
as it was not proved on record that the employer Hari Singh had become insolvent. He
relied upon R.P. Moondra & Co. v. Bhanwari (1), National Insurance Co. v. Jabuni (2),
United India Fire & General Insurance Co. Ltd. v. Joseph Marlam (3) and United India
Fire & General Insurance Co. Ltd. v. P.M. Ishammal (4). He lastly contended that
penalty and interest could not be awarded against the appellant and placed reliance
upon Gautam Transport v. Husain Ahmed (5).
7. In reply, it has been contended by the learned counsel for the claimants that it
has not been averred in the written-statements that the place where the accident took
place was not a public place and as such the appellants cannot be allowed to contend
that the place where the accident took place was a private place. He relied upon
United India Insurance Co. v. Gangadharan (6). He also contended that the garage of
Kasim Khan was a public place as defined in section 2(24), Motor Vehicles Act, 1939
as the public had and have a right of access in it. He relied upon Pandurang v. New
India Insurance Co. (7). He further contended that it is clear from the Cover-Note Ex.
A-10, Certificate of Insurance Ex. A-12 and Insurance Policy Ex. A-19 that they also
included the liability of the cleaner and it is clear from the various provisions of the
Motor Vehicles Act, 1939 and Workmen's Compensation Act, 1923 that an Insurance
Company is liable to pay compensation under the Workmen's Compensation Act,
1923. He relied upon Oriental Fire & General Insurance Co. v. Nani Bala Devi (8),
Oriental Fire & General Insurance Co. v. Presiding Officer (9) Oriental Insurance Co. v.
Jeva Ramma (10) and National Insurance Co. Ltd. v. Narayan Nair (11). He lastly
contended that the Insurance Company is also liable to pay the penalty and interest as
it was promptly informed of the accident by the insured.
8. The learned counsel for the respondent No. 4 Hari Singh duly supported the
learned counsel for the claimant-respondents No. 1 to 3. He also contended that the
said truck No. RSN 5900 was not of higher capacity requiring two drivers, additional
premium of Rs. 16/- was paid for covering the liability for the driver and the cleaner
and as such the risk of the cleaner Bhagwan Singh was also covered. He lastly
contended that to fasten the liability under the Workmen's Compensation Act, 1923
against an Insurance Company, it is not necessary that the accident should have taken
place in a public place.
9. The first question for consideration is whether the appellant is liable to indemnify
the insured-employer Hari Singh, respondent No. 4. (It is corrects that under section
14 of the Act of 1923, the Insurance Company is liable to pay the amount of
compensation when the employer becomes insolvent. This does not mean that an
Insurance Company is liable to pay compensation only in case the employer becomes
insolvent. The first proviso to sub-section (1) of section 95 of the Act of 1939
simultaneously used two negatives, Two negatives J result in one positive. Shorn of
the two negatives, the proviso runs as under:—
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“Provided that a policy shall be required to cover liability in respect of death,
arising out of and in the course of employment of the employee of a person insured
by the policy or in respect of bodily injury sustained by such an employee arising
out of and in the course of employment under the Workmen's Compensation Act,
1923 (No. VIII of 1923), in respect of the death of, or bodily injurd, too, by such an
employee………”
10. Section 110AA of the Act of 1939 provided an option to a claim-ant for
compensation. It could not be rendered ineffective by the said inter-pretation put
forward by the learned counsel for the appellant. It clearlym provided that
compensation could be claimed under any of these two Acts. The non-obstante clause
of section 95 of the Act of 1939 clearly indicated that these alternatives were provided
with full awareness of the provisions of sec. 14 of the Act of 1923. It has been
observed by their lordships of the Supreme Court In Motor Owners Insurance Company
Ltd. v. Jadavji Kesavji, (12) as follows:
“It was suggested that the interpretation which we are putting on section 95(2)
(a) will create difficulties in cases where the insured also incurs liability under the
Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to,
employees (other than the driver), not exceeding six in number, being carried in
the vehicle. It is true that under section 95(2)(a), the liability of the insured and,
therefore, the insurer's indemnity includes the liability of the aforesaid description
under the Act of 1923. But that is a matter of apportionment which may require a
rateable deduction to be made from the compensation payable to each victim,
depending upon the quantum of compensation payable under the Act of 1923 to
employees carried in the goods vehicle.”
In Kamla Devi v. Navin Kumar (13) it has been held that the Insurance Company is
liable to indemnify the insured-employer.
11. There is yet another aspect of the matter. Admittedly, the Insurance Policy Ex.
A-19 was issued by the appellant. By this policy, the said truck No. RSN 5900 was
insured in favour of its owner Hari Singh for the period from 28-04-1980 to 27-04-
1981. Admittedly, the accident took place on March 23, 1981. It shows that additional
premium of Rs. 16/- was paid besides basic premium of Rs. 125/-. Its endorsement
No. 16 runs as under:
“United India Insurance Company Limited Endorsement No. 16
Legal liability to persons employed in connection with the operation and/or
maintaining and/or loading and/or unloading of Motor Vehicles Attached to and
forming part of Policy No. 43501/24/1/663.
In consideration of the payment of an additional premium it is hereby
understood and agreed that notwithstanding anything contained herein to the
contrary the Company shall indemnify the Insured against his legal liability under:
The Workmen's Compensation Act, 1923 and subsequent amendment of the 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 any motor vehicle and will in addition
be responsible for all costs and expenses incurred with its written consent.
The premium having been calculated at the rate of Rs. 8/- per driver (and/or
cleaner or conductor and/or persons employed in loading and/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 motor vehicle belonging to him and the premium shall be adjusted
accordingly.”
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By this endorsement, the appellant agreed to indemnify the insured-employer Hari
Singh for his liability under the Workmen's Compensation Act, 1923 in respect of
personal injury to his cleaner also.
12. In R.P. Moondra v. Bhanwari, (supra), the provisions of sec. 13 & 19 of the Act
of 1923 and the first proviso to section 95(1) and section 110AA of the Act of 1939
were not discussed. This case finds reference in Kamla Devi v. Navin Kumar (supra).
Similarly, National Insurance Co. Ltd. v. Jabunbi (supra), United Insurance' Co. Ltd. v.
Josephi, (supra) and United India Insurance Co. Ltd. v. P.M. Ishammal, (supra)) have
not discussed the said provisions.
13. It has been held in Northern India Insurance Company v. Commissioner of
Workmen's Compensation (14), Northern India Motor Owners Insurance Company Ltd.
v. Magan Shanaji Solanki (15), Shital Prasad v. Afsanri Begum (16), Premium
Insurance Company v. C Thomas (17), Oriental Fire & General Insurance Company v.
Matean Burla (18), Bibhuti Bhushan v. Dinamani Devi (19), United India Insurance Co.
v. Vasudevan (20), Khwajabai v. Gulab Khan Jamal Khan Pathan (21), National
Insurance v. Naraindin Nayar (supra), Kamla Devi v. Navin Kumar (supra), National
Isurance Co. v. Prembai (22), United India Fire & General Insurance Co. v. Machinery
Manufacturers (23) Bhajan Lal Patia v. Rajnath (24) that the Insurance Company is
liable to pay compensation even if the insured-employer is not insolvent.
14. The next question for consideration is whether the Insurance Company is liable
to indemnify the insured-employer only when the accident takes place in a public
place. No such objection was taken by the appellant in its written-statement filed
before the Workmen's Compensation Commissioner. Neither an issue was framed nor
any evidence was produced on this point by the Insurance Company. As such this
objection cannot be allowed to be raised at the appellate stage. Reference of United
India Insurance Company Ltd. v. Gangadharan (supra), may be made here.
15. There is yet another aspect of the matter. Admittedly the accident took place in
the workshop of Kasim Khan, PW-3. It was public place within the meaning of section
2(24) of the Act of 1939 as public had a right of access in it. Any person could go
inside it. His brother Kalu Khan has categorically stated in his cross-examination that
any person could come in the Workshop for repairs of his vehicle. No suggestions was
put in the cross-examination of Kasim Khan that it was a private place and not a
public place. It has been observed in Pandarang v. New India Life Insurance Company
Ltd. (supra's) paras 8, 10 and 11 as under:
“Para 8
It is in the light of the object of the statute, its aforesaid relevant provisions and
the schema, that we have to appreciate the true import of the expression “public
place” for the purposes of Chapter VIII of the Act. It has further to be remembered
that the expression “public place” is a term of art, the same having been defined
specifically by sub-cl. (24, of S. 2 of the Act. Such definition reads as follows:
“(24) ‘public place’ means a road, street, way or other place, whether a thorough
fare or not, to which the public have a right of access and includes any place or
stand at which passengers are picked up or set down by a stage carriage;”
“The first thing to remember with regard to the definition is that it is an inclusive
one. Secondly it in terms makes it clear that any road, street way or other place,
whether a thorough fare or not, is a public place for the purposes of the Act, the
only condition being that the public should have a right of access to it. Thirdly, the
expression used in the definition is “a right of access” and not “access as of right”.
Lastly, when it states that any place or stand at which passengers are picked up or
set down by a stage carriage, is a public place, it shows that it is not so much
concerned with the ownership of the place as with its user. Stage carriage is defined
in sub-cl. (29) of S. 2 and it means a motor vehicle which is used to carry or
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adapted to carry more than six persons excluding the driver and which carries
passengers for hire or reward at separate fares paid by or for individual passangers,
either for the whole journey or for stages of the journey. In short, it means a public
passenger-carrier. In other words, by virtue of the last part of the definition, the
expression would include any place, including private, where public passenger-
carrier picks up or sets down passengers.
The definition of “public place” under the Act is, therefore, wide enough to include
any place which members of public use and to which they have a right of access. The
right of access may be permissive, limited, restricted or regulated by oral or written
permission, by tickets, passes or badges or on payment of fee. The use may be
restricted generally or to particular purpose or purposes. What is necessary is that the
place must be accessible to the members of public and be available for their use,
enjoyment, avocation other purpose.
Para 10:
If we further bear in mind the overall object of the provisions of Chapter VIII which
deals with compulsory insurance of the vehicle to cover risks to third parties and their
property, with claims to be filed for recovering compensation, no fault liabilities and
liabilities arising out of hit and run accidents, etc. the intention of the legislature is
clear. It is to secure compensation to the persons and property which are exposed to
the accidents caused by the vehicles. The very nature of the motor vehicle and its use,
mandate these provisions. The motor vehicle in this respect can be likened to a wild
animal. Whoever keeps it does so at his risk. As pointed out earlier, some of the
restrictions on the use of the vehicle contained in the Act are irrespective of the nature
of the place where it is used and irrespective of whether it is plied or kept stationary.
The legislature was concerned not so much with the nature of the place where the
vehicle causes the accident as where it was likely to do so. Hence all places where the
members of public and/or their property are likely to come in contact with the vehicles
can legitimately be said to be in its view when the legislature made the relevant
provisions for compulsory insurance. It will have, therefore, to be held that all places,
where the members of public have an access, for whatever reasons, whether as of
right or controlled in any manner whatsoever, would be covered by the definition of
“public place” in S. 2(24) of the Act. To hold otherwise would frustrate the very object
of the said Chapter and the Act.
Para 11:
Although dictionary meaning of the expression is hardly of any use to us, it will be
instructive to refer to it. In Stroud's Judicial Dictionary, Fifth Edition, page 2094,
‘public place’ has been defined as follows:
“A public place is a place to which the public can and do have access; it doesn't
matter whether they come at the invitation of the occupier or merely with his
permission, or whether some payment or the performance of some formality is
required before access can be had…”
This definition is taken from the decision in R. v. Kane, (1965) 1 ALL ER 705, and is
a reproduction of only a part of it given there. The other part reads as follows:—
“but a place such as the club in the present case, would be a private place, if
there was a real restriction of access to members and their guests and that any
other members of the public who got in was in reality a trespasser.”
In this case what fell for consideration was whether for the purposes of common law
offeace of affray in a public place, the Stage and Press Club where the offence took
place was a public place. The other definitions of ‘public place’ given in the dictionary
are with reference to the provisions of the Vagrancy Act of 1824. They are hardly of
any relevance to us.
In Black's Law Dictionary; Fifth Edition, page 1107, ‘public place’ has been defined
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as follows:
“Public place:
A place to which the general public has a right to resort; not necessarily a place
devoted solely to the uses of the public, but a place which is in point of fact public
rather than private, a place visited by many persons and usually accessible to the
neighbouring public (e.g. a park or public bench). Also, a place in which the public
has an interest as affecting the safety, health, morals, and welfare of the
community. A place exposed to the public, and where the public gather together or
pass to and fro.”
Neither the Act of 1923 nor the above-quoted endorsement No. 16 of the Policy Ex.
A-19 requires that the accident should have taken place in a public place. Thus the
said contention of the learned counsel for the appellant is also devoid of force.
16. There is also no force in the contention of the learned counsel for the appellant
that the Insurance Company did not undertake the liability for the cleaner. As already
observed above, additional premium of Rs. 16/- was paid besides paying the basic
premium of Rs. 125/-. This additional premium of Rs. 16/- was for two persons i.e., for
the driver and the cleaner. The said truck No. RSN 5900 was not of that capacity and
model which required two drivers. The above-quoted endorsement No. 16 leaves no
manner of doubt that the liability of the cleaner was also undertaken by the appellant.
17. The last question for consideration is whether the appellant is not liable to pay
the interest and penalty. The above-quoted endorsement No. 16 clearly shows that the
appellant in consideration of the payment of additional premium agreed to indemnify
the insured-eraployer against his liabilities under the Workmen's Compensation Act,
1923. Admittedly, the amounts of penalty and interest have been levied by the
Commissioner under Section 4-A of the Act of 1923. Sub-Section (5) of Section 95 of
the Act of 1939 ran as under:
“(5) Notwithstanding anything elsewhere contained in any law, a person issuing
a policy of insurance under this section shall be liable to indemnify the person or
classes of person specified in the policy in respect of any liability which the policy
purports to cover in the case of that person or those classes of person.”
Thus the Commissioner rightly made the appellant liable to pay the amounts of
interest and penalty. In Gautam Transports v. Hussain Ahemad, (supra), the insurance
policy had no endorsement like above-quoted Endorsement No. 16. Thus there is no
force in the appeal.
18. In the result, the appeal is dismissed with costs.
———
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