JUDGMENT
1. The solitary point that is required to be considered by the Court in this case revolves around the issue as to whether the Insurance Company in the case of goods vehicle namely a truck can be held liable for injuries that have been sustained by a person who claims to be the
second driver. The incident in question took place on 19-5-1990 and the accepted position is that the respondent who is the claimant before the Tribunal claims to be the employee of the owner in the capacity of driver. According to his evidence, at the time when the accident took place another driver was operating the vehicle and the claimant was sleeping in the cabin. He was thrown out of the cabin and sustained injuries of a somewhat serious nature. The Commissioner for Workmen’s Compensation awarded compensation aggregating to Rs. 43,382/-and the appellant Insurance Company has preferred the present appeal assailing the correctness of that Order. There is some delay in the presentation of the appeal but in view of the grounds made out, the delay is condoned, I.A.I. is allowed. The respondent-claimant though served has not appeared. In view of this position, since there was a serious dispute with regard to the liability of the Insurance Company, the Court had requested Sri. S.P. Shankar to appear as Amicus Curiae and to assist the Court by making submissions on behalf of the claimant.
2. It is necessary for me to point out here that when the appeal was originally argued on 2-9-1997 after hearing the appellants’ learned Advocate since it did appear to the Court that the grounds canvassed on behalf of the Insurance Company were acceptable, an Order was dictated allowing the appeal and setting aside the award. Some time thereafter, Sri S.P. Shankar brought it to the notice of the Court that there are certain additional aspects of the matter which should be taken into consideration. The appellants’ learned Advocate had left the Court and it was therefore necessary to set the appeal down for being spoken to. In view of the fact that the matter was to be further heard, the order dated 2-9-1997 was not transcribed. Today, I have heard the matter further in the circumstances set out above.
3. The two main submissions canvassed on behalf of the appellants were that in the first instance, the evidence in this case very clearly indicates that when the incident took place the claimant was not driving the truck and further more that another driver was operating. In the light of this position, the appellants’ learned Advocate has submitted that the claimant would be relegated to the position of a mere passenger because he was neither the driver nor the conductor nor was he includable in the last category of loader. The submission therefore was that the claimant would be outside the scope of the cover provided by the policy and the extension of the submission was that even the statutory liability could not come to the assistance of the claimant. The second submission that was canvassed was that under the terms of the policy, the Insurance Company specifies the category of persons who are covered in the case of a goods vehicle and that if there is any alteration with regard to this class of persons such as a situation in which the owner unilaterally decides to include a second driver in the vehicle, that the policy would not cover this person. Learned Advocate submitted that the question of first driver and second driver is an expression which is likely to create some confusion and that therefore, it must be clearly undestood that irrespective of a situation in which two drivers are employed, that the person who is operating the vehicle at the time of the incident
would answer to the description of driver and the substitute irrespective of whether he was the regular driver or not would be relegated to the position of a passenger. By virtue of this position, it was contended that the claimant in this case who admittedly was not performing the duties of the driver when the accident took place is debarred from claiming any cover.
4. This submission is sought to be met by Mr. Shankar who contends that as far as the goods vehicle of this type is concerned, as long it is shown that the person who was driving the vehicle was duly licenced to do so, that there could be no bar to a claim being preferred by the regular driver of the vehicle who may have been resting at the time when the incident took place. Mr. Shankar’s contention is that as long as the permissible number of persons under the law were in the truck and more importantly that as long as it is demonstrated that the claimant was an employee of the owner and that he was travelling in the truck for lawful or legitimate purposes, that it would not be open to the Insurance Company to avoid the liability. He has specifically drawn my attention to the provisions of the Workmen’s Compensation Act and he submits that as long as the claimant in the present case is admitted to have been an employee of the owner, that it is not open to the Insurance Company to avoid the statutory liability under this Act. In this context, he has drawn my attention to some of the decisions of the Supreme Court which require to be referred to in passing, the first of them is the ruling in British India General Insurance Company Limited v Captain Itbar Singh and Others , wherein the. Supreme Court very clearly laid down that the liability can be avoided only on permissible grounds and that short of these, the Insurance Company would always have to discharge that burden. In the leading decision relating to Skandia Insurance Company Limited v Kokilaben Chandravadan and Others , the Supreme Court embarked on a detailed exposition of the law and held that the liability of the Insurance Company cannot be easily disputed unless there were absolutely compelling situations which permitted it. This view has been reiterated in the latter decisions in New Asiatic Insurance Company Limited v Pessumal Dhanamal Aswani and Others and General Assurance Society Limited v Chandmull Jain and Another , wherein the Supreme Court has virtually come to the conclusion that the Insurance Company would almost always be liable for compensation. In one of the recent decisions of the Supreme Court in the case of Sohanlal Passi v P. Sesh Reddy and Others , the Supreme Court once again had occasion to consider the scope of defences available to the Insurance Company and to hold that it would not be fair or permissible for an Insurance Company to capitalise on the weakness of the other side and to seek to avoid its liability on technical pleas. What can be
culled out on the basis of this is that the liability of the Insurance Company is required to be something real and something that can be acted upon and that a Court would be extremely slow in absolving an Insurance Company of liability particularly in situations where a claimant would be left high and dry if this were to be done. On the basis of these decisions, Mr. Shankar submitted that the plea put forward by the appellants in this case would be tantamount to legal hair-splitting and that it should not be permitted. He relies heavily on the fact that admittedly the claimant was an employee and he was the regular driver of the vehicle. Admittedly, the number of persons who had been carried in the vehicle was within the permissible limits and he submits therefore that the order of the Tribunal does not require any interference with.
5. As far as this aspect of the matter goes, one needs to take note of the fact that this was a claim preferred under the Workmen’s Compensation Act and the scheme of that Act would straightaway make the employer or the master liable in cases of injury to the workman and the liability of the Insurance Company being the vicarious one, would be automatic. It would not be possible to get away from this position merely on the basis of the scheme of the Insurance policy because that aspect of the matter would really have to be treated as an additional ground on which the liability arises. If the liability under the Workmen’s Compensation Act is absolute, then the second aspect of the matter becomes incidental.
6. Since however the appellants have seriously disputed the liability under the second head, it was required to examine the law with regard to that aspect of the case also. Mr. Shankar drew my attention to a decision of this Court in Oriental Insurance Company Limited v Kashim and Another , wherein this Court has examined the law and has very clearly laid down that even in the case of a spare driver who is not actually driving the vehicle at the time of the accident that the statutory cover in Section 147(1) and (i)(c) as an employee of the owner of the vehicle travelling in the course of employment, the claimant would be entitled to compensation under the Workmen’s Compensation Act. This view was held in a previous unreported decision in M.F.A. No. 2199 of 1997, decided on 12-7-1995. In view of the law as enunciated in these decisions with which I am in total agreement, it will have to be held that the decision of the Tribunal in the present case does not require any interference with.
7. Having regard to the aforesaid situation, the appeal fails and stands disposed of. The appellants are directed to deposit the balance, if any, with the Authority within an outer limit of 12 weeks from today. On receipt of the amount, the Authority to disburse the same to the claimant. The appeal to stand disposed of. No order as to costs.
8. The Office to furnish a copy of this Order to Mr. S.P. Shankar, learned Advocate, who appeared as Amicus Curiae. The honorarium payable to the learned Counsel is fixed at Rs. 1,001/-. He however states
that he desires that this amount be paid to the Advocates’ Welfare Fund. This gesture is very much appreciated. The Insurance Company shall within a period of four weeks from today pay the amount of Rs. 1,001/- to the Advocates’ Welfare Fund and file a receipt of the payment with the Office.