Judgment

VENKATARAMIAH, J. :- The short question involved in this case is whether an insurer who has issued a policy insuring any person specified in the policy against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of a motor vehicle in a public place, is liable to pay compensation to such third party or to his or her legal representatives as the case may be when the liability arises when the motor vehicle is in the custody of a repairer.

2. One Sayed Hussain was a partner of a firm by name M/s. International Ship Repairers carrying on business at Vasco-de-Gama, Goa which was the owner of an Ambassador Car. He entrusted the said car to Guru, proprietor of M/s. Auto Electrical Works on 26th February, 1983 with instructions to carry out electrical repairs to the car and handed over the keys of the car to the repairer for that purpose. The car had been insured by the owner with M/s. Oriental Insurance Co. Ltd. as required by the provisions of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act).

3. On the evening of Feb. 26, 1983 Filomena F. Lobo, respondent No. 1 herein, aged 27 years was returning home along with her friend and was walking on the left side of the road. She noticed a car parked near Damodar Mandap and proceeded further only to be knocked down by the very car which had reversed and dashed against her back. The front tyre of the car passed over her abdomen and she had to be treated at Dr. Vernekars hospital and thereafter At Salgaoncars Medical Research Centre. After, being discharged from the hospital where she spent about 20 days she was advised further treatment at Jaslok Hospital, Bombay and she was undergoing treatment even when she instituted a claim petition before the Motor Accidents Claims Tribunal, South Goa at Margao impleading the firm of which Sayed Hussain was a partner, Guru, the proprietor of M/s. Auto Electrical Works, Momad Donttach, the employee of the repairer who was repairing the car at the time of the accident and the insurer M/s. Oriental Insurance Co. Ltd. as respondents. She filed the claim petition under S. 110-A of the Act claiming a compensation of Rs. 1,00,000/- for injuries sustained by her on account of the motor vehicle accident referred to above. The respondents contested the petition. The owner of the car, that is the insured and M/s. Oriental Insurance Co. Ltd. the insurer pleaded that the car had been entrusted to the repairer to do electrical repairs job as an independent contractor and that Momad Donttach attached to the garage of the repairer had taken away the car for driving without holding a valid driving licence and without the consent of the owner of the motor vehicle owner. Hence neither the insurer that is the insurance company, nor the insured, that is, the owner of the vehicle, was liable to pay any compensation. Momad Donttach the employee of the repairer pleaded that he did not drive the vehicle involved in the accident at any time, that the vehicle had been entrusted to carry out repairs to Guru, the repairer, that he being a mechanic was carrying out the repairs by sitting on the front seat, i.e., the seat other than that of the driver, that suddenly the vehicle got into motion and started going in the reverse direction and that before he could take the drivers seat and apply the brakes the vehicle got into the ditch and stopped. He further contended that the applicant was guilty of contributory negligence inasmuch as she in exercise of due diligence ought not to have walked through the very little space between the vehicle and the wall. He, however, did not deny that she suffered injuries on account of one of the wheels of the vehicle running over her body. Guru, the repairer pleaded that Momad Donttach was not his employee and he had never engaged him for any work and that it was not true that he was driving the vehicl