THOTTATHIL B. RADHAKRISHNAN, J.

( 1 ) IS an insurer, who had issued a policy of insurance governed by Section 147 (1) of the motor Vehicles Act, 1988, hereinafter referred to as the "m. V. Act", liable to satisfy an award made under the Workmen's compensation Act, 1923, for short, the W. C. Act", granting compensation to a workman for injuries sustained while driving a motor vehicle, though he was not employee, specifically, as a driver/ This is the short issue, a substantial question of law, that arises for decision in this appeal by the insurer.

( 2 ) THE claim before the Commissioner, was on the ground that the applicant was employed by his brother, the first opposite party in his business of selling fish and in the course of such employment, the applicant was injured while riding the motorcycle to pariyaram from Chalakudy for selling fish.

( 3 ) THE second opposite party, the insurer contested. The Commissioner framed issues, including as to whether the applicant was a workman as defined in the W. C. Act and whether there was an employer-employee relationship between the applicant and first opposite party and whether the accident arose out of and in the course of employment of the applicant. The Commissioner believed the version of the applicant as A. W. 2 regarding his employment and acted on the finding in Ext. M-2 investigation of the insurer to hold that the applicant sustained injuries in the accident on 17-12-1998, that he is a workman as defined in Section 2 (l) (n) of the W. C. Act and that he is entitled to compensation for the accident. The commissioner fixed the compensation, on the basis of the disability certificate and other relevant facts, having regard to the various parameters.

( 4 ) SUPPORTING the appeal, the learned counsel for the insurer urged that the benefit of proviso (i) to Section 147 (1) of the M. V. Act would come into play only if the applicant is proved to be a workman employed as a driver, thus engaged exclusively in the driving of the vehicle. It is urged that mere driving of the vehicle by a workman, whose employment is not as a driver, will not bring him under the cover of the said proviso.

( 5 ) THE Division Bench of this Court held in National Insurance Company Ltd. v. Nimmy and others, referred to in the impugned order, that the words "engaged in driving the vehicle" in Clause (a) of the first proviso to section 147 (1) of the M. V. Act cannot be interpreted to hold that the person should be engaged as a permanent driver. The learned counsel for the appellant urged that the issue raised by him is not covered by the said precedent, though rendered on similar tacts. He urged that the said decision is only to the effect that a driver need not be engaged on a permanent basis, while the argument in the appeal inhand is that the employment should be exclusively as a driver.

( 6 ) PER contra, the learned Counsel for the first respondent-applicant urges that the commissioner has found on facts that the applicant has established an employer-employee relationship between him and the first opposite party and such finding of fact is not to be interfered with in an appeal under Section 30 of the W. C. Act, which prescribes interference only on a substantial question of law. It is further urged that having regard to the manner in which the Division bench has decided Nimmy's case (supra), the aforesaid case, the distinction now drawn by the appellant does not survive.

( 7 ) SINCE the first among the provisos to section 147 (1) of the M. V. Act is built with exclusive reference to the provisions of the w. C. Act, the question to be considered depends upon the interpretation of the said proviso and the relevant provisions of the w. C. Act.

( 8 ) PROVISOS to Section 147 (1) reads as follows:

"provided that a policy shall not be required - (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in resp

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