S. VENKATARAMAN, J.

( 1 ) THOUGH this matter has come up for orders, as both sides are represented and point involved is a short point, it is heard on merits.

( 2 ) THE first-respondent sought for compensation before the Commissioner for Workmen's Compensation for the injuries sustained by him in an accident which took place on 18-11-1990. He was travelling in the truck bearing No. CTW 6776 in his capacity as driver employed by the second-respondent who is the owner of the vehicle. His case was that on that day at the time of the accident another driver by name Khasim Sab was driving the vehicle and that he was taking rest, that there were two drivers for the vehicle and that there was a collision between their vehicle and another truck which came from the opposite direction. In that accident, he sustained injuries which has resulted in permanent disability.

( 3 ) THE owner of the vehicle did not contest the claim. Only the insurer-appellant filed objections. On the material on record, the commissioner has held that the first-respondent was employed by the owner of the truck as a driver and that at the time of the accident, the first-respondent was travelling in the truck as a spare driver and that he sustained the injuries in the accident arising out of and in the course of his employment. On the basis of the evidence of the first-respondent and the doctor's evidence, he has determined the loss of earning capacity at 100%. On that basis, the Commissioner has awarded the compensation of Rs. 1,08,455/- and has made the appellant-insurer liable to pay that compensation.

( 4 ) THE main contention urged by the learned Counsel for the appellant is that under Section 147 of the Motor Vehicles Act, 1988, there is a statutory liability to cover risk of only the employee engaged in driving the vehicle, that in the present case the insured had taken the policy to cover the risk of only one driver, that admittedly the first-respondent was not engaged in driving the vehicle at the time of the accident, that the policy does not cover the risk of the spare driver and hence the appellant cannot be made liable to pay the compensation. In support of this contention he has relied on the judgment of the madhya Pradesh High Court in New India Assurance Company limited v Ashok Singh and Others.

( 5 ) THE Commissioner on the basis of the evidence adduced by the first-respondent as well as taking into consideration the fact that the owner of the vehicle did not dispute the fact that the first-respondent was employed by him as a driver, has held that the first-respondent was employed by the second-respondent as a driver. The driving licence had also been produced by the first-respondent. It is no doubt true that at the time of the accident, the first-respondent was not engaged in driving the vehicle. But it is seen from the deposition of the first-respondent that in the cross-examination by the appellant, a specific suggestion is put to him that actually he was driving the vehicle and that there was no need for two drivers. The first-respondent has no doubt denied that suggestion. As such the fact that the first-respondent was an employee of the second-respondent as a driver cannot be seriously doubted. The question is whether the insurer would not be liable to pay the compensation, as the first-respondent was not actually driving the vehicle at the time of the accident and someone else was driving it.

( 6 ) IN Ashok Singh's case relied on by the learned Counsel for the appellant, the facts were that the regular driver of the vehicle alleged that he had taken another person as a helper on the assurance that he would be paid by the owner. The owner did not depose that he had authorised the driver to take any helper or that he undertook to remunerate any such helper. It is on those facts, the Court held that the policy does not cover any risk other than created by the statute. It was held that as the injured was not lawfully travelling and in the absenc

Click Here to Read the rest of this document