Liability of Insurance Company would arise only while driver was performing duty as driver of vehicle.

K.P. SIVASUBRAMANIAM, J.

( 1 ) THIS appeal is directed against the order of the commissioner for Workmens Compensation (Deputy Commissioner for Labour), madurai in W. C. No. 234 of 1992. The insurance company, the respondent No. 1 in the W. C. case is the appellant in the above appeal.

( 2 ) THE applicant No. 1, the wife of one lynool Yekin, has filed the saifi claim petition. According to her, her husband was working as a driver of the lorry No. TNU 3339 belonging to the respondent No. 2 in the claim petition and the said vehicle was registered with the respondent No. 1. The respondent No. 2 had instructed the deceased to park the lorry at Kalaimalar workshop for rectification of repairs and was also directed further to collect the rental dues from Jani Batcha and Rahman at goods-shed situated at West Veli Street, madurai and that accordingly, the deceased went to the workshop and after leaving the lorry he returned to the owners house to inform about the same, that he was directed at the owners house to contact the owner at Bombay Automobiles, who had gone to collect spare parts for the lorry. It is further stated that while the deceased was proceeding to Bombay Automobiles, he met with an accident at about 2 p. m. on 23. 11. 1990. In spite of best medical and intensive care, he succumbed to the injuries on 28. 11. 1990 and the deceased was drawing a salary of Rs. 900 per month and also a daily batta of Rs. 25. The deceased was aged about 30 years and, therefore, the claimant was entitled to a compensation of Rs. 83,967. In the counter of the respondent No. 1, the allegations were denied. It was also stated that there was no employer/employee relationship between the deceased and the respondent No. 2 at the time of the accident and normally a driver was expected to work only as a driver but according to the applicant, the deceased was asked to collect rental dues and hence the status of the deceased as driver was highly doubtful. He has sustained injuries in some other motor accident while he was proceeding to Bombay Automobiles and hence, as far as the deceased was concerned, he was a third party to that vehicle which had caused the accident. Therefore, the applicants can apply for a compensation only against the owner of the vehicle and not against the insurance company. In the counter of the respondent no. 2, the owner of the vehicle, it was submitted that he had employed the deceased as a driver in lorry No. TNC 3339 and he had directed him to park the lorry at the workshop to attend necessary repairs of the said vehicle and the deceased after complying with the instructions came back to report the same to the respondent No. 2.

( 3 ) ON the consideration of the said evidence, the Commissioner held that the deceased had met with the accident in the course of his employment. With the result, a sum of Rs. 83,193 was allowed as compensation. Hence, the present appeal is filed by the insurance company questioning its liability.

( 4 ) LEARNED counsel for the insurance company, the appellant contends that in terms of section 147 of the Motor Vehicles act, 1988, the insurance company was liable to pay the compensation only when the driver was discharging his duty as a driver and not otherwise. He relies on the first proviso to section 147 (1) (b) which is 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 respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmens compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried