NATIONAL INSURANCE COMPANY BANGALORE Vs. THIMMAREDDY

JUDGEMENT

(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 understood 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.