NATIONAL INSURANCE CO Vs. PHILOMINA MATHEW FE

JUDGEMENT

(1.) This reference to a Full Bench raises important questions under Sections 94, 95(1)(b) and its two provisos and under S. 95(2)(b) and also under Sections 110-A and 110-AA of the Motor Vehicles Act, 1939. The appeal itself arises out of a claim allowed under the Workmen's Compensation Act, 1923 in which the competent authority made the owner of the vehicle as well as the Insurance Company liable in a sum of Rs. 51,256.20. The appeal is preferred by the Insurance Company under Section 30 of the Workmen's Compensation Act, 1923 read with S. 110-D of the Motor Vehicles Act, 1939. The respondents-claimants before us are the legal representatives of the workman as also the owner of the vehicle.

(2.) The facts of the case briefly are that the deceased, one John Mathew fell from the top of a stag carriage bus belonging to the respondent-vehicle owner while the vehicle was stationed at the Municipal Bus Stand at Palai. He fell down at 5 a.m. on. 13-12-1984 and was removed to the hospital where he died at 8.30 p.m. on the same day. The claimants are the widow and two children. They are also respondents before us. They moved the Commissioner under the Workmen's Compensation Act claiming a sum of Rs. 51,256.20. They contended that the deceased was employed by the vehicle owner as a cleaner and that the accident occurred out of and in the course of employment. According to them, the deceased was doing the work of cleaning, repairing, changing of tyres, etc. The bus in question does number of trips every day between Palai-Kondungoor. They claimed that the deceased was getting a salary of Rs. 600/- per month and that he was aged 27 years at the time of death.

(3.) The defence of the bus owner was that the deceased was not at all working under him as a cleaner, that the deceased was attending to the work not only in relation to his bus but also in relation to other buses at the same bus-stand. In other words, he contended that there was no relationship between employer and employee and, therefore, the Workmen's Compensation Act was not applicable. Alternatively, he contended that even if he was liable, the Insurance Policy taken out by him would make the Insurance Company liable.