ORIENTAL INSURANCE CO LTD Vs. JOSEPH

JUDGEMENT

(1.) The question that is referred to the Full bench for consideration is how far the notional extension theory could be applied so as to make the insurance company liable to compensate the victim arising out of the use of the motor vehicle even if it is established that the accident occurred during the course of his employment

(2.) The respondent No. 1 filed an application under section 22 of the Workmen's compensation Act, 1923 claiming compensation for the personal injuries sustained by him during the course of his employment. The respondent No. 1 was employed by the respondent No. 2 as driver of a Tempo van bearing registration No. KRU 2129. On 15. 5. 1999 respondent No. 1 was driving tempo van from Sakthan Thampuran Market to pattambi and at about 6. 15 p. m. when he reached Pattambi he got down from tempo van for unloading the goods, while so a dog bit on the left hand and while attempting to escape from further dog bite he fell down and sustained the following injuries, viz. , fracture second metacarpal shaft (left) and injuries on other parts of the body. He was admitted to the Jubilee mission Hospital, Thrissur. Later he was examined by Assistant Professor of Orthopaedic, medical College Hospital, Thrissur. Respondent No. 1 was earning monthly wages of Rs. 2,000 and was aged 55 years at the time of accident. Vehicle was insured with the appellant at the time of accident. Respondent No. 1 then preferred application for compensation of Rs. 1,62,672.

(3.) The owner of the vehicle, though appeared in person, did not file any written statement. Insurance company disputed the claim and submitted that the alleged incident had occurred when the vehicle was not under use and also not during the course of employment. Commissioner for Workmen's compensation after considering the oral and documentary evidence came to the conclusion that respondent No. 1 was employed in the vehicle for performing his duty as driver and the accident had occurred during the course of employment and by the use of the vehicle as driver or workman under subsection (1) (n) of section 2 of Workmen's compensation Act and that there was employer-employee relationship between the appellant and respondent No. 1. Application was, therefore, allowed awarding compensation of rs. 42,804 with interest at 12 percent per annum from the date of filing of the application. It was also held that the vehicle involved in the accident was validly insured with the insurance company at the time of the accident. Therefore, insurance company is liable to indemnify the owner of the vehicle and the company is liable to pay the compensation. The application was disposed of accordingly. Aggrieved by the same, insurance company has preferred the present appeal.