Madras High Court
New India Assurance Co. Ltd. vs A. Sharifa Bivi And Ors. on 14 January, 2000
Equivalent citations: 2002ACJ378
JUDGMENT K.P. Sivasubramaniam, J.
1. This appeal is directed against the order of the Commissioner for Workmen's 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 Iynool Yekin, has filed the said 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 owner's house to inform about the same, that he was directed at the owner's 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 Workmen's 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 in the vehicle, or
(ii) to cover any contractual liability.
Therefore, according to the learned Counsel, the liability of the insurance company would arise only when the employee was engaged in driving the vehicle or in the case of a public service carrier as a conductor or authorised passenger in a goods carriage and also to cover any other contractual liability. Therefore, according to the learned Counsel for the appellant, on the very admitted evidence, the deceased was only going to collect rents from other persons and, therefore, he met with his death not while performing his duties as driver but only as a servant or employee of the vehicle owner. Therefore, it was only the owner of the vehicle who was liable to pay compensation and not the insurance company.
5. Learned counsel for the owner/respondent contends that it is not in dispute that the claimant was engaged as a driver of the owner's vehicle. He was sent only for collection of rent from the customers of the vehicle from the goods-shed yard and, therefore, he was performing duties only as a driver.
6. Learned counsel for the claimants also reiterates the statement made by the learned Counsel for the owner of the vehicle and he states that the deceased met with the accident only while performing his duties as a driver.
7. On an analysis of the facts, I am inclined to hold that even on the admitted facts as stated in the first information report, as well as in the claim petition and the oral evidence adduced on the part of the claimants as well as the owner of the vehicle, it is clearly established that the deceased met with his death only while he was proceeding from his house to collect the rent from some third parties as per the directions of the owner of the vehicle. In the first information report given by the claimant, it is stated that her husband returned to his house on 23.11.1990 in the afternoon and he informed the claimant that he was proceeding to the goods-shed to collect the rental arrears as per the directions of the employer. There is no dispute about the fact that the deceased while proceeding to collect rent met with the accident. In the oral evidence of PW 1, the claimant deposed that after the collection of the rent, the deceased has gone to the house of his employer and in the house of the employer he was informed that the employer had gone to Bombay Automobiles. Therefore, from the house of the owner, he was proceeding towards Bombay Automobiles shop and he met with the accident. A perusal of the evidence of the owner of the vehicle also shows that he had directed the deceased to collect rental arrears and after collection of the rental arrears the deceased was proceeding in his cycle towards Bombay Automobiles stores to meet him and deceased had met with the accident only during the said point of time. Therefore, the evidence clearly establishes that the accident occurred not while the deceased was performing his duties as a driver but only while discharging some other works on the directions of the employer. Therefore, on a perusal of Section 147(1)(b) proviso (i) the liability of the insurance company would arise only while the driver was performing the duties as a driver of the vehicle and not otherwise. The facts which are admitted have to be interpreted in accordance with the clear statutory provisions and there can be no scope for enlarging the meaning of the words which are clearly stated in the statute itself. There is no possibility of adopting any sympathetic approach while dealing with the statutory provisions and by ignoring admitted facts. If facts are in dispute the court may be in favour of the claimants and against the insurance company. When the fact that deceased met with the accident, when he was not discharging his duties as driver is admitted, the insurance company is clearly relieved of its liability. The liability covers only the driver and the conductor and that too only while engaged in driving the vehicle or engaged as a conductor or in examining tickets on the vehicle. It is not possible to read into the provisions something which is clearly excluded to suit the convenience of the owner of the vehicle or the employer as against the interest of the insurance company which is a public institution. The claimant is not aggrieved in any manner since her claim is enforceable against the owner or the employer.
(Emphasis supplied)
8. Reliance was placed on the judgment of the Supreme Court in Employees' State Insurance Corporation v. Francis De Costa , by the learned Counsel for the insurance company. That case arises under the provisions of Employees' State Insurance Act and the Apex Court while interpreting the scope of employment held that in order to succeed in fixing the liability under the provisions of the Act it has to be proved by the employee that:
(1) there was an accident, (2) the accident had connection with the employment, and (3) the accident must have been suffered in the course of the employment.
In that case, the injury was sustained while the employee was on his way to the factory where he was employed and the accident took place one kilometre away from the place of employment. It was held that unless it can be said that his employment began as soon as he set out for the factory from his home, it cannot be said that the injury was caused by the accident arising out of his employment. The Apex Court held that the said interpretation would lead to absurdity and should be avoided. The claim of the petitioners under Employees' State Insurance Act was rejected by the Supreme Court.
9. Though, there can be no compensation with the facts of the present case on an analysis of the evidence as already stated above, it is clear that the deceased died only while he was performing the duties as an employee and not as a driver. The accident happened only while he was discharging some other functions, no doubt, on the instructions of his employer. In such a case, there can be no liability on the insurance company even though, the employee is entitled to maintain his claim as against his employer.
10. Therefore, with the result to the extent the insurance company is made liable, the award of compensation under the Workmen's Compensation Act is liable to be set aside. However, it is made clear that the owner of the vehicle is liable to pay the compensation.
11. With the result, the appeal is allowed. No costs.