Karnataka High Court
Premila And Ors. vs Shaliwan And Anr. on 21 March, 2005
Equivalent citations: III(2006)ACC230, 2006ACJ890, 2006(3)KARLJ634, 2005 AIR - KANT. H. C. R. 1610, (2005) 3 KCCR 1814, (2006) 2 ACJ 890, (2006) 2 TAC 811, (2006) 3 KANT LJ 634, (2006) 3 ACC 230
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT K. Sreedhar Rao, J.
1. The claimants are the L.Rs. of the deceased Venkat, a driver of Trax Tempo bearing registration No. MH 06-C 2070. On 24.1.2000 around 3.30 a.m., the deceased was driving Trax Tempo and proceeding from Hyderabad to Bidar on NH-9. The driving of the vehicle was in the course of employment. The deceased driver stopped the vehicle at 3.30 a.m., to attend to call of nature, while returning to get into the vehicle, he was hit by a lorry and was killed. The accident is a case of hit and run. The eyewitness corroborates the claimants' version that the deceased was hit by a lorry while getting back to the vehicle from call of nature. The Workmen's Compensation Commissioner has held that the accident in question is held to be in the course of employment and out of employment and awarded compensation of Rs. 1,74,340 against the owner. The claim against the insurer is dismissed on the ground that the accident has not occurred while in use of the motor vehicle. The claimants are in appeal challenging the dismissal of the claim against the insurer.
2. The following substantial question of law arises for consideration:
When the driver of a vehicle stops the vehicle temporarily to attend to call of nature and on his way back to the vehicle, if he is hit by another motor vehicle, whether such an accident be deemed as one caused during use of a motor vehicle as per the terms of the policy issued?
3. The fact that the deceased was driving the vehicle and stopped the vehicle temporarily to attend to the call of nature and while getting back to the vehicle, he was hit by a lorry, resulting in his death is not in dispute.
4. Learned counsel for the respondent insurer strenuously argued that the accident in question has nothing to do with the use of the motor vehicle in question at the time of accident. Further, under the terms of the policy in order to attract the liability of the insurer, the driver should have been engaged for the purpose of driving-which means that he should be actually driving the vehicle.
5. I find no merit in the contention of the insurer. It is a clear case of accident occurring in the use of the motor vehicle and in the course of employment. The facts categorically indicate that the vehicle was stopped temporarily by the driver for a short period for attending to call of nature. The assignment of work of transportation from Hyderabad to Bidar was not yet complete. The deceased driver was very much on duty. The presence of the driver at the accident spot is directly attributable to the use of motor vehicle. Otherwise, there is no occasion for the deceased to be present at the spot. The contention that the driver should be actually driving the vehicle at the time of accident in order to attract the terms of the policy is untenable. The policy conditions lay down that the driver should have been engaged for the purpose of driving. In the instant case, temporary stoppage of the vehicle and the driver getting out of the vehicle for a bona fide reason does not result in suspension/cessation of the legal contract of driving the vehicle for which he is engaged until the vehicle reaches the destination. It would make a difference in law, if the driver completes his assignment of transportation and is off the duty at the time of accident. But, the facts of the case are otherwise. Therefore, for the reasons stated above, it is to be held that accident occurred by the use of motor vehicle and in the course of and out of employment to attract the liability of the insurer as per the terms of the statutory policy. Accordingly, the question of law is answered in affirmative and the appeal is allowed with costs.