GYAN SINGH BABAJI v. JITENDRANATH BISOI — 1999 DIGILAW 338 (ORI)

A. PASAYAT, C. J. ( 1 ) IN this appeal an interesting question of law has been raised by the claimant. Question is whether a person who was not driving the vehicle, when an accident occurred is to be treated as driver covered by policy of insurance issued to cover a "driver". While adjudging an appeal under Section 110d of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'act'), it is to be noted that the said Act was in force when the accident took place. ( 2 ) FACTUAL position which is undisputed essentially is as follows :on 8-6-1984, truck bearing registration No. QSU 2203 was involved in an accident in which Tarashem Singh (hereinafter referred to as the 'deceased') lost his life. The vehicle was being driven by one Mahadev Singh at the time of accident. The deceased was the second driver who admittedly was not driving the vehicle, at the time of accident. The vehicle in question was subject-matter of insurance with New India Assurance Co. Ltd. (hereinafter referred to as the 'insurer') and the policy covered third party risk as well as the risk of the driver, cleaner and four coolies. According to the owner, as the vehicle was subject-matter of insurance with the insurer, it was liable to pay compensation to the claimant who was legal representative of the deceased. The insurer while admitting the fact that the vehicle was covered by a policy of insurance, took the stand that it had no liability as the policy covered driver driving the vehicle at the time of accident and not for the second driver. The Second Motor Accidents Claims Tribunal, Cuttack (in short, the 'tribunal') overruled this stand and held that since the 'driver' was covered, the insurer was liable to pay compensation, i. e. , Rs. 60,000/- to the claimant. The insurer preferred an appeal before this Court which was numbered as Misc. Appeal No. 303 of 1992. It was held by the learned single Judge that it would be just and proper to fix the quantum of compensation at Rs. 72,000/- to be paid by the owner, and deceased was not covered by the policy. ( 3 ) IN support of the appeal, Mr. B. K. Misra, learned counsel for the claimant-appellant submitted that the conclusions of the learned single Judge are erroneous. 72,000/- to be paid by the owner, and deceased was not covered by the policy. ( 3 ) IN support of the appeal, Mr. B. K. Misra, learned counsel for the claimant-appellant submitted that the conclusions of the learned single Judge are erroneous. Merely because at the time of accident the deceased was not driving the vehicle actually it cannot be denied that he was second driver of the vehicle and was therefore covered by the policy of insurance. It is submitted that even if it is held that the deceased was not be treated as driver for the purpose of insurance, yet as a third party the insurer was liable. The learned counsel for the insurer, however, submitted that the policy covers only the person driving the vehicle and not the second one. ( 4 ) THE proposal form indicates that a total premium of Rs. 288/- was paid by the owner for covering third party risk and the liability under the Workmen's Compensation Act of the driver, cleaner and four coolies. The proposal form indicates that the owner did not opt for obtaining any additional legal liability for driver, cleaner and conductors. The policy indicates that a premium of Rs. 240/- was collected to cover third party risk and a sum of Rs. 40/- was collected as premium to cover the risk of driver, cleaner and four coolies. The policy was for the period from 7-4-1984 to 6-4-1985 and was admittedly in force on the date of the accident. ( 5 ) RISK of employees is required to be covered in terms of proviso to sub-section (1) of Section 95 of the Act. The relevant portion reads as follows :"95 (1 ). The policy was for the period from 7-4-1984 to 6-4-1985 and was admittedly in force on the date of the accident. ( 5 ) RISK of employees is required to be covered in terms of proviso to sub-section (1) of Section 95 of the Act. The relevant portion reads as follows :"95 (1 ). In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-xxx xxx xxxprovided 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) xx xx xx xx (c) If it is a goods vehicle, being carried in the vehicle, or (ii) xx xx xx (2) subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely- (a) where a vehicle is a goods vehicle, a limit of one lakh and fifty thousand rupees, in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver) not exceeding six in number, being carried in the vehicle;"in terms of the provisions quoted above, liability in respect of death or bodily injury to an employee "engaged in driving the vehicle" is one of the insurer. The question therefore is whether this expression would cover the person who was actually driving the vehicle at the time of accident or would also cover the second driver allotted to the vehicle though he in fact was not driving the vehicle at the time of accident. The question therefore is whether this expression would cover the person who was actually driving the vehicle at the time of accident or would also cover the second driver allotted to the vehicle though he in fact was not driving the vehicle at the time of accident. ( 6 ) LEARNED counsel for the claimant-appellant refers to sub-section (5) of Section 2 of the M. V. Act, 1939 which provides that a "driver" includes "where a separate person acts as steer-man of a motor vehicle, that person as well as any other person engaged in the driving of the vehicle". Placing reliance on this provision and on Section 65 which relates to restriction of hours of work of drivers to not more than five hours before he had an interval of rest of at least half an hour or for more than eight hours in one day or for more than forty-eight hours in a week, the learned counsel for the claimant submitted that employment of a second driver becomes necessary on long routes and as the risk of the driver is covered and as the claim is for the death of a driver, the insurer is liable under the policy. He submitted that the word 'driver' has to be given an extended meaning and it has to be held that even though a person is not in fact driving the vehicle at the time of accident, he will be covered in case he is killed in an accident though the person actually driving the vehicle at that point of time escapes injury or death. Reference is also made to Rule 90 of Central Motor Vehicles Rules, 1989, more particularly sub-rule (4) thereof. According to it, two drivers were authorised to carry a vehicle and second driver was authorised to drive the vehicle alternatively with the first driver. His alternative submission is that in case the risk of a second driver is not covered under proviso (i) (a) of sub-section (1) of Section 95, it would be covered under proviso (i) (c) under which liability of any employee being carried in the vehicle is required to be covered and was in fact covered in the instant case. Stands taken before the learned single Judge have been reiterated before us. Reference has been made to several decisions of various Courts to contend that the second driver was also covered. Stands taken before the learned single Judge have been reiterated before us. Reference has been made to several decisions of various Courts to contend that the second driver was also covered. ( 7 ) IN view of the analysis of the statutory prescription, we find no substance in the plea that the second driver was also covered. The policy covered one driver. Obviously the expression 'driver' is not to be equated with one who is authorised to drive or is a driver by profession. It is to be construed as one who was driving the vehicle at the relevant point of time, i. e. the time of accident. Undisputedly the deceased was not driving the vehicle. Therefore, the first contention of Mr. Misra, learned counsel for the claimant fails. ( 8 ) THE second question is whether the coverage is extended to third party and would cover the deceased in the present case. The position was aptly stated by the apex Court in Puspa Bai Parshottamudeshi v. M/s. Ranjit Ginning and Pressing Co. Pvt. Ltd. , AIR 1977 SC 1735 . Though the alternative argument before learned single Judge related to third party, no finding was recorded on that aspect. ( 9 ) AS rightly observed by the learned referring Judge 'third party' has not been defined in the Act or in the Rules. In Stroud's Judicial Dictionary the meaning of the words 'third party risk' has been given as below :" 'third party risks' Road Traffic Act, 1936 (20 and 20 Geo. 5-40, 5. C, 43-S. 35) connotes that the insurer is one party to the contract, that the policy holder is another party, and the claims made by others in respect of the negligent use of the car, may be naturally described as claims by third party. "the Privy Council in Dogby v. General Accidents Fire Assurance Corporation, (1943) AC 121 has also interpreted the words 'third party risk' in the line interpreted in the Stroud's Judicial Dictionary. In the definitions given in Section 93 of the Act corresponding to Section 145 of the new Act, 'third party' is defined to include the Government. A third party risk policy covers liabilities for death or injury caused to a third person or damage caused to property of a third party arising out of the use of a motor vehicle. In the definitions given in Section 93 of the Act corresponding to Section 145 of the new Act, 'third party' is defined to include the Government. A third party risk policy covers liabilities for death or injury caused to a third person or damage caused to property of a third party arising out of the use of a motor vehicle. Third party policy is, therefore, wider than the Act Policy; it covers liabilities arising from injury to person or property of a third party or from death of a third party arising out of the use of a Motor Vehicle insured. Act Policy means an insurance policy which is issued by an insurer and obtained by the assured under a mandatory provision of the Act. From the heading of Chapter VIII it is clear that it relates to the provision for insurance of the vehicle against third party risks. Its provisions ensure that third parties who suffer on account of the user of the motor vehicle, would be able to get damages for injuries suffered and that their liability to get damages will not be dependent on the financial condition of the driver on the vehicle whose user led to the causing of injuries. (See New Asiatic Insurance Co. Ltd. v. Pessumal Dhanmal Aswani, AIR 1964 SC 1736 ). Chapter VIII of the enactment is intended to safeguard the rights of persons who may be involved in motor vehicle accidents. The provisions of Section 94 (particularly sub-section (1)) are intended to prevent any vehicle being driven on the road without insurance of such persons. ( 10 ) THIS Court in Clive Insurance Co. Ltd. v. Jogendra Singh, 1972 ACJ 295 observed that in the case of a gratuitous passenger travelling in a private vehicle, it is essential to be determined before liability is fastened on the insurer that there is a judgment against the insured, the same is in respect of a liability which is required to be covered by a policy under Section 95 (1) (b) and that the liability was in fact covered by the terms of the policy. It was held that insurer is not liable for death or injury to any gratuitous passenger in a private car or vehicle. ( 11 ) ADMITTED position is that deceased, an employee, was travelling in the vehicle, which is a goods vehicle, in course of his employment. It was held that insurer is not liable for death or injury to any gratuitous passenger in a private car or vehicle. ( 11 ) ADMITTED position is that deceased, an employee, was travelling in the vehicle, which is a goods vehicle, in course of his employment. He was not a gratuitous or unauthorised passenger. The scope and ambit of liability fastened under Section 95 of the Act came up for consideration before the Supreme Court in Pushpabai's case ( AIR 1977 SC 1735 ) (supra ). It was observed as follows :"sections 95 (a) and 95 (b) (i) of the Motor Vehicles Act adopted the provisions of the English Road Traffic Act, 1960, and excluded the liability of the insurance company regarding the risk to the passengers. Section 95 provides that a policy of insurance must be a policy which insures the persons against any liability which may be incurred by him in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The plea that the words 'third party' are wide enough to cover all persons except the person and the insured is negatived as the insurance cover is not available to the passengers made clear by the proviso to sub-section which provides that a policy shall not be required : (ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises. "therefore, it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under Section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act. As under Section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act. " ( 12 ) THAT being the position, the claimant was entitled to compensation to be paid by insurer because the deceased was to be treated as a third party, and extent of liability of the insurer would be on the basis that the deceased was a third party. ( 13 ) THE A. H. O. is allowed to the extent indicated above. ( 14 ) B. P. DAS, J. , I agree. Order accordingly.