( 1 ) BEING aggrieved by the order dated 17. 02. 2005 passed in W. C. No. 268 of 2003 passed by the Workmen's Compensation Commissioner (Deputy Commissioner of Labour), Salem (hereinafter referred to as "the Commissioner), the second opposite party (insurer therein) has filed the above appeal. ( 2 ) RESPONDENTS 1 and 2 herein, who are the parents of one Thangavel @ kumar, filed W. C. No. 268 of 2003 claiming a compensation of Rs. 5,00,000/- in respect of the death of their son on the ground that while he was employed as a Rig Operator under the third respondent in 'ashok Leyland Rig Unit' bearing Registration No. TNP 7897 met with an accident in the course of his employment on 08. 12. 1999. According to Respondents 1 and 2 their son was getting a monthly salary of Rs. 5,000/ -. The vehicle in question was insured with the appellant herein and as such the third respondent as the owner and the appellant as the insurer are liable to pay compensation. ( 3 ) THE said claim of Respondents 1 and 2 was resisted by the appellant herein and before the Commissioner the third respondent-owner of the vehicle remained exparte. The appellant who was the second respondent before the Commissioner filed a counter statement contending as follows:-The insurer did not admit the employment of the deceased as Rig Operator under the third respondent and his salary. The insurer contended that the accident had not taken place in the course of employment and arisen out of employment under the third respondent. The vehicle was not insured on the date of accident. It was further contended that the claim is highly excessive and the insurer is not liable to pay any compensation. ( 4 ) BEFORE the Commissioner, the first respondent herein was examined as P. W. 1 and on the side of Respondents 1 and 2, the First Information Report was marked as Ex. A-1, Post-mortem Report was marked as Ex. A-2 and the Insurance Policy was marked as Ex. A-3. On the side of the insurer/appellant herein, one Mohan was examined as R. W. 1 and the Insurance Policy was marked as Ex. B-1. A-1, Post-mortem Report was marked as Ex. A-2 and the Insurance Policy was marked as Ex. A-3. On the side of the insurer/appellant herein, one Mohan was examined as R. W. 1 and the Insurance Policy was marked as Ex. B-1. ( 5 ) ON a careful consideration of the evidence on record, the Commissioner held that the accident took place in the course of employment of the deceased under the third respondent herein and as the vehicle in question was covered by Ex. A-3-Insurance Policy and premium had been paid for seven employees, awarded a compensation of Rs. 2,20,950/- and directed the appellant herein to deposit the same. The said award is challenged in the above appeal. ( 6 ) WHILE admitting the above appeal, the following substantial question of law has been formulated:-Whether the Lower Court has not erred in holding that an occupant in the Rig was covered under Ex. A-3-Policy of Insurance even though the motor vehicle was not in use. ( 7 ) HEARD Mr. N. Vijaya Raghavan learned counsel for the appellant and Mr. S. Kaithamalai Kumaran learned counsel for Respondents 1 and 2. ( 8 ) THE learned counsel for the appellant relied upon the decision of a Division Bench of this Court rendered in the case of National Insurance Co. Ltd. , Salem Vs. Ayyadurai and another reported in 2003 (2) Law Weekly 601. In that case, the insurer was the appellant and the policy issued by it was in respect of a Motor Vehicle which had mounted on it a drilling rig. The policy contains Endorsement No. 37 which reads as follows:-"37. Mobile Cranes / Drilling Rigs. It is hereby declared and agreed not-withstanding anything to the contrary contained in this policy that in respect of the Motor Vehicle the Company shall be under no liability. (a) Under Section I of this Policy in respect of loss or damage resulting from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto except or loss or damage arising directly from fire, explosion, self ignition or lightning or burglary, housebreaking or theft. (a) Under Section I of this Policy in respect of loss or damage resulting from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto except or loss or damage arising directly from fire, explosion, self ignition or lightning or burglary, housebreaking or theft. (b) Under Section II except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988, in respect of liability incurred by the Insured arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto. The Division Bench in the factual background of that case and in the light of the above said exclusion clause has observed as follows:-"8. The exclusion clause in the Policy, which specifically provides that in case of drilling rigs the liability incurred by the insurer arising out of its operation as a tool or by the use of the plant forming part of the vehicle or attached to the vehicle cannot be ignored. 9. The contents of the claim petition clearly show that the vehicle was not in use as a vehicle at the time the claimant sustained injury. What the claimant has said is that the bore well lorry was in operation. The operation referred to therein is the use of the rig which was being used as a rig for the purpose of drilling a bore well. It was in that process that the air pipe got separated and thrown out, causing grievous injuries to the eye and nose of the claimant. The injury so caused cannot be regarded as an injury caused by the use of the vehicle as the vehicle at that point of time was used only as a platform on which the compressor and part of the rig rested and it was the use of the rig as a rig which led to the accident and the consequent injury. 10. A drilling rig mounted on a vehicle does not become a road transport vehicle as has been held by this Court in the case of Commissioner of Income Tax -vs- Popular Bore Well Services (Vol. 194 I. T. R. 12 ). 10. A drilling rig mounted on a vehicle does not become a road transport vehicle as has been held by this Court in the case of Commissioner of Income Tax -vs- Popular Bore Well Services (Vol. 194 I. T. R. 12 ). The Court after referring to the provisions of the Motor Vehicles Act of 1939 observed thus:-'the rig and compressor mounted on a lorry cannot be treated as a road transport vehicle, because the rig and compressor mounted on a lorry are used only for the purpose of transporting equipment fixed on the lorry for sinking of bore-wells and not for carrying either passengers or loading or unloading of goods. Hence, the rig and compressor mounted on a lorry and used for drilling bore wells cannot be considered as "road transport vehicle' 11. The exclusion clause was, therefore, attracted and the liability to compensate the injured workman who had suffered the injury by reason of the use of the drilling rig as a rig was that of the insured. ( 9 ) THE learned counsel for the appellant submitted that Ex. B-1-Insurance Policy contains endorsement No. 37 but the learned counsel for Respondents 1 and 2 contested the said claim and prayed for calling for the original records from the Commissioner. A perusal of Ex. B-1-Insurance Policy shows that it does not contain endorsement No. 37 but it contains endorsement Nos. 19, 22, 23, 24, 26, 55 and 70 only. It is unfortunate that without verifying the original policy the learned counsel for the appellant has filed a typed-set containing a copy of Ex. B-1-Insurance Policy including a sheet containing endorsement No. 37 when Ex. B-1 produced before the Commissioner does not contain any such sheet containing endorsement No. 37 or any endorsement in the policy itself. Therefore, the contention of the learned counsel for the appellant based on endorsement No. 37 has to be rejected. Therefore the observations made by the Division Bench in the above referred decision relating to endorsement No. 37 has no applicability to the facts of this case. ( 10 ) THE learned counsel for Respondents 1 and 2 relied upon an unreported judgment dated 24. 01. 2006 of a Learned Single Judge of this Court rendered in the case of National Insurance Company Ltd. , Erode District Vs. Arumugham and two others in C. M. A. No. 2598 of 2005. ( 10 ) THE learned counsel for Respondents 1 and 2 relied upon an unreported judgment dated 24. 01. 2006 of a Learned Single Judge of this Court rendered in the case of National Insurance Company Ltd. , Erode District Vs. Arumugham and two others in C. M. A. No. 2598 of 2005. In that case, the Learned Judge after considering the decision reported in 2003 (2) Law Weekly 601 (referred to supra) has observed as follows:-"9. Therefore, whatever stated in the said Division Bench decision was with particular reference to Condition No. 37 attached to the Policy which covered the accident. In that case, since Condition No. 37 was specific to the effect that the Insurance Company shall be under no liability under Section II except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988 in respect of liability incurred by the insured arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto, the Division Bench took the view that inasmuch as the vehicle was not in use as a Motor Vehicle at the time when the claimant sustained the injury in an accident and since the injury was sustained when the rig was in operation while drilling the bore well, the accident was not covered by the policy. In contra distinction to condition No. 37 above referred to which governed the policy in that case, in the case on hand, the policy was governed by Condition No. 17 of the Commercial Vehicles Insurance 'b' Policy. In Condition No. 17 of this Policy, which has been extracted in the earlier part of this order, in the opening part, the legal liability to persons employed in connection with the operation and / or maintaining and / or unloading of goods carrying commercial vehicles, is specifically provided. The said part of condition No. 17 also provides that the company indemnifies the insured against his legal liability under the Workmen's Compensation Act to any paid driver or cleaner or persons employed in loading / or unloading, but in any case, not exceeding seven in number including driver and cleaner whilst engaged in the service of the insured in such occupation in connection with the goods carrying Commercial Vehicle. It has to be remembered that the Certificate of Insurance of the Policy concerned was in respect of the vehicle namely "ashok Leyland rig unit. The payments made under the 'b' liability Policy include the premium paid for the driver and / or cleaner. ( 11 ) IN the considered view of this Court the said decision is not fully applicable to the facts of this case since Ex. B-1-Insurance Policy does not contain endorsement No. 17 whereas the policy which was the subject matter of consideration in he above cited case contained endorsement No. 17. The learned counsel for respondents 1 and 2 by relying upon the following observation contained in the said decision viz. , "it has to be remembered that the Certificate of Insurance of the Policy concerned was in respect of the vehicle namely "ashok Leyland rig unit. The payments made under the 'b' liability Policy include the premium paid for the driver and / or cleaner submitted that the vehicle in question in this case is also 'ashok Leyland Rig Unit' and Ex. B-1-Insurance Policy is a comprehensive policy and the third respondent-insured has paid the following premiums:- 1. Basic Premium Rs. 507. 00 2. Add : for Legal liability to passengers/nfpp Rs . 50. 00 3. Add : for employees (other) Rs . 90. 00 4. Add : for third party property damage (Rs. 25,000/-) Rs . 65. 00 . Gross (B) Rs. 712. 00 The learned counsel submitted that since Ex. B-1-Insurance Policy is a comprehensive policy and separate premium has been paid for covering the employees the appellant/insurer is liable to indemnify the insured in respect of the compensation payable to the death of an employee arising out of his employment. ( 12 ) THE learned counsel for the appellant relied upon the following observation contained in 2003 (2) Law Weekly 601 (referred to supra) viz. , "10. A drilling rig mounted on a vehicle does not become a road transport vehicle as has been held by this Court in the case of Commissioner of Income Tax -vs- Popular Bore Well Services (Vol. 194 I. T. R. 12 ). , "10. A drilling rig mounted on a vehicle does not become a road transport vehicle as has been held by this Court in the case of Commissioner of Income Tax -vs- Popular Bore Well Services (Vol. 194 I. T. R. 12 ). The Court after referring to the provisions of the Motor Vehicles Act of 1939 observed thus:-'the rig and compressor mounted on a lorry cannot be treated as a road transport vehicle, because the rig and compressor mounted on a lorry are used only for the purpose of transporting equipment fixed on the lorry for sinking of bore-wells and not for carrying either passengers or loading or unloading of goods. Hence, the rig and compressor mounted on a lorry and used for drilling bore wells cannot be considered as "road transport vehicle' 11. The exclusion clause was, therefore, attracted and the liability to compensate the injured workman who had suffered the injury by reason of the use of the drilling rig as a rig was that of the insured. and submitted that since the workman had sustained injuries while in the course of use of drilling rig as a rig but not while using the vehicle as a motor vehicle the insurer is not liable to pay any compensation. ( 13 ) BUT I am unable to accept the said contention of the learned counsel for the appellant for the following reasons:-As pointed out above, Ex. B-1-Insurance Policy is a comprehensive policy and the vehicle insured is 'ashok Leyland Rig Unit' and the vehicle itself has been insured for the value of Rs. 6,50,000/- by paying a premium of Rs. 3,518/- and a part from that, as pointed out above, separate premium has been paid covering the risk to the employees and there is no exclusion clause by incorporating Endorsement No. 37. When the deceased was admittedly operating the Rig as a Rig operator under the insured and the risk is covered by the payment of extra premium the insurer is liable to indemnify the insured though the vehicle was not in use as a motor vehicle. ( 14 ) FOR the foregoing reasons, I see no reason to interfere with the order passed by the Workmen's Compensation Commissioner (Deputy Commissioner of Labour), Salem and the substantial question of law is answered against the appellant. The appeal is dismissed. No costs. Consequently, the connected CMP is closed. ( 14 ) FOR the foregoing reasons, I see no reason to interfere with the order passed by the Workmen's Compensation Commissioner (Deputy Commissioner of Labour), Salem and the substantial question of law is answered against the appellant. The appeal is dismissed. No costs. Consequently, the connected CMP is closed. - .