Motor Vehicle Act | Insurer Liable To Compensate Spare Driver If Only One Claim Made: Karnataka High Court

The Karnataka High Court has reiterated that the insurer is very much liable to pay compensation in respect of a spare driver under Section 147 of Motor Vehicles Act, if there is only one claim under the policy.

A single judge bench of Justice H P Sandesh sitting at Dharwad said,

"However, if there are two separate claims in respect of driver and spare driver unless additional premium is paid the insurer may not be liable to pay for both the drivers. If the claim is in respect of only one driver even if he is not actually driving at the time of the accident still the insurer is liable to pay under Section 147 of MV Act as a statutory liability."

Oriental Insurance Co. had approached the court questioning the judgment and award dated 28.02.2011 passed by the Commissioner for Workmen's Compensation. In the appeal it was contended that the Commissioner was not justified in holding that the policy issued by the Insurance Company covered the second driver. In the absence of any premium, question of fastening the liability on the Insurance Company does not arise.

On the other hand the counsel for the claimants contend that additional premium of Rs.50/- is paid in terms of the policy and that All India Permit was given to the said vehicle and when All India Permit is given, second driver is also covered under the policy. The learned counsel would also submit that the claim is made only in respect of one driver and other driver has not made any claim.

Further, it was said that the owner of the vehicle made his statement in terms of Ex.P.12 stating that the deceased was a second driver and other victim was working as a coolie. No material is placed by the Insurance Company to show that the cleaner was a minor. Except relying upon the post mortem which is not an authenticated document, no other document is produced to prove the age of the deceased.

Reliance was placed on the judgment of the coordinate bench in the case of United India Insurance Company Vs. Smt.Shanthavva And Others (2006 ACJ 1212) would submit that in similar circumstances the Court held that if there are two separate claims in respect of driver and spare driver unless additional premium is paid, the insurer may not liable to pay for both the drivers and if the claim is in respect of only one driver even if he is not actually driving at the time of the accident still the insurer becomes liable to pay under Section 147 of the Motor Vehicles Act as a statutory liability.

Findings:

The bench noted that a case has been registered against the driver of the offending vehicle and also the fact that he was the son of Shamiulla is also not in dispute. The said statement was recorded by the police on 27.05.2009 i.e., on the very next date of the accident, the owner in his statement has stated that Shamiulla was working as first driver and Majju @ Majjumeerpasha was working as a second driver and Irfan was working as a cleaner.

Further, a document has been provided before the Commissioner to show that Shamiulla was having a valid driving licence.

Then it held,

"In view of the statement made by the owner on the very next date of the accident that two drivers were there in the vehicle and though it is disputed by the Insurance Company that the deceased was not a driver and not produced the driving licence and when such being the case, the very contention of the Insurance Company that no document is produced, cannot be accepted in view."

Further it said,

"In the case on hand admittedly the deceased Shamiulla was not driving the vehicle at the time of the accident and also only one claim was made before the Commissioner and witness examined on behalf of the Insurance Company i.e,, RW-1 has also categorically admitted in the cross-examination that premium is paid in respect of one driver."

Placing reliance on the judgement of the high court in the case of Oriental Insurance Company Ltd., Vs. Khasim wherein it has been laid down that the insurer is liable to pay compensation for the spare driver by virtue of provisions of Rule 100 of the Karnataka Motor Vehicles Rules and Section 147 of the Motor Vehicles Act which insists statutory cover for employees employed in connection with the motor vehicle.

The bench said,

"No doubt, in the cross-examination of PW-1, it is elicited that no document is obtained from the owner to show that both of them were working with him but owner himself made statement before the police on the next day of the accident as per Ex.P.11 that both of them were working with him and in order to rebut the same, Insurance Company has not examined the owner of the vehicle which was involved in the accident and hence the very contention of the Insurance Company that the insurance company is not liable to pay compensation in respect of the spare driver cannot be accepted. The principles laid in United India Insurance Company Vs. Smt.Shanthavva And Others aptly applied to the case on hand."

It added,

"Having considered both oral and documentary evidence available on record and also the finding of the Commissioner that relationship of employer and employee has been established and that both the deceased were travelling in the vehicle as spare driver and cleaner, I do not find any error in the judgment and award."

Accordingly it dismissed the appeals and directed that amount deposited by the Insurance Company be transferred to the Tribunal forthwith.

Case title: THE BRANCH MANAGER ORIENTAL INSURANCE CO.LTD V TAHASEENTAJ W/O SHAMIULLA @ GULLAB, & Others

Case No: M.F.A.No.23205/2011 c/w M.F.A.No.23206/2011

Citation: 2022 LiveLaw (Kar) 343

Date of Order: 26TH DAY OF AUGUST, 2022 Appearance: Advocate A G JADHAV for appellant; Advocate B.M. PATIL, FOR R1, Advocate ANJANEYA M, FOR R1 TO R3

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