IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.2529 OF 2000 BETWEEN Mukka Janardhan. …APPELLANT AND Noorja Khanam and four others. …RESPONDENTS Counsel for the Appellant: Mr. S. Chandra Sekhar Mr. G. Manmohan Rao Counsel for the Respondent No.5: Mrs. A. Malathi The Court made the following: - JUDGMENT: This appeal is preferred by the owner of the offending vehicle, who was respondent No.2 in O.P.No.301 of 1995, filed by the claimants, before the Motor Accidents Claims Tribunal cum I Additional District Judge, Karimnagar. 2. In this appeal, the appellant questions the judgment of the claims tribunal in O.P.No.301 of 1995 dated 02.03.1998 whereby it was held that the claimants are entitled to aggregate compensation of Rs.1,70,000/- with interest at 12% per annum and proportionate costs but the claim so far as the insurance company is concerned, the same was dismissed and the driver and the owner i.e. respondents 1 and 2 before the tribunal were held liable. The present appeal is, therefore, filed questioning that part of the judgment and decree whereby the insurance company was held not liable. 3. The facts in brief are that the deceased was traveling as an additional driver in the tanker lorry bearing No. ABK 8478. The same while being driven by the first respondent and owned by the second respondent met with an accident on 20.10.1994, as the said lorry was being driven in a rash and negligent manner, resulting in the said vehicle on accident crushing the deceased. A case in Cr.No.92 of 1994 was registered against the first respondent for causing the said accident. The claimants, however, filed the present O.P.No.301 of 1995 seeking compensation of Rs.2,00,000/- against the driver, owner and the insurance company jointly and severally. 4. While the respondents 1 and 2 remained ex parte, the insurance company contested the case by contending that only one driver and one cleaner were covered by the policy and that the policy does not cover any additional driver or gratuitous passenger, therefore, the insurance company is not liable. 5. The tribunal considered the evidence on record and on issue No.1 found that the accident occurred due to rash and negligent driving of the said lorry by the first respondent. So far as the quantum of compensation is concerned, the tribunal found that the claimants are entitled to an aggregate compensation of Rs.1,70,000/-. Both the said aspects are not in controversy in this appeal and the only finding, which is the subject matter of this appeal, is that the insurance company is not liable to pay compensation. The said finding is reached on the basis of the evidence of R.W.1, who is the Assistant in the office of the insurance company. 6. Learned counsel for the appellant has contended that as per Ex.B1 policy and Ex.B2 attested endorsement of the policy, the insurance policy originally standing in the name of one Shanker Reddy was duly transferred in the name of the appellant. Further, the policy also shows that a sum of Rs.30/- was paid towards the premium to cover the liability of the driver and the cleaner. Learned counsel, therefore, submits that the additional premium covers the risk of the driver and the cleaner and as such there is no reason as to why the liability cannot be imposed on the insurance company. The learned counsel relied upon a decision of this Court in ORIENTAL INSURANCE CO. LTD. RAJAHMUNDRY v. GOLAGANI NAGAMANI[1] and particularly paras 8 and 9 thereof, which read as follows: “8. The contention is that unless the contract of insurance specifically provides for unlimited liability in respect of an employee, the liability under the Act in respect of an employee engaged in driving the vehicle shall be limited in view of proviso to Section 95 of the Act, to the compensation which is payable under Workmen's Compensation Act for death of or bodily injury to such an employee. The learned Counsel for the appellant submits that the contract of insurance in this case provides for unlimited liability in respect of one driver and inasmuch as the deceased was not actually driving the vehicle at the time of the accident, it must be held that the contract providing for unlimited liability for one driver must be related to the driver who was actually driving the vehicle and not additional or alternate driver travelling in the vehicle. Proviso to Section 95 of the Motor Vehicles Act restricts the liability of the insurance company in respect of employees enumerated in sub-clauses (a) (b) and (c) to Clause (i) under the proviso to the extent which would arise under the Workmen's Compensation Act. An employee "engaged in driving the vehicle" covered by clause (a) is one such category of employees. In this case, as contended by the learned Counsel for appellant there is a contract of insurance which provides for unlimited liability in respect of one driver. The question is whether it is applicable to the employee who was actually driving the vehicle and whether it does not cover the additional driver who was travelling in the said vehicle on duty. When two drivers are assigned on a vehicle proceeding on a long trip, the purpose is, that to avoid fatigue and exhaustion resulting from continuous driving, they would share the duties of driving alternatively. In view of this, it has to be presumed that both the drivers would be on duty from the moment the vehicle leaves a place and till it reaches its destination. The fortuitous circumstances which purely depends on the mutual allocation of duties between the two drivers, that at the relevant time of the accident one of them was driving the vehicle and the other was waiting for his turn of duty does not lead to an inference that the other driver who was not actually driving was not on duty as a driver. The fact that only one driver was covered by the contract of insurance for the purpose of unlimited liability does not necessarily exclude the driver who was not actually engaged in driving at the time of the accident. When both the drivers are held to be on duty, the question as to who among them was driving at the time of the accident is not a relevant criterion to ascertain as to who among the two drivers is covered by the contract of insurance providing for unlimited liability of only one driver. 9. In the absence of any specific provision in the contract of insurance on this aspect, the driver who sustained injuries or died in the accident which" occurred first in time after the date of contract must be deemed to have been covered by the contract providing for unlimited liability in respect of one driver. But, the learned Counsel for the appellant canvassed for an extreme view and contended that for a driver who was not driving the vehicle at the time of the accident not only the benefit of contract of Insurance providing for unlimited liability of one driver was not available, even the coverage of insurance limiting the liability to the extent arising under Workmen's Compensation Act in respect of death or bodily injury to an employee shall not be available inasmuch as according to his contention in the proviso (1)(a) to Section 95 of the Act, the words "engaged in driving the vehicle" must be interpreted to refer to an employee who was actually driving the vehicle at the time of the accident. This contention is far-fetched. Even apart from the question of the applicability of the provision to an alternate or spare driver, the interpretation propounded by the learned Counsel would lead to wholly absurd an unjust result to avoid liability in respect of even a single driver on duty. For instance, when a vehicle proceeding towards its destination happens to be parked at a place and meets with an accident and the driver on duty sustains injuries, can it be said that as driver of the vehicle was not actually in the process of driving the vehicle, inasmuch as the vehicle was parked, he was not "engaged in driving the vehicle". The answer must be an emphatic 'NO'. A driver on duty on a vehicle must be deemed to be "engaged in driving" even though he was not actually at the steering wheel and the vehicle was not in motion at the time of the accident. Under the circumstances, the words "engaged in driving" in proviso OXa) of Section 95 of the Act must be construed as "assigned with duty of driving at the relevant time on a particular trip or engagement." 7. This Court, therefore, held that two drivers were assigned for driving the vehicle, they were sharing the duties of driving alternatively and in that view it has to be presumed that both the drivers would be on duty from the moment the vehicle leaves a place and till it reaches its destination. The mutual allocation of duties between the two drivers, that at the relevant time of the accident one of them was driving the vehicle and the other was waiting for his turn of duty does not lead to an inference that the other driver who was not actually driving was not on duty as a driver. This Court, therefore, held that the fact that only one driver was covered by the contract of insurance for the purpose of unlimited liability does not necessarily exclude the driver who was not actually engaged at the time of the accident. 8. Learned counsel for the respondent – insurance company, however, contends that that was a case relating to a vehicle engaged on longer trips and in the present case, there is no evidence produced, such as national permit or any other document to show that the vehicle in question was also long distance vehicle. 9. The distinction sought to be drawn by the learned counsel for the insurance company is really not decisive. The fact that separate premium was collected to cover the liability of the driver and the cleaner and if additional driver was also traveling in the lorry irrespective of the fact as to who was driving the vehicle, the liability of the insurance company continues and as such following the aforesaid decision, I am of the view that the risk of the deceased is clearly covered by the policy as separate premium was paid. The finding of the tribunal below that the deceased being additional driver, the insurance company is not liable is, therefore, not sustainable and likely to be reversed. In view of the above, the civil miscellaneous appeal is accordingly allowed and the insurance company – respondent No.5 herein is also held to be liable to pay the amount awarded to the claimants. Since the OP was filed in 1995 and since the insurance company liability was negatived by the impugned judgment dated 02.03.1998 and since the said liability is being, for the first time, determined in this appeal, I deem it appropriate to grant interest at 7.5% per annum from the date of claim till payment. Consequently, the award under appeal shall stand modified to that extent. (i) The decree in OP.No.301 of 1995 dated 02.03.1998 shall stand modified by holding that the respondents 1 to 3, before the tribunal below, are liable to pay compensation amount of Rs.1,70,000/- jointly and severally with proportionate costs and interest at 7.5% per annum from 19.04.1995 the date of claim petition till realization. (ii) The shares of the claimants shall proportionately stand revised and the tribunal below shall appropriately apportion the same in the manner in which it had earlier apportioned the awarded amount among the claimants. (iii) The amount, if any, deposited in pursuance of clause 4 of the decree of the tribunal below together with interest shall be distributed among the claimants in the proportions as directed above. (iv) The clauses 5 and 6 of the decree of the tribunal below remain unaltered and the clause 7 in the decree is reversed in view of this judgment. In the result, the civil miscellaneous appeal is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J November 6, 2009 DSK [1] 1999 (1) ALD 341