THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.320 of 2008 Date:04.12.2009 Between: National Insurance Company Limited. ..Appellant. and Smt.B. Jyothi and others. ..Respondents. THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.320 of 2008 ORDER: This appeal is filed against order dated 13.06.2005 in W.C.No.120 of 2004 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-III, Hyderabad, wherein the claim of respondent Nos.1 and 2 herein was allowed awarding compensation of Rs.3,66,420/-. Heard the learned counsel for the appellant-insurer. None appeared for the respondents in spite of posting of the matter on several occasions under the caption “For Orders”. Perused the record. Respondent Nos.1 and 2 herein filed claim application before the learned Commissioner seeking compensation for the death of the deceased, being Mr. B. Goverdhan Reddy, who died in a motor vehicle accident that occurred on 20.06.2003. The first respondent herein is the wife and the second respondent herein is the son of the deceased. According to them, the deceased was employed as a driver in the lorry bearing No.AP 22 U 839 belonging to the third respondent herein and insured with the appellant-insurer and as such he was a workman within the meaning of the Workmen’s Compensation Act, 1923 (‘the Act’ for brevity). It is further pleaded that on 20.06.2003, the deceased was proceeding in the said lorry as a second driver from Mahabubnagar towards Kagaznagar and due to the rash and negligent driving, the vehicle dashed against a stationed lorry bearing No.AET 5687, which was parked without indicators and as a result of the accident, the deceased workman sustained injuries and he was taken to Government Hospital, Mancherial, where he died while undergoing treatment. A case in Crime No.98 of 2003 was registered by Ramakrishnapuram Police Station. It is further pleaded that the deceased was aged 28 years at the time of the accident and he was earning Rs.4,000/- per month. The owner of the vehicle remained ex parte. The appellant- insurer filed a counter opposing the claim application and denying their liability, inter alia, on the ground that the deceased was not a workman and his risk was not covered by the policy as he was admittedly a second driver. During the enquiry, A.W.1 was examined and Exs.A-1 to A-14 were marked on behalf of the applicants. R.W.1 was examined and Ex.D1 – copy of the policy was marked on behalf of the appellant-insurer. On consideration of the evidence available on record, the learned Commissioner held that the deceased was workman within the meaning of the Act and he died in the accident, which occurred in the course of his employment. The learned Commissioner further held that the applicants are entitled for a total compensation of Rs.3,66,420/-. The quantum of compensation awarded by the Commissioner based on the age and wage of the deceased is not seriously disputed. The main contention of the learned counsel for the appellant- insurer is that the deceased is none-else than the son of the owner of the vehicle and his risk is not covered by the policy and further the evidence on record would go to show that the deceased was driving the vehicle in an intoxicated condition. It is not disputed that the deceased is the son of the owner of the vehicle. In a way, the deceased was driving his own vehicle. No doubt, the possibility of father employing his own son as a driver on his vehicle cannot be ruled out. But, still when the appellant- insurer has specifically denied the relationship of employer and employee between the owner and the deceased, the applicants had to adduce necessary evidence to establish the existence of such a relationship. The evidence adduced by the applicants merely shows that the lorry is belonging to the third respondent herein, who is father of the deceased, and the deceased was driving the said vehicle. The evidence on record does not establish that the deceased was employed as a driver by his father on the lorry. In the absence of such evidence, the relationship of employer and employee between the third respondent herein and the deceased remained unsubstantiated. When once the applicants failed to establish such relationship, the deceased cannot be treated as a workman insofar as the lorry is concerned. When that is so, the question of the appellant-insurer being fastened with liability to pay compensation does not arise. Assuming for a moment that the deceased was in fact employed by the third respondent herein and therefore, a workman, still even according to the applicants, the deceased was second driver on the lorry. The policy – Ex.D1 shows that an additional premium of Rs.100/- was paid towards compulsory personal accident claim to the owner-cum-driver besides the basic premium for third party’s property damage. Thus, as seen from policy Ex.D1, except the risk in respect of the owner-cum-driver, the risk of no other person was covered by payment of any additional premium. Admittedly, the deceased was neither owner nor driver of the vehicle. The regular driver of the vehicle is stated to be travelling in the same lorry. Ex.D-1 does not show that any premium was collected for a second driver. When that is so, no liability can be fastened on the appellant-insurer for reimbursement of claim for compensation as the risk in respect of any such second driver was not covered by the policy. Even otherwise as can be seen from the impugned order of the Commissioner, the deceased was driving the vehicle under the influence of intoxication. The said observation is based on Ex.A2 – Inquest report, wherein it is stated that the driver – Nagi Reddy drove the lorry in a rash and negligent manner in a state of intoxication. However, in the charge sheet, it is not stated that the driver was driving the vehicle under intoxication at the time of accident. The learned Commissioner, therefore, held that the insurer cannot be exonerated from the liability on the proof that the driver was under intoxication and caused the accident because of such intoxication. Whether or not the driver – Nagi Reddy drove the vehicle in a state of intoxication, the fact remains that the risk in respect of the deceased, who according to the applicants is a second driver of the lorry, is not covered by the policy. According to the applicants, the deceased was driving the vehicle as a second driver, but the Inquest Report and the charge sheet show that it was Nagi Reddy, who was driving the vehicle at the time of the accident. Admittedly, Nagi Reddy was the driver of the vehicle and his risk alone is covered by the policy. As the applicants failed to establish that the deceased was workman and was employed as driver by the third respondent-owner and as the evidence on record shows that it was one Nagi Reddy who was driving the vehicle at the time of accident, the deceased becomes the unauthorized gratuitous passenger in the lorry. In a catena of decisions in New India Assurance Co. Ltd. vs. Asha Rani[1], National Insurance Co. Ltd. vs. Bommithi Subbhayamma[2] and National Insurance Co. Ltd. vs. Rattani[3], the Apex Court held that the insurer cannot be made liable to pay the compensation in respect of the risk for unauthorized gratuitous passengers in the vehicle involved in the accident. Thus, viewed from any angle, the appellant-insurer cannot be fastened with liability for payment of compensation as the risk in respect of the deceased is not covered by the policy – Ex.D1. In the circumstances, it is held that the impugned award passed by the learned Commissioner fixing the liability on the appellant-insurer for payment of compensation is not sustainable and the same is accordingly set aside insofar as the appellant- insurer is concerned. In the result, the Civil Miscellaneous Appeal is allowed as indicated above. No costs. __________________ G.V.SEETHAPATHY, J 04th December, 2009 GHN [1]2003 ACJ 1 (SC) [2] 2005 ACJ 721 [3] I (2009) ACC 417 (SC)