Ast 1 fa328.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.328 OF 2010 The Oriental Insurance Co.Ltd.. ... Appellants. Vs. Smt. Indumati Bhausaheb Surgude & ors. ... Respondents. -------------- Mr. Ranjan B. Tripathi i/b. Mr. S.M.Vidyarthi for Appellants. Mr.Rahul D. Motkari for Respondent No.4. -------------- CORAM : V.R.KINGAONKAR, J. DATE : 26 th MARCH, 2010. P.C. 1. Heard Counsel for the parties. 2. This appeal arises out of an Award rendered by the Commissioner for Workmen’s Compensation and Judge, Labour Court, Nashik in proceedings of application filed under Section 4 read with Section 10 of Workmen’s Compensation Act, 1923. The case of the Respondents(claimants) before the Trial Court was that the deceased Ast 2 fa328.10.sxw Bhausaheb Surgude was driver employed by the Respondent No.4 on his tractor vehicle. They alleged that on 26 th February, 2004, the Respondent No.4(employer) had deputed the deceased for purchasing of certain household articles and therefore, he had gone to village Mohadi by his motor cycle bearing No.MH-15-BC-1871. The motor cycle met with an accident on return journey. The deceased was fatal injured and subsequently succumbed to injuries on 2 nd March, 2004. The accident occurred during the course of employment of the deceased with the Respondent No.4(original opponent No.1). Hence, they claimed compensation from the employer and insurer. The application was allowed with direction to pay compensation of Rs. 2,57,735/- alongwith interest. Feeling aggrieved, the Insurer had preferred this Appeal. 3. Having heard learned Counsel and on going through the relevant observations appearing from the impugned Judgment, it is ample clear that main thrust of the Appellant was on denial of employer-employee relationship between the deceased and Opponent No.1(Respondent No. Ast 3 fa328.10.sxw 4). It was further contended that the deceased was not engaged in any act, which was concerned with the Opponent No.2(Insurer). It was further contended that the deceased was not driver of the motor cycle. Learned counsel for the Appellant seeks to rely on certain observations in “Oriental Insurance Co. Ltd. Vs. Meena Variyal & Ors.(2007 AIR SCW 2362)”. The Apex Court held that the Insurance Company was not liable to indemnify owner of the car, which was being used at the time of the accident, in which the deceased was occupant. It is observed : “Section 147 provide that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. The, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under the Workmen’s Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an Ast 4 fa328.10.sxw employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under Cl.(h) of sub-section(1) of S.147, (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of S.147.” 4. Counsel also seeks to rely on “Malikarjuna G. Hiremath vs. Branch Manager, Oriental Insurance Co.Ltd. & Anr.(2009 ACJ 721)”. The Apex Court held in the given case that where the death of the driver who had gone to a pond for taking bath, where he slipped and drowned had no connection with the nature of his employment and therefore, no compensation can be claimed on account of such death. 5. The principle of law cannot be disputed. The question is of applicability of such principles to the present case. The pleadings of the Appellant do not show that the Insurance policy did not pertain to any claim under the Workmen’s Compensation Act, 1923 and was restricted Ast 5 fa328.10.sxw to only claim arising out of the Motor Vehicles Act. Claim may not be admissible in the context of the Motor Vehicles Act, unless the necessary ingredients of Section 166 or 163A are made out. Still, however, when the contesting Respondents adduced the evidence to show that the deceased Bhausaheb was engaged as driver of the Respondent No. 4/Opponent No.1, it follows that he could have been deputed by the master to do incidental work of purchasing goods. The Respondent No. 4/Opponent No.1 did not enter witness box. However, he had opposed the application. He simply denied the employer-employee relationship vide his written statement. His bare denial is of no avail. The appellant did not examine him(employer) or any other witness to establish the plea that there was no employer-employee relationship for the purpose of compensation under the Workmen’s Compensation Act. It is proved that there was employer-employee relationship and that the death occurred under the circumstance, which had causal connection with the nature of employment. In view of the nature of pleadings and evidence adduced, it is accepted that claim was duly proved by the Respondents. Under the Ast 6 fa328.10.sxw circumstances, the appeal is destitute of substance. In the result, the Appeal is dismissed with no order as to cost. [ V.R.KINGAONKAR, J ]