- (1.) This appeal under Section 30 of the Workmen's Compensation Act, 1923 has been filed for the following reliefs :- "It is, therefore, most humbly and respectfully prayed that this appeal may kindly be allowed with costs and the judgment and award dated 19.3.2008 passed by the learned Commissioner, Workmen's Compensation, Udaipur in W.C. Case No.17/2007 (ALC) may kindly be quashed and set aside."
(2.) The unfortunate accident happened on 06.2.2006 when injured/claimant was travelling in Tempo No.RJ-27-GA0330 as a Driver, which resulted into serious injuries. Counsel for the appellant raised two major issues i.e. firstly the FIR lodged in pursuance of the accident reflects that the injured/claimant was not driving the Tempo but was travelling. The FIR lodger is father of the claimant, who too, stated that his son was travelling in Tempo in-question from one place to another. Counsel for the appellant, thus, on the strength of FIR submits that coverage of insurance was only of driver and none other than driver, thus, the Insurance Company shall not liable to be indemnify and pay compensation as no extra premium was charged for the second driver. The second issue raised is regarding disability of two fingers of foot and indicates 22% permanent disability, whereas the disability has been taken to be 60% by the learned Commissioner.
(3.) Counsel for the respondent submits that owner of vehicle as well as witnesses categorically stated that the claimant was travelling in Tempo in-question and was not actually driving but was travelling as second driver. Counsel for the respondent has relied upon the judgment of Hon'ble Karnataka High Court (Bangalore Bench) in the case of United India Insurance Co. Ltd. Vs. Shanthavva & Ors., reported in 2006 ACJ 1222, relevant portion whereof reads as follows :- "4. The word "engaged in driving the vehice" should not be interpreted to mean only the driver on the steering excluding a spare driver. The spare driver is also very much a person engaged in driving the vehicle, may be on shift basis. The insurer is very much liable to pay compensation to a spare driver Under Section 147 of M.V. Act if there is only one claim under the Act Policy. 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 respcet of only one driver even if he is not actually driving at the time of accident still the insurer becomes liable to pay Under Section 147 of the M.V. Act as a statutory liability. The decision of this Court in Oriental Insurance Company Limited v. Khasim lays down that the insurer is liable to pay compensation for the spare driver by virtue of provisions of rule 100 of Karnataka Motor Vehicle Rules and Section 147 of the M.V. Act which insists statutory cover for employees employed in connection with the motor vehicle. Therefore the insurer in any circumstance cannot avoid payment of compensation to a spare driver. " ;