GYAN SINGH BABAJI Vs. JITENDRANATH BISOI

JUDGEMENT

(1.) In this appeal an interesting question of law has been raised by the claimant. Question is whether a person who was not driving the vehicle, when an accident occurred is to be treated as driver covered by policy of insurance issued to cover a "driver". While adjudging an appeal under Section 110D of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Act'), it is to be noted that the said Act was in force when the accident took place.

(2.) Factual position which is undisputed essentially is as follows :On 8-6-1984, truck bearing registration No. QSU 2203 was involved in an accident in which Tarashem Singh (hereinafter referred to as the 'deceased') lost his life. The vehicle was being driven by one Mahadev Singh at the time of accident. The deceased was the second driver who admittedly was not driving the vehicle, at the time of accident. The vehicle in question was subject-matter of insurance with New India Assurance Co. Ltd. (hereinafter referred to as the 'insurer') and the policy covered third party risk as well as the risk of the driver, cleaner and four coolies. According to the owner, as the vehicle was subject-matter of insurance with the insurer, it was liable to pay compensation to the claimant who was legal representative of the deceased. The insurer while admitting the fact that the vehicle was covered by a policy of insurance, took the stand that it had no liability as the policy covered driver driving the vehicle at the time of accident and not for the second driver. The Second Motor Accidents Claims Tribunal, Cuttack (in short, the 'Tribunal') overruled this stand and held that since the 'driver' was covered, the insurer was liable to pay compensation, i.e., Rs. 60,000/- to the claimant. The insurer preferred an appeal before this Court which was numbered as Misc. Appeal No. 303 of 1992. It was held by the learned single Judge that it would be just and proper to fix the quantum of compensation at Rs. 72,000/- to be paid by the owner, and deceased was not covered by the policy.

(3.) In support of the appeal, Mr. B. K. Misra, learned counsel for the claimant-appellant submitted that the conclusions of the learned single Judge are erroneous. Merely because at the time of accident the deceased was not driving the vehicle actually it cannot be denied that he was second driver of the vehicle and was therefore covered by the policy of insurance. It is submitted that even if it is held that the deceased was not be treated as driver for the purpose of insurance, yet as a third party the insurer was liable. The learned counsel for the insurer, however, submitted that the policy covers only the person driving the vehicle and not the second one.