Employee, in discharge of his duties, whether employed as driver or otherwise, would be entitled to compensation under clause (a) of the Proviso to Section 147 of the M.V. Act if the accident has occurred out of and in the course of his employment, holds the Full Bench of the Kerala High Court

A Full Bench of the High Court of Kerala affirming the decision in National Insurance Co. Ltd. v. Nimmy & Ors.¹ has held in United India Insurance Co. Ltd. v. P.R. Surendran² that if an employee in discharge of his duties, is engaged in driving a vehicle as permitted by his employer, irrespective of whether he is employed as driver or not, the employee would be entitled to the coverage of the proviso to Section 147 of the Motor Vehicles Act, 1988 (‘the M.V. Act’ for short), provided the accident has occurred out of and in the course of his employment.

(Representational picture)

A Full Bench of the Kerala High Court comprising Justices Antony Dominic, K. Ramakrishnan and Anil.K. Narendran was answering a reference made by a Division Bench of the High Court of Kerala doubting the correctness of the ratio in National Insurance Co. Ltd. v. Nimmy & Ors. (supra). In Nimmy’s case (supra), the deceased was employed by the 5^th respondent therein. While he was riding a scooter provided by his employer, an accident occurred out of and in the course of his employment. Following the accident, the claim was filed under the Workmen's Compensation Act. The Insurance Company contended that to get coverage of Clause (a) to the first proviso to Section 147, the employee mentioned in Clause (a) should be employed as a permanent driver of the owner of the vehicle. Repelling that contention, the Division Bench had held:

“It is not stated in the section that to get protection under this section one should be permanently employed as driver or the sole duty entrusted on him is driving. We are of the opinion that when an employee in driving the vehicle as part of his duty, he will come within the first proviso to Section 147(1) of the M.V. Act.”

The Division Bench, referring the appeals before it to the Full Bench, found, prima facie, that the coverage under the proviso to Section 147 of the M.V. Act is available only to those persons who are employed as drivers and are engaged in driving and not to other employees who were engaged in driving at the time of the accident. It was on this basis that it had doubted the correctness of the view taken in National Insurance Co. Ltd. v. Nimmy & Ors. (supra).

The appeals were filed filed by the United India Insurance Company Limited and the Oriental Insurance Company Limited against the awards passed by the Commissioner for Workmen's Compensation, Thrissur in W.C.C.Nos.361/2000 and 374/2003. The claimants in the workmen's compensation claims before the Commissioner for Workmen's Compensation, Thrissur were sales representatives employed by their respective employers. As part of their conditions of service, their employers had provided them two wheelers. While riding the vehicles in their course of their employment, they met with accidents, resulting in bodily injuries. This led the injured to file claims under the Workmen's Compensation Act, claiming the benefit of coverage of the insurance policy. This was in view of proviso (i) to Section 147 of the Motor Vehicles Act, 1988.

The Commissioner for Workmen's Compensation overruled the objection raised by the Insurance Companies that they are not liable under the proviso (i) to Section 147 of the M.V.Act and awarded compensation against the Insurance Companies. It is aggrieved by these awards that the aforesaid insurance companies had filed the appeals to the Division Bench of the High Court of Kerala, which were then referred to the Full Bench in the circumstances stated above.

The Insurance Companies contended that in order to get the coverage of

Clause (a) to the proviso to Section 147, an employee should be employed as a driver and should be engaged in driving.

The Full Bench referring to clause (a) of the proviso to Section 147 of the M.V. Act³, negatived the contention of the Insurance Companies on the ground that it is the settled position of law that when the language of a statute is unambiguous, the Courts are bound to literally interpret the statute and give full effect to the provisions. Writing the judgment for the Bench, Justice Antony Dominic held that “In so far as Clause (a) to the proviso to Section 147 is concerned, Section only uses the expression 'engaged in driving the vehicle' without specifying either the class of the vehicle which is covered by this provision or the nature of the employment of the person engaged in driving the vehicle, unlike clauses (b) and (c) to the proviso, which specifies the nature of the employment to claim coverage of the said provision. This, therefore, means that to claim coverage of Clause (a) to the proviso to Section 147 of the Act, the employee need only be engaged in driving the vehicle, irrespective of whether he was employed as driver or not…such coverage would be available only if the accident arose out of and in the course of his employment and only if the other requirements of the Workmen's Compensation Act are also satisfied.”

In reasoning this, the Full Bench relied, inter alia, on the judgment of a learned Single Judge in Oriental Insurance Co. Ltd. v. Davis⁴  wherein it was held thus:

“the legislative intention is clear that any injury sustained by an employee during the course of his employment has to be compensated if bodily injury or death has occasioned during his engagement in driving the vehicle. So much so, the word “engaged” in Clause (a) of proviso (i) indicates the duty or activity carried on by the workman at the time of suffering the accident, resulting in his death or in injuries to him. Hence, it would be an impermissible and an extremely restricted approach to hold that a person, who was employed as a driver, would alone fall under Clause (a) of Proviso (i). Therefore, the only manner in which Proviso (i) (a) of S.147(1) can be interpreted is by holding that it is not necessary for a person to be employed exclusively as a driver under an employer to sustain a claim referable to the said provision and one who is engaged in driving the vehicle, thereby meaning, driving the vehicle at the time of the accident, is entitled to compensation and insurance covered under the said proviso, provided he was in the employment of the employer and therefore a workman and still further, that he was driving the vehicle at the time of the  accident under due authorisation of the employer.”

The Bench also relied on the decisions of the High Court of Kerala in Benz Automobiles Ltd. v. Thomas⁵ and the judgment in M.A.C.A. No.1271/07 in holding that if an employee, in discharge of his duties, is engaged in driving a vehicle as permitted by his employer, irrespective of whether he is employed as driver or not, the employee would be entitled to the coverage of the proviso to Section 147, provided the accident has occurred out of and in the course of his employment.

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1. 2002 (1) KLJ 811

2. Judgment dated 12.11.2014 in MFA.No. 191 of 2005

3. “Provided that a policy shall not be required :

(i) to cover liability in respect of the death, arising out of and in the course of his

employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such

employee--

(a) engaged in driving the vehicle.”

4. 2006 (4) KLT 1013

5. 2008 (3) KLT 1015