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

Retrenchment of UPSA/LPSA: Seniority to be followed is the seniority in the respective category and not the common seniority, rules the Full Bench of the High Court of Kerala

A Full Bench of the High Court of Kerala comprising Justices Antony Dominic, K. Ramakrishnan and Anil K. Narendran, has held vide judgment dated 13.11.2014 in W.A.No. 1108 of 2011, that in the event of retrenchment of Upper primary School Assistant/Lower Primary School Assistant, the seniority is to be followed is the seniority in the respective category and not the common seniority, as teachers in the U.P. Section and the teachers in the L.P. Section of a school belong to two different and separate categories. 

The Full Bench was answering a reference made by a Division Bench of the High Court of Kerala which had doubted the correctness of the judgments in Mary George v. State of Kerala¹ Rejimol v. Asst.Educational Officer², W.A. No.1903/11and the Full Bench judgment in S.N.D.P. L.P.School v. Roy³. 

The issues that arose for consideration of the Full Bench was whether retrenchment of teachers is to be based on the combined seniority list of LPSAs and UPSAs of L.P.Section and U.P. Section of the school under the same management or whether the retrenchment should be based on separate seniority list of LPSAs and UPSAs.In Mary George (supra), Rejimol (supra) and WA No.1903/11, the High Court had taken the view that the post of LPSAs and UPSAs belong to two different grades and categories, and therefore, separate seniority list of LPSAs and UPSAs should be the basis for reckoning the seniority for the purpose of retrenchment.

Referring to the provisions in Chapter II and Chapter XXIII of the Kerala Education Rules, the Full Bench observed that the said provisions of the Kerala Education Rules indicate that for all purposes, teachers in the Lower Primary Section and Upper Primary Section are treated as separate category of teachers with separate and distinct qualifications. The Court also observed that apart from Rule 34(b) of Chapter XIV A KER, there is no other provision in the Kerala Education Act or the Rules, for maintenance of combined seniority list of UPSAs and LPSAs. "Reading of the unamended Rule 34(b)⁴ shows that the combined seniority list was meant to be for all purposes and amended Rule 34(b)⁵ shows that the purpose of the combined seniority list is only to determine the position of persons eligible for promotion as Primary School Headmaster by virtue of length of service and prescribed qualifications for promotion as such. Once the purpose of the combined seniority is thus specified in the rule itself, it has to be concluded that the combined seniority list cannot be made use of for any purpose other than that is specified by the Rule making authority. Therefore, Rules show beyond any doubt that UPSAs and LPSAs, except for the purpose indicated in Rule 34(b), are treated for all other purposes as different categories and that the combined seniority list maintained in terms of Rule 34(b) as amended w.e.f. 18/12/1984, is for the limited purpose of determining the position of persons eligible for promotion as Primary School Headmaster and nothing else", said the Full Bench. 

The Full Bench observed that the principles laid down in the judgment of the Full Bench in S.N.D.P. L.P.School v. Roy (supra) held no relevance to the case at hand as the question that fell for consideration of the Full Bench in  S.N.D.P. L.P.School (supra) was whether a Lower Primary School Assistant possessing B.Ed degree but not TTC is qualified for the post of Headmaster of a Lower Primary School governed by the Kerala Education Rules, and is therefore totally different from what arises for resolution in the present cases before the Full Bench. 

The Court accordingly concluded that "the judgments noticed above lay down the correct principle of law that the teachers in the U.P.Section and the teachers in the L.P.Section of a school belong to two different and separate categories and that, therefore, if there is occasion for retrenchment of an UPSA or a LPSA, the seniority that is to be followed is the seniority in the respective category and not the common seniority."

The Full Bench thereafter proceeded to dismiss the writ appeals before it.
 

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1. 1999 (3) KLT 912

2. 2004 (2) KLT 899

3. 2006 (4) KLT 497

4. "34(b) In the case of Upper Primary School an Lower Primary school a combined       seniority list of teachers if any, specified in clauses (iii), (iv) and (v) of Rule 3, Chapter        XXIII shall be prepared."

5. "34(b) In the case of Upper Primary Schools and Lower Primary Schools, a combined seniority list of Upper Primary School Assistants, Lower Primary School Assistants, Junior Language Teachers and Specialist Teachers specified in Rules 3 and 4 chapter XXXI, shall be prepared. The purpose of the seniority list will be only to determine the position of persons eligible for promotion as Primary School Headmaster by virtue of length of service and prescribed qualifications for promotion as Primary School Headmaster."

Magistrate, in exercise of jurisdiction under Section 173(8) Cr.P.C, cannot direct investigation by a central agency, i.e, the CBI or an investigating agency different from the investigating agency, which has already submitted a report under Section 173(2) Cr.P.C, rules a Division Bench of the High Court of Kerala

A Division Bench of the High Court of Kerala comprising Acting Chief Justice Ashok Bhushan and Justice A.M. Shaffique setting aside the judgment of a learned Single Judge permitting the Magistrate to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C if he came to that conclusion after perusing the investigation files, has held that a Magistrate, in exercise of jurisdiction under Section 173(8) Cr.P.C, cannot direct investigation by a central agency, i.e., Central Bureau of Investigation, or a different investigating agency from the investigating agency, which has already submitted a report under Section 173(2) Cr.P.C. 

The writ petitioner had two sons, namely, Vino George, and Vipin George. On 30.8.2009 at 1.30 a.m, while they were riding on a motor cycle, they met with an accident on the road in front of Pala Bishop House on the Pala-Ettumanoor road and both of them succumbed to the fatal injuries while undergoing treatment in the General Hospital, Pala. The First Information Report was lodged by one Sri.Thomas, a relative of the writ petitioner. Investigation was conducted by the local police. The case thereafter was handed over to the Crime Branch Police, which took over the investigation on 24.9.2009. After questioning 42 witnesses and recording their statements and getting the statement of the occurrence witnesses under Section 164 of Code of Criminal Procedure (Cr.P.C), the Crime Branch Police submitted factual report before the Judicial First Class Magistrate Court, Pala on 29.4.2010 to the effect that death of the two youngsters was accidental. The petitioner had suspicion that while his sons were riding the motor cycle, the police jeep hit them from back, due to which they died. The petitioner sent a complaint dated 8.9.2009 to the Home Minister of Kerala, which was produced as Exhibit P8 to the Writ Petition. In the said complaint the petitioner made a request that necessary investigation may be ordered against the accused to render justice. He also made allegations against the son of his elder brother, who had altercation with his sons on previous day and who conspired with Police. Under these factual circumstances, the Writ Petition was filed seeking a direction from the High Court to get the case further investigated by the Central Bureau of Investigation

The learned Single Judge disposed of the writ petition holding as follows: 

"In the light of Sakkiri Vasu v. State of Uttar Pradesh 2008 (1) KLT (724) SC and Thomas V.C v. Achama Thomas and another 2009 2 KHC 693, the forum to be approached by the petitioner for further investigation is the Magistrate concerned, who is the J.F.C.M Court, Pala. The petitioner may move the said Magistrate for appropriate directions. In case the Magistrate after perusing the investigation files comes to the conclusion that this is a case for further investigation, the Magistrate will be entitled to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C as directed in Kashmeridevi v. Delhi Administration (1988) SCC Criminal 864." 

It was assailing the said judgment of the learned Single Judge that the Central Bureau of Investigation filed the writ appeal to the Division Bench. Standing Counsel for the Central Bureau of Investigation, the appellant contended before the Division Bench that no Magistrate, in exercise of power under Section 173 (8) Cr.P.C, can direct investigation by Central Bureau of Investigation,  when   the    investigation    is   being conducted by Police/Crime Branch of the State, and further that, the decision in Kashmeridevi v. Delhi Administration (supra) relied upon by the learned Single Judge was not applicable to the facts of the case. 

The State Government filed a counter affidavit stating that no Court subordinate to the High Court can be empowered to issue any direction to the Central Bureau of Investigation to investigate a case. 

The Division Bench held that Section 173 clearly delineates that further investigation, which is contemplated in the sub- Section is by the "officer in charge of the police station", i.e., the officer, who has undertaken the investigation and submitted a report under sub-Section (2) of Section 173 Cr.P.C. Section 173, thus, contemplates further report/reports by the officer in charge of the Police Station, who is entrusted with the investigation. Thus, Section 173(8) Cr.P.C contemplates further investigation by the same Police Officer, who has conducted the investigation and submitted a report under Section 173(2) Cr.P.C. Section 173(8) Cr.P.C cannot be read in a manner as to empower the Magistrate to direct any central agency to conduct a further investigation, said the Division Bench. 

Relying on the decision of the Apex Court in Central Bureau of Investigation, Jaipur v. State of Rajasthan (AIR 2001 SC 668) the Bench  held that a Magistrate, in exercise of power under Section 173(8) Cr.P.C, cannot direct investigation to be conducted by a central agency, i.e., Central Bureau of Investigation and that the power under Section 173(8) Cr.P.C can be utilised for further investigation by the same investigating authority, who has submitted report under Section 173(2) Cr.P.C. The Division Bench also held that the order of the Apex Court in Kashmeri Devi's case (supra) relied on by the learned Single Judge, is referable to exercise of jurisdiction by the Apex Court under Article 142 of the Constitution, and that in the said judgment no such ratio was laid down that the Magistrate, in exercise of power under Section 173(8) Cr.P.C, can direct for further investigation by a central agency, the Central Bureau of Investigation, i.e., different agency from the one which has already conducted the investigation.

The Bench observed that while in Kashmeri Devi's case (supra) the Supreme Court, after noting all the events and incidents of the case, came to the opinion that effort has been made to protect and shield the guilty police officers, and it had formed an opinion that it was a fit case for directing fresh investigation through an independent authority, in the case at hand, neither did the learned Single Judge record his satisfaction after considering the materials on record that present is a fit case for issuing a direction to the Central Bureau of Investigation to take over the investigation, nor was the Division Bench of the view that there are enough materials on record on which any direction can be issued to the Central Bureau of Investigation to conduct investigation, "especially when more than five years have elapsed from the accident, which took place on 30.8.2009".

The Division Bench accordingly held that the Magistrate, in exercise of jurisdiction under Section 173(8) Cr.P.C, cannot direct for investigation by a central agency, i.e., Central Bureau of Investigation, or a different investigating agency from the investigating agency, which has already submitted a report under Section 173(2) Cr.P.C. The power under Section 173(8) Cr.P.C has to be exercised for further investigation by the same investigating agency, which had conducted investigation and submitted a report under Section 173(2) Cr.P.C. "The direction of the learned Single Judge giving discretion to the authorised Magistrate to direct for further investigation by Central Bureau of Investigation was clearly erroneous and cannot be sustained", ruled the Division Bench of the High Court of Kerala, and set aside the second direction of the learned Single Judge permitting the Magistrate to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C if he came to that conclusion after perusing the investigation file.