- 1 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 21124/2012 (WC) BETWEEN: THE MANAGER, THE ORIENTAL INSURANCE CO. LTD., II FLOOR, ENKAY COMPLEX, KESHWAPUR, HUBLI, DIST: DHARWAD, REP. BY ITS ASST. MANAGER, REGIONAL OFFICE, SUMANGALA COMPLEX, 2ND FLOOR, LAMINGTON ROAD, HUBLI-29. - APPELLANT (BY SRI. G. N. RAICHUR, ADVOCATE) AND: 1. SRI. SHARIF SAB S/O. ABDUL SAB NARAGUND, AGE MAJOR, OCC: NIL, R/O. HOMBAL VILLAGE, TQ: GADAG, DIST: GADAG. 2. SRI. SURESH S/O. MANAPPA ARKASALI, AGE MAJOR, OCC: NOT GIVEN, R/O. SIDDARAMESHWAR NAGARA, BEHIND KSRTC, BUS DEPOT, GADAG, DIST: GADAG - RESPONDENTS (BY SRI. PRASHANT S. HOSAMANI, ADV. FOR R1; NOTICE TO R2 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 30(1) OF THE WORKMEN’S COMPENSATION ACT R/W. SEC. 151 OF CPC, PRAYING TO CALL FOR RECORDS IN WC/NF 62/2008 ON THE FILE OF LABOUR OFFICER AND COMMISSIONER FOR WORKMEN’S COMPENSATION, GADAG, AND PERUSE THE SAME AND SET ASIDE THE JUDGMENT DATED 29.11.2011, BY ALLOWING THIS INSTANT MISCELLANEOUS FIRST APPEAL WITH COST AND ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 03.03.2025 FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING: Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 CORAM: THE HON'BLE MR. JUSTICE UMESH M ADIGA CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is filed by the respondent No.2 in WC/NF No. 62/2008 against the order dated 29.11.2011 passed by the Labour Commissioner & Commissioner for Workmen’s Compensation, Gadag District (henceforth for short referred to as ‘Labour Commissioner’). Parties are referred to as per their ranking before the Labour Commissioner. 2. Brief facts of the case are that claim petitioner was working as a driver in the lorry belonging to respondent No.1 bearing No. KA-26-4233. On 14.11.2007 as per the directions of respondent No.1, he along with another driver by name Manjunath came in the said lorry. The said Manjunath was driving the lorry from Hosapete towards Belikeri port. It appears they need a permission to lead to the port. Therefore drivers of the other lorries including the lorry bearing No.KA-26-4233 were parked at Belikeri. It also appears that permission was granted to - 3 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 lead the lorry towards Belikeri port and hence claimant was trying to get into the lorry from left door of the cabin of the lorry. It is also stated that said Manjunath was sitting on the steering. Before the claimant could get into the said lorry, driver of lorry bearing No. KA-25-B-2447 drove the vehicle in a rash and negligent manner and dashed against the claimant, who was attempting to get into the lorry. As a result of which, claimant fell down and sustained grievous injuries. The claimant has further contended that initially he took treatment at Ankola and thereafter he was shifted to a private hospital at Gadag, wherein he took further treatment and spent huge amount towards medical expenses. He has contended that he was aged 24 years at the time of accident and earning Rs.4,000/- per month. In addition to that, he was also earning Rs.50/- per day as Batta for working as a driver. With these reasons he prayed to award compensation. 3. Respondent No.1 is the owner and he admitted that claimant was working under him but according to him, he - 4 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 was paying Rs.2,000/- per month as salary. He also admitted about the incident and he further contended that the said vehicle was insured with respondent No.2 and in case if claimant is entitled for compensation then the respondent No.2 be directed to pay the same. 4. Respondent No.2 in its written statement denied all the petition averments and it has further contended that claimant was an unauthorized passenger in the said vehicle. The policy of insurance does not cover the risk of claimant and no additional premium was paid by the owner to cover the risk of additional driver. Therefore respondent No.2 is not liable to pay compensation and hence prayed for dismissal of the petition against respondent No.2. 5. The Labour Commissioner framed necessary issue in this regard and recorded the evidence. Claimant examined two witnesses as PWs.1 and 2 and got marked 7 documents as Exs.P.1 to P.7. The Labour Commissioner after hearing both parties and appreciating the materials - 5 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 available on record awarded compensation of Rs.1,52,489/- with interest at the rate of 12% p.a. and directed the insurer-appellant herein to pay the said amount of compensation. The same is challenged in the present appeal. 6. This appeal was admitted to consider following substantial questions of law: 1) Whether the Labour Commissioner erred in fastening liability on respondent No.2-insurer though no additional premium was paid by the owner of the vehicle to cover the risk of additional driver? 2) What order? 7. Heard arguments of learned counsels appearing for both the sides. 8. Learned counsel for the appellant-insurer vehemently contends that as per the complaint as well as petition averments, claimant was an additional driver and one Manjunath was already sitting on the steering to drive the said vehicle. In the policy the risk of one driver was - 6 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 covered. Therefore the claimant could be treated as a gratuitous passenger and his liability is not covered under policy of insurance. The Labour Commissioner has not considered this point and held that insurer is liable to pay the compensation. 9. The learned counsel for the respondent-claimant vehemently contends that no two petitions were filed by both the drivers and according to the petition averments the said lorry was parked at the time of the accident, before the claimant could get into the lorry, driver of the another lorry drove his lorry in rash and negligent manner and dashed against the claimant because of which he has sustained injuries. Therefore at the time of accident the said lorry was not moving. Under such circumstances, question of additional driver does not arise, he was working under the respondent No.1 and it is not in dispute. Therefore his liability is covered under the policy of insurance and respondent No.2 is liable to pay compensation. - 7 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 10. Learned counsel for the claimant relied on the judgment of the Co-ordinate bench judgment of this Court in M.F.A. No. 25711/2011 (WC) decided on 23.09.2022 in the case of The Divisional Manager Vs. Smt. Sayeeda Khanam and others wherein it is held that though the policy of insurance covers the risk of only one driver, then also the insurer is liable to pay compensation when there is no separate claims filed by both the drivers in the accident. With these reasons he has prayed to award compensation. 11. The only question to be decided in this case is: even though the owner of the vehicle has paid premium for covering the risk of only one driver, whether the additional driver is entitled to claim compensation? 12. The term ‘spare driver’ is not mentioned anywhere in the Motor Vehicles Act. Hence it is to be understood as its dictionary meaning that an ‘additional driver’ engaged on stopgap basis or to do shift work. - 8 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 13. The fact of this case is unique as submitted by the learned counsel for the respondent-claimant. At the time of accident the said lorry was stationed and one of the driver by name Manjunath was sitting on the steering and claimant who was another driver trying to get into the lorry, in the meanwhile, due to negligence of driver of another lorry the accident occurred and claimant sustained injuries. Under such circumstances, claimant was not discharging his duty as driver in the vehicle at the time of accident though he was an employee of respondent No.1 and came in the said lorry in discharge of his duty as driver. Therefore, question of referring ‘spare driver’ or ‘additional driver’ may not arise looking to the facts of the present case. Therefore his risk is covered under the policy of insurance. 14. In the case of Oriental Insurance Co. Ltd. V. Kashim reported in ILR 1996 KAR 793 the Co-ordinate bench of this Court held that : - 9 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 “7. Even if it could be said that under Section 147, the policy is required to cover the employee engaged in driving the vehicle and that as the first-respondent was not actually driving the vehicle at the time of the accident and as the policy did not cover the risk of two drivers, the coverage given to the driver under the policy does not come into operation, it cannot be straightaway said that the insurer is absolved of all liability to pay compensation The vehicle involved in the accident is a goods vehicle. Rule 100 of the Motor Vehicle Rules, 1989, provides that a total number of six employees apart from the driver can be carried in a goods vehicle. Sub-clause (c) of clause (i) of the proviso to Section 147(1) requires statutory cover for the employee carried in the vehicle if it is a goods vehicle. As such, in the case of a goods vehicle, there is statutory cover in respect of six employees carried in the vehicle. Even if the first-respondent was not actually driving the vehicle at the time of the accident, he was traveling in the vehicle at the time of the accident in his capacity as an employee of the owner of the vehicle. He was also traveling in the course of his employment. As such the insurer would be liable to pay the compensation payable under the Workmen's Compensation Act. Hence on the facts of the case the order of the Commissioner making the insurer liable for the compensation payable does not suffer from any legal infirmity.” - 10 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 Similar view is taken by the Co-ordinate bench of this Court in the case of United India Insurance Company Limited, Belgaum Vs. Shanthavva and others reported in ILR 2006 KAR 1109 wherein this Court has held as under: “11. from the evidence on record, there is one claim by the spare driver and not by any other driver in respect of the lorries. Therefore, under these circumstances as per the insurance policy and also as per Section 147 of Motor Vehicle Act, the risk of a driver is covered and premium is paid covering the risk of driver. Therefore, the Insurance Company cannot be absolved in respect of spare driver also. In this regard, learned counsel for the claimant has rightly placed reliance on the judgment of this Court in Smt. Shanthavva's case. This Court at paragraph No.4 held as follows: 11.4. The word "engaged in driving the vehicle" 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 - 11 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 driver unless additional premium is paid, the insurer may not be liable to pay for both the drivers. If the claim is in respect 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. The Co-ordinate bench of this Court in the case of United India Insurance Co. Ltd. Vs. Nagaraj and Anr. Reported in 2007 ACJ 2782 held that: “3. The words 'engaged in driving' would not necessarily mean that driver should be actually driving at the time of accident. The said words include a spare driver who is also obviously engaged for driving but on shift basis. The provisions of the Central Motor Vehicles Rules and the Tariff regulations permit engaging a spare driver in the course of long journeys. It is for the personal safety of the drivers and for public safety in the long journeys the drivers would drive on shift basis. The Act policy covers the risk of only a driver. In case of spare driver, the Tariff regulations do permit - 12 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 coverage of risk of a spare driver on payment of additional premium. 4. The Act policy covers the risk of only one driver. If there are claims by the driver and the spare driver for compensation, the insurer is liable to pay only one claim, unless additional premium is collected in respect of the spare driver. In the instant case, there is only one claim by the driver whose duty was to drive on shift basis. Therefore, the insurer is liable to pay the compensation.” 15. in the above judgment it is consistently held that additional driver is entitled for compensation even if the owner of the vehicle paid premium of only one driver, if there is only one claim petition by one of the drivers, then also policy of insurance covers the risk of the said driver. If both the drivers have filed claim petitions then insurer is liable to pay compensation of one of such drivers and for another driver if it is an act policy, then the insurance company is not liable to pay compensation. 16. Undisputedly both the drivers have not sustained injuries in the accident, no two claim petitions were filed, by both the drivers, seeking compensation. Under such - 13 - NC: 2025:KHC-D:6335 MFA No. 21124 of 2012 circumstances, the Insurance Company is liable to pay compensation to the claimant. 17. For the above said discussion the said question of law is answered against the appellant and this Court proceed to pass the following order. ORDER (i) Appeal is dismissed; (ii) Judgment and award passed in WC/NF No. 62/2008 against the order dated 29.11.2011 passed by the Labour Commissioner & Commissioner for Workmen’s Compensation, Gadag District, is confirmed. Send back the trial court records along with copy of the judgment to the Labour Commissioner. Sd/- (UMESH M ADIGA) JUDGE BVV List No.: 1 Sl No.: 44