Bombay High Court
United India Insurance Co. Ltd. Through ... vs Janabai W/O Govind Rathod, Dnyanoba S/O ... on 23 October, 2007
Equivalent citations: 2008(1)BOMCR649
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
JUDGMENT V.R. Kingaonkar, J.
1. Group of a dozen of these appeals is being disposed of by this common Judgment inasmuch as they are intertwined and involve common questions of facts and law. Half dozen of these appeals are preferred by the New India Insurance Company (For short - N.I.I. Co.) and half of them are by the United India Insurance Co. Ltd. (For short - U.I.I. Co.). Both the insurers challenge awards rendered under provision of Section 3 of the Workmen's Compensation Act (8 of 1923) (For short -W.C. Act).
2. U.I.I. Co. is insurer for tractor vehicle bearing No.MH-22-B-6908. N.I.I. Co. is insurer for trolley/trailer No. MH-23-C-8296. The tractor and the trolley are owned by respondent - Dnyanoba.
3. The incident giving rise to six claim petitions occurred on January 14, 1991. The tractor with the attached trolley were sent for to fetch clay from an earthen fortress of village Dighol Islampur. The said work was assigned to the employees by the vehicle owner - Dnyanoba. The tractor and the trolley were parked in the proximity of earthen fortress (Gadhi). Six labours were engaged in excavating earth at the rampart whereas, driver - Deelip was standing at a short distance. All of a sudden, the rampart of earthen, construction collapsed. Before the poor labours and driver could have any premonition of what was happening, suddenly big lumps of earth and dust befell on them. All of them were pressed under the heap of earth and debris, which mounted over and above them. They soon were buried in dusty grave and died of asphyxia. The calamity was reported to nearby police station by one of the injured - Bhanudas Rathod. A spot panchnama was drawn by the Police. The dead bodies of labours and the driver were wriggled out from under the heap of debris.
4. The dependents/legal representatives of the deceased labours and the driver filed claim petitions for compensation under the W.C. Act. They asserted that the deceased used to earn daily wages of Rs. 100/- each. The claimants asserted that the deaths of concerned labours and the driver were caused in the course of their employment with the owner of the vehicles, viz., respondent No. 2 - Dnyanoba Rathod. They submitted that the vehicles were duly insured with both the above insurers and hence, all the three were jointly and severally liable to indemnify them.
5. The owner - Dnyanoba admitted that the deceased were employed by him as labours and driver. He, however, disputed quantum of compensation claimed by the legal representatives of the deceased. He denied the age and other details set out in each of the claim petitions. He asserted that both the insurers were liable to pay the compensation, if the claimants need be indemnified.
6. Both the appellants resisted the claim petitions mainly on the ground that vehicles were being used for transportation of earthen lumps and dry clay required for construction of a house and, therefore, there was fundamental breach of the terms of policy. They asserted that the insurance contract pertained to specific agreement to the effect that the vehicles shall be used only for agricultural purposes. They further asserted that the driver of the tractor was not having valid driving licence. According to them, the accident in question had no remote nexus with the use of the vehicles and, therefore, they cannot be made liable to indemnify the claimants. They pointed out that the tractor and the trolley were parked at a short distance and were in stationary position when the rampart of earthen work collapsed while the digging process was on going. They also pleaded that risk of the casual labours is not covered under the insurance contract between them and the owner. They alleged that the mishap was vis-major (act of God) and hence, they cannot be held liable to indemnify the claimants. They, alternatively, attempted to toss the liability on each other. For, appellant - U.I.I. Co. contended that the head of the tractor could not be used for transportation of labours or for transportation of the earthen lumps/clay and hence risk of the labours travelling on the trolley is not covered under the insurance contract. Conversely, appellant - N.I.I. Co. asserted that without being attached to the tractor, the trolley could not get locomotion and the trolley by itself cannot be termed as "carriage vehicle" and hence, the entire liability would be of another insurer i.e. U.I.I. Co.
7. The parties went to trial over issues struck by the Commissioner for the Workmen's Compensation. The claimants adduced oral and documentary evidence in support of the claim petitions. The vehicle owner - Dnyanoba and appellant - U.I.I. Co. did not adduce any evidence before the Commissioner. DW Durgadas, an Officer of appellant - U.I.I. Co., was examined. The Commissioner for Workmen's Compensation held that the labours and the driver died during course of the employment with the owner of the vehicles in question. He further held that the owner and both the appellants were jointly and severally liable to indemnify the claimants. He repelled all the material contentions raised by the appellants. The following tabular information would show the details of awards in each claim petition and related appeals preferred by the appellants, arising out of such petitions, along with quantum of compensation awarded in each of the claim petition.
Sr. F.A. F.A. F.A. NAME OF CLAIMANT'S AWARDED
No. C.P. NO. NO. DECEASED NAME COMPEN-
(UIICO) (NIICO) SATION
(Rs.)
1. 19/99 507/05 880/05 Govind Janabai 1,59,800/-
Rathod w/o Govind
Rathod
2. 18/99 814/05 1564/04 Suresh Parubai 2,24,000/-
Kondiba
Rathod
3. 14/99 815/05 1566/04 Ramesh Shankar 2,21,370/-
Rathod Harichand
Rathod/
Durgabai Shankar
Rathod.
4. 17/99 816/05 1595/04 Rama Panch- 1,97,060/-
Govind phulabai
Rathod w/o Rama Rathod
5. 16/99 817/05 1565/04 Kondiba Parubai 1,69,440/-
w/o Kondiba
Rathod
6. 15/99 818/05 1594/04 Dilip Rama Soma 2,11,790/-
Pawar Pawar
(Driver
of Tractor)
8. Mr. Osmanpurkar, holding for Mr. K.V. Kulkarni, Advocate would submit that the mishap had no casual connection with the use of the trolley. He would submit that the insurer cannot be mulcted with liability to pay penalty as directed by the Commissioner. He would further submit that the trolley was registered only for agricultural use. He contended that risk of the labours was not covered under the insurance contract. He would submit that the impugned awards are improper and illegal. He contended that when the accident had no remote relation with use of the vehicles, then insurer cannot be held liable to indemnify the claimants. Similar argument is put forth by Mr. Gatne, learned Advocate appearing for appellant - U.I.I. Co. He pointed out from the recitals of F.I.R. (Exh.42) that the labours were deputed to extract earth from the earthen fortress (Gadhi) and load the same in the trolley for construction work of a house. He would point out that the said construction work was not of the house of the owner and had no connection with the nature of the permitted use of the contractor. He contended that the owner of the tractor had obtained farmer's package insurance policy and the same was not available under the W.C. Act. He argued that appellant - U.I.I. Co. may be held liable, at the most to indemnify the dependents of the driver - Dilip because he was employed to drive the tractor's head but the insurer of the tractor cannot be held liable for risk of the labours travelling on the trolley. He would submit that the tractor was being used against terms of the insurance policy and hence, the liability could not be fastened on the insurer of the said vehicle.
9. Mr. Warma, learned Advocate appearing for the claimants fairly conceded that the appellants cannot be held liable to pay penalty as per awards in question. There is no dispute about the settled legal position that only the owner is liable to pay the penalty, which is payable as a result of default made by him in satisfying the award. The direction of the Commissioner of Workmen's Commissioner, in this behalf, is liable to be set aside.
10. The following points are formulated for determination of these appeals.
(i) Whether there was casual connection between the cause of accident and nature of the employment of deceased labours and the driver?
(ii) Whether the appellants are entitled to claim immunity from liability to pay the compensation for the reason that the owner of the tractor and the trolley committed fundamental breach of the terms of insurance contract/s?
My findings on the above points are : (i) Yes; and (ii) No, for the reasons discussed hereinafter.
11. Admittedly, the vehicle's owner resides in a small hamlet, situated at few miles from village Dighol-Islampur where the earthen fortress is situated. The owner of the vehicles is an agriculturist and teacher. It bears out from the record that the clay was to be fetched from the earthen fortress (Gadhi) and was to be carried on the trolley for construction of a farm house in the agricultural land of the owner -Dnyanoba. He did not deny such averments made in the pleadings of the claimants. Nor any contrary evidence is adduced by the appellants. It is true that there is reference in the first information report (Exh.42) that the earth was being collected for construction of the house of informant's uncle, by name, Kondiba Rathod. However, there is absolutely nothing on record to show that any construction of the house of said Kondiba was being carried out at the relevant time. The appellants did not call the first informant to face cross-examination. The evidence tendered by the claimants would show that the owner of the vehicles desired to construct a small farm house and hence the earth was being extracted from the fortress. There is ample evidence on record to show that the driver and the labours were working for and on behalf of the owner of the tractor trolley/trailor in question.
12. There cannot be duality of opinion that construction of a farm house is part of the agricultural purpose. The farm house is meant not only for residence of owner but for variety of purposes like storage of agricultural goods, storage of agricultural implements, providing parking facility for the tractor and trolley etc. Needless to say, such kind of work could be covered by the expression "agricultural purpose" as per the terms of the insurance contracts. The contention of the U.I.I. Co. that the policy was issued as "farmer's package policy" is not borne out by adducing any independent evidence. The insurance cover notes (Exh.44/1 and Exh.46) reveal that the risk of six persons and driver is covered under the contract. The insurer of the tractor was not under obligation to cover the risk of any other person than the driver. The very fact that risk of six persons was covered would show clear understanding that the tractor would be annexed with the trolley, which may be used for carriage of workers connected with the agricultural work.
13. There is no doubt about the fact that the tractor and the trolley were not commissioned for actual use when the mishap occurred. Both the vehicles were standing at some distance from the place work. However, one cannot be oblivious of the fact that the claim petitions were not under Section 166 or Section 163A of the Motor Vehicles Act, 1988. Had they been filed under the Motor Vehicles Act, then the question of rash and negligent driving of the vehicles as well as the casual connection between the alleged accident and the use of the vehicles might be relevant. The claim petitions were filed under the W.C. Act. The only question to be determined, therefore, is whether the accident, resulting into deaths of the labours and the driver, has any casual connection with the nature of employment and use of the vehicles or either of them.
14. In State of Rajasthan v. Ram Prasad and Anr. 2001 (1) T.A.C. 442 (SC), some what similar fact situation is dealt with by the Apex Court. A claim was made under the W.C. Act, 1923 for compensation in respect of death of a woman worker who died on account of an accident that took place while she was engaged in doing work for the appellant - State. The deceased was working on the site when due to lightning, she died as a result of natural force. It was alleged that the accident was unconnected with her employment and it was an act of God. The Apex Court held that when the worker died as a result of such extraneous reason then also the claim for compensation was sustainable because the worker would not have been exposed to such hazard of lightning striking her had she not been working so. In the present case too, had the labours and the driver not been working on the site, they would not have been exposed to the danger of sudden befalling of earthen structure of rampart. They were engaged in the work as per the direction of the employer. It goes without saying, therefore, that there was casual connection between the accident and the nature of employment. It is of common knowledge that in the rural areas, there are old earthen fortresses (Gadhis), which are not the 'Pukka' constructions. The small fortresses are built only by using clay. The digging at a part of the rampart or the work of extraction of earth from such rampart is some time dangerous when the foundation is brittle and further extraction of earth or digging near the foundation is likely to cause the rampart or bastion to crumble down. Under these circumstances, I have no hesitation in holding that the mishap could not be sheer act of God but it has casual connection with the nature of employment of the deceased workers and the driver.
15. Mr. Gatne seeks to rely on "Oriental Insurance" Oriental Insurance Oriental Insurance v. Brij Mohan and Ors. 2007 AIR SCW 3734. The Apex Court held that where the tractor was insured only for carrying out agricultural work, which would not include digging of earth and taking it in trolley to brick kiln, risk of the labour, who was travelling in the trolley, could not be covered under the insurance contract. Claimant - Brij Mohan was travelling on a trolley attached to a tractor. The Apex Court noticed hat there existed a dispute as to whether both the tractor and the trolley were insured or not. The Apex Court, however, proceeded to say that it was not necessary to determine the said question. The Apex Court observed:
8. The Tribunal in its award has, inter alia, noticed that the appellant herein had raised a specific defence, namely, the trolley was not insured. It does not appear that the said contention of the appellant had been gone into. There is nothing on record to show that the owner of the tractor had produced any insurance cover in respect of the trolley. It is furthermore not disputed that the tractor was insured only for the purpose of carrying out agricultural works. The representative of the Insurance Company Mr. Hari Singh Meena on cross-examination merely accepted the suggestion that cutting the earth and levelling the field with earth would be an agricultural work but respondent No. 1 himself categorically stated in his claim petition before the Tribunal stating that the earth had been dug and was being carried in the trolley to the brick-kiln. Evidently the earth was meant to be used only for the purpose of manufacturing bricks. Digging of earth for the purpose of manufacture of brick-kiln indisputably cannot amount to carrying out of the agricultural work.
16. Careful reading of the above observations would show that the owner of the tractor had not produced any insurance cover in respect of the trolley. The Apex Court held that the digging of earth for the purpose of manufacture of brick-kiln could not amount to carrying out of the agricultural work. In the present case, however, it cannot be said that the digging of earth was for any manufacturing purpose or commercial purpose as such. The pleadings of the claimants and the owner as well as the oral evidence tendered by the claimants purport to show, in clear terms, that the digging of earth was undertaken for the purpose of construction of a farm house of the vehicle's owner. Secondly, in the given case, the Apex Court proceeded to observe A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer was attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise". Thirdly, the case of "Brij Mohan and others" (supra) was in respect of claim under the Motor Vehicles Act. Fourthly, the trolley in that case was not insured but it is duly insured in the case in hand.
17. Both the insurance policies would show that risk of six persons was covered by the appellants. Therefore, appellant - U.I.I. Co. cannot say that it would only be liable to pay compensation to the legal representatives of the driver and not to the legal representatives of the labours. Though it was contended that the insurance cover was under the scheme called "Farmer's package policy" and there was no insurance under the W.C. Act, yet no evidence is tendered by the U.I.I. Co. in this behalf. At the stage of appeal, it cannot be inferred on basis of surmise that the policy did not cover risk of the six labours.
18. Mr. Gatne further seeks to rely on "National" National Co. Ltd. v. Mastan and Anr. . The Apex Court held, in the given case, that the insurer while defending an action under the W.C. Act is not precluded from rasing defences as envisaged in Section 149(2) of the Motor Vehicles Act. There is no difficulty in holding that the appellants are not precluded from raising defences as may be permissible under Sub-clause (2) of Section 149 of the Motor Vehicles Act, 1988. There is, however, no substratum available to accept the defences so raised by the appellants. They have not proved that driver of the tractor vehicle was driving the same without a valid driving licence. In fact, the tractor and the attached trolley both were in stationary position and hence, there was no question of rashness or negligence of the driver. As stated before, it is not proved by the appellants that the tractor and the trolley were being used for any manufacturing or commercial purpose. No evidence was adduced to show that the earth was not being collected for the purpose of construction of a farm house by the owner of the vehicles. There is no iota of evidence on record to show that the owner - Dnyanoba had given the tractor and the trolley for use on hire or reward.
19. In case of Rita Devi v. New India Assurance Co. Ltd. , the autorickshaw was hired by certain persons with the object to steal the vehicle killing the driver, the Hon'ble Apex Court has held that the murder of the driver was an accidental murder and the legal representatives of deceased drive were held entitled to compensation for his death. It was held by the Apex Court that the stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing of the autorickshaw was only incidental to the act of stealing of the autorickshaw. Therefore, the Apex Court held that death was caused accidentally in the process of committing theft of the autorickshaw, the decision of Tribunal was right to come to the conclusion that the claimants were entitled to compensation as claimed by them and the judgment of High Court was wrong in reversing the judgment of Tribunal and coming to the conclusion that the death was not caused by an accident involving the use of motor vehicle.
20. The Apex Court, in the above case held that object of both the Acts., viz. the Motor Vehicles Act and the Workmen's Compensation Act is to provide compensation to the victims of the accidents. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. This conclusion is supported by Section 167 of the Motor Vehicles Act under which, it is open to the claimants either to proceed to claim compensation under the Workmen's Compensation Act or under Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence the judicially accepted interpretation of the word `death' in the Workmen's Compensation Act is certainly applicable to the interpretation of the word `death' in the Motor Vehicles Act also.
21. In Balaso Narasu Chavare and Anr. v. Sudhakar Anr. , a Single Bench of this Court held that the insurer cannot be absolved from liability when there was no clause in policy, which indicated that the tractor and the trolley attached together could only be used for agricultural purposes. Trailer attached to the tractor was being used to transport bricks in the case of "Balaso Narasu Chavare and another" (supra). The Insurance Company sought immunity from liability to pay the compensation on the ground that there was a breach of the stipulations of the policy. The learned Single Judge held that when there was no term in the insurance policies to show that where the tractor and the trolley were, attached together, then they could only be used for the agricultural purposes. Individually, there is such a term in the context of the tractor and the trolley in the present case. However, there is no stipulation in the insurance contract to show that if the said vehicles are used together, and are attached with each other, then the use must be restricted only to the agricultural purpose.
22. For the reasons aforestated, I am of the opinion that both the appellants failed to prove legal defences available under Sub-clause (2) of Section 149 of the Motor Vehicles Act, which could be available to them even while considering the claims under the W.C. Act. There appears no substantial reason to interfere with the impugned awards rendered by the Commissioner for Workmen's compensation. The only illegality committed by the Commissioner for Workmen's compensation is in the context of direction regarding penalty. The appellants cannot be made liable to pay penalty of 50% of the basic compensation amount. Hence, the impugned award needs modification only to the extent of such direction enumerated in paragraph 4 of the final order rendered by the Commissioner for Workmen's compensation.
23. In the result, the appeals are partly allowed. The impugned awards are set aside to the extent of direction regarding payment of penalty amount by the appellants. It is made clear that only the owner will be liable to pay the penalty as shown in paragraph 4 of the final order of the impugned awards and the appellants would not be so liable to pay the same. The impugned awards be modified accordingly. The appeals are dismissed with costs to the extent of remaining parts of the impugned awards.