Karnataka High Court
Royal Sundaram Alliance Insurance Co ... vs Smt Rudramma on 20 December, 2018
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20th DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL No.7413/2012 (WC)
BETWEEN:
ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.,
SUNDARAM TOWERS,
NO.45 & 46, WHITES ROAD
RAYAPETTA,
CHENNAI-600 014.
(REPRESENTED BY ITS
AUTHORISED SIGNATORY
MR. SRIRAM ARUNACHALAM) ... APPELLANT
(BY SRI M ARUN PONAPPA, ADV.)
AND:
1. SMT. RUDRAMMA, MAJOR,
W/O LATE THIMAPPA @ THIMABHOVI ,
2. KUMARI RUCHITA, AGED ABOUT 5 YEARS,
D/O LATE THIMAPPA @ THIMABHOVI,
3. DHANANJAYA, AGED ABOUT 2 YEARS,
D/O LATE THIMAPPA @ THIMABHOVI,
4. THIRUMALAMMA, MAJOR,
W/O LATE THIMABHOVI,
ALL ARE R/AT RAMENAHALLI,
DEVARAHALLI POST,
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CHENNAGIRI TALUK.
AT PRESENT:
CHENNAMUBAPURA GRAMA,
SHIVAMOGA.
5. Y NAGARAJ, MAJOR,
S/O YELLAPPA BOVI,
R/O BENNIKERE VILLAGE,
HODIGERE POST,
CHANNAGIRI TALUK,
SHIVAMOGA DISTRICT. ... RESPONDENTS
(BY SRI M V MAHESHWARAPPA, ADV. FOR R1 & R4
R2 & R3 ARE MINORS REPRESENTED BY R1
R5 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C.
ACT AGAINST THE JUDGMENT DATED: 31.05.2012
PASSED IN WCA/F/CR-50/2009 ON THE FILE OF THE
LABOUR OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, SHIMOGA DISTRICT, SHIMOGA,
AWARDING A COMPENSATION OF Rs.4,07,700/- WITH
INTEREST @ 12% FROM 01.10.2009 TILL DEPOSIT.
THIS APPEAL COMING ON FOR HEARING AND
HAVING BEEN RESERVED FOR JUDGMENT, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal is filed by the Insurance Company challenging the judgment and award passed in WCA/F/CR No.50/2009 on the file of 3 the Labour Officer and Commissioner for Workmen's Compensation, Shivamoga District, Shivamoga dated 31.05.2012, questioning the liability fastened on the Insurance Company.
2. The claimants have filed the claim petition before the Workmen's Compensation Commissioner contending that they are the legal heirs of deceased Thimmappa @ Thimabhovi and deceased was working as a cleaner from last six months in the Goods Auto bearing Reg.No.KA-17-A-3106 belongs to the 2nd respondent and he was getting a salary of Rs.150/- per day.
3. It is contended that on 01.09.2009 as usual the deceased Thimmappa @ Thimabhovi went to attend the duty as a cleaner in respect of Goods Auto bearing Reg.No.KA-17-A-3106 which belongs to the 2nd respondent and after loading when the auto was returning from Bannikere towards Channagiri, the 2nd 4 respondent was driving the same and he drove the same in a rash and negligent manner when the auto reached near Eragatte Village, Choudamma Temple as a result auto was turtled and the said Thimmappa @ Thimabhovi had sustained injuries and thereafter, succumbed to the injuries.
4. In pursuance of the claim petition, the Commissioner had issued notice against the respondents and this appellant also represented before the Commissioner and took specific defence that the Insurance Company is not liable to pay the compensation and policy does not cover the risk of additional employee other than driver, as no additional premium has been collected to cover the risk of the additional employee and premium has been collected only to cover the risk of appellant as contemplated under Section 147 of the Motor Vehicles Act. 5
5. The Commissioner after examining the first claimant as PW1 and also the representative of the Insurance Company as RW1 and considering both the oral and documentary evidence as allowed the claim petition granting compensation of Rs.4,07,700/- with interest at 12% and fastened the liability on the Insurance Company.
6. Being aggrieved by the order of the Commissioner, the appellant Insurance Company in the present appeal contended that the Commissioner has failed to consider the facts of the case, evidence on record, probabilities of the case and as such, the same requires to be set aside. The appellant has also contended that the impugned order has been passed mechanically and without any application of mind and inspite of specific stand was taken that no premium was collected in respect of cleaner, the Commissioner has committed an error in fastening the liability on the 6 Insurer despite pleading and proving the case and hence, prayed this Court to set aside the judgment on the ground that the impugned order suffers from factual and legal infirmities.
7. The learned counsel appearing for the appellant vehemently contended in his argument that the deceased was proceeding as a cleaner in a goods auto and the Insurance Company has got marked 'B' Register Extract which shows that seating capacity is one and no premium is paid in respect of cleaner and in spite of the fact of non payment of premium, the Commissioner committed an error in fastening the liability on the Insurance Company. Hence, the order of the Commissioner is liable to be set aside.
8. Per contra, the learned counsel appearing for the claimants contends that the Commissioner having considered material on record and also considering the premium paid in respect of driver and employees in 7 terms of I.M.T.28, the same was observed by the Commissioner and fastened the liability rightly on the Insurance Company and the order of the Commissioner is not suffering from any infirmities and there are no grounds to interfere with the order of the Tribunal.
9. In support of his contention, he has relied upon the Judgment reported in 2009 ACJ 2083 between National Insurance Co.Ltd., Vs. Renuka and others wherein held that death of collie traveling in tractor- trailer when the vehicle met with an accident, policy covers the risk of one employee as stated 'Workmen's Compensation to employee-1' and not as 'driver'. Contention that employee referred to in the policy related to only the driver then insurance company avoid liability and deceased was not permitted to be carried in the vehicle and such risk was not required to be covered in law when risk of the one employee is expressly covered under the policy.
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10. The learned counsel also relied upon the judgment of this Court reported in ILR 2017 KAR 293 in the case of the Manager, M/s. ICICI Lombard General Insurance Company Ltd., Vs. Rudrappa and others wherein held that the insurance policy is a 'Package Policy' not an 'Act Policy', that the coverage of the insurance policy was extended to two persons, paid driver and owner cum driver besides the third party liability.
11. The learned counsel also relied upon the judgment of this Court reported in ILR 2015 KAR 832 in the case of United Insurance Co., Ltd., Vs. Mr. Jayesh Arodi and Others wherein held that if a employer permits the employee to travel in the vehicle along with the regular driver of the Company, there is no necessity to include or incorporate I.M.T.59 in that circumstance. Otherwise, the very purpose of incorporating I.M.T.59 would be defeated. When an employee is permitted to 9 travel along with the driver of the vehicle and if such vehicle is met with an accident, the risk of such employee is covered. There is no necessity for the Company to collect extra premium to cover the risk of I.M.T.59. However, it can be seen that extra premium has been collected. Therefore, there appears to be coverage vide the extra premium as well as I.M.T.59.
12. The learned counsel appearing for the claimants relying these citations, contends that the insurance company is liable to pay the compensation and cannot contend that the premium has not been paid and further contended that on perusal of the policy which has been marked as Ex.R3, it is specific that an amount of Rs.25/- is collected under the head legal liability to pay the driver/cleaner (not exceeding 7 persons) endorsement IMT 28.
13. The learned counsel has also brought to my notice IMT-28 and contends that the same covers the 10 risk of the cleaner and this aspect has been considered by the Commissioner and passed the impugned order and there is no any infirmity in the order of the Commissioner.
14. The learned counsel has also relied upon the unreported judgment of this Court passed in MFA No.2566/2009 and contends that in the similar set of facts of this case, the deceased was working as a cleaner of the Bus bearing Reg.No.KA-01/B-8433 belonging to the 5th respondent therein. Due to the rash and negligent driving of the bus by its driver, the bus met with an accident and sustained injuries and died in the hospital and the claim of the legal heirs of the claimant has been considered in the said judgment.
15. In reply to the said arguments, the learned counsel appearing for the Insurance Company contends that the capacity of the vehicle is only one as mentioned in the 'B' Register Extract and Rs.25/- is collected only 11 for driver not any other persons. Hence, contention of the claimant's counsel cannot be accepted.
16. After having heard the arguments of both the counsel of Insurance Company and claimants' counsel and on perusal of the order of the Commissioner, the only point that arisen for my consideration is:
"Whether the Commissioner has erred in fastening the liability on the insurance company as contended by the Insurer?"
17. On perusal of the factual matrix of the case there is no dispute with regard to the fact that the deceased was proceeding in the Goods Auto bearing Reg.No.KA-17-A-3106 and also in the claim petition before the Commissioner specifically mentioned that he was proceeding in the said auto as a cleaner and accident was occurred due to negligence on the part of the driver of the said goods auto.
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18. In pursuance of the claim petition, notice has been ordered against the respondents and the owner has admitted that the deceased was proceeding in the said goods auto as a cleaner and the Insurance Company has taken the specific contention that the risk of coolies or cleaner is not compulsorily required to be covered under section 147 of Motor Vehicles Act. The respondent has not covered the risk of hamali or coolie or cleaner by accepting additional premium. The bonafide employee covered under the policy is one and that too a driver of the vehicle.
19. The Tribunal after considering both oral and documentary evidence, the contention of the insurance company was not accepted and while rejecting the contention of the insurance company, in the impugned order the Commissioner discussed in detail while answering Issue No.5 that the 2nd respondent in respect of his goods vehicle, he took the policy from the 13 Insurance Company and the same is comprehensive policy in terms of respondent No.3 and same was valid on the date of accident. He further observed that in the policy driver/cleaner and other 7 persons was included and collected premium of Rs.25/- and same is specifically mentioned in the policy under section IV of legal liability to paid driver/cleaner/coolies (not exceeding 7 persons) and in the accident only the cleaner passed away and the same is covered under the policy and hence, insurance company is liable to pay the compensation. The contention of the Insurance Company that the very approach of the Commissioner is erroneous and no premium is paid in respect of cleaner and amount of Rs.25/- is paid only to the driver. Now, let me see the policy which is marked as Ex.R3 and it contains the policy schedule certificate of insurance Premium Computation Table and it is a Commercial Vehicles Package Policy. On perusal of the policy, the commercial vehicles package policy I.M.T.28, legal 14 liability to paid driver and/or conductor and/or cleaner employed in connection with the operation of insured vehicle is also mentioned. It is pertinent to note that on perusal of premium computation table an amount of Rs.25/- is collected under legal liability to paid driver/cleaner/collies (not exceeding 7 person's) endorsement I.M.T.28 which read as follows.
IMT-28: Legal liability to paid driver and/or conductor and/or cleaner employed in connection with the operation of insured vehicle (For all classes of vehicles) In consideration of an additional premium of Rs.25/- notwithstanding anything to the contrary contained in the policy it is hereby understood and agreed that the insurer shall indemnify the insured against the insured's legal liability under the Workmen's Compensation Act, 1923.
On reading of IMT-28 and also the specific mention in Ex.R3, under the head Premium Computation Table an amount of Rs.25/- collected under the head legal liability to paid driver/cleaner not 15 exceeding 7 persons and the very contention of the insurance Company that Rs.25/- is collected only to paid driver cannot be accepted even in the premium is specific that legal liability to pay driver/cleaner and also limit is mentioned not exceeding 7 persons and when such being the explicit mention in the premium computation table, the insurer counsel can not contend that it is only for paid driver not for any other persons and the Commissioner in detail has discussed with regard to the liability and rightly fastened the liability on the insurer and there is no dispute with regard to the fact that the policy is a commercial vehicles package policy. Hence, I am of the opinion that the Commissioner has rightly fastened the liability on the insurance company. The citations which are produced by the claimant also comes to the aid of the claimants. Apart from that when the specific mention is made in the policy itself when the premium computation table, the insurance company bound to pay the compensation. 16 Hence, I do not find any merits in the contention of the insurer's advocate and contention cannot be accepted.
In view of the discussion made above, the miscellaneous first appeal stands dismissed.
The amount in deposit is ordered to be transmitted to the Tribunal for withdrawal by the claimants.
Sd/-
JUDGE Page No.16 replaced vide chamber order dated 25.01.2019. JS/-