Karnataka High Court
The Divisional Manager vs Smt Kasturavva on 31 August, 2012
Author: N.K.Patil
Bench: N.K.Patil
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 31ST DAY OF AUGUST, 2012
: PRESENT :
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR. JUSTICE B.V.PINTO
M.F.A.No.9524/2007 [WC]
BETWEEN
THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE, BELGAUM
BY THE MANAGER
REGIONAL OFFICE
THE ORIENTAL INSURANCE COMPANY LIMITED
LEO SHOPPING COMPLEX, NO.44/45
RESIDENCY ROAD
BANGALORE-560 025 ... APPELLANT
(By Sri G N RAICHUR, ADV.,)
AND
1. SMT KASTURAVVA
MAJOR
2. MASTER BEERAPPA
AGED ABOUT 9 YEARS
3. KUM TAYAVVA
AGED ABOUT 7 YEARS
2
4. SHRI SIDDAPPA DYVAPPA KABBALAGERI
MAJOR
5. SMT HANUMAVVA SIDDAPPA KABBALAGERI
MAJOR
R1 IS THE WIFE, R2 & R3 ARE THE CHILDREN
AND R4 & R5 ARE THE PARENTS OF
LATE SHRI YALLAPPA KABBALAGERI
R2 & R3 BEING MINORS
ARE REPRESENTED BY THEIR MOTHER
Smt.KASTURAVVA-1ST RESPONDENT
ALL ARE RESIDENTS OF JAMMANAKATTE
BADAMI TALUK
BAGALKOT DISTRICT-587 201
6. SHRI VIJAYA YANKAPPA BHAGAVATHI
MAJOR
R/AT JAMMANAKATTE, BADAMI TALUK
BAGALKOT DISTRICT-587 201 ... RESPONDENTS
(By Sri B.CHIDANANDA FOR Sri N SHANKAR RANGAREJI,
ADVs.,
Sri P.N.HOSAMANE, ADV., FOR R6)
THIS MFA IS FILED U/S.30(1) OF WC ACT AGAINST
THE JUDGEMENT DATED: 25.4.2007 PASSED IN CASE
NO.WCA.F.149/2006 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, BAGALKOT, AWARDING A
COMPENSATION OF RS.3,11,970/- WITH INTEREST @
12% P.A.
THIS MFA. COMING ON FOR HEARING THIS DAY,
N.K.PATIL J., DELIVERED THE FOLLOWING:
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JUDGMENT
Aggrieved by the judgment and award dated 25.4.2007, passed in Case No.WCA.F.149/2006, by the Labour Officer and Commissioner for Workmen's Compensation, Bagalkot, the insurance company has filed the present appeal.
2. The case of the claimants is that the deceased Yallappa was a labourer under the 6th respondent herein. He was working at his Tractor Trailer unit since last one month and getting `3,000/- wages and `30/- as bata per day. He was aged about 30 years on the date of the accident. On 25.3.2006 the deceased as per the say and direction of his owner proceeded towards the land for bringing the soil in the said Tractor and Trailer. At that point of time when he was digging the soil, the soil of the quarry collapsed and fell on the deceased and he sustained grievous injuries and he was shifted to the hospital for treatment and during treatment he died. Consequently his 4 legal representatives filed a petition before the Commissioner for Workmen's Compensation seeking compensation. By the impugned judgment and award the petition is allowed and the compensation of a sum of `3,11,970/- was awarded. Questioning the liability saddled on it, the insurance company has filed the present appeal.
3. The claim made before the Commissioner is that at the time of digging the soil, the soil in the quarry fell on the body of the deceased and as a consequence of which he died. There is no reference that the vehicle in question was involved in the incident. The vehicle in question was not involved nor is relatable in any manner whatsoever to the incident or the death of the deceased. Hence under these circumstances it is evident that the insurer is not liable to satisfy the award. Hence we are of the view that the order of the Commissioner is incorrect and liable to be set aside. The award could be passed only when the nexus between the vehicle in question and the injury or death of the deceased is established. Both are not 5 present in the instant case. Under these circumstances the order passed by the Commissioner is erroneous and liable to be set aside.
4. Learned Counsel Sri B.Chidananda along with Sri N.Shankar Rangareji for Respondent Nos.1 to 5, vehemently submitted and contended that the Tribunal is justified in issuing direction to indemnify the award amount to the appellant/insurer and the interference by this Court is not called for. Further submitted that in view of the judgments of this Court reported in 2007(3) Kar.L.J. 466 [DB] in the case of New India Assurance Company Limited, Bangalore v. Channamma and others; ILR 1993 KAR 1843 in the case of National Insurance Co. Ltd., v. Balawwa and 2007 ACJ 50 in the case of National Insurance Co. Ltd., v. Lagamanna and others, interference by this Court is not called for nor the appellant/insurer has made out any case to interfere with the same.
5. The learned Counsel appearing for the appellant/Insurer Sri G.N.Raichur, interalia, contended and 6 submitted that, the submissions made by the learned Counsel appearing for the claimants No.1 to 5 cannot be accepted nor has got any substance. There is no dispute regarding the Judgment of this Court relied upon by the Counsel appearing for the claimants, but facts and circumstances of those cases are entirely different from the facts and circumstances of this case.
6. In view of the latest Judgment of the Apex Court, disposed of on 7.9.2010 in Civil Appeal No.7428/2010 [arising out of SLP(C) No.8638/2006] in the case of MAMTAJ BI BAPUSAB NADAF & OTHERS v. UNITED INDIA INSURANCE CO. & OTHERS, wherein, the Apex Court has confirmed the Judgment & Award passed by the learned Single Judge of our High Court, the same seems to be justified and correct. Therefore, interference is not called for.
7. After careful consideration of the submissions made by both the Counsel and after careful perusal of the Judgment of the Apex Court in Civil Appeal No.7428/2010 7 [arising out of SLP(C) No.8638/2006] disposed of on 7.9.2010 in the case of MAMTAJ BI BAPUSAB NADAF & OTHERS v. UNITED INDIA INSURANCE CO. & OTHERS, referred supra, the Apex Court has considered Section 147(1) of the Motor Vehicles Act, 1988. The explanation of the said Section reads thus:-
"For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place."
8. A plain reading of the above quoted explanation, would make it crystal clear and manifest that the Insurance Company cannot be held liable for the death of the workman. Therefore, we are of the considered view that the Insurance Company cannot be held liable to pay the compensation to the claimants.
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9. For the aforesaid reasons the appeal is allowed in part. The judgment and award dated 25.4.2007, passed in Case No.WCA.F.149/2006, by the Labour Officer and Commissioner for Workmen's Compensation, Bagalkot, is hereby modified. The appellant is absolved of its liability to satisfy the award. Consequently the liability to satisfy the award is fixed on the owner namely Vijaya Yankappa Bhagavathi, the respondent No.6 herein.
The amount in deposit is ordered to be refunded to the appellant insurance company.
Draw the award accordingly.
Sd/-
JUDGE Sd/-
JUDGE cp*