Karnataka High Court
Sri Thimmaiah vs The Branch Manager on 1 March, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 8412 of 2009
C/W MFA No. 5782 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.8412 OF 2009 C/W
MISCELLANEOUS FIRST APPEAL NO.5782 OF 2011 (WC)
IN MFA NO.8412/2009
BETWEEN:
SRI THIMMAIAH
S/O RANGAIAH
AGED ABOUT 40 YEARS,
R/O KADADHARAVALLI VILLAGE,
SEEGE POST,
SALAGAME HOBLI,
HASSAN TALUK.
...APPELLANT
(BY SMT. H.C.KAVITHA, ADVOCATE (THROUGH VIDEO
CONFERENCE)
Digitally signed
by PAVITHRA B
Location: HIGH AND:
COURT OF
KARNATAKA
1. THE BRANCH MANAGER
THE NATIONAL INS. CO. LTD.,
HASSAN.
2. BRAHMADEVAIAH
S/O BHRAMASURAIAH
DECEASED BY LRS.
R2(a)-RAJAMMA
W/O LATE BRAHADEVAIAH,
AGED ABOUT 65 YEARS,
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MFA No. 8412 of 2009
C/W MFA No. 5782 of 2011
R2(b) SHRI K. B. SAMPATH
S/O LATE BRAHMADEVAIAH,
AGED ABOUT 40 YEARS,
BOTH ARE R/O OF KADAVANAHALLI
SALAGAME (H), HASSAN DISTRICT-573201.
(VIDE COURT ORDER DTD:05.02.2019)
3. K.P. NANJUNDACHAR
S/O PUTTACHAR
DECEASED BY LRS.
R3(a)-DEVIRAMMA
W/O LATE K P NANJUNDACHAR,
AGED ABOUT 65 YEARS,
J SURAPUR VILLAGE, BELUR TALUK,
HASSAN DISTRICT-573201.
R3(b)-K N RAMESH
S/O LATE K P NANJUNDACHAR,
AGED ABOUT 65 YEARS,
J SURAPUR VILLAGE,
BELUR TALUK,
HASSAN DISTRICT-573201.
...RESPONDENTS
(BY SRI. K SRIDHARA, ADVOCATE FOR R1; SRI. K. SREEDHAR,
ADVOCATE FOR R2(a) & (b); R3(a)-SERVED; R3(b)-NOTICE
SERVED & UNREPRESENTED)
THIS MFA FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT AND AWARD DATED 15.09.2009 PASSED IN
WCA/NF/SR-65/2004 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION,
HASSAN SUB-DIVISION, HASSAN, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION.
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MFA No. 8412 of 2009
C/W MFA No. 5782 of 2011
IN MFA NO.5782/2011
BETWEEN:
BRAHMADEVAIAH
S/O.BRAHMA SOORAIAH
DEAD BY LR'S
1(a). RAJAMMA
W/O BRAHMADEVAIAH,
AGED ABOUT 65 YEARS
1(b). K. B. SAMAPATH
S/O BRAHMADEVAIAH,
BOTH ARE WIFE AND SON OF BRAHMADEVAIAH
AND RESIDENT OF KADADEVARAHALLI,
SEEGE POST, SALAGAME HOBLI,
HASSAN TALUK AND DISTRICT.
(AMENDED AS PER ORDER DTD:6/4/18)
...APPELLANT
(BY SRI. K SREEDHAR, ADVOCATE)
AND:
1. THIMMAIAH
S/O.RANGAIAH,
AGED 40 YEARS
R/O.KADADARAVALLI VILLAGE
SEEGE POST,
SALAGAME HOBLI
HASSAN TALUK AND DISTRICT - 573 201
2. THE BRANCH MANAGER
NATIONAL INSURANCE CO., LTD.,
IST FLOOR, MANJUNATHA COMPLEX
BUS STAND ROAD,
HASSAN-573201.
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MFA No. 8412 of 2009
C/W MFA No. 5782 of 2011
3. SHRI K P NANJUNDACHAR
S/O PUTTACHAR
DEAD BY LR'S
R3 (a) SMT. DEVIRAMMA
W/O LATE K P NANJUNDACHAR,
AGED ABOUT 65 YEARS,
R3(b) K N RAMESH
S/O LATE K P NANJUNDACHAR
BOTH ARE RESIDENTS OF
J SURAPUR VILLAGE,
BELUR TALUK,
HASSAN DISTRICT.
(AMENDED AS PER ORDER DTD:6/4/18)
...RESPONDENTS
(BY SMT. KAVITHA H.C., ADVOCATE FOR R1;
SRI SRIDHARA, ADVOCATE FOR R2; R3 (a) & (b)- SERVED)
THIS MFA FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT DATED:15.09.2009 PASSED IN KaapAKaa/NF/SR-
65/2004 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, HASSAN
SUB DIVISION, HASSAN, AWARDING A COMPENSATION OF
Rs.2,36,472/- WITH INTEREST @ 12% FROM AFTER 30 DAYS
OF ACCIDENT TILL DEPOSIT IN COURT.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed under Section-30(1) of the Workmen's Compensation Act (hereinafter referred to as -5- MFA No. 8412 of 2009 C/W MFA No. 5782 of 2011 'WC Act' for brevity) calling in question the judgment and award dated 15.09.2009, passed in WCA/NF/SR/65/2004, on the file of the Labour Officer & Court of the Commissioner for Workmen's Compensation, at Hassan (hereinafter referred to as 'the Tribunal/Commissioner' for brevity).
MFA No.8412/2009 is filed by the claimant-appellant seeking enhancement of compensation, as well as questioning the liability fixed on the owner of the trailer.
MFA No.5782/2011 is filed by the owner of the trailer questioning the liability to pay the compensation by exonerating the insurance company.
Brief facts:
2. It is undisputed fact that has also been admitted by the owner of the tractor-trailer as per insurance policy that the claimant was working as coolie in the tractor-trailer bearing No.KA-13T-6077-6078. The owner of the trailer admitted the relationship of employer--6- MFA No. 8412 of 2009 C/W MFA No. 5782 of 2011
employee between him and the claimant. On 31.12.2003, when the claimant was going as a coolie in the said trailer on the instructions of the owner for loading and unloading jowar crop at that time, due to rash and negligent driving of the tractor / trailer, the claimant had sustained injury resulting in amputation of left leg above knee. Therefore, for having sustained employment injury as above state, the claimant had filed application for seeking compensation under Workmen's Compensation Act. The learned Commissioner after appreciating the evidence on record had granted a compensation of Rs.2,36,472/-, along with statutory interest.
3. The learned counsel for the claimant submitted that the fastening of the liability on the owner of the trailer No.KA/13 T-6078 (KA-13-T-5995) is not correct since there was valid and effective insurance policy with the respondent-insurance company in respect of the trailer and the insurance policy is a Farmers Package Policy. Therefore, the risk of coolie is covered under the said -7- MFA No. 8412 of 2009 C/W MFA No. 5782 of 2011 insurance policy. Therefore, submitted that the insurance company is liable to pay the compensation. Further, submitted that the compensation determined by the learned Commissioner is on lesser side and therefore prays for enhancement of the same.
4. Learned counsel for the owner of trailer No.KA/13 T-6078 (KA-13-T-5995) as per the insurance policy submitted that the trailer was insured with respondent No.1-Insurance Company and covers the risk of coolie and was valid as on the date of the accident. Therefore, the Insurance Company is liable to pay the compensation. Further submitted that the tractor is not insured and the driver was not holding driving licence, but the owner of the tractor is liable to pay compensation as he has allowed the person to drive the tractor who was not holding driving licence. Therefore, fastening the entire liability on the part of the owner of trailer alone is not correct. Further submitted that the trailer was having -8- MFA No. 8412 of 2009 C/W MFA No. 5782 of 2011 insurance policy covering the risk of coolie as the insurance policy is a Farmer's Package Policy. Therefore, the Insurance Company is liable to pay compensation by indemnifying the owner of the trailer. Therefore, prays for modification of the liability in this regard.
5. Learned counsel for respondent No.1-Insurance Company submitted that the tractor No.KA/13 T-6077 was not having insurance policy. The trailer was having insurance policy, but the driver who has driven the said tractor attached with the trailer above stated did not have the driving licence to drive the tractor and trailer. Therefore, the Insurance Company is not liable to pay compensation. The insurance policy is a Farmer's Package Policy covering the risk of coolie subject to condition enumerated in the insurance policy. The condition put in the insurance policy is that the person who drives the trailer should hold valid and effective driving licence. Therefore, submitted that, in the present case, the driver -9- MFA No. 8412 of 2009 C/W MFA No. 5782 of 2011 was not holding driving licence. Hence, there is breach of condition of insurance policy. Hence, the Insurance Company is not liable to indemnify the owner of the trailer and to pay compensation. Therefore, submitted that the Tribunal is correct in fastening liability on the owner of the trailer.
6. Considering the rival submissions made above, the relationship of employer and claimant is not disputed. It is not disputed that the claimant had gone in the trailer as a coolie for loading and unloading jowar crop in the trailer at the instruction of owner of the trailer. Admittedly, the tractor is not insured, but only the trailer is insured. Admittedly, there is no evidence on record to prove that the driver who was driving the tractor and trailer was not holding driving licence. Respondent No.3 - Sri K.P.Nanjundachar is the owner of tractor. Respondent No.2-Sri Brahmadevaiah is the owner of trailer. Therefore, there are two different owners for tractor and trailer. The
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MFA No. 8412 of 2009C/W MFA No. 5782 of 2011 tractor was not having insurance coverage. The trailer was having insurance coverage. Ex.R.1 is the insurance policy which is the Farmer's Package Policy issued in respect of trailer No.KA-13-T-5995. Subsequently, the number of trailer is changed into KA/13 T-6078. The trailer is a goods vehicle, but the trailer cannot be moved independently unless it is attached with the tractor engine. Therefore, the trailer becomes movable goods vehicle only when it is attached with tractor. Admittedly, the tractor was not having insurance policy, but only the trailer was having insurance policy. As stated above, the trailer cannot be moved independently, but can be moved attaching with the tractor. Therefore, the driver who drives the tractor and trailer must have driving licence as enumerated in Ex.R.1-insurance policy. Ex.R.1-insurance policy is a Farmer's Package Policy, but in respect of trailer above stated, but subject to terms and conditions enumerated therein. The condition is put as follows:
- 11 -MFA No. 8412 of 2009 C/W MFA No. 5782 of 2011
"Persons or classes of Persons entitled to drive:
Any person including Insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learner's Licence may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rule, 1989."
7. Therefore, even though, the insurance policy is a Farmer's Package Policy, the risk of coolie covers, but subject to condition that the vehicle must be driven by a person who is holding valid and effective driving licence. Therefore, the said insurance policy is subject to terms and conditions of insurance policy. But, admittedly, the driver was not holding driving licence to drive the tractor and trailer. Hence, in this regard, how the Insurance Company is liable to indemnify the owner of the trailer is a question to be considered. Accordingly, the following substantial question of law is framed for consideration:
- 12 -MFA No. 8412 of 2009 C/W MFA No. 5782 of 2011
"Whether, under the facts and
circumstances involved in the case, the
Insurance Company is liable to indemnify the owner, even though, the insurance policy is a Farmer's Package Policy, but driven by a person without holding driving licence?"
8. Learned counsel for the claimant as well as learned counsel for the owner of the trailer places reliance on the decision of the Division Bench of this Court in the case of National Insurance Company Limited Vs., Sri Maruthi and Others1. Learned counsel places reliance on the observation made in Sri Maruthi's case at Paragraph No.37 as follows:
"37. The wordings of the fully worded policy makes it clear that the vehicle in question is a goods vehicle. Therefore, the respondents were justified in saying appellant cannot pleas other than what is stated in the policy. If the general exception in the policy were to exclude the liability of the insurer to cover the coolies employed for loading and unloading then the argument of the appellants was justified.1
ILR 2011 KAR 4139
- 13 -MFA No. 8412 of 2009 C/W MFA No. 5782 of 2011
Though the fully worded policy refers to the terms of contract between the parties, IMT 7,21,34,36 and 48, on perusal of the same except IMT 36 none of the other IMTs. are relevant. As a matter of fact IMT 7 & 48 do not find a place in the fully worded policy. IMT 21 refers to exclusion of riots, strikes and terrorism coverage. IMT 24 refers to replacement of parts. When the very policy is referred to as a special package policy, unless the insured was fully made known the extract terms of contract by including them in the terms of policy, it is nothing but with- holding necessary and important information from the insured. Depending upon the user of the vehicle whether for agricultural purpose or for commercial purpose, the liability of the insurer would be decided. When the intention of the Legislation was to cover compulsorily all the risk arising out of the use of the motor vehicle and that the liability of the insurer is co-extensive with that of the insured subject to Section 147(1)(b), coolies or employees are compulsorily covered. Therefore, the arguments that Rule100(6) r/w Rule 226 of the Karnataka Motor Vehicles Rules is relevant is rejected and the same will not authorize or permit the insurer to avoid the liability."
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MFA No. 8412 of 2009C/W MFA No. 5782 of 2011
9. But the Division Bench of this Court has observed that when the insurance policy is referred to as Farmer's Package Policy, unless the owner was fully made known the exact terms of contract by including them in the terms of policy, it is nothing, but withholding necessary and important information from the owner. Under these circumstances, it was held by the Division Bench of this Court that the Insurance Company is liable to indemnify the owner. But in the present case, Ex.R.1 is the insurance policy. Even though, it is Farmer's Package Policy, but consequently, the term "the driver must hold valid and effective driving licence", there is no evidence either from the claimant or from the owner of the trailer that the Insurance Company has withheld the said terms and conditions from the owner. The coverage of risk of coolie in the facts and circumstances involved in the present case is not absolutely covered as per Sub-section (1)(b)(i) of Section 147 of Motor Vehicle Act. But it is subject to conditions enumerated in the insurance policy. No doubt, it is proved in the present case that the claimant
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MFA No. 8412 of 2009C/W MFA No. 5782 of 2011 was working as a coolie and had worked as a coolie under the employment of owner of trailer and sustained injuries in the accident. As per insurance policy-Ex.R.1 as it is the Farmer's Package Policy, the risk of the claimant is covered as per Sub-section (1)(b)(i) of Section 147 of Motor Vehicle Act, but this coverage of risk is not absolute one, but subject to terms and conditions of the insurance policy and provisions of Motor Vehicle Act. Even though, the liability of the insurer is co-extensive with the owner subject to Sub-section (1)(b)(i) of Section 147 of Motor Vehicle Act, but it is subject to terms and conditions enumerated in the Motor Vehicle Act as Ex.R.1-insruance policy is fundamentally motor vehicle/insurance policy and it must be moved by the driver. Therefore, the conditions stipulated in the insurance policy as discussed above is that the driver must hold valid and effective driving licence to drive the class of vehicle. Therefore, when respondent No.3-Sri K.P.Nanjundachar has allowed the person to drive the tractor and trailer who is not holding driving licence, it amounts to fundamental infraction. Therefore, the
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MFA No. 8412 of 2009C/W MFA No. 5782 of 2011 Insurance Company is not liable to indemnify the owner of the trailer. As discussed above, the owner of tractor has not produced the insurance policy. Hence, the tractor was not having insurance policy. Therefore, respondent No.3 is also responsible to pay the compensation. Therefore, both respondent Nos.2 and 3 who are the owners namely Sri Brahmadevaiah and Sri K.P.Nanjundachar are equally responsible to pay compensation to the claimant. The tractor was not having insurance policy and even though, the trailer was having insurance policy, but the trailer moves with the help of tractor, but the tractor was driven by a person who was not having driving licence. Therefore, under these circumstances, both the owner of tractor and trailer are equally held liable to pay compensation.
10. Alternatively, learned counsel for the claimant submitted that an order of pay and recovery can be made in respect of trailer is concerned. The principle of pay and recovery is having separate force by virtue of Sub-sections
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MFA No. 8412 of 2009C/W MFA No. 5782 of 2011 (1),(4),(7) of Section 149 of Motor Vehicle Act so as to protect the interest of third parties. Sub-section (2) of Section 149 of Motor Vehicle Act stipulates that whenever the Insurance Company is able to take defence as enumerated under Sub-section (2) of Section 149 of Motor Vehicle Act, and establishes, then the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third parties, then recover it from the owner of the offending vehicle. Therefore, the principle of pay and recovery is fundamentally for the protection of rights of third parties. In the present case, the claimant cannot be termed as third party as he was travelling in the trailer as a coolie, then the tractor toppled down resulting into sustaining of amputation of left leg of the claimant. Therefore, the claimant cannot be termed as third party to the trailer. The injured, even though, is a coolie in the vehicle, but suppose was on the ground having detachment with the vehicle, at that particular point of time and due to the accident of that vehicle had sustained injuries, then under these circumstances, the injured can
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MFA No. 8412 of 2009C/W MFA No. 5782 of 2011 be termed as third party. Therefore, the deciding factor labeling the injured as "third party" is that, at the time of accident, the injured/deceased has to be detached with the vehicle in question. In the present case, the claimant while moving by sitting on the trailer and as the trailer met with an accident, then the claimant had sustained injuries, therefore, the claimant cannot be termed as third party. Therefore, when the claimant is not third party, then the principle of pay and recovery is not applicable.
11. Therefore, as discussed above, respondent No.2- Sri Brahmadevaiah and respondent No.3- Sri K.P.Nanjundachar are equally liable to pay compensation to the claimant determined by this Court as below.
12. In the present case, the learned Commissioner has considered the monthly wage of the claimant as Rs.2,500/- per month, which is on the lesser side. As per
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MFA No. 8412 of 2009C/W MFA No. 5782 of 2011 Section 4 of the EC Act, the minimum wage is to be considered as Rs.4,000/- per month. Accordingly, minimum wage of the claimant is taken as Rs.4,000/- per month.
13. The Tribunal has considered the permanent physical disability as 80%, which is on the lesser side. The claimant had sustained amputation of left leg above knee. The claimant was a coolie by profession. Therefore, it is certainly amounting to permanent physical disability affecting the loss of earning capacity can be considered as 100% in view of the catena of decisions of Hon'ble Supreme Court. Therefore, the permanent physical disability affecting the earning capacity is considered as 100%. The claimant was aged 35 years, therefore, the relevant factor is 197.06 as per Schedule IV of EC Act. Therefore, the compensation under the head loss of earning capacity due to disability is re-assessed and quantified as follows:
- 20 -MFA No. 8412 of 2009 C/W MFA No. 5782 of 2011
Rs.4,000/- x 60% x 197.06=Rs.4,72,944/-
Accordingly, compensation of Rs.4,72,944/- is awarded under the head loss of earning capacity due to disability.
14. Therefore, the claimant is awarded compensation of Rs.4,72,944/- as against Rs.2,36,472/- awarded by the Tribunal along with interest at the rate of 12% per annum from the date of accident till realization as per the judgment of the Hon'ble Supreme Court in the case of Pratap Narain Singh Deo Vs. Srinimvas Sabata and Another2. Accordingly, I proceed to pass the following:
ORDER i. MFA.No.8412/2009 filed by the claimant is allowed-in-part.
ii. MFA.No.5782/2011 filed by the owner is allowed-in-part.2
AIR 1976 SC 222(1)
- 21 -MFA No. 8412 of 2009 C/W MFA No. 5782 of 2011
iii. The judgment and award dated 15.09.2009 passed in WCA/NF/SR-65/2004 passed by the Labour Officer and Commissioner for Workmen Compensation, Hassan, is modified to the extent that the claimant is entitled to compensation of Rs.4,72,944/- as against Rs.2,36,472/- awarded by the Tribunal along with interest at the rate of 12% per annum from the date of accident till realization by fastening liability on the owners of tractor and trailer No.KA/13 T-6077 6078.
iv. Respondent No.2-Sri Brahmadevaiah and respondent No.3-Sri K.P.Nanjundachar being the owners of tractor and trailer No.KA/13 T-6077 6078 are equally liable to pay compensation to the claimant determined by this Court.
v. Other observations and finding of the Tribunal are kept in tact.
vi. No order as to costs.
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MFA No. 8412 of 2009
C/W MFA No. 5782 of 2011
vii. Registry is directed to transmit the TCR along
with copy of this order to the Tribunal forthwith.
viii. The amount in deposit made by the owner shall be transmitted to the Tribunal forthwith.
ix. Draw award accordingly.
Sd/-
JUDGE
JJ/PB
List No.: 1 Sl No.: 2