Karnataka High Court
The Oriental Insurance Company Ltd vs Nagappa S/O Gurubassappa Anr on 5 February, 2014
1
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 05TH DAY OF FEBRUARY 2014
BEFORE:
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
MFA NO. 32401 OF 2010 (WC)
C/W
MFA NO. 32411 OF 2010 (WC)
MFA NO. 32371 OF 2010 (WC)
MFA NO. 32392 OF 2010 (WC)
MFA NO. 32402 OF 2010 (WC)
AND
MFA NO. 32412 OF 2010 (WC)
MFA NO. 32401 OF 2010 (WC)
BETWEEN:
The Oriental Insurance Company Ltd,
Raichur. ... Appellant
[By Smt Preethi S.Melkundhi, Advocate)
AND:
1. Nagappa S/o Gurubassappa,
Occ: Ex-Hamali, age: 25 years,
R/o: Deodurga, Dist. Raichur.
2. M.Vishwanathan S/o M.Murugesh Shettiyar,
Occ: Owner of Lory no.AP-21/V-4558
2
R/o: H.No.75, Doddepalli, Chittur (A.P.)
... Respondents
[By Sri Babu H.Metagudda, Advocate for R-1]
This appeal is filed U/S 30(1) of W.C. Act
against the judgement and award dated 29.07.2010
passed in WCA No.542/2008 on the file of the Labour
Officer and Commissioner for Workmen's Compensation
Raichur, partly allowing the claim petition and
awarding compensation of Rs.1,28,670/- with interest
at 12% p.a.
MFA NO. 32411 OF 2010 (WC)
BETWEEN:
The Oriental Insurance Company Ltd,
Raichur. ... Appellant
[By Smt Preethi S.Melkundhi, Advocate)
AND:
1. Shivappa S/o Tipperudrappa,
Occ: Ex-Hamali, age: 28 years,
R/o: Deodurga, Dist. Raichur.
2. M.Vishwanathan S/o M.Murugesh Shettiyar,
Occ: Owner of Lory no.AP-21/V-4558
R/o: H.No.75, Doddepalli, Chittur (A.P.)
... Respondents
[By Sri Babu H.Metagudda, Advocate for R-1]
This appeal is filed U/S 30(1) of W.C. Act
against the judgement and award dated 29.07.2010
passed in WCA No.544/2008 on the file of the Labour
Officer and Commissioner for Workmen's Compensation
Raichur, partly allowing the claim petition and
awarding compensation of Rs.1,76,314/- with interest
at 12% p.a.
3
MFA NO. 32371 OF 2010 (WC)
BETWEEN:
The Oriental Insurance Company Ltd,
Raichur. ... Appellant
[By Smt Preethi S.Melkundhi, Advocate)
AND:
1. A.Vishwanath S/o Arjun Shettyar
Occ: Ex-Driver, age: 42 years,
R/o: Deodurga, Dist. Raichur.
2. M.Vishwanathan S/o M.Murugesh Shettiyar,
Occ: Owner of Lory no.AP-21/V-4558
R/o: H.No.75, Doddepalli, Chittur (A.P.)
... Respondents
[By Sri Babu H.Metagudda, Advocate for R-1]
This appeal is filed U/S 30(1) of W.C. Act
against the judgement and award dated 29.07.2010
passed in WCA No.539/2008 on the file of the Labour
Officer and Commissioner for Workmen's Compensation
Raichur, partly allowing the claim petition and
awarding compensation of Rs.1,32,602/- with interest
at 12% p.a.
MFA NO. 32392 OF 2010 (WC)
BETWEEN:
The Oriental Insurance Company Ltd,
Raichur.
... Appellant
[By Smt Preethi S.Melkundhi, Advocate)
4
AND:
1. Ravi S/o Honnurappa,
Occ: Ex-Cleaner, age: 26 years,
R/o: Deodurga, Dist. Raichur.
2. M.Vishwanathan S/o M.Murugesh Shettiyar,
Occ: Owner of Lory no.AP-21/V-4558
R/o: H.No.75, Doddepalli, Chittur (A.P.)
... Respondents
[By Sri Babu H.Metagudda, Advocate for R-1]
This appeal is filed U/S 30(1) of W.C. Act
against the judgement and award dated 29.07.2010
passed in WCA No.540/2008 on the file of the Labour
Officer and Commissioner for Workmen's Compensation
Raichur, partly allowing the claim petition and
awarding compensation of Rs.1,83,514/- with interest
at 12% p.a.
MFA NO. 32402 OF 2010 (WC)
BETWEEN:
The Oriental Insurance Company Ltd,
Raichur. ... Appellant
[By Smt Preethi S.Melkundhi, Advocate)
AND:
1. Nagaraj S/o Late Huligeppa
Occ: Ex-Hamali, age: 36 years,
R/o: Deodurga, Dist. Raichur.
2. M.Vishwanathan S/o M.Murugesh Shettiyar,
Occ: Owner of Lory no.AP-21/V-4558
R/o: H.No.75, Doddepalli, Chittur (A.P.)
... Respondents
[By Sri Babu H.Metagudda, Advocate for R-1]
5
This appeal is filed U/S 30(1) of W.C. Act
against the judgement and award dated 29.07.2010
passed in WCA No.543/2008 on the file of the Labour
Officer and Commissioner for Workmen's Compensation
Raichur, partly allowing the claim petition and
awarding compensation of Rs.1,63,308/- with interest
at 12% p.a.
MFA NO. 32412 OF 2010 (WC)
BETWEEN:
The Oriental Insurance Company Ltd,
Raichur. ... Appellant
[By Smt Preethi S.Melkundhi, Advocate)
AND:
1. Suresh S/o Mallannagowda,
Occ: Ex-Hamali, age: 28 years,
R/o: Deodurga, Dist. Raichur.
2. M.Vishwanathan S/o M.Murugesh Shettiyar,
Occ: Owner of Lory no.AP-21/V-4558
R/o: H.No.75, Doddepalli, Chittur (A.P.)
... Respondents
[By Sri Babu H.Metagudda, Advocate for R-1]
This appeal is filed U/S 30(1) of W.C. Act
against the judgement and award dated 29.07.2010
passed in WCA No.541/2008 on the file of the Labour
Officer and Commissioner for Workmen's Compensation
Raichur, partly allowing the claim petition and
awarding compensation of Rs.1,51,126/- with interest
at 12% p.a.
These appeals coming for admission this day, the
Court delivered the following:
6
JUDGEMENT
The appellant insurer has approached this Court in these appeals challenging its liability and the quantum of compensation granted to the respondents for the injuries sustained by them in a motor vehicle accident in the course of their employment.
2. The facts reveal that on 29.01.2008 the lorry bearing registration No. AP-21/B-4558 after unloading was returning from Challikeri to Bellary and at about 10.00 a.m. on the way the driver lost control over the vehicle and the lorry capsized by the side of the road. Thereby including the driver, cleaner and the employees of the vehicle sustained severe injuries and were treated in the hospital. They suffered disability and therefore, made a claim for compensation before the Commissioner under the provisions of Section 22 of the Workmen Compensation Act, 1923.
3. They contended that they were employees of the owner on his lorry with salary at Rs.5,000/- per 7 month and having suffered the functional disability sought for compensation. The appellant insurer appeared before the Commissioner and filed its written statement denying the averments made and contended that the inmates were not the employees of the vehicle and further the insurance policy does not cover the liability of the aforesaid persons, in addition to denying the salary, employment and also the quantum of compensation claimed as highly exorbitant and excessive.
4. All the cases clubbed and common evidence was permitted. The claimants were examined PWs 1 to 6 and in their evidence the documents Ex.P-1 to P-21 were marked. On behalf of the appellant RW 1 was examined and the insurance policy was admitted in the evidence as Ex.R-1.
5. The Commissioner after appreciating the evidence on record, after hearing the counsel granted compensation of Rs.1,28,670/-, Rs.1,76,314/-, Rs.1,32,604/-, Rs.1,83,514/-, Rs.1,63,308/- and 8 Rs.1,51,126/- in each of these matters with interest at 12%. Aggrieved by the judgments and awards in all these matters the insurer is in appeal before this Court.
6. I have heard the learned counsel for the appellant and also the respondents claimants. The following substantial question of law that arise for consideration.
Whether the insurer is liable to indemnify the owner in respect of the claims made by the respondents?
7. With the consent of both the counsel, the matters are taken up for final disposal.
8. It is the contention of the learned counsel for the appellant that the registration certificate produced would indicate that 2+1 persons were permitted in the vehicle and as there are more than three claim petitions, the insurer is not liable to indemnify the owner of the lorry. It is also her 9 contention that the insurer has not covered the risk of all the employees who were carried in the lorry on the date of the accident and therefore, there is no liability to indemnify the owner and employer of the claimants. It is also her submission that seating capacity as per the Registration Certificate is 2+1 and as persons exceeding the capacity having been carried in the vehicle, the insurer is not liable to pay the compensation. It is her alternative submission that the compensation awarded by Commissioner is on the higher side.
9. Whereas the learned counsel for the respondents claimants supporting the judgment and award of the Commissioner submits that the persons who were carried in the vehicle were permitted to be carried under the Rules and as the claimants are third parties, the insurer is liable to pay the compensation. It is also his submission that Section 147 provides compulsory insurance in respect of the persons allowed by Law to travel in the vehicle and 10 therefore he would submit that award of the Commissioner does not need interference.
10. Learned counsel for the appellant has placed reliance on unreported judgment of this Court in MFA No.8133/2004 C/w 7958/2004 and 8134/2004 dated 3rd November 2009 wherein premium prescribed in the IMT 38 thereto a sum of Rs.25/- each to cover the risk of driver and cleaner which has been paid under the policy of insurance and unless an additional premium was paid under IMT 39 prescribed under Indian Motor Tariff the risk is not covered. Hence she would submit that in view of the principle laid down by this Court in the aforesaid judgment, and as the premium for extra employees is not paid, the insurer is not liable to indemnify the owner. Further she also relied upon decision of Apex Court reported in 2003(10) Supreme Court Cases 664 (Ramayya (Ramayya Singh versis New India Assurance Co.Ltd., Co.Ltd., and others) wherein the Apex Court held that the insurance policy covers only the person or classes of persons 11 specified in the policy-Further held comprehensive policy covers the loss sustained irrespective of the actual loss suffered. As could be seen from the facts therein the vehicle was trekker. Only passengers were carried for hire and the owner had employed a khalasi (cleaner) on the said vehicle. The vehicle met with an accident and cleaner died. His legal representatives made a claim for compensation. The principle laid down by Apex Court in the aforesaid judgment applies to a case where the vehicle is a passenger vehicle in which the employees are not allowed and does not apply to a vehicle which is a goods vehicle on which the employees are permitted to be carried.
11. Though provisions of Section 147 of the Motor Vehicles Act were interpreted by the Apex Court in the above said decision, it was in the context of passenger vehicle and not a goods vehicle. Hence I do not think the principle laid down therein would apply to the facts of the case on hand.
12
12. So far as the facts on hand are concerned undisputedly the vehicle is a lorry which is a goods vehicle and Rule 100 of the Karnataka Motor Vehicles Rules 1989 applies to the said vehicle and it is extract hereunder for the sake of convenience.
Rule 100: Carriage of person in goods vehicle.-
vehicle.-
(1) Subject to the provisions of this rule, no person shall be carried in a goods vehicle:
Provided that the owner or the hirer or a bona fide employee of the owner of the hirer of the vehicle carried free of charge or a police officer in uniform travelling on duty may be carried in a goods vehicle, the total number of persons so carried,-
(i) in light transport goods vehicle having registered laden weight less than 990 kgs.not more than one;
(ii) in any other light transport goods vehicle not more than three; and
(iii) in any goods vehicle not more than seven:13
Provided that the provisions of sub-clauses
(ii) and (iii) of the above proviso shall not be applicable to the vehicles plying on inter-State routes or the vehicles carrying goods from one city to another city.
(2) ... ... ... ...
(3) ... ... ... ...
(a) ... ... ... ...
(b) ... ... ... ...
(c) ... ... ... ...
(4) ... ... ... ... ...
(a) ... ... ... ...
(b) ... ... ... ...
(i) ... ... ... ...
(ii) ... ... ... ...
(5) ... ... ... ...
(6) ... ... ... ...
13. As per the aforesaid rule, the owner of a lorry is authorised to carry employees not more than one in case if the laden weight of light transport 14 goods vehicle is less than 990 kgs and not more than 03 persons in any other light transport goods vehicle. Under the clause (iii) of the aforesaid Rule not more than seven persons can be carried as employees on the vehicle. In case if the goods vehicle is plying on inter state routes or vehicles carrying goods from one city to other city, the clauses aforesaid are not applicable.
14. It is not in dispute that on the date of accident, the goods vehicle i.e., lorry in question was plying from Challakeri town to Bellary city. Therefore, the proviso to Rule 100 does not apply and the holder of the lorry can carry bona fide employees on the vehicle not exceeding seven in number as Challakeri is not a city. On this aspect of this matter this Court in MFA No. 6624/2010 (MV) dated 8th February 2010 referring the provisions of Rule 100 of the Karnataka Motor Vehicles Rules 1989 held that the maximum number of persons which would be carried in the goods vehicle was set out in the aforesaid Rule 15 and the insurance company is bound to indemnify the insured in respect of death or injury caused to the person who was carried in the vehicle. Thereby it held the insurer liable to indemnify the owner who was the employer of the injured. In the aforesaid judgement there was specific reference to Rule 100 of the Karnataka Motor Vehicles Rules. So also in another decision of this Court reported in 1996 ) 1 Kar.L.J. 417 (Oriental Insurance Company Limited v. Kashim and another) this Court applying Rule 100 of the Karnataka Motor Vehicles Rules 1989 and Section 147 of Motor Vehicles Act held under section 147(1) requires statutory coverage for the employees in the goods vehicle. Provisions of Section 147 of Motor Vehicles Act provide both compulsory insurance and statutory liability on the Insurance Company to cover the persons which are allowed in law to be on the vehicle and irrespective of whether there is specific mention in the policy of the number of persons to be carried in the vehicle, and the insurer is bound to indemnify the owner and failure on the part of the 16 insurer to cover any risk in respect of the those employees who can be carried in the vehicle under the provisions of law, would not exempt its liability to indemnify the owner. On this aspect of the matter reliance is placed on a decision reported in 2011(1) MACR 7 (Kar) (Kar) (DB) (DB) (Mounesh (Mounesh versus Thimmanna and others), the vehicle was a goods carriage and this Court held that it was necessary for the insurer to cover the risk of an employee of the vehicle and insurer is liable to indemnify the owner of such vehicle. It was also held by this Court that even an ACT policy would cover the risk of a workman on the vehicle even without collecting any additional premium in respect of those employees who were travelling in the vehicle. In view of the judgment of this Court aforesaid, the decision relied upon by the learned counsel for the insurer in MFA No.8133/2004 connected with other cases dated 3rd November 2009 is not applicable.
17
15. A submission was made referring to the limitation as to use of the insurance policy wherein it is mentioned in the policy as under;
"The policy covers use only under a permit within the meaning of the Motor Vehicle Act 1988 or such a carriage falling under Sub-section 3 of Section 66 of the Motor Vehicles Act 1988.
1. Use only for carriage of goods within the meaning of the Motor Vehicles Act. The Policy does not cover; 1) Use for organised racing, pace-making, reliability trial or speed testing. (2) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle. (3) Use of carrying passengers in the vehicles; except employees (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of Workmen's Compensation Act 1923."
16. Referring to the limitations aforesaid in respect of the persons exceeding limit in the 18 registration document, the policy does not cover the risk of the employees exceeding therein and therefore, on the basis of this clause the insurance policy, a contention is raised, that the insurance company is not liable to pay the compensation. The Apex Court in a judgment reported in 2008(1) TAC S.C. 1 (National Insurance Co. Ltd. Versus Prema Devi and others) in para 13 the Apex Court has observed thus;
"13. ... ... The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short "W.C.Act"). There is no reference to any passenger in "goods carriage."
It has been held by the Apex Court that proviso under section 147 of the Motor Vehicles Act is by way of compulsory insurance and includes the employees under the Workmen's Compensation Act 1923. 19
17. Therefore, viewed from any angle so far as the employees not exceeding seven could be carried in the lorry involved in the accident. Though insurance policy does not cover the risk of those employees, as Section 147 of Motor Vehicles Act provides compulsory insurance, it is deemed to cover the risk of the employees under the Workmen's Compensation Act, the insurer cannot take a defence that it has not collected the premium in respect of those employees on the vehicle. Whether the owner has paid additional premium or otherwise, the risk of employees not exceeding seven in goods vehicle, under Rule 100 of Karnataka Motor Vehicles Rules, the insurer is liable to indemnify under the compulsory insurance envisaged under section 147 of the Motor Vehicles Act. Therefore, I do not find any illegality in the award made by the Commissioner so far as the liability of the insurance company is concerned.
18. In MFA No. 32401/2010 (WC No.542/2008) the claimant is a hamal on the lorry and he has suffered 20 fracture of radius, ulna right upper limb and patella of the left lower limb. The doctor has assessed permanent disability at 30% and the Commissioner has accepted at 25%. The salary assessed by the Commissioner is Rs.3,900/- per month. The Commissioner has granted Rs.1,28,670/- with interest at 12%.
19. In MFA No. 32411/2010 (WC No.544/2008) the injured is a hamal on the goods vehicle had suffered fracture of left radius, ulna upper limb and tibia and fibula right lower limb and the doctor has assessed permanent disability at 40% and the Commissioner has accepted at 35%. A sum of Rs.1,76,314/- has been awarded with interest at 12%.
20. In MFA No.32371/2010 (WC No.539/2008), the respondent was driver and he had suffered fracture of left humerus and right patella. The doctor has assessed permanent disability at 35% and the Commissioner has accepted it at 30%. A sum of Rs.1,32,604/- has been awarded as compensation. 21
21. In MFA No. 32392/2010 (WC No.540/2008), the respondent was a cleaner on the vehicle and had suffered fracture of radius, ulna right upper limb and fracture of femur right lower limb. The doctor has assessed permanent disability at 40% and the Commissioner has accepted it at 35%. A sum of Rs.1,83,514/- has been awarded as compensation.
22. In MFA No.32402/2010 (WC No.543/2008), the respondent was a hamal on the lorry and had suffered fracture of tibia, fibula, right upper limb and calcimine. The doctor has assessed functional disability at 40% and the Commissioner has accepted it at 35%. A sum of Rs.1,63,308/- has been awarded.
23. In MFA No.32412/2010 (WC No.541/2008), the respondent was a hamal and had suffered fracture of left femur and left patella. The doctor has assessed permanent disability at 35%. The Commissioner has accepted it at 30% and awarded compensation of Rs.1,51,126/- with interest at 12%.
22
24. It is contended that the loss of earning capacity is not properly assessed by the Commissioner. The doctor has stated about the permanent disability suffered by the respondents and that has been accepted by the Commissioner and no grounds are made out to say that the disability which has been stated by the Doctor is not the disability pertaining to the loss of earning capacity. Hence this contention cannot be accepted.
25. So far as the quantum of compensation is concerned, on consideration of the evidence, I do not find any substantial question of law for consideration in relation to quantum. Anyhow the learned counsel for the insurer relying upon decisions reported in ILR 2010 KAR 2600 (Louis Martis vs. Louis Korrea and Another) in a claim petition under the provisions of Motor Vehicles Act when the claimant himself is rash and negligent, this Court held that in view of provisions of Section 3(1)(b) and Clause (ii) of Section (3)(1)(b) of the Workmen's 23 Compensation Act, the compensation cannot be claimed. The aforesaid provision is extracted hereunder.
3. Employer's liability for compensation.-
compensation.- (1)If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not so liable-
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding [three]days;
(b) in respect of any[injury, not resulting in death [or permanent total disablement] caused by] an accident which is directly attributable to-
(i) the workman having been at the time
thereof under the influence of
drink or drugs, or
(ii) the wilful disobedience of the
workman to an order expressly
24
given, or to a rule expressly
framed, for the purpose of securing
the safety of workmen, or
(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman.
26. The employer is not so liable to compensate if the accident is directly attributable to a workman having been at the time thereof under the influence of drink or drugs. This clause is not applicable for the reason that it is not the case of any of the parties that persons claiming were found under the influence of drink or drugs and the Clause 2 refer willful disobedience of the workman to an order expressly given or to a rule expressly framed for the purpose of securing the safety of a workman. So far as this sub-rule is concerned it is not the case of anybody that there is contravention of any rule 25 expressly framed for securing the safety. Thirdly, there has been wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman. So none of the aforesaid clauses of the proviso to Section 3 of the Workmen's Compensation Act would be applied to the facts on hand and it is not the case even of the insurer that there is contravention of the aforesaid clauses by the employer. Therefore, the principles laid down in the decision referred to above do not apply to the facts of case on hand. That apart this Court in a decision reported in 1993(2) Kar.L.J. 406(D.B.) (National Insurance Co.Ltd., Co.Ltd., Bangalore v Smt Balawwa and others) has taken into consideration the provisions of Section 147 of the Motor Vehicles Act and Section in relation to the employees under Workmen's Compensation Act and held that the insurer is liable to indemnify the owner-employer. In view of the aforesaid reasons I do not find any grounds to interfere with the impugned judgment and awards. 26 Consequently, I answer the substantial question of law in the affirmative.
Therefore, the appeals fail and they are accordingly dismissed. No costs.
Sd/-
JUDGE.
*MK