Bombay High Court
National Insurance Co. Ltd. Thr. Its ... vs Budha S/O Watuji Choudhari And Oths on 11 February, 2019
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 991 OF 2011
APPELLANT: National Insurance Company Ltd.,
(Original N.A. Office at Behind Gurjar Petrol Pump,
No.2)
Main Road, Bhandara,
Through its Manager.
-VERSUS-
RESPONDENTS: 1. Budha s/o Watuji Choudhari,
Age : 59 years, Labour,
R/o Mahajan Mohalla Masal,
Tah. Lakhandur, Dist: Bhandara
(Ori. Applicant No.1)
2. Sau. Saraswatibai w/o Budha
Choudhari,
Age: 55 years, Occupation:Labour,
Tah. Lakhandur, Dist.: Bhandara
(Ori. Applicant No.2.)
3. Mohan s/o Gangaramji Nakhate,
Age 35 years, Occupation:Cultivator,
Shop Owner and Tractor Owner,
R/o Masal, Tah: Lakhandur,
Dist.: Bhandara.
4. Commissioner under the Workmen's
(Employee's) Compensation Act, 1923,
Bhandara.
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Shri H. N. Verma, Advocate for the appellant.
Shri K. V. Kotwal, Advocate for the respondent Nos.1 & 2.
Shri N. G. Solao, Advocate for respondent No.3.
Ms. H. Prabhu, Assistant Government Pleader for respondent No.4.
CORAM: A.S. CHANDURKAR, J.
DATED: 11th FEBRUARY, 2019.
ORAL JUDGMENT :
1. This appeal filed under Section 30 of the Employees Compensation Act, 1923 (for short, the said Act) has been heard on the following substantial questions of law:
(1) Whether the claimants are entitled to grant of compensation under Sections 3 and 4 of the Employees Compensation Act, 1923, in view of the fact that the insurance policy covered the risk of use of the trailer and trolley and the accident occurred when the said vehicle was not in use? (2) If it is found that the appellant is liable to satisfy the liability, whether the amount of compensation as awarded is just and proper?
2. The facts in brief are that it is the case of respondent Nos.1 and 2 - original claimants that their son Govinda was engaged in doing labour work. On 5-5-2005 Govinda had gone along with a tractor - trolley which was owned by respondent ::: Uploaded on - 21/02/2019 ::: Downloaded on - 17/03/2019 02:04:26 ::: fa991.11.odt 3/12 No.3 herein and insured with the appellant for the purposes of bringing sand in the trolley. The vehicle was taken near a stream where said Govinda along with other labourers started loading sand from the bank of the stream. In that process part of the bank collapsed and Govinda was buried under the debris. After making efforts Govinda was removed from beneath the debris but he had succumbed to the injuries sustained by him. On that basis the parents of Govinda filed an application under Section 4 of the said Act seeking compensation under provisions of the said Act.
Written statement was filed by the owner of the vehicle in which it was stated that Govinda was being paid Rs.50/- per day as labour charges. The sand in question was required for repairing the house of the owner of the vehicle. As the said vehicle was insured it was the liability of the Insurance Company to satisfy the claim.
In the written statement filed by the Insurance Company its liability was denied. It was pleaded that Govinda expired on account of the sudden collapse of the bank of the stream. The insured vehicle was not connected with the said incident and it was standing idle on the bank of the stream. Since the insurance policy in question was related with the use of the motor vehicle and the motor vehicle was stationary when the ::: Uploaded on - 21/02/2019 ::: Downloaded on - 17/03/2019 02:04:26 ::: fa991.11.odt 4/12 incident occurred, it was the liability of the owner to pay compensation. It was thus pleaded that the Insurance Company was liable to be exonerated.
3. The father of the victim examined himself at Exhibit- 32 and deposed in support of the claim application. In his cross- examination he stated that he was not present when the accident occurred. He admitted that the tractor-trolley was stationary when the accident occurred while the sand was being removed. The owner of the tractor - trolley examined himself at Exhibit-31. He admitted engagement of Govinda as a labourer and payment of charges of Rs.50/- per day. In his cross-examination he admitted that the insurance policy was a third party insurance policy and there was no accident of the motor vehicle caused resulting in the death of Govinda.
4. After considering the aforesaid evidence, the learned Commissioner recorded a finding that the accident occurred when sand was being filled in the tractor - trolley and that the Insurance Company was liable to satisfy the claim for compensation. On that basis the application was allowed holding the owner and Insurance Company liable to pay the amount of Rs.1,70,617.50. The amount of penalty was directed to be paid by the owner and the Insurance Company was held liable to pay interest on the amount of ::: Uploaded on - 21/02/2019 ::: Downloaded on - 17/03/2019 02:04:26 ::: fa991.11.odt 5/12 compensation. Being aggrieved this appeal has been filed.
5. Shri H. N. Verma, learned Counsel for the appellant submitted that it was an admitted fact that the tractor - trolley was stationary when sand was being filled in the trolley. In the absence of the vehicle being used coupled with the fact that the Insurance Policy was in respect of any accident caused during the use of the motor vehicle, there was no connection between the death of Govinda and the use of the tractor - trolley. He submitted that the evidence on record was clear in that regard and as the insurance policy was a third party policy, the deceased who was filling in sand could not be treated to a third party for holding the insurance company liable. It was thus submitted that there was no casual connection between the death of Govinda and use of the tractor - trolley. It was therefore submitted that the entire liability was that of the owner of the vehicle and the Insurance Company was entitled to be exonerated from its liability.
6. On the other hand Shri K. V. Kotwal, learned Counsel for respondent Nos.1 and 2 submitted that the death of Govinda occurred when the tractor - trolley was in use. There was no evidence on record to indicate that the tractor - trolley was standing at a distant place from where the accident occurred. Govinda was present at the spot only for the purpose of filling ::: Uploaded on - 21/02/2019 ::: Downloaded on - 17/03/2019 02:04:26 ::: fa991.11.odt 6/12 sand in the trolley as per the instructions of the owner. The accident in question occurred when Govinda was following the instructions given to him of filling sand in the trolley. It was not necessary that the tractor had to be in motion for holding that the accident was connected with the use of the motor vehicle. Even if the tractor was stationary, the liability of the Insurance Company would arise if an accident took place. No separate policy was required to be taken under the provisions of the said Act as well as under the Motor Vehicles Act, 1988. In support of his submissions, the learned Counsel placed reliance on the decisions in United India Insurance Co. Ltd. v. Janabai and others 2008 (3) Mh.L.J. 439, United India Insurance Co. Ltd. vs. Puttappa and others (2009) III ACC 816 and Shivaji Dayanu Patil and another vs. Vatschala Uttam More (1991) 3 Supreme Court Cases 530 in that regard.
It was then submitted that the learned Commissioner ought to have granted higher compensation than the amount awarded. It was submitted that an amount of Rs.20/- was being paid to Govinda for the purposes of having food and refreshments. This amount was part of the daily wages of Govinda and it was liable to be included while determining the amount of compensation. For said purpose, he relied upon the judgment of the Kerala High Court in Ouseph Mathal v. Mathew 1980 (1) LLN ::: Uploaded on - 21/02/2019 ::: Downloaded on - 17/03/2019 02:04:26 ::: fa991.11.odt 7/12
494. It was thus submitted that the amount of compensation was therefore liable to be enhanced.
Shri N. G. Solao, learned Counsel for respondent No.3 supported the impugned judgment. He submitted that the Insurance Company was liable to pay the principal amount of compensation as well as interest levied and for that purpose he relied on the decision in Shanti Devi vs. State of U.P. and others (1997) 8 SCC 22. According to him, the liability was rightly fastened on the Insurance Company.
7. I have heard the learned Counsel for the parties at length and I have perused the records of the case. It is the specific case of the claimants that Govinda was instructed to get sand from the nearby stream. While fetching sand, part of the bank of the stream collapsed and Govinda was trapped under that debris. His death occurred on that count. The fact that the tractor - trolley was standing next to the stream can be seen from the spot panchanama which is at Exhibit-34. As per this spot panchanama, the tractor - trolley was standing very near the stream and besides it the body of Govinda was found trapped. The presence of the said tractor - trolley very near to the place where the bank of the stream had collapsed is thus established. In fact, it is the case of the claimants that while fetching sand, the bank of the stream ::: Uploaded on - 21/02/2019 ::: Downloaded on - 17/03/2019 02:04:26 ::: fa991.11.odt 8/12 collapsed resulting in death of Govinda.
8. According to the Insurance Company since the policy at Exhibits 39 and 40 was a third party policy taken under the "Farmers Package Insurance" it was not liable to satisfy the claim as the tractor - trolley was not in use when the accident occurred. In Shivaji Patil (supra) the Hon'ble Supreme Court while considering the provisions of Sections 92-A and 110 of the Motor Vehicles Act, 1939 held that the word "use" in the context of a motor vehicle has to be construed in a wider sense even to include the period when the vehicle is stationary and not moving. In para 26 of the said decision after agreeing with the observations of the Bombay High Court that the expression "use of a motor vehicle"
would cover accidents which occur both when the vehicle is in motion and when it is stationary, it has been observed thus:
"26. In our opinion, the word "use" has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident."
From these observations it is clear that even if a motor vehicle is stationary either because it is parked on the road or if it is broken down on account of a mechanical defect, it continues to be in use ::: Uploaded on - 21/02/2019 ::: Downloaded on - 17/03/2019 02:04:26 ::: fa991.11.odt 9/12 as a motor vehicle. In the present case the tractor - trolley though stationary was in use as sand was being filled in the trolley on the instructions of the owner. The contention of the learned Counsel for the Insurance Company that as the tractor - trolley was stationary it ceased to be a motor vehicle therefore cannot be accepted.
9. In Janabai and others (supra), a somewhat similar factual situation was considered. The claim therein arose on account of a labourer getting trapped under the debris of earth while collecting clay earth. After considering the material evidence on record, it was found that the accident had occurred when the work as per the directions of the employer was being done. There was a casual connection between the accident and the nature of employment. After finding that the insurer was not in a position to prove the legal defences available, it was held that the Insurance Company was liable to satisfy the claim. Similarly, in Puttappa and others (supra) in somewhat similar facts where a workman was found being carried in a tractor - trailer for loading sand, it was observed that the employee was "being carried in the vehicle" as contemplated by Section 147 of the Motor Vehicles Act, 1988. By notional extension, it was deemed that if an accident occurs while doing some work ancillary to the main purpose, such ::: Uploaded on - 21/02/2019 ::: Downloaded on - 17/03/2019 02:04:26 ::: fa991.11.odt 10/12 risk would be covered under the proviso to Section 147 of the said Act.
10. Thus, from the aforesaid, the evidence on record indicates that even though the tractor - trolley was stationary it continued to be in use while sand was being filled in the trolley when the bank of the stream collapsed thereby causing the accident. There was definitely a connection between the work of loading sand in the trolley and the collapse of the bank of the stream. The learned Commissioner therefore rightly found the Insurance Company liable to satisfy the claim for compensation. Substantial question of law No.1 is accordingly answered by holding that the claimants have been rightly held entitled to receive compensation for the accident that has occurred when the tractor - trolley was in use.
11. In so far as the submission that just and fair compensation had not been awarded by the learned Commissioner, it is to be noted that the claimants have not filed any cross-objection or cross appeal seeking enhancement in the amount of compensation as granted. In the appeal filed by the Insurance Company, an enhancement in the amount of compensation in absence of any cross-objection by the claimants would not be permissible. Reference in this regard can be made to ::: Uploaded on - 21/02/2019 ::: Downloaded on - 17/03/2019 02:04:26 ::: fa991.11.odt 11/12 the decision in Ranjana Prakash and ors vs. Divisional Manager & anr. (2011) 14 SCC 639. In the light of the aforesaid legal position, it would not be permissible to consider the prayer for enhancement of the amount of compensation in the appeal preferred by the Insurance Company. The amount as granted by the learned Commissioner would therefore have to be maintained. Substantial question of law No.2 is answered accordingly.
12. Perusal of the impugned order indicates that the claimants have been held entitled to receive the amount of compensation with interest but the date from which the amount of interest is to be paid has not been specified. As per provisions of Section 4A of the said Act, interest is liable to be paid from the date the accident had occurred. In the present case the interest would be liable to be paid from 5-5-2005 on which date the accident occurred.
In the light of aforesaid discussion and after considering the ratio of the decision in Ved Prakash Garg (supra), the following order is passed:
(1) The owner as well as the Insurance Company would be liable to satisfy the claim for compensation of Rs.1,70,671.50/-
jointly and severally. The said amount shall be payable with interest @12% per annum from 5-5-2005 till realization. The ::: Uploaded on - 21/02/2019 ::: Downloaded on - 17/03/2019 02:04:26 ::: fa991.11.odt 12/12 respondent No.3 alone is liable to pay the amount of penalty of Rs.85,309/- which is 50% of the total amount of compensation. (2) The claimants are at liberty to withdraw the amount deposited. As the amount of interest has not yet been received by the claimants the same shall be paid by the appellant within a period of eight weeks from today. On such deposit the respondent Nos.1 and 2 would be at liberty to withdraw the same. (3) The First Appeal is dismissed with no order as to costs.
JUDGE //MULEY// ::: Uploaded on - 21/02/2019 ::: Downloaded on - 17/03/2019 02:04:26 :::