Karnataka High Court
Nagamma @ Nagarathna W/O. Late ... vs R. Chandramma W/O Kempanna, Devanna ... on 14 January, 2008
Equivalent citations: ILR2008KAR1293, 2008(3)KARLJ524, 2008 LAB. I. C. (NOC) 689 (KAR.) = 2008 (2) AIR KAR R 411, 2008 (2) AIR KAR R 411
Author: K. Ramanna
Bench: K. Ramanna
JUDGMENT K. Ramanna, J.
1. All these three appeals are filed by the L. Rs. of late. Puttaiah and other injured claimants against respondents 1 to 3 challenging the liability fixed on the owner of the vehicle by the Commissioner for Workmens Compensation in its judgment and award dated 27.11.2002 whereby, the Commissioner for Workmens' Compensation. Tumkur, allowed the claim petitions in all the three cases and directed the respondents 1 and 2 to pay the compensation.
2. The appellants in MFA. 647/2003 are the wife and children of late. Puttaiah who is stated to be the coolie working under the respondent as loader and unloader, died on account of rash and negligent driving of the Tractor and Trailor by the respondent No. 2 resulting in accident that occurred on 4.7.1998. The appellants in MFA. 645/2003 and MFA. 546/2003 suffered various type of injurics in the said accident. Admittedly, respondent No. 1 is the owner of the Tractor and Trailor bearing Regn. No. KA-02-833 and 834 which was duly insured with the 3rd respondent/Insurance Company and the same was in force as on the date of accident. But on the fateful day the deceased Puttaiah and the appellants in MFA. Nos. 645 and 646/2003 as loaders and unloaders were sitting in the Tractor and Trailor bearing Regn. No. KA-02-T-601 but the Tractor KA-02-833 belongs to the 1st respondent The 1st respondent being the owner used the Trailor KA-02-T-601 which was not insured, therefore, the Commissioner for Workmens' Compensation after recording the oral and documentary evidence placed on record by the Insurance Company/respondent No. 3 fixed the liability on the respondents 1 and 2 who are the owner and driver of the vehicle on the ground that the policy obtained from the respondent No. 3 is to cover the risk of the driver as well as coolies in respect of the Tractor and Trailer bearing Regn. No. KA-02-833 and 834 respectively and that the trailor bearing Regn. No. KA-02-T-601 is not insured with the 3rd respondent or any other insurer.
3. The contention of the learned Counsel for the appellant is that late. Puttaiah as well as the appellants in MFA. Nos. 645 and 646 are the poor coolies and they should not suffer since the Tractor KA-02-833 and 834 are duly insured and the policy was an force as on the date of the accident, that without the use of the tractor, trailor cannot be moved. Even if another trailor was used to transport the agricultural produce or agricultural implements by the owner and once the policy was taken for the tractor, the Insurer is liable to indemnity the owner. Therefore, the claim petition he allowed by fixing the joint liability on the owner and insurer of the vehicle. It is argued that contract if any entered into between the owner and the insurer and if either party violates the conditions, the victim of the accidents should not suffer and therefore, the order under challenge is liable to be quashed.
4. In support of his contention learned Counsel for the appellants relied on a Division Bench decision reported in case of The General Manager K.S.R.T.C. v. Ashok Kumar Bansal and Ors. 2000(1) KCCR 169 (DB) wherein it has been held thus:
An insurer can avoid its liability to pay compensation only when the legal requirements viz., (i) that the statutory defence ground provided under Section 149(2)(i)(a) was specifically included in the policy as it is, as a condition of policy. And (ii) that the insured vehicle had no valid permit under the Act for its use for hire or reward as on the date of contract.
5. He also relied upon another decision rendered by this Court in case of Oriental Insurance Co. Ltd. v. Hasira Begum wherein, it has been held thus:
Purport and intent-Compensation payable to 'workman' under Act for accident arising out of and in the course of employment Designation of workman Immaterial-Violation of condition of agreement between employer and Insurance Company not germane-Unless clear terms in contract of insurance excluding liability. plea of Insurance Company based on interpretation of Motor Vehicles Act not acceptable-'Philosophy of Court': to do Justice to aggrieved party-Insurance Companies vie with employers and owners to challenge Award in every case ignoring the object of enactment.
6. Learned Counsel for the Insurance Company/respondent No. 3 submitted that the first respondent being the owner of the vehicle Tractor and Trailor KA-02-833 and 834 has obtained policy to cover the risk of the driver as well as its labourers. It is further argued that as on the date of the accident, the policy in respect of the vehicles were in force but the insurer is not liable to indemnify the owner of the vehicle as the first respondent was using the tractor KA-02-833, which was insured under him but it was attached to the trailor KA-02-T-602 winch was not at all insured and that the owner has violated the terms and conditions of the policy. It is also contended that the persons stated to be the coolies injured who were siting in the trailor but not the tractor. The driver alone who sits and drives the tractor is only insured, Therefore, the trailor in which the injured and the deceased were sitting was not insured, Therefore, the trial Court is right in fixing the liability on the owner and driver of the vehicle and has rightly absolved the insurer to indemnify the owner. Therefore, the appeals are liable to be dismissed.
7. In support of his contention, learned Counsel for respondent No. 3/insurance Company relied upon a Division Bench decision of this Court in case of The Oriental Insurance Co. Ltd. v. D. Laxman and Ors. ILR 2006 KAR. 4355 wherein, it has been held that the trailor which was attached to the tractor was not insured and the owner of the tractor was not the owner of the trailor and therefore, the law laid down by the Division Bench of this Court is aptly applicable to the facts of the case and the appeals are liable to be dismissed.
8. I have carefully examined the documents placed on record.
9. It is a fact that respondents 1 and 2 remained ex-parte before the Commissioner for Workmen's Compensation and even before this Court Respondent No. 3 was only contesting parry before the Commissioner for Workmens' Compensation who examined its officer. According to the evidence of the official of the insurer which clearly indicates that though the tractor KA-02-833 and the trailor KA-02-834 belongs to the first respondent and the Insurance Policy in respect of the same was in force but respondent No. 1 violated the conditions by using some other trailor i.e., KA-02-T-601 which was not Insured. Therefore, it is clear that though tractor involved in the accident is insured with the 3rd respondent but trailor involved in the accident is not insured. The appellants in MFA. 645/2003 and 646/2003 being the coolies working under respondent No. 1 travelling in the trailor sustained various type of injuries on account of the rash and negligent driving of the vehicle by the respondent No. 2. But the 3rd respondent being the insurer of the vehicle is expected to indemnity the owner of the vehicle in respect of claims arising out of accident of vehicle which in insured under him and not otherwise. In the instant case the tractor in only insured as such the insurer is expected to indemnify the owner in respect of claims arising out of accident involving the said tractor, but in a tractor the permitted (sic) capacity in only one, i.e. the driver alone and nobody else. In the instant case, no claim petition has been filed by the driver of the tractor as such, no claims arise out of the accident involving the said tractor and thus, there is no liability on the 3rd respondent/insurer to indemnify the owner. As regards trailor is concerned, though trailor bearing No. KA-02-834 is insured by the owner of the vehicle, he used trailor bearing No. KA-02-T-601, which was not. insured with the 3rd respondent or any other insurer. Therefore, the 3rd respondent is not liable to indemnify the owner of the vehicle in respect of the claims arising out of involvement of the said trailor. In the instant case, the coolies/claimants were travelling in the trailor which met with the accident and the same was not insured. Merely because the tractor to which the said trailor was attached was insured with the 3rd respondent, it does not mean that the 3rd respondent should indemnify the owner in respect of the claims arising out of accident involving the said trailor The liability of the insurer arised only when he has collected the (sic) from the owner in respect of the said trailor. Therefore, the 3rd respondent/insurer is not at al liable to indemnify the owner, when the owner himself has violated the terms and conditions of the policy by using some other trailor to carry the workers/coolies. The law laid down by the Division Bench of this Court in case of the Oriental Insurance Co. Ltd., v. D. Laxman and Ors. cited supra is aptly applicable to the facts of this case. Therefore, I do not find any illegality or incorrectness in the order passed by the Commissioner for Workmen's Compensation fixing the liability on the owner and driver of the vehicle i.e. respondents 1 and 2 and therefore these appeals are liable to be dismissed.
Accordingly, all these appeals are dismissed.