Karnataka High Court
Smt Umadevi vs The Divisional Manager on 2 December, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.5249/2015 (WC)
BETWEEN:
1. SMT. UMADEVI
W/O. LATE MAHESH
AGED ABOUT 21 YEARS
2. MASTER M. AJJAIAH
S/O. LATE MAHESH
AGED ABOUT 03 YEARS
3. SRI. SOORAIAH
S/O. KARIYAPPA
AGED ABOUT 61 YEARS
4. SMT. MANJAMMA
W/O. SOORAIAH
AGED ABOUT 59 YEARS
APPELLANT NO.4 IS
MENTALLY DISORDERED
REPRESENTED BY HER HUSBAND
WHO IS APPELLANT NO.3 AS GUARDIAN
5. MASTER APPU
S/O. LATE MAHESH
AGED ABOUT 2 ½ YEARS
APPELLANT NOS.2 AND 5 ARE MIONRS
REPRESENTED BY HIS NATURAL GUARDIAN
MOTHER WHO IS APPELLANT NO.1
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ALL ARE R/O. BOGALERAHATTI
CHITRADURGA TALUK
AND DISTRICT-577 501. ... APPELLANTS
(BY SRI V.B.SIDDARAMAIAH, ADVOCATE)
AND:
1. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
MMK COMPLEX, 2ND FLOOR,
AKKAMAHADEVI ROAD,
DAVANAGERE-577 001.
2. SRI. DASAPPA
S/O. GOWDRA SANNAOBAIAH
MAJOR, R/O. YALAVARTHI VILLAGE,
CHIKKAGONDANAHALLI POST,
CHITRADURGA TALUK-577 501
CHITRADURGA DISTRICT. ... RESPONDENTS
(BY SRI ANUP, ADVOCATE FOR
SRI B.C.SEETHARAMA RAO, ADVOCATE FOR R1 [THROUGH VC];
SRI SPOORTHY HEGDE, ADVOCATE FOR
SRI MUZAFFAR AHMED, ADVOCATE FOR R2)
THIS M.F.A. IS FILED UNDER SECTION 30(1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.06.2015
PASSED IN E.C.A.NO.1/2014 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE & CJM, COMMISSIONER FOR EMPLOYEES
COMPENSATION, CHITRADURGA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.11.2022 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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JUDGMENT
Heard the learned counsel for the appellants and learned counsel for the respondents.
This appeal is filed challenging the judgment and award dated 12.06.2015 passed in E.C.A.No.1/2014 on the file of the Principal Senior Civil Judge, C.J.M. and Commissioner for Employees Compensation, Chitradurga ('the Commissioner' for short)
2. The parties are referred to as per their original rankings before the Commissioner to avoid confusion and for the convenience of the Court.
3. The factual matrix of the case of the claimants before the Commissioner is that, first petitioner is the wife, second petitioner is the minor son, third petitioner is the father and fourth petitioner is the mother of the deceased one Mahesha. It is their claim that the said Mahesha was working under respondent No.1 as loader/coolie tractor and trailer bearing Registration No.KA-16-A-6034-6035 and he used to earn Rs.6,000/- per month and Rs.100/- per day as baata. It is also 4 their claim that as per the instructions of respondent No.1 on 17.03.2014, the said Mahesha and others were loading sand to the said trailer at Chowdamma Kaval for his agricultural purpose, at 6.00 p.m. an accident has occurred and he died at the spot. Hence, the claimants made the claim before the Commissioner.
4. In response to the claim, the respondent No.1 did not choose to appear and the respondent No.2-Insurance Company appeared and contested the matter contending that tractor and trailer was purchased for agricultural purpose, but the respondent No.1 used the same for commercial purpose. It is also further contended that, under the policy, risk of employee is not covered. Hence, the Insurance Company is not liable to pay the compensation.
5. The claimants, in order to substantiate their claim, examined the first petitioner as P.W.1 and also examined one witness as P.W.2 and got marked the documents as Exs.P1 to P9. On the other hand, the respondent No.2 examined one witness as R.W.1 and got marked the documents as Exs.R1 and R2.
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6. The Commissioner, after considering both oral and documentary evidence placed on record, allowed the claim petition granting compensation of Rs.6,59,850/- with interest at 12% per annum and fastened the liability on the respondent No.1-insured, in coming to the conclusion that no separate premium is paid and policy does not cover the risk of the employee but, only covers the risk of driver/owner and there is no any statutory obligation on the part of the respondent No.2 to indemnify the insured in respect of employees or laborers and the petitioners cannot claim that respondent No.2 is liable to indemnify the insured. In view of the said finding, the present appeal is filed by the claimants questioning the liability as well as the quantum of compensation.
7. The main contention of the learned counsel for the claimants by raising substantive questions of law is that the Commissioner committed an error in fastening the liability on the respondent No.1-insured, even though death has caused at the time of employment with respondent No.1 and the vehicle was also used during the course of the employment. The other 6 substantive question of law raised is that the Commissioner committed an error in deducting 50% of the assessed income. It is also contended that it was the accident of the year 2014 and income taken at Rs.6,000/- is erroneous and ought to have taken Rs.8,000/-. Hence, it requires interference of this Court.
8. The learned counsel for the claimants, in support of his argument, relied upon the judgment of the Apex Court dated 11.01.2022 in ANJINAPPA @ ANJANEYA VS. BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD. & ANR. in CIVIL APPEAL NO.9771 OF 2011 and the factual matrix of the case of the claimants in that appeal is that there was exchange of fire between the naxalites and the police and the appellant's son got injured and eventually died and the High Court set aside the award passed by the Commissioner. Hence, an appeal was filed before the Apex Court.
9. The Apex Court, having considered the material available on record, in Para No.11, observed that, if the appellant's son had received bullet injuries and died while sleeping in the bus, his body should have been found inside the 7 bus. But the inquest report shows that his body was lying about 2 feet away from the Government School compound.
10. It is the evidence before the Commissioner that his son was actually cleaning the bus when exchange of fire took place. Hence, held that the finding of the High Court that incident did not happen during the course of employment is completely perverse. The Apex Court relied upon the judgment of RITA DEVI'S case and it was a case of theft of an auto rickshaw whose driver apparently got killed by persons who took away the auto rickshaw. In the said judgment also, the High Court reversed the findings of the Tribunal in coming to the conclusion that it was a murder and the Apex Court, reversed the judgment in coming to the conclusion that, there are instances where murder can be by accident on a given set of facts and the same depends on the proximity of the cause of such murder.
11. Per contra, learned counsel appearing for the Insurance Company would contend that no premium is paid to coolie and the accident has also not occurred while loading and 8 unloading and though the vehicle was insured for agricultural purpose but, the same was used for commercial purpose i.e., transportation of sand.
12. In reply to the arguments of the learned counsel for the Insurance Company, learned counsel for the appellants relied upon the judgment in THE BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD. VS. SMT. MALLAMMA AND OTHERS reported in ILR 2009 KAR 1934. In this judgment, the Division Bench of this Court held that the expression 'being carried in the vehicle' need not be construed rigidly and strictly and if done, it would defeat the very object and purpose of legislative welfare policy. In the case of goods vehicle, the loading and unloading of the goods is an integral part of the transport activity and the contention that insurer would become liable only when the employee sustains death/injury while traveling in the vehicle would be an absurd proposition.
13. The counsel also brought to notice of this Court Para No.8 of the judgment, wherein it is observed that the gist of the proviso to Section 147(1) mandates that the risk of the 9 employee in a goods carriage should be statutorily covered and held that the claimants are entitled for compensation.
14. Having heard the respective counsel and also on perusal of the material available on record, the points that would arise for consideration of this Court are:
(i) Whether the Commissioner committed an error in fastening the liability on the insured, instead of Insurance Company ?
(ii) Whether the Commissioner committed an error
in not awarding jut and reasonable
compensation?
(iii) What order?
Point No.(i):
15. Having perused the pleading of the claimants before the Commissioner, it is their case that deceased Mahesha was working as 'Hamali' (loader and un-loader) under the employment of respondent No.1 and was earning Rs.6,000/- per month and Rs.100/- per day as baata. The respondent No.1 has instructed deceased Mahesha and others to load sand at 10 Chowdamma Kaval and transport the same to his agricultural land. Hence, as per the instructions of the respondent No.1, the deceased Mahesha and others were loading sand to the tractor and trailer and an accident has occurred and he died at the spot.
16. In order to substantiate the said contention, the claimants also relied upon the contents of the document at Ex.P1-complaint, wherein also it is stated that the driver of the tractor told them to load sand and one Suresha and the resident of Doddagatti were loading sand to the tractor and trailer and the deceased Mahesha was removing sand from the pit and suddenly, the sand fallen on the said Mahesha and he lost his breath and others have also sustained injuries and the incident has happened on 16.03.2013 and complaint was given on 17.03.2014 in the morning. The police have also investigated the matter and filed the charge-sheet invoking the offence under Section 304 read with Section 34 of IPC.
17. Having considered the pleadings of the claimants, the same is reiterated by P.W.1 in his evidence. In the cross- examination of P.W.1, a suggestion was made that tractor has 11 not involved in the accident and the same was denied. It is elicited that, in the police records, it is mentioned that while removing the sand, an incident has taken place and he admits the same and also admits the contents of Ex.P1 that sand fallen on him and as a result, he lost his breath. P.W.2 is a Co-worker and he also reiterates the same.
18. On the other hand, the respondent No.2 before the Commissioner examined one witness as R.W.1. In his evidence, he claims that seating capacity of the vehicle is only one and the same was insured only for agricultural purpose. In the cross- examination, suggestion was made that, it includes the liability of the loader and un-loader and the same was denied. The respondent No.2 also relied upon the document at Ex.R1 i.e., Policy and the same does not disclose anything in respect of the liability of a loader and un-loader and the fact that vehicle is a tractor and trailer is not in dispute and towards compulsory PA for owner-cum-driver, an amount of Rs.100/- is collected and also got marked the document at Ex.R2, wherein policy is issued 12 in respect of tractor and trailer for agricultural purpose and the seating capacity of the same is one.
19. Having considered the material on record, it is not in dispute that tractor and trailer, which is a goods vehicle was used for loading the sand. In the judgment of the Division Bench of this Court in SMT. MALLAMMA'S case reported in ILR 2009 KAR 1934, in Para No.8, this Court observed that the gist of the proviso to Section 147(1) mandates that the risk of the employee in a goods carriage should be statutorily covered and the expression 'being carried in the vehicle' need not be construed rigidly and strictly and if done, it would defeat the very object and purpose of legislative welfare policy. It is further observed that, in the case of goods vehicle, loading and unloading of goods is an integral part of the transport activity. Hence, the Division Bench held that the very contention of the Insurance Company that, at the time of the accident, the deceased was not in the vehicle cannot be accepted. In the case on hand, the evidence of P.Ws.1 and 2 is very clear that while 13 removing the sand, in order to load the same to the tractor, an incident has happened.
20. The Apex Court also, in the judgment in ANJINAPPA's case referred by the learned counsel for the appellants' (supra), wherein a murder has taken place, the Apex Court referring the judgment of RITA DEVI'S case held that there are instances where murder can be by accident on a given set of facts and the same depends on the proximity of the cause of such murder and set aside the order of the High Court.
21. This Court also, in the judgment in ORIENTAL INSURANCE COMPANY LIMITED VS. SMT. GEETHA AND OTHERS reported in ILR 2009 KAR 2379 held that when the driver of the vehicle was urinating near agricultural land which was fenced with live electric wire, came into contact resulting in the death of driver due to electrocution and the contention that driver under the said circumstances although is off the vehicle (not driving) held that, he still continues to be in the course of journey and deemed to be in the course of employment. 14
22. This Court also, in the judgment in NATIONAL INSURANCE CO. LTD., CHITRADURGA BRANCH VS. SMT. RENUKAMMA AND OTHERS reported in ILR 2019 KAR 539, when the workmen died due to heart attack during the course of employment, comes to the conclusion that the workmen was on duty and he was taking rest beneath the tree during the course of employment, he has suffered heart attack and there is a casual connection between the death of the deceased and his employment, since he was on duty driving the vehicle, which loaded with iron ore.
23. This Court also, in the judgment in M.F.A.NO.20003/2010 dated 09.09.2022, elaborately discussed with regard to the issue involved herein between the parties i.e., in a case where the driver or a insured under the said circumstances is off the vehicle at the time of his death due to heart attack and whether it absolves the liability of the Insurance Company, taken note of the judgment of this Court in RENUKAMMA'S case reported in ILR 2019 KAR 539, GOLLA RAJANNA'S case reported in 2017 (1) G.L.H. 150 and 15 POONAM DEVI'S case and in the said case, the driver loaded the truck and he went to canal to bring water and in that circumstance, he passed away and held that, when the driver was sleeping in the vehicle itself after his work, he died during the course of employment and usage of vehicle does not mean that, at the time of his death, he need not necessarily drive the vehicle but in casual connection of his employment only he was sleeping in the lorry and comes to the conclusion that Insurance Company is liable to pay the compensation.
24. In the case on hand, the judgment of this Court in MALLAMMA's case reported in ILR 2009 KAR 1934 is aptly applicable and the factual aspects of this case and the other cases, which have been relied upon above is clear that, in the case of goods vehicle, loading and unloading of the goods is an integral part of transport activity and Section 147(1) mandates that risk of employee in goods carriage should be statutorily covered. Hence, the contention of the Insurance Company cannot be accepted that the Commissioner committed an error in coming to the conclusion that no separate premium is paid in 16 respect of the loader/cleaner and the very approach of the Commissioner is erroneous and hence, I answer point No.(i) accordingly fastening the liability on the Insurance Company. Point No.(ii)
25. Having considered the material on record, the injured died when an accident took place at the spot and it is the claim of the claimants that incident has occurred on 17.03.2014 and in view of the amendment, the salary would be Rs.8,000/- per month and the Commissioner has taken the income at Rs.6,000/- per month and deducted 50% of the salary and the contention that the Commissioner erroneously deducted 50% of the salary cannot be accepted in ECA cases but, taking the income at Rs.6,000/- per month is on the lower side and ought to have taken the income at Rs.8,000/- per month. Hence, taking the income at Rs.8,000/- per month and after deducting 50%, it comes to Rs.4,000/-. Therefore, taking the income at Rs.4,000/- per month and applying the relevant factor 219.95, since the age of the deceased was 23 years, it comes to Rs.8,79,800/- (4,000 x 219.95).
17Point No.(iii)
26. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the
Tribunal dated 12.06.2015 passed in
E.C.A.No.1/2014, is modified granting
compensation of Rs.8,79,800/- as against
Rs.6,59,850/- awarded by the Tribunal with interest at the rate of 12% per annum after 30 days of the accident till its realization.
(iii) The liability is fastened on the Insurance Company exonerating the liability on the insured and the Insurance Company is directed to deposit the compensation amount within six weeks from today.
(iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.
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(v) The order of the Commissioner with regard to appointment remains undisturbed.
Sd/-
JUDGE ST