Karnataka High Court
M/S National Insurance Co Ltd vs Karibasappa @ Karebasappa on 9 October, 2012
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 09TH DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.No.3399/2008 C/W MFA Nos.3400, 3401 &
3402/2008 (WC)
BETWEEN:
M/s.National Insurance Co. Ltd.
Divisional Office, Davanagere
Now rep. by its Regional Office
No.144, Shubharam Complex
M.G.Road, Bangalore
Rep. by its Administrative Officer. ... Common Appellant
(By Sri A.M.Venkatesh, Advocate)
MFA.No.3399/2008
AND:
1. Karibasappa @ Karebasappa
bin Siddaramappa, 29 Years
R/o Nelakunde Village
Davanagere.
2. H.M.Eeshwarappa bin Mariyappa
Owner of Tractor & Trailer bearing
No.KA-16/T-2460-61
R/o Haralalli Village
Hosadurga Taluk
Chitradurga District. ...Respondents
(R1 - Notice held sufficient v.c.o.dt.10.01.2011; R2 - Served)
2
This appeal is filed under section 30(1) of Workmen's
Compensation Act, against the award dated 18.12.2007, passed in
WCA.CR.No.60/2005, on the file of the Labour Officer and
Commissioner for Workmen Compensation, Davanagere, awarding
compensation and etc.
MFA.No.3400/2008
AND:
1. N.Mahalingappa bin Nagappa
Aged about 28 Years
R/o Nelakunde Village
Davanagere.
2. H.M.Eeshwarappa bin Mariyappa
Owner of Tractor & Trailer bearing
No.KA-16/T-2460-61
R/o Haralalli Village
Hosadurga Taluk
Chitradurga District. ...Respondents
(R1 - Service of Notice held sufficient v.c.o.dt.31.05.2011; R2 -
Served)
This appeal is filed under section 30(1) of Workmen's
Compensation Act, against the award dated 18.12.2007, passed in
WCA.CR.No.61/2005, on the file of the Labour Officer and
Commissioner for Workmen Compensation, Davanagere, awarding
compensation and etc.
MFA.No.3401/2008
AND:
1. H.M.Manjunath @ H.M.Manjappa
Bin Mariyappa, 36 Years
R/o Honnebagi Village
Channagiri Taluk
Davanagere.
2. H.M.Eeshwarappa bin Mariyappa
Owner of Tractor & Trailer bearing
3
No.KA-16/T-2460-61
R/o Haralalli Village
Hosadurga Taluk
Chitradurga District. ...Respondents
(R1-Notice held sufficient v.c.o.dt.31.05.2011; R2 - Served)
This appeal is filed under section 30(1) of Workmen's
Compensation Act, against the award dated 18.12.2007, passed in
WCA.CR.No.62/2005, on the file of the Labour Officer and
Commissioner for Workmen Compensation, Davanagere, awarding
compensation and etc.
MFA.No.3402/2008
AND:
1. H.B.Satheesh bin Basavarajappa
Aged about 25 Years
R/o Honnebagi Village
Channagiri Taluk
Davanagere.
3. H.M.Eeshwarappa bin Mariyappa
Owner of Tractor & Trailer bearing
No.KA-16/T-2460-61
R/o Haralalli Village
Hosadurga Taluk
Chitradurga District. ...Respondents
(R1-Notice held sufficient v.c.o.dt.31.05.2011; R2 - Served)
This appeal is filed under section 30(1) of Workmen's
Compensation Act, against the award dated 18.12.2007, passed in
WCA.CR.No.63/2005, on the file of the Labour Officer and
Commissioner for Workmen Compensation, Davanagere, awarding
compensation and etc.
***
These appeals coming on for hearing this day, the court
delivered the following:
4
JUDGMENT
In these appeals, Insurance Company has raised following common substantial questions of law:-
a. Whether there existed any relationship of employer and employee between the 2nd respondent and the 1st respondent?
b. Whether the compensation determined by the Commissioner in a sum of Rs.18,892/- with 12% interest and further directing the appellant to pay the compensation is justified?
c. Whether the Commissioner was justified in fastening liability to pay the compensation on the appellant even though the policy of insurance issued being miscellaneous and special type of vehicle policy does not cover liability to any coolies?
d. Whether the Commissioner was justified in holding that the claimant was proceeding in the vehicle as a coolie and even though there is no provision to carry any other person in the vehicle in question and since it is a miscellaneous and special type of policy vehicle 5 which cannot carry any person other than the driver?
e. Whether the commissioner was justified in fastening liability on the appellant herein to pay compensation even though the vehicle in question is not used for agricultural purpose that too of the owner's own use?
f. Whether the compensation determined by the Commissioner for the simple injuries can be said to be justified?"
2. I have heard Sri A.M.Venkatesh, learned counsel for Insurance Company. The claimants and the insured are served and unrepresented.
3. As regards assessment of permanent physical disability vis-à-vis loss of earning capacity, I find the Commissioner for Workmen's Compensation having regard to nature of injuries suffered by claimants and residual effects of injuries has assessed permanent physical disability vis-à-vis loss of earning capacity at 5%, which in my considered opinion does not call for interference. 6
4. The claimants were working as "loaders". Therefore, their wages is rightly determined at Rs.3,000/- per month.
5. The learned counsel for Insurance Company would submit that Insurance Company has issued miscellaneous and special type of vehicle policy. Therefore, Insurance Company is not liable to pay compensation, in the alternative, liability of Insurance Company is in respect of 3 coolies, in terms of Rule 100 of Motor Vehicle Rules as unladen weight of insured vehicle is less than 7500 kgs.
6. In the judgment reported in ILR 2011 KAR 4139 (in the case of National Insurance Company Limited Vs. Sri Maruthi and others), a Division Bench of this court has held that the insurance company is liable to cover the risk of loaders of tractor-trailer employed by insured. Therefore, contention of Insurance Company that Insurance Company is not liable to pay compensation cannot be accepted. However, having regard to the fact that vehicle involved in the accident is a light motor vehicle and unladen weight of vehicle is less than 7 7500 kgs, statutory liability of Insurance Company extends to the risk of three loaders. Therefore, it is necessary to restrict liability of Insurance Company to three highest awards and pass an order for rateable distribution of compensation amongst claimants.
7. In the result, I pass the following:-
ORDER MFA Nos.3399/2008, 3400/2008 and 3402/2008 are dismissed. MFA No.3401/2008 is accepted in part. The compensation awarded in MFA.No.3401/2008 is confirmed. However, liability to pay compensation is fastened on insured. The amount deposited by Insurance Company in MFA Nos.3399/2008, 3400/2008 and 3402/2008 shall be transferred to Commissioner for Workmen's Compensation at Davanagere for rateable distribution amongst claimants in all these appeals. Similarly, amount to be deposited by the insured in MFA No.3401/2008 shall be rateably distributed amongst all the claimants. The amount deposited by 8 Insurance Company in MFA No.3401/2008, shall be refunded to Insurance Company.
Sd/-
JUDGE SNN