Karnataka High Court
The Oriental Insurance Company Limited vs Shafi @ Shafiulla on 27 August, 2010
Equivalent citations: 2011 AAC 17 (KAR), 2010 (4) AIR KANT HCR 472, (2011) ACJ 2209, (2011) 128 FACLR 263, (2010) 4 KCCR 2959
Bench: K.L.Manjunath, B.Manohar
er"? \_M IN THE HIGH COURT 0:? KARNATAKA AT BANGALORE DATED THIS THE 27TH DAY OF AUGUST 2010 PRESENT THE HON'BLE nm. JUSTICE K.L. MANJUNA'i§ii flf.'j: [T ~ THE HON'BLE_MR. QUSTICE :23. 4' H MISCELLANEOUS I2'IRsT:A1>1ai«:;E,,V.No.E93E'8,/200$ 3 BETWEEN The Oriental Insurance Company Davanagere. _ . Through its Regiona1 Offict§;'iii' . . E Leo Shopping Complex," ' #44/45, Residency RQ.ad,_ ' Banga1ore--560 025; " Rep. by its Admixiistrative '~ -. " v K J ayaram. Appellant (By _S1ji B C S€:;e;Lh'ara1neiE for appellant} AND Age: 253 years} --S~,_/IQ: .Na'genaha11y_I_3Tadusab. » _ i BE.' iiiifnanna. .*M?l_}'oI'_,':'_. " " " S /45 Bheeniappa. Both are residents of Hoiesirigere Village, Harihara Taluk, Davanagere District. Respondents
(By Sri Chandrashekar P. Adv., for Sri V M Sheelavanth, Adv., for R-1) This Miscellaneous First Appeal is fired under §:C'ie'ct-ioI1"'3_(V)&{w«1-}o of the Workmen's Compensation Act, against th.e"order 22;8'.'2f)'O5p passed in WCA/CWC/CR-37/2004 on the"~f_ile of tl1e'Labour.::C"ffic:er anal Commissioner for Workmen's Compensaiiorig Dayanagerefj awarding compensation of Rs.3,14,596/;y"and.'_VA 120/; "per annum amounting to Rs.97,524/-- and direetingfthe herein to deposit the same.
This Appeal this day, Manjunath, J., delivered the fol1QW1yhQ§:'pg"*~. :. « A 5 The legality correctness of the order passed by the Comfniissiorier" for Workmefis Compensation, Davanagere, in Case dated 22.8.2005 is called in question by 'a.ppellaiit:Insu Company.
We heard the learned Counsel for the parties. E The facts leading to this case are as hereunder:
(V Respondent No.2 -- E3 Thimmanna is the owner of a tractor and trailer bearing No.KA--17/T~7902-03. The said vehicle has beeirinsured with the appellantwlnsurance Company and a policy has by the appellanblnsurance Company covering the risk ofia. five workmen. Respondent No.1; lodged clairnj petition "eergfe,,tiie 2 Commissioner for Workmen's Compensation, Davanagere, clairriingp compensation on the ground that on a 111, he was discharging his duty as ..Coollie--:_ the respondent- Thimmanna and on that day, he proceeded to the garden land of 2§d'r'espond._entp and trailer belonging to the 2nd respondent; :];jie the tractor and trailer was stationed claimant climbed a coconut tree in order to "coconuts. VVhile doing so, he fell from the tree, inlmultiple fractures. He was immediately shifted' "topa"l:rpriva;te "i-li1ospital;'"'HviaIihar, and on the same day, on the advisellof ti.;eVhex_'_was shifted to Bapuji Hospital, Davanagere, ivwhere he adrnitted: as inwpatient upto 23.12.2003 and thereafter
-bet';w.eer;..27. 1.2003 and 31.1.2003. .1 2' i:i-ie- ground that the 1st respondent has become permanently 2' fldisableti to parapfegia, he is unable to discharge his duties as a 6/.
Coolie and he is also unable to take care of himself and is incapable of attending to his day to day affairs. Therefore, the claim petition was lodged against the owner of the tractor and trailer and the':
Insurance Company on the ground that the 15* injuries during the course of his lemploymentnanda C 7 the insurer is liable to indemnify the vehicle. Accordingly, the claim petition v.tasV.alloiyed7.l 1 V" V C The appellant, who was "r-esponéierit "before the Commissioner, filed a detailed that the liability that the 15* cannot be saddled on the appeliarit .v ' .- 3: » ,1;
respondent--claimant_ sustaijni-i.njt1ry:cn account of the use of the tractor and trailer his 'duty as a Coolie during the course of his empIoy1'nent.._ Aecording.to him, if the 15' respondent, as a Coolie of the 2?"? resplo'nde11.t,.fhad climbed the coconut tree to pluck the ¢, 1 it C §u~$3c"e:J-V"""E- t$-§'~"""°' WA coconut's.and..asi._a result ofasudden fail from the tree, at best he may claim compensa »aZga_inst the owner, but not against the Insurance Company. 'since vthleinsurance Company has not issued a policy risleiof a Coolie during the course of his employment.
.to"'the appellant, the liability of the appellant/Insurance ifvould be only if the Coolie of the 2nd respondent sustained *injury ;while using vehicle e accident. Therefore, the {Q1/.
appellant requested the Commissioner to dismiss the claim petition against it.
Respondent No.2, who is the owner of the tractor 'did not dispute his relationship with the c1aimant--1St responjdentyyand cause for the 15' respondent sustaining injury. ,_ The Commissioner, after recording the'~.e\}idenc§e,' awarded compensation of Rs.3,l4,596/-- along the interest thereon and fixed the liability on the Insurance aggrieved by the said order, the present Appeal is'fi.led;--.. 'V A _ ,
4. We have heard the 'lean§;ed:C_o:unse1'fo_r the parties.
5. The mairi..,_conte11tio'nA"of C Seetharama Rao is that the Commissioner' =comrnitted" 'an error in fixing the liability on the Insurance. vCCourEtEfsvit1aout understanding the provisions of the Motor _Vehicles=. 'the M V Act') and the liability of the C'a.ppVe1l.ant--In'suranceifiompany. According to him, the policy has been the vappe11ant--Insurance Company in favour of the 2""
his tractor and trailer and that respondent No.1, as a Coolie 2115' respondent, did not suffer any injury on account of the 5/ i accident caused by the tractor and trailer. According to him, the 15' respondent sustained injuries on account of fall from a coconu't*--tree in the garden land of the 2nd respondent. Therefore, the has to be set aside. To support his arguments, he has provisions of Sections 143, 146 and 147 of"the"M p_Vl',Ac,t therefore, C T he requests the Court to allow the Appeal.
6. Per contra, the learned Counselvlor,Vthe_V contends that the tractor and trailer lb3{'_;'..t1"p3'~respondent to give a d_r0P from the 2nd reSP0I1dent'$»..§lL3Y:e that the 15' respondent was emplojreld 25?' pluck the coconuts from the trees and and unload the same at the residentgte he contends that while using the of the accident occurred and that the 1st responderit.fwas.v"ernplojted by the 2"" respondent only as a Coo-lietin the tra.ct0r"-- and trailer as a loader and un~loader. Therefore, the liabil.'ity,pf1§:ed:'bjf the.:Cjommissioner has to be confirmed. A 17. Hairihg the Counsel for the parties, the only point to be by usin this Appeal is:
_V 'Whether the Commissioner is justified in fixing the ..liability on the appellant~Insurance Company ? 3' i 5/
8. It is not in dispute that the appellant-Insurance Company has issued the policy to the 21"' respondent-owner of tractor As per Section 143 of the M V Act, any claim for compensatioriin»r§:--spee_t a death or permanent disablement of any person un~dei* 'V'.V7:o1*E;m_eri's, Compensation Act, 1923 resultihg from an t' referred to in sub--Section (1) of Section-.140 ofthe M V bound to.
be satisfied by the appel1ant--I11surancel"fiomypany;i ffherefore, what is required to be considered by us Ai,n':pthis3_VAAppeal.,_ _ Whether the claim offithejl-'K Would fall under Section"3'}l3 ofiithe M V"Act:."and,,.fyvhether the injury susta1h_ed"*b' {the-_yj1--._SF"res'poI1dent--clai:mant can be referred thé'ii;n;1lr<ie;s refte._I'i'e"dt to in sub--Section {1} of 'Section the '.9' '
9._ Section 1'-'1()_[1_} s'EV1'i{."'; M V Act reads as under:
_ death ' permanent disablement of any » pe'rso1i_,has*rfies1ilted from an accident arising out of the yehicle or motor vehicles, the owner of or, as the case may be, the owners of the yehieles shall, jointly and severally, be liable to pay compensation in respect of such death or disablernent _ t -ac-eordance with the provisions of this section"
('V E
10. Admittedly, in the instant case, the 1st respondent-claimant has not suffered any permanent disability from an accident out of the use of a motor vehicle. If the 15¢ respondent%:cl'aiiri.ant sustained any injury or a permanent disablernent on.'ac'coL:1nt"o.f using la. motor vehicle, in such event, the 15* respondent-lean 'ienake"-clai§n.__uiitder . Section 143 of the M V Act. Thereforerw-hat is"r.e('1'u.ired.'todconsidered this Appeal is:
How the accidefifi. occurredwhether the 1st respondent has sustained pennanent disablement onaccount of an acciden't'aIrising out of the uselolf motor véfhicle*?:"
11. As could'=--b4_e=seen {rant itheépleadings, the 1st respondent has categoricallypéstated that unfortunate day. he along with other loadersflwent toligarden land of the 2nd respondent in the tractor ;_,and trailer T:-1§_d respondenti After reaching the land, the tractor Vtijailer Was p'aI'l{e"d and thereafter he climbed the coconut tree in oi-ci§%='5{icu§"p1uic1; the coconuts. While doing so, he fell from the tree and an".«.:sustainedV_irijuries, which resulted in paraplegia. From the pleadings of theidc:laim.ant-lst respondent, it is clear that he has sustained injuries 'Ev' not on account of the accident arising out of the use of the motor vehicle, but it is on account of fall from the coconut tree. Merely because the 2"" respondent has brought the clairnant--1S' respondent and the other loaders from his residence to the land, it that the permanent disablement has been caused to on account of use of the motor vehicle. ffhe'-Coni1nissior.icr,V Vf:i't1'.i.Ui.1t»f it examining the provisions of sub~$ection {1)1°of .V Act and so also the provisions of of and without considering the background bpolicyi had been issued by the appellant and il, did not sustain injuries on account of _the__' 'using the motor vehicle, therefore.*~VfeV:are;l'o£3 the order passed by the Commissioner "Insurance Company has to be set aside. V 'C C h' C V E _tl1e:_resu:It;V the Appeal is allowed. The order and award Ifpassed aythe' "."_'Corrimissioner for Workmen's Compensation,
f)1gvanagere,"44datea::i. 22.8.2005 in Case No. No.WCA/CWC/CR--37/2004 is set aside, so far as it relates to the appe11ant--Insurance i The amount, if any, in deposit by the appeiiantlnsurance Company is ordered to be refunded to the Insurance Company,' The parties to bear their own costs.
Bjs ._