Karnataka High Court
The Divisional Manager vs Sri Shivayogi S/O Basayya Pujar on 13 July, 2017
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 13TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO.20768/2009 (WC)
BETWEEN
THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO LTD
SUJATA COMPLEX
P B ROAD HUBLI
.. APPELLANT
(BY SRI.S.K.KAYAKAMATH, ADVOCATE)
AND
1. SRI SHIVAYOGI S/O BASAYYA PUJAR
R/O KAVALAGERI, TQ & DIST DHARWAD
(SINCE MINOR REP BY HIS MINOR G/N
FATHER SRI BASAYYA S/O NINGAYYA PUJAR
AGE 56 YERS R/O KAVALAGERI
TQ & DIST DHARWAD)
2. SRI CHANDRASHEKHAR S/O KALLAPPA KUMBAR
OWNER OF TRACTOR AND TRAILER BEARING
REGISTRATION NA KA 24/T-3568
R/O HIREKERUR, TQ SAUNDATTI
DIST BELGAUM
... RESPONDENTS
(BY SRI.B.S.SANGATI, ADVOCATE FOR R1;
SRI.Y.LAKSHMIKANT REDDY, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT AND AWARD DATED 28/1/2009 PASSED IN WCA.NO.
NF-63/2006 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISION
HUBLI, AWARDING COMPENSATION OF RS.1,91,974/-
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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant - insurer in WCA/NF No.63/2006 on the file of the Labour Officer and Commissioner for Workmen's Compensation, Hubballi, Sub Division 1, Hubballi (for short 'Commissioner') has come up in this appeal impugning the judgment and award dated 28.01.2009.
2. The status of the parties will be referred to as per their status before the Court below.
3. The facts of the case are that the one Mr.Shivayogi Basayya Pujari alleging that he was working under the respondent No.1, as cleaner cum Hamal in the tractor bearing registration No.KA-24/T-3568. The respondent No.1 is the owner of the said tractor and that the respondent No.1 was paying salary of Rs.4,000/- per month and separate bhatta of Rs.20/- per day. On 06.04.2006, as per the instructions and authorization of :3: the respondent No.1, the petitioner was proceeding in the tractor as a cleaner cum hamal on Kusugal to Gopanakoppa, Hubballi for the purpose of repair of the said vehicle. While proceeding, the driver of the said tractor, came near Kusugal Janata Colony by the side of the road, at that time, suddenly lost his control and grip over the said tractor and the said tractor was rashly dashed on the road side ditch. As a result, the petitioner fell down on the road side ditch and sustained grievous nature of injuries i.e., fracture of left leg. Immediately he was shifted to KIMS Hospital, Hubballi. He was inpatient from 07.04.2004 to 21.04.2006. The petitioner spent Rs.30,000/- for his treatment for medicine and other incident expenses. In view of the injuries sustained by him during the employment, he filed a claim petition under Section 22(2) of the Workmen Compensation Act, 1923 claiming compensation of Rs.4,00,000/- with interest at 18% per annum from the date of the accident till realization of compensation from the owner and insurer of the lorry.
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4. After service of notice, the appellant - Insurance Company filed its written statement of objections and contested the claim petition. The respondent No.1 before the Court below, even after the service of notice, remained un-represented and he was placed as ex parte.
5. Based on the pleadings of the respective parties, the Commissioner framed as many as six issues.
6. The petitioner, in support of his claim, examined himself as P.W.1 and other evidences as P.Ws.2 to 4 and got marked the documents as Exs.P-1 to P-18. On behalf of the respondent No.2, except producing the documents i.e., insurance policy and the charge sheet as Exs.R-1 and R-2, no evidence was let in.
7. However, on evaluation of the oral and documentary evidence on record, the Commissioner was pleased to hold that the petitioner had sustained the injuries during the course of his employment and consequently allowed the claim petition, by taking the age :5: of the petitioner hamali as 16 years, income at Rs.3,500/- per month and awarded compensation of Rs.1,91,974/- (Rs.3,500/-x 60% x 40% x 228.54) with interest at 12% per annum from one month after the date of award till its deposit. It is this award which is under challenge in this appeal by the Insurance Company.
8. Shri S.K.Kayakamath, learned counsel for the appellant contended that as per the complaint only tractor is involved in the accident, no trailer has been attached to the tractor and the petitioner was traveling on the mudguard of the tractor. But no person is permitted to travel on the mudguard of the tractor. In support of the contention, learned counsel for the appellant has placed reliance of the judgment in the case of Sanjeev Kumar Samrat Vs. National Insurance Co. Ltd., reported in AIR 2013 SC 1125, wherein at para 24 it is been held as under:
"24. It is worthy to note that sub- clause(i)(c) refers to an employee who is being carried in the vehicle covered by the :6: policy. Such vehicle being a goods carriage, an employee has to be covered by the statutory policy. On an apposite reading of Section 147 and 167 the intendment of the Legislature, as it appears to us, is to cover the injury to any person including the owner of the goods or his authorized representative carried in a vehicle and an employee who is carried in the said vehicle.xxxx"
9. Learned counsel for the appellant has contended that Section 147 of the Motor Vehicles Act, 1988 and Rule 28 of the Rules of the Road Regulations, 1989, except the driver, no person to be carried on the tractor.
"147. Requirements of policies and limits of liability. --
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorised insurer; and :7:
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily 27 [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required--
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the :8: Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation. --For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place."
"28. Driving of tractors and goods vehicles. - A driver when driving a tractor shall :9: not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward."
10. Learned counsel for the appellant has further denied the relationship of the employer and employee between the petitioner and the respondent No.1 and the petitioner was traveling as an unauthorized passenger in the goods vehicle and it is falsely contended that he was working as cleaner cum hamal in the said vehicle. It is also contended that as per the complaint and the FIR, it is clearly mentioned that the tractor bearing registration No.KA-25/T-3568 is involved in the accident. However, in the petition, the vehicle number has been mentioned as KA-24/T-3568. The policy has been issued in respect of the tractor bearing registration No.KA-24/T-3568 and the trailer has been covered by taking premium of Rs.375/-, but no trailer number has been mentioned in the policy. The Commissioner inspite of there being no liability on the : 10 : part of the appellant/insurer to indemnify the insured erroneously saddled the liability upon the appellant/insurer. On these primary grounds, he prays for setting aside the impugned judgment and award passed by the Commissioner.
11. Per contra, learned counsel for the respondent Nos.1 and 2 supports the impugned judgment and award passed by the Commissioner and the compensation awarded by the Commissioner is just and reasonable, which does not call for intereference. Hence, he prays for dismissal of the appeal.
12. Upon hearing the arguments of the learned counsel for the appellant and the learned counsel for the respondent Nos.1 and 2 and on careful scrutiny of the documentary evidence on record, it is seen that the tractor belongs to the 1st respondent and the same is used by the road contractor and moreover, the petitioner was working as cleaner cum hamal, to establish the same no evidence is forthcoming. In the tractor, except driver no other person : 11 : is permitted to travel and if the Insurance Company has issued the policy; it covers the risk of the driver alone. Hence, the Insurance Company is not liable for the injuries or death of the Hamal or Cleaner traveling on the mudguard of the tractor. As the respondent No.2 has collected the premium only for the driver and has not collected the premium for the cleaner cum hamal. The victim Shivayogi was aged about 16 years at the time of accident. The tractor itself is not goods carriage vehicle and will become goods vehicle, when trailer is attached to the said tractor. Hence, employing the cleaner or hamal and allowing him to travel in the tractor is not proper. Whereas the learned counsel for the appellant has vehemently contended that the injured Shivayogi was aged about 16 years at the time of accident and he was standing on the mudguard of the tractor. The trailer was not attached to the tractor. According to Regulation 28 of the Karnataka Motor Vehicles Regulations formulated under the Karnataka Motor vehicles Act, only driver of the tractor is permitted to be seated and none others are permitted to : 12 : be in the tractor. Under the policy, risk of the driver alone is covered. Therefore, the insurer is not liable to pay compensation. This contention is taken by the learned counsel for the appellant in support of the grounds as urged in this appeal for intervention of the judgment and award. Therefore, the ratio of reliance placed by the learned counsel for the appellant and also the provisions of Section 147 of the Motor Vehicles Act and Regulation 28 of the Rules of the Road Regulations squarely applicable to the case on hand.
13. In the result, I proceed to pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment and award dated 28.01.2009 in WCA/NF-63/2006 passed by the Labour Officer cum Commissioner for Workmen's Compensation is hereby set aside against the appellant-Insurance Company.: 13 :
iii) Consequently, the 2nd respondent owner is liable to satisfy the judgment and award dated 28.01.2009 in WCA/NF-
63/2006 passed by the Labour Officer cum Commissioner for Workmen's Compensation.
The amount in deposit, if any, before this Court shall be transmitted to the jurisdictional Court forthwith for disbursement.
Sd/-
JUDGE Vnp*