Telangana High Court
National Insurance Company Limited vs Ugilla Ramulu And 2 Others on 8 July, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
CIVIL MISCELLANEOUS APPEAL No.1337 of 2011
JUDGMENT:
This Civil Miscellaneous Appeal is filed by the appellant- opposite party No.1 aggrieved by the order dated 03.05.2010 passed in W.C. No.9 of 2003 by the Commissioner for Workmen's Compensation & Deputy Commissioner of Labour, Nizamabad.
2. The respondent Nos.1 and 2 are the applicants, parents of the deceased workman and the respondent No.3 was the opposite party No.2, owner of the tractor bearing No.AP 25 E 12.
3. The parties are hereinafter referred as arrayed before the trial court.
4. The case of the applicants was that their son Bikshapathi, aged about 21 years, was working as a labourer on the tractor of the opposite party No.2 and he was paid Rs.4,000/- per month as salary and batta of Rs.100/- per day. On 09.05.2002, the opposite party No.2 instructed the deceased workman Bikshapathi to go on the tractor to get the cultivator from the fields of one Ravindra Babu along with the 2 Dr.GRR,J CMA No.1337 of 2011 tractor driver V. Prasad Rao. On his instructions, while the deceased workman along with the driver V. Prasada Rao, were going to the fields and when they reached the outskirts of Karlapata, the driver of the tractor drove the same in a rash and negligent manner with high speed, due to which the deceased workman fell down from the tractor, came under the back wheels, sustained fatal injuries and while being shifted to the Government Hospital, Bodhan, succumbed to the injuries on the way. The Police, Bodhan, registered a case in Crime No.120/2002 and transferred the same to Biloli Police Station on the point of jurisdiction.
5. The applicants claimed compensation of Rs.4,00,000/- from the opposite party Nos.1 and 2 contending that they were jointly and severally liable to pay the said compensation.
6. The opposite party No.1 i.e. Insurance Company filed written statement calling for strict proof of the averments stated in the application. The opposite party No.1 contended that except the driver, no one could travel on the tractor and as the opposite party No.2 allowed the deceased to travel on the tractor against the terms and 3 Dr.GRR,J CMA No.1337 of 2011 conditions of the policy, the opposite party No.2 alone was liable to pay compensation and prayed to dismiss the application with costs.
7. The opposite party No.2 filed written statement admitting the employment of the deceased as a workman under him on his tractor bearing No.AP 25 E 12 and that he was being paid Rs.200/- per day as labour charges. The opposite party No.2 contended that the accident occurred due to the negligence of the deceased workman himself. His tractor was validly insured with the opposite partyNo.1 vide cover note No.128967 for the period from 09.06.2001 to 08.06.2002 covering the date of accident on 09.05.2002. The driver was holding valid driving licence as such, they were not liable to pay any compensation and prayed to dismiss the claim application against them.
8. During the course of enquiry, the applicant No.1 i.e. father of the deceased, examined himself as AW.1 and got marked Exs.A1 to A7 on his behalf. No oral or documentary evidence was adduced by the opposite party Nos.1 and 2.
9. On considering the oral and documentary evidence on record, the learned Commissioner for Workmen's Compensation & Deputy Commissioner of Labour, Nizamabad, held that as per the admission of 4 Dr.GRR,J CMA No.1337 of 2011 the opposite partyNo.2, the deceased was working as a labourer under him and met with an accident and died while he was being shifted to the hospital, as such, the deceased died during the course of and out of his employment with opposite party No.2.
10. The learned Commissioner by placing reliance upon the judgments of the Hon'ble Apex Court in National Insurance Co. v. Prembai Patel and others 1 ; New India Assurance Co. Ltd. v. Satpal Singh 2 , and of the High Court of Karnataka in Oriental Insurance Company Ltd. v. Thukaram Adappa and Others3 held that the opposite party No.1 could not escape its liability and bound to indemnify the opposite party No.2 in payment of compensation to the applicants and that they were jointly and severally liable to pay the compensation to the applicants.
11. With regard to the quantum of compensation, the learned Commissioner considered the age of the deceased workman as 21 years basing upon the inquest report and considered his wage as Rs.2,003/- per month as per the Minimum Rates of Wages fixed by the Government of Andhra Pradesh in Employment of Public Transport in 1 AIR 2005 SC 2337 2 2000 ACJ 1 SC 3 2007 ACJ 1497 5 Dr.GRR,J CMA No.1337 of 2011 G.O.Ms.No.30 L.E.T & F (Lab-II) Department dated 27.07.2000 and by applying the formula assessed the entitlement of the compensation by the applicants as Rs.2,23,044/- and by adding stamp fee and advocate fee, held that the opposite party Nos.1 and 2 were jointly and severally liable to pay compensation of Rs.2,23,990/- within a period of 30 days from the date of receipt of the order and on failure to deposit the same, the same would carry interest at 12% per annum from the date of default.
12. Aggrieved by the said order passed by the learned Commissioner for Workmen's Compensation & Deputy Commissioner of Labour, Nizamabad, the opposite party No.1 preferred this appeal raising the following substantial questions of law:
i. Whether the order of the Commissioner is correct in making the appellant liable to pay compensation when the deceased was not covered under the policy of insurance?
ii. Whether the order of the Commissioner is sustainable in making the appellant liable to pay compensation when the insured has not chosen to pay additional premium covering the risk of the deceased workman?6
Dr.GRR,J CMA No.1337 of 2011
13. Heard Sri V. Sambasiva Rao, learned counsel for the appellant-Insurance Company and Sri Lakkadi Dayakar Reddy, learned counsel for the respondent Nos.1 and 2-applicants.
14. Learned counsel for the appellant-insurance company contended that the Commissioner grossly erred in making the appellant liable to pay compensation though the risk of the deceased was not covered under the insurance policy. The commissioner failed to look into the policy of insurance wherein it was made clear that the premium paid was only for the driver of the tractor and no additional premium was paid covering the risk of the labourer. The Commissioner grossly erred in not looking into the contents of the FIR, which would show that the tractor was attached with a cultivator used for ploughing and would not need the support of a labourer for ploughing operations. The Commissioner ought to have looked into Ex.A5, RC book of the tractor which would show the seating capacity as one and ought to have held that the premium paid was only to cover the risk of the driver and no other workman was covered under the policy of Insurance. The Commissioner grossly erred in making the appellant liable to pay compensation basing on the judgment of the Hon'ble Apex Court in Satpal Singh's case (2 supra) which was 7 Dr.GRR,J CMA No.1337 of 2011 overruled by the Full Bench judgment of the Hon'ble Apex Court in New India Assurance Co. Ltd. vs. Asha Rani & Ors. 4, and prayed to set aside the order in W.C. No.9 of 2003 passed by the Commissioner for Workmen's Compensation & Deputy Commissioner of Labour, Nizamabad.
15. The learned counsel for respondent Nos.1 and 2-applicants, on the other hand, contended that the learned Commissioner after appreciating the evidence on record and considering the judgments of the Hon'ble Apex Court and various other High Courts mentioned in it, came to the conclusion that both opposite parties No.1 and 2 were jointly and severally liable to pay the compensation to the applicants. The deceased was a labourer working with the opposite party No.2. There were no specific averments in the policy that it was taken only in respect of the driver. The Hon'ble Apex Court in Shivaraj v. Rajendra and another 5 directed the Insurance Company to pay the compensation amount to the appellant-claimant with a liberty to recover the same from the tractor owner and basing on the above judgment, in the later judgment in V. Renganathan and another v. 4 2003 (2) SCC 223 5 2018 (10) SCC 432 8 Dr.GRR,J CMA No.1337 of 2011 Branch Manager United India Insurance Company Ltd. and another6 held that:
"We find no fault with the finding of the High Court that the Insurance Company could not be held liable for the payment of compensation in view of the judgment of 3-Judges' Bench of this Court in the case of New India Assurance Co. Ltd. vs. Asha Rani & Ors. reported in 2003 (2) SCC 223. However, at the same time, we find that in view of the settled position, the High Court ought to have partly allowed the appeal. We may gainfully refer to the observations of this Court in Shivaraj vs. Rajendra and Anr. reported in 2018(10) SCC 432."
16. Thus, he submitted that the judgment in Asharani's case (4 supra) was also considered by the Hon'ble Supreme Court, but however, directed 'pay and recovery' to be ordered as per the judgment in Shivaraj's case (5 supra) and as such, prayed to order for 'pay and recovery'.
17. Perused the record.
18. As seen from the FIR, the deceased was travelling by sitting on the mudguard of the tractor and due to the negligent driving of the driver of the tractor, he fell under the back wheels of the tractor and sustained injuries and on the way to the Government Hospital succumbed to the injuries.
6 2022 LawSuit (SC) 1575 9 Dr.GRR,J CMA No.1337 of 2011
19. The contention of the appellant-Insurance Company was that the policy would cover the risk of the driver alone, the premium was paid only for the driver, as per the RC, except for the driver there was no seating capacity for any others to travel in the tractor. As the opposite party No.2-owner of the vehicle instructed the deceased to proceed on the tractor, allowing him to sit on the mudguard, which was in violation of the terms and conditions of the policy, the opposite party No.2 alone was liable to pay the compensation to the applicants- parents of the deceased. The citations relied by the learned Commissioner were under Section 147 of the Motor Vehicles Act, but not under the Workmen's Compensation Act. The judgments in Satpal Singh's case as well as Asharani's case were pertaining to the persons travelling in a goods carriage and relied upon them.
20. The learned counsel for the appellant-Insurance Company further relied upon the judgment of the High Court of Madras in Divisional Manager, National Insurance Company Limited v. Rathika and others 7, wherein basing upon the facts of the case held that:
"12. Tractor is a single seated vehicle and except driver, no one could be allowed to be 7 2022 ACJ 1585 10 Dr.GRR,J CMA No.1337 of 2011 travelled. Tractor is not a goods vehicle. In the Insurance Policy itself it is stated that the Tractor should be used only for agricultural and forestry purposes and that the policy does not cover if the vehicle is used for the carriage of passengers for hire or reward. Even in the Regulation No. 28 of the Rules of the Road Regulations, 1989, it has been categorically stated as follows:
"28. Driving of tractors and goods vehicle.- A driver when driving a tractor shall 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."
13. Admittedly, in this case, the deceased travelled only on the mudguard of the Tractor. PW2 - Dhanalatchumi @ Dhanam has compensation. categorically admitted in her cross examination that among the four ladies travelled in the tractor on the date of the accident, she was sitting along with deceased Kannammal on the left side mudguard of the tractor and the other two ladies were sitting on the right side mudguard of the tractor. Though in the evidences of PW1 and PW2, it is stated that the deceased went to coolie work and travelled along with three others as coolie in the tractor, as the Tractor is a single seated vehicle, except driver, the deceased and others ought not to have been permitted to be travelled and the travel made by them on the mudguard of the Tractor can be termed only as a gratuitous passengers and not as coolies.
Moreover, in this case, at the time of the accident, the tractor was attached only with a Harvesting Machine and not a Trailer.
Further, the deceased could not have travelled on the mudguard of the tractor without the permission of the driver of the Tractor. For negligence on the part of the 11 Dr.GRR,J CMA No.1337 of 2011 driver, the owner of the vehicle is vicariously liable to pay the compensation."
But, however, ordered pay and recovery.
21. Learned counsel for the respondent Nos.1 and 2-applicants also relied upon the judgments of the Hon'ble Apex Court in Shivraj v. Rajendra and another (5 supra), wherein it was held that:
"10. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case.
11. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swaran Singh & Ors. [(2004) 3 SCC 297], Mangla Ram Vs. Oriental Insurance Co. Ltd. [(2018) 5 SCC 656, Rani & Ors. Vs. National Insurance Co. Ltd. & Ors.[(2018) 8 SCC 492 and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others [(2017) 4 SCC 796. In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction 12 Dr.GRR,J CMA No.1337 of 2011 to respondent No.2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner Respondent 1.
14. In view of the above, the appeals are partly allowed to the extent of directing the respondent No.2 (Oriental Insurance Company Ltd.) to pay the compensation amount determined by the tribunal and affirmed by the High Court to the appellant in the first place and with liberty to recover the same from the owner of the offending tractor (respondent No.1) in accordance with law."
22. He further relied upon a case in Shriram General Insurance Co. Ltd. v. Khomin Bai and others 8, which was also a case pertaining to a person travelling on a tractor, wherein it was held that:
"23. The issue of person travelling on a tractor who met with an accident resulting in permanent disability was considered and decided by Hon'ble Supreme Court in the matter of Shivaraj v. Rajendra reported in (2018) 10 SCC 432 and it was held thus:
"10. The High Court, however, found in favour of Respondent 2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person, namely, 8 2021 ACJ 1845 13 Dr.GRR,J CMA No.1337 of 2011 the driver. As a result, the Insurance Company (Respondent 2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case."
and of the Hon'ble Apex Court in V. Renganathan and another v. Branch Manager, United India Insurance Company Ltd and another (6 supra), wherein also 'pay and recovery' was ordered.
23. As all the above cases, relied by both the learned counsel are showing that 'pay and recovery' can be ordered in such cases and considering that the Workmen's Compensation Act is also a beneficial legislation, this Court considers it fit to direct the appellant-Insurance Company to pay the compensation to the respondent Nos.1 and 2- applicants and then proceed to recover the same from the respondent No.3-opposite party No.2. As the appellant-Insurance Company had deposited the entire amount of compensation and the respondent Nos.1 and 2-applicants were permitted to withdraw 50% of the amount deposited by the appellant as per the order in CMAMP No.1887 of 2014 dated 18.11.2015, the respondent Nos.1 and 2-applicants are permitted to withdraw the balance amount of compensation deposited by the appellant-Insurance Company and the appellant is permitted to 14 Dr.GRR,J CMA No.1337 of 2011 proceed with recovery of the compensation amount from the respondent No.3-opposite party No.2.
24. In the result, the Civil Miscellaneous Appeal is allowed directing the appellant-opposite party No.1 Insurance Company to 'pay and recover'. As the entire amount of compensation was deposited before the Commissioner and the respondent Nos.1 and 2-applicants were permitted to withdraw 50% of the amount deposited by the appellant as per the order in CMAMP No.1887 of 2014 dated 18.11.2015, the respondent Nos.1 and 2-applicants are permitted to withdraw the balance amount of compensation and the appellant- opposite party No.1 is permitted to proceed with recovery of the compensation amount from the respondent No.3-opposite party No.2. No costs.
As a sequel, miscellaneous petitions, pending if any shall stand closed.
_____________________ Dr. G. RADHA RANI, J July 08, 2024 KTL