Karnataka High Court
The Divisional Manager vs Smt. Mahadevi S/O Narayan Malade on 2 July, 2019
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2nd DAY OF JULY 2019
BEFORE
THE HON'BLE MR.JUSTICE P.G.M. PATIL
MFA NO.21907/2010 (WC)
BETWEEN:
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURENCE COMPANY LTD.,
D.O CLUB ROAD BELGAUM,
REPRESENTED BY ITS REGIONAL MANAGER
REGIONAL OFFICE 2-B, UNI TY ANNEXE,
P KALIG RAO ROAD(MISSION ROAD),
BANGALORE.
... APPELLANT
(By SRI. G. N. RAICHUR, ADV.)
AND:
1. SMT. MAHADEVI S/O NARAYAN MALADE,
AGE: 24 YEARS, OCC: HOUSE HOLD WORK,
R/O VALVE MALA, NEAR NIPPANI,
TALUKA: CHIKKODI, DIST: BELGAUM.
2. KUMAR PRAVEEN NARAYAN MALADE,
AGE: 07 YEARS, OCC: STUDENT,
R/O VALVE MALA, NEAR NIPPANI,
TQ: CHIKKODI,DIST: BELGAUM
MINOR REPTED BY RESPONDENT NO.1
3. SMT. HIRABAI SHIVAPPA MALADE
AGE: 64 OCC: HOUSE HOLD WORK,
2
R/O VALVE MALA, NEAR NIPPANI,
TQ: CHIKKODI, DIST: BELGAUM
4. SRI SADASHIV S/O PANDURANG GHATHE
AGE: 32 YEARS, OCC: OWNER OF T.T. UNI T
NO MXO-6254, R/O PHLACHISIROLE,
TQ:HATKANAGALA, KHOLAPUR.
... RESPONDENTS
(By SRI.S.R.KAMATE & SRI.M.R.YARAZARAVI,ADVS.
FOR R1 AND R3;
R2 IS MINOR REPRESENTED BY R1;
SRI.B.D.HIREMATH, ADV. FOR R4)
RESERVED FOR JUDGMENT ON : 11.06.2019.
JUDGMENT PRONOUNCED ON : 02.07.2019.
THIS PETI TION HAVING BEEN HEARD AND
RESERVED FOR ADMISSION, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE
COURT PASSED THE FOLLOWING:
JUDGMENT
The insurer- New India Assurance Company Limited being aggrieved by the judgment and award dated 30.01.2010 passed in W.C.F.No.131/2007 by the Labour Officer and Commissioner for Workmen's Compensation (for short 'Commissioner') , Sub Division No.1, Belgaum has filed this appeal.
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2. It is the case of the claimants before the Commissioner that the deceased Narayan Shivappa Malade was working as coolie in the Tractor No.MXO 6254 and Trailer No.MH-09-U-169 and MH-09-U-175 belonging to respondent No.1. The Tractor and trailer was used for transportation of sugarcane to the Sugar Factory.
3. On 17.01.2007, the deceased was traveling in the tractor trailer unit as Hamal/Coolie as per the instructions of respondent No.1. On that day, about 3.00 a.m., the said tractor trailer dashed to the bullock cart near Sugar Factory, Kadoli in front of Sriman Hotel. The bullock died on the spot and the deceased was thrown out into the well situated by the side of the road and died.
4. The claimants being the wife, minor son and mother of the deceased filed the claim petition seeking compensation of Rs.8,00,000/- against the employer 4 and the insurer. They have further stated that the deceased was getting salary of Rs.3,000/- per month and Rs.50/- per day as Bhatta from respondent No.1. The claimants have suffered a lot and lost their dependent. Therefore, respondents No.1 and 2 are jointly and severally liable to pay compensation.
5. In pursuance of the notice, respondents No.1 and 2 appeared before the Commissioner. Respondent No.1 filed written statement admitting that he is the owner of the tractor and trailer and that the deceased was working as coolie in the Tractor Trailer belonging to him and he has also admitted that at the time of accident, he was the employee. Since his vehicle is duly insured with respondent No.2, respondent No.2 is liable to pay the compensation.
6. Respondent No.2 filed the objections stating that the deceased was sitting on the mudguard of the tractor and the policy being the special type of policy, there is 5 no coverage of coolies in the tractor trailer unit. No premium was collected for coverage of coolies. Further, the death is not in the course of employment and is not arising out of employment. The driver was also not having valid and effective driving licence. Therefore he is not liable to pay compensation.
7. On the basis of the pleadings of the parties, the learned Commissioner framed issues.
8. The petitioner No.3 was examined as PW1 and got marked 11 documents at Ex.P1 to P11. Respondent No.2 examined its official witness as RW1 and got marked 2 documents at Ex.R1 and R2.
9. The learned Commissioner after hearing both the parties passed the impugned judgment awarding compensation of Rs.3,11,970/- with interest at 12% p.a.
10. The insurer having aggrieved by the impugned judgment has filed this appeal on the ground that the 6 Commissioner has committed an error in coming to the conclusion that the Coolies are covered under the policy at Ex.R2, as no premium was collected as per IMT 39. It is also contended that the Commissioner committed error in not noticing that there was no connection of the vehicle with the death and there was collusion between the owner and the other parties.
11. Heard the learned counsel for the appellant and the respondents.
12. A short question which arise for consideration in this appeal before this Court is, as to whether the appellant/insurer has made out substantial question of law to set aside the liability saddled against him.
13. The learned counsel for the appellant/insurer submitted that absolutely there is no evidence to prove that the deceased died in the course of employment and there is also no evidence to prove that the deceased was 7 the employee under the employment of respondent No.1.
14. Learned counsel further submitted that the policy does not cover the risk of the coolies and that it covers the risk of one employee i.e. driver. Therefore, the liability saddled against the appellant is liable to be set aside.
15. Per contra the learned counsel for the respondents/claimants submitted that the statement of the owner of the tractor trailer recorded by the Police goes to show that respondent No.1-the employer himself identified the body of the deceased which was found in the well. It is made out that due to the accident, the deceased was thrown out of the vehicle and he fell in the well situated by the side of the road and died.
16. The learned counsel for the appellant has relied on the judgment in the case of Mallikarjun G. Hiremath 8 V. The Branch Manager, The Oriental Insurance Co.Ltd. & Another arising out of SLP (C) 25750/2005 decided by the Hon'ble Supreme Court of India on 12.02.2009. In paragraph 5 of the judgment, the Hon'ble Supreme Court has held as follows:
"5.To come within the Act the injury by accident must arise both out of and in the course of employment. The words 'in the course of the employment' mean 'in the course of the work which then workman is employed to do and which is incidental to it'. The words 'arising out of employment' are understood to mean that 'during the course of employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered'. In other words there must be a casual relationship between the accident and the employment. The expression 'arising out of employment' is again not confined to the mere nature of the employment. The expression applies to employment as such--to its nature, its conditions, its obligations, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arise 'out of employment'.9
17. The learned counsel for the claimants has relied on the judgment in the case of Oriental Insurance Company Limited, Bellary DO v. Mallikethi Basappa and Others reported in 2013(3) Kar.L.J. 59(DB), in which the Division Bench of this Court has held in paragraph 7 is as follows:
"7. We would have appreciated the arguments of Mr.Seetharama Rao, provided the policy issued by the company was only in respect of the engine of the Tractor but not the Trailer. The seating capacity of an engine is only one and only Driver can sit and drive the vehicle. The policy issued is not only for the Tractor, but also for the Trailer. It is known to the whole World that the loaders as employees of the owner can always sit in the Trailer either for loading purpose or unloading purpose. On considering the policy, we are of the opinion the appellant has undertaken to cover the risk of one Employee or a Driver. In the instant case, the deceased was an employee who died in the accident during the course of his employment."
18. Therefore, in the said case also the sitting capacity of an engine is only one and only driver can sit in the 10 vehicle. The policy issued is not only for the tractor but also for the trailer. Therefore, it is also further observed that it is known to the whole World that the loader as employee of the owner can always sit in the trailer and that for loading purpose or unloading purpose. Therefore, treating the policy, this Court held that the insurer has undertaken to cover the risk of one of the employee or of driver. Similarly in the present case, it is admitted that Ex.R1 also covers the risk of driver and one employee. It is also not disputed that the insurer has not satisfied any other claim arising out of the said accident.
19. Therefore, policy at Ex.R1 covers the risk of the deceased coolie who was driving the tractor trailer.
20. So far as the contention of the insurer that there is no evidence to prove that the deceased was employed by respondent No.1 and that the death occurred in the course of employment, the employer respondent No.1 11 appeared before the Commissioner and has filed written statement in which he has clearly admitted that he is the owner of the tractor and trailer involved in the accident. He has further admitted that the deceased was working as Coolie in the trailer belonging to him. When this is admitted by the employer himself, the insurer cannot deny the same.
21. The learned counsel for the insurer submitted that though respondent no.1 admitted the employment of the deceased in his written statement, respondent No.1 has not entered the witness box to support his contention and therefore it cannot be taken as admission, has no merit. The admission given by respondent No.1 in the pleadings is sufficient to prove that the deceased was employed by him and at the time of accident, the deceased was traveling in the tractor trailer. Therefore, the death of the deceased occurred in the course of or out of employment.
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22. The contention of the insurer that respondent No.1 has not entered the witness box in support of his plea in the written statement cannot be accepted. The fact which is admitted in the pleadings need not be proved.
23. Under these circumstances, this Court holds that the claimants have proved that the deceased was employed by respondent No.1 and accident and death of the deceased occurred in the course of his employment.
24. Therefore, the point for consideration is answered accordingly.
In the result, the appeal being devoid of merit is liable to be dismissed. Accordingly, it is dismissed.
Sd/-
JUDGE KGK