Karnataka High Court
United India Insurance Co. Ltd. vs Yamanurappa S/O Shivappa Uchalakunti on 25 October, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF OCTOBER 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
MFA No.22271/2009 (WC)
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE, HOSPET
YELAMACHHALLI COMPLEX
STATION ROAD, HOSPET
REP BY ITS DIVISIONAL MANAGER
SRI.P.ANAND KUMAR
... APPELLANT
(BY SRI N.R.KUPPELUR AMD S.S.KOLIWAD, ADV.)
AND
1. YAMANURAPPA S/O SHIVAPPA UCHALAKUNTI
AGE 23 YEARS, OCC: ALLEGED HAMLI.
R/O HASAGAL, TQ: DIST KOPPAL
2. ISHAPPA S/O SHIVAMURTHEPPA BALEGERA
AGE 43 YEARS, OCC: AGRICULTURE
R/O BANKAL VILLAGE
TQ YALABURGA, DIST KOPPAL ... RESPONDENTS
(BY SRI CHANDRASHEKAR P.PATIL, ADV FOR R-2)
R1 - NOTICE - SD)
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT AND ORDER DATED:28/5/2009 PASSED IN WC No.310/06
ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN COMPENSATION, KOPPAL, AWARDING COMPENSATION OF
RS. 1,22,304/- ALONG WITH INTEREST OF 12% P.A.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
With the consent of both the learned counsel appearing for both parties, this matter is taken up for final disposal.
2. The Insurance Company has challenged the order dated 28.05.2009 passed in WC No.310/2006 by the Workmen's Compensation Commissioner, Koppal.
3. The respondent No.1 is a claimant who has suffered injury in the accident that occurred on 30.11.2005, while he was working as a coolie in the tractor-trailer bearing No.KA-37/T-7884 and 7885 belonging to the second respondent herein. The Tractor was insured with the appellant as agricultural tractor- trailer under the Farmers Package Insurance Policy. It is submitted by the appellant, that though the tractor was insured under the Farmers Package Insurance Policy, but it has been used for commercial purpose i.e. for transport of the fertilizer of one Jagadish. It is further submitted that FIR P.1 and the statement of 3 complaint as per Ex.P.2, proves that the injured was travelling on the mudguard of the tractor, which is impermissible, since it contravenes the Roads Regulation. The Workmen Compensation Commissioner has committed an error in referring Exs.P.1 and P.2. These documents are produced by the claimant themselves. In support of his submission, learned counsel referred the judgment in the case of Oriental Insurance Co Ltd Vs. Smt. Shoba and others reported in ILR 2011 Kar 4619 and in an unreported judgment dated 05.07.2005 in MFA No.7868/2002 and also in another unreported judgment dated 16.01.2004 in MFA No.1397/2004, wherein it has been held that the claimant travelling on the mudguard is not entitled for compensation and insurance company has not covered the risk.
4. The learned counsel for the respondent No.1 submits for dismissal of appeal.
5. The Workmen Compensation Commissioner has examined the evidence on behalf PWs.1 and 2 and 4 fastened the liability on the Insurance. Though it is referred in complaint and charge sheet as the injured was travelling on the mudguard is not true, it has not been proved, and the statement of complainant- Neelakantappa, has been referred for the purpose of registering the case, whereas he has deposed that the injured was sitting in the trailer and not on the engine. When the case has been disposed of by the Commissioner, it is the duty of the Commissioner to examine such person, who made complaint before the police. In the facts and circumstances of this case, the said job has been done by the claimant. The contents of FIR, charge sheet is not conclusively proved. In support of his submission, learned counsel referred the judgment of in the case Dhanavanti and others Vs. Kulvantsingh reported in 1994 ACJ 708 and another judgment in the case of Mataji Beva and others Vs. Hemanta Kumar Jena and others reported in 1984 ACJ 1303 and unreported judgment in MFA No.12148/2005 dated 02.02.2010.
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6. In the light of the submission of both the learned counsels, the substantial questions that arise for consideration are:
i. Whether the appellant has proved his case that the injured was travelling on the mudguard of the tractor?
ii. Whether the Workmen Compensation Commissioner committed an error in fastening the liability even after examining the fact that injured was travelling on the mudguard?
7. The burden would be on the person who disputed the claim that, the claimant was travelling in the trailer and he sustained injury while he was working for respondent No.1. He also established the relationship between the employer and employee and the accident occurred during the course of the employment. Merely because, one of the worker or passenger by name Neelakantappa has made complaint before the police stating that the injured was travelling on the mudguard and sustained injury in the accident, that itself is not sufficient and it is not ultimate to 6 decide the fate of the claimant. The insurance company has filed Ex.P.1-FIR and Ex.P.2-charge sheet. It also referred the statement made by the person who made FIR and in his statement dated 30.11.2005 he has stated that injured was travelling on the mudguard. This statement, FIR and charge sheet have rebuttal effect and not conclusive proof. Here the injured has examined by name Neelakantappa, whose statement was recorded on 30.01.2005, and in his evidence he has deposed that complainant was travelling on the trailer. This evidence has not been rebutted or disproved by the respondent-insurance company. Under these circumstances, the evidence of PW.2, the complainant in material evidence, this supports the case of the claimant. The cases referred in favour of the claimant, would not enure to his benefit in the facts of the present case. In view of the above, I do not find any good reasons to answer the substantial questions of law. The evidence of PW.2, Ex.P.1 and P.2 if read together, confirms the case in favour of the claimant. Hence, pass the following:
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ORDER I. The appeal is hereby dismissed.
II. The amount in deposit is ordered to be transmitted to the workmen Compensation Commissioner for disbursement.
SD/-
JUDGE.
Rms