Karnataka High Court
Laxman And Ors vs Mr. Ludovico R.X. Correia And Anr on 25 September, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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NC: 2024:KHC-K:7314
MFA No. 200940 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
MISCL. FIRST APPEAL NO. 200940 OF 2019 (ECA)
BETWEEN:
1. LAXMAN
S/O HANAMANTH DODDAMANI @ MADAR,
AGED: 58 YEARS, OCC: NIL,
2. MALLAWWA
W/O LAXMAN DODDAMANI @ MADAR,
AGED: 54 YEARS, OCC: HOUSEHOLD,
3. SUMITRA W/O CHANDRASHEKHAR
@ CHANDRAPPA DODDAMANI @ MADAR,
AGED: 34 YEARS, OCC: HOUSEHOLD,
4. AVVAMMA D/O CHANDRASHEKHAR
Digitally signed
by SUMITRA @ CHANDRAPPA DODDAMANI @ MADAR,
SHERIGAR AGED: 08 YEARS, M/G BY PETITIONER NO.3
Location: HIGH
COURT OF
KARNATAKA 5. ABHISHEK S/O CHANDRASHEKHAR
@ CHANDRAPPA DODDAMANI @ MADAR,
AGED: 06 YEARS, M/G BY PETITIONER NO.3
ALL ARE R/O. KIRSHYAL,
TQ. B. BAGEWADI,
DIST. VIJAYAPUR-586101.
...APPELLANTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
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NC: 2024:KHC-K:7314
MFA No. 200940 of 2019
AND:
1. MR. LUDOVICO R.X. CORREIA
AGE: MAJOR, OCC: BUSINESS,
R/O. H.NO. 425, MERCUREM,
ST LAURANCE AGASSIAN, ILHAS,
GAO, DIST. GOA-NORTH-403203.
2. THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI CHAITANYAKUMAR C.M., ADV. FOR R1;
SRI SUDARSHAN M., ADV. FOR R2)
THIS MFA IS FILED U/S.30(1) OF EC ACT, PRAYING TO
SET ASIDE THE ORDER PASSED BY THE COMMISSIONER FOR
EMPLOYEES COMPENSATION AND ADDL.SENIOR CIVIL JDUGE
AND JMFC, B.BAGEWADI IN ECA NO.11/2014 DATED
10.08.2018 BY MODIFYING and ENHANCING THE
COMPENSATION AS PRAYED IN CLAIM PETITION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA) "Whether the Commissioner for Workmen's was justified in exonerating the Insurer without noticing the terms of the Insurance Policy ? -3-
NC: 2024:KHC-K:7314 MFA No. 200940 of 2019 is the substantial question of law which arises for consideration in this appeal.
2. The Commissioner for Workman has recorded a finding of fact that an accident did occur when the deceased was working under the employment of the first respondent as a driver of the tractor. It is also recorded that as a result of the accident, he was killed. The Commissioner for Workman has however has exonerated the Insurer on the ground that the deceased employee did not possess a driving licence.
3. It is noticed from the Insurance Policy that the Insurer had collected a separate premium of `25/- and had undertaken to cover the liability of an employee of the first respondent under the Employees Compensation Act.
4. In this view of the matter, if the deceased was the employee of the employer and an accident occurred during the course of his employment, the Insurer would be liable to indemnify the owner. Consequently, the exoneration of the Insurer cannot be sustained. -4-
NC: 2024:KHC-K:7314 MFA No. 200940 of 2019
5. It is, however, argued that the deceased did not possess a driving licence and the owner had allowed an unauthorized person to drive the vehicle. This argument essentially means that the Insurer was contending that there was a breach of policy conditions. This Court in the case of New India Assurance Co., Ltd., vs Yallavva & Another1 and in a case arising out of the Employees Compensation Act i.e., MFA No.202001/2016 has held that if the Insurer were to plead there is a breach of policy conditions, it will have to apply the pay and recover principle and the Insurer would have to therefore pay the compensation and proceed to recover the same from the owner.
6. In that view of the matter, it is held that the Insurer would be liable to pay the compensation to the claimants and they would be at liberty to proceed against the owner of the vehicle to recover the said amount on the ground that there was a breach of the policy conditions. 1 MFA No.30131/2010 - DD : 12.05.2020 -5- NC: 2024:KHC-K:7314 MFA No. 200940 of 2019
7. Appeal is accordingly allowed in part.
Sd/-
(N.S.SANJAY GOWDA) JUDGE SN List No.: 1 Sl No.: 10 CT: VDC