Karnataka High Court
United India Insurance Co. Ltd vs Gouramma W/O Ramachandrappa Pujar on 22 November, 2022
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MFA No. 21306 of 2011
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 21306 OF 2011 (WC-)
BETWEEN:
1. UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE, BELLARY
REP: BY THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
1ST FLOOR, UMA MAHAESHWAR RAO BUILDING,
YELAMANCHALI COMPLEX,
STATIONROAD, HOSPET
...APPELLANT
(BY SRI. C V ANGADI, ADVOCATE)
AND:
1. SMT.GOURAMMA W/O RAMACHANDRAPPA PUJAR
AGE: 45 YEARS, OCC: HOUSEHOLD,
2. KUMARI. NINGAWWA D/O RAMACHANDRAPPA PUJAR
AGE: NOW ABOUT 15 YEARS, OCC: NIL,
3. KUMARI SAVITRI D/O RAMACHANDRAPPA PUJAR
AGE: NOW ABOUT 13 YEARS, OCC: NIL,
4. KUMAR BHARMAPPA S/O RAMACHANDRAPPA PUJAR
AGE: NOW ABOUT 11 YEARS, OCC: NIL,
RESPONDENTS 2 TO 4 SINCE MINORS
REPRESENTED BY RESPONDENT No.1
GOURAMMA W/O RAMACHANDRAPPA PUJAR
ALL ARE R/O NAVADI VILLAGE, TQ: CHIKKODI,
NOW R/O KUKANOOR VILLAGE, YALABURGA TQ.
DIST:KOPPAL,
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MFA No. 21306 of 2011
5. MR. GURUSIDDAPPA S/O MAYAPPA PUJAR
SINCE DECEASED BY HIS LRs
RESPONDENTS 1 TO 4
6. Mr.ERAPPA S/O BASAPPA HANDRAL
AGE: 43 YEARS, OCC: OWNER OF TRACTOR
TROLLEY REG: NO. KA-37/T-9312,
R/O MALEKOPPA VILLAGE,YALABURGA,
DIST:KOPPAL.
...RESPONDENTS
(BY SRI. HARISH S MAIGUR, ADV. FOR R1,
R2 TO R4 ARE MINORS REP. BY R1,
SRI H.N.GULARADDI, ADV. FOR R6,
R1 TO R4 ARE LRs OF DECEASED R5)
THIS MFA IS FILED U/SEC.30(1) OF WC ACT, AGAINST
THE JUDGEMENT AND ORDER DTD:19-04-2010, PASSED IN
WC.NO.58/2008, ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMENS COMPENSATION, KOPPAL
DISTRICT, KOPPAL, AWARDING COMPENSATION OF
RS.2,29,635/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The insurer is in appeal challenging the judgment and award dated 19.04.2010 passed by the Labour Officer and Commissioner for Workmen's Compensation, Koppal (henceforth referred as "Commissioner"), in W.C.No.58/2008 in so far as the liability imposed on it to pay the compensation and the quantum of compensation determined.
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2. The claim petition filed under Sections 10 and 22 of the Workmen's Compensation Act, 1923, discloses that the claimants are the legal representatives of Ramachandrappa Pujar who was working as a labourer under the owner of a tractor bearing registration No.KA- 37/T-9312 (henceforth referred as "offending vehicle"). They claim that on 24.07.2006, the deceased had gone as a labourer and after completion of his work he was returning in the tractor. The driver of the tractor, drove it in a rash and negligent manner and when he applied brake suddenly, the tractor fell into a ditch. The deceased suffered fatal injuries and died at the spot. A case was registered by the jurisdictional police in Cr.No.81/2006 for the offences punishable under Sections 279, 337, 338, 304-A of IPC read with Section 187 of the Indian Motor Vehicle Act. The claimants claim that the deceased was paid a sum of Rs.200/- per day as wages and Rs.50/- per day as batta. The claimants therefore, sought compensation from the owner and insurer of the said tractor.
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3. The owner did not contest the claim petition. However, the insurer contended that the tractor and trailer was registered for agricultural use only. It contended that on 24.07.2006, the deceased was traveling as an unauthorized passenger along with others and therefore, it was not liable to indemnify the owner of the tractor. It also contended that the claimants had filed MVC No.864/2006 claiming compensation in respect of the very same accident before the Civil Judge, Sr.Dn., at Yelaburga and after the insurer came to know of the same, the claimants filed a memo not pressing the petition. It also contended that the driver of the offending vehicle did not possess a valid and effective driving licence to drive the tractor. Based on these contentions, the claim petition was set down for trial.
4. The claimant No.1 was examined as PW-1. In the course of her cross-examination, she deposed that the deceased was employed as a daily wager. PW-2 claimed to be employed with the owner of the tractor. He deposed that on 24.07.2006, he along with deceased were engaged by the -5- MFA No. 21306 of 2011 owner of the tractor. In his cross-examination, he deposed as follows:
"ªÀiÁ¼ÉÃPÉÆ¥Àà ºÀwÛgÀ EzÁÝUÀ C¥ÀWÁvÀ ¸ÀA¨sÀ«¹vÀÄ. D ¸ÀªÀÄAiÀÄzÀ°è PÀvÀÛ®Ä EgÀÄvÀÛzÉ £ÀªÀÄUÉ C¥ÀWÁvÀªÀÅ ¸ÀjAiÀiÁV PÁtÄwۢݮè. C¥ÀWÁvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ PÀÄAnAiÀÄ ªÉÄÃ¯É PÀĽwÛzÉݪÀÅ. E£ÀÄß ªÀÄÆgÀÄ d£ÀgÀÄ PÀÄAnAiÀÄ ªÉÄÃ¯É PÀĽwÛzÉݪÀÅ.
C¥ÀWÁvÀzÀ°è ºÀ£ÀĪÀÄ¥Àà FvÀ¤UÉ UÁAiÀĪÁVvÀÄÛ. C¥ÀWÁvÀzÀ §UÉÎ ¥ÉÆð¸ÀjUÉ ¦AiÀiÁðzÀ£ÀÄß ¤ÃrgÀĪÀÅ¢®è."
5. The insurer examined one of its officials as RW1 and marked a copy of the policy of insurance. The insured marked other documents as Exs.R1 to 13. Based on the oral and documentary evidence, the Commissioner held that the deceased died during the course of employment with the owner of the tractor. It determined the monthly income of the deceased at Rs.3,000/- per month and applying the relevant factor of 153.09, awarded a sum of Rs.2,29,635/- and held that the insurer is liable to pay the compensation with interest @ 12% per annum w.e.f. one month from the date of the accident. Being aggrieved by the same, the insurer has filed this appeal.
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6. Learned counsel for the insurer contended that PW2 deposed that four people were seated on the tractor and were not traveling in a trailer. He contended that Ex.R9 was the complaint lodged by Hanumappa on 25.07.2006 where he specifically claimed in the complaint as follows:
"gÁwæ 8.30 UÀAmÉ ¸ÀĪÀiÁgÀÄ ¸ÉÆA¥ÀÄgÀ PÀqɬÄAzÀ MAzÀÄ mÁæPÀÖgÀ §A¢vÀÄ DUÀ £Á£ÀÄ ¸ÀzÀj mÁæPÀÖgÀUÉ ºÀwÛ mÁæPÀÖgÀ ZÁ®PÀ£À ¥ÀPÀÌzÀ §®UÀqÉ EgÀĪÀ ªÀÄqÀUÁqÀð ªÉÄÃ¯É PÀĽvÉ£ÀÄ. £À£Àß ¥ÀPÀÌzÀ°è E£ÉÆߧâ£ÀÄ PÀĽvÀ£ÀÄ. £À£Àß JzÀÄjUÉ EgÀĪÀ JqÀUÀqÉ ªÀÄqÀUÁqÀð ªÉÄÃ¯É gÀĪÀiÁ®Ä ¸ÀÄwÛzÀ M§â ªÀåQÛ PÀĽvÀ£ÀÄ. mÁæPÀÖgÀ PÀÄAmÉ ªÉÄÃ¯É »AzÉ M§â£ÀÄ PÀĽvÀ£ÀÄ. £ÀAvÀgÀ mÁæPÀÖgÀ ZÁ®PÀ£ÀÄ vÀ£Àß mÁæPÀÖgÀ£ÀÄß ªÀiÁ¼ÉPÉÆ¥Àà UÁæªÀÄ¢AzÀ Cwà eÉÆÃgÁV ªÀÄvÀÄÛ C®PÀëvÀ£À¢AzÀ Nr¹PÉÆAqÀÄ ºÉÆgÀl£ÀÄ. DUÀ £ÁªÉ®ègÀÄ ¤zsÁ£ÀªÁV ºÉÆÃUÀÄ CAvÁ ºÉýzÀgÀÄ. PÉüÀzÉà gÀ¸ÉÛ vÀUÀÄÎ ¢£ÉßUÀ¼À£ÀÄß ¯ÉQ̸ÀzÉà ºÉÆgÀngÀĪÁUÀ Cwà eÉÆÃgÁVzÀÝ mÁæPÀÖgÀ£ÀÄß MªÉÄäÃ¯É JqÀPÉÌ PÀmï ªÀiÁrzÁUÀ mÁæPÀÖgÀ ¤AiÀÄAvÀætUÉƼÀîzÉà gÀ¸ÉÛ ¥ÀPÀÌzÀ°ègÀĪÀ vÀVΣÀ°è JqÀ ªÀÄUÀÄίÁV ¥À°ÖAiÀiÁ¬ÄvÀÄ. mÁæPÀÖgÀ JqÀªÀÄUÀ먀 ¥À°ÖAiÀiÁUÀĪÁUÀ mÁæPÀÖgÀ ZÁ®PÀ mÁæPÀÖgÀ ©lÄÖ ºÉUÀjPÉÆArzÀÄÝ »AzÉ PÀÄAn ªÉÄÃ¯É PÀĽvÀªÀ£ÀÄ ¸ÀºÀ fVzÀÄPÉÆArzÀÄÝ £Á£ÀÄ £É®PÉÌ ©zÁÝUÀ £À£ÀUÉ JqÀPÉÊ ªÉÆtPÉÊ ºÀwÛgÀ ¨sÁj M¼À¥ÉmÁÖVzÀÄÝ £À£Àß ¥ÀPÀÌzÀ°è PÀĽvÀªÀ£À ºÉ¸ÀgÀÄ «ZÁj¸À¯ÁV ¨Á¼À¥Àà vÀAzÉ ±ÀAPÀæ¥Àà PÀjUÁgÀ ¸Á. ªÀÄÄAqÀgÀV vÁ:aPÉÆÌÃr CAvÁ w½¬ÄvÀÄ EªÀ¤UÉ JzÉUÉ ªÀÄvÀÄÛ -7- MFA No. 21306 of 2011 vÀ¯ÉUÉ M¼À¥ÉmÁÖVvÀÄÛ. gÀĪÀiÁ®Ä ¸ÀÄwÛzÀ ªÀåQÛ £É®PÉÌ ©zÁÝUÀ CªÀ£À vÀ¯ÉUÉ, JzÉUÉ ªÀÄÄAvÁzÀ PÀqÉ mÁæPÀÖgÀ §rzÀÄ ¸ÀܼÀzÀ°èAiÉÄà ªÀÄÈvÀ¥ÀnÖzÀÝ£ÀÄ. ªÀÄÈvÀ¥ÀlÖªÀ£À ºÉ¸ÀgÀÄ «ZÁj¸À¯ÁV gÁªÀÄZÀAzÀæ¥Àà vÀAzÉ UÀÄgÀĹzÀÝ¥Àà ¸Á:£À£ÀzÀV vÁ: aPÉÆÌr CAvÁ w½¬ÄvÀÄ. PÀÄAmÉ ªÉÄÃ¯É PÀĽvÀÄ fVzÀªÀ£À ºÉ¸ÀgÀÄ gÁªÀÄtÚ CAvÁ w½¬ÄvÀÄ."
7. He, therefore, submitted that the deceased was traveling on the tractor and was sitting on the mudguard of the tractor. He invited the attention of the Court to the evidence of PW2 who stated in his cross-examination as under:
"C¥ÀWÁvÀzÀ°è ºÀ£ÀĪÀÄ¥Àà FvÀ¤UÉ UÁAiÀĪÁVvÀÄÛ. C¥ÀWÁvÀzÀ §UÉÎ ¥ÉÆð¸ÀjUÉ ¦AiÀiÁðzÀ£ÀÄß ¤ÃrgÀĪÀÅ¢®è. C£ÀAvÀgÀ £Á£ÀÄ AiÀÄ®§ÄUÁðzÀ°è ¥ÉÆð¸ÀgÀ ªÀÄÄAzÉ ºÉýPÉAiÀÄ£ÀÄß ¤ÃrgÀÄvÉÛãÉ."
8. Learned counsel, therefore submitted that the deceased was traveling as a passenger and was seated on the mudguard of the tractor and therefore, the insurer was not statutorily bound to cover the risk of such a passenger. The learned counsel relied upon the judgment of the Full Bench of this Court in Gadhilingappa @ Gadhilinga and another vs. K. Guleppa and others reported in ILR 2021 KAR 3377 where the Full Bench of this Court considered the -8- MFA No. 21306 of 2011 question of liability of an insurer to cover the risk of a person sitting on a mudguard of a tractor. The Full Bench of this Court, after considering various decisions of Hon'ble Supreme Court as well as the Full Bench of this Court held that the insurer is not liable to cover the risk of a passenger seated on the mudguard of a tractor. The learned counsel, therefore, submitted that the Commissioner committed an error in fastening the liability to pay the compensation upon the insurer.
9. Per contra, the learned counsel for the claimants submitted that the claimants have consistently claimed that the deceased was employed as a coolie. He submitted that the complaint at Ex.R9 produced by the insurer was not true and therefore, the same was not reliable. He contended that the owner of the tractor had categorically admitted in the claim petition filed in MVC No.864/2006 that the deceased was employed on daily wages with him in the tractor and therefore, he submitted that the commissioner had rightly fastened the liability to pay the compensation on the insurer of the offending vehicle.
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10. The owner of the tractor supported the contentions urged by the learned counsel for the claimants.
11. I have considered the submissions made by the learned counsel for the insurer, learned counsel for the claimants and also the learned counsel for the owner of the offending vehicle.
12. The accident in question is not in dispute. The fact that the deceased died in the accident is also not in dispute. The only question that arises for consideration is whether the accident arose out of and during the course of employment or not.
13. This was a claim petition filed under section 22 of the Employee's Compensation Act, 1923 and therefore, it was incumbent upon the claimants to prove that the deceased suffered injuries out of and during the course of his employment. As rightly contended by the learned counsel for the insurer, the claimants deliberately did not place on record the copy of the complaint lodged which was the basis of the first information report in Crime No.81/2006. The
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MFA No. 21306 of 2011 compliant lodged by one of the co-passengers clearly indicated that the deceased was sitting on the mudguard of the tractor on the fateful day. In the face of this document, it was incumbent upon the claimants to establish by reasonable evidence that the deceased was employed as a coolie in the tractor. PW2 deposed that three persons were traveling in the tractor and did not speak about any trailer being attached to the tractor or that the deceased and others were traveling in the trailer. PW2 further deposed that one of the persons was sitting on an implement attached to the tractor. Therefore, it is clear that no trailer was attached to the tractor on the date of the accident. The claimant did not examine any person who saw the deceased being employed in the trator on the fateful day. The least that they could have done was to examine the person who had lodged the complaint or the other person who was injured in the accident. The claimants could not leverage the admission by the owner that the deceased was employed with him. The circumstances indicate that the owner in order
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MFA No. 21306 of 2011 to avoid liability could not switched sides to help the claimant.
14. Therefore, the irresistible conclusion would be that the deceased was sitting on the mudguard of the tractor. It is not in dispute that only one person is authorized to sit on the tractor and no one else is permitted to sit or travel in the tractor. As rightly contended by the learned counsel for the insurer that the insurer was not statutorily bound to cover the risk of a person, who is seated on a mudguard. The Full Bench of this Court has gone into great detail on liability of the insurer in respect of accidental death caused to a person traveling in a tractor and held that the insurer is not under any statutory duty to cover the risk. The Full Bench of this Court had exonerated the insurer from any liability to pay the compensation determined.
15. In accident claims, courts are bound to decide them on the basis of preponderance of probabilities and cannot expect proof of the highest order. This has emboldened many persons to pawn off spurious claims as
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MFA No. 21306 of 2011 one under the M.V. Act or under the Employee's Compensation Act. In the present case, the owner of the offending vehicle has staged a charade to seem as if the deceased was employed by him in the tractor and that he died during and out of the employment. The smokescreen is shattered by the complaint lodged as well as the evidence of PW2.
16. Since the evidence indicate that the deceased was traveling in the tractor and was perched on the mudguard of the tractor, the insurer was not liable to indemnify the owner of the tractor in respect of the compensation awarded by the Commissioner. Hence, this appeal deserves to be allowed. Consequently, the following order is passed:
ORDER The appeal is allowed.
The impugned judgment and award passed by the Commissioner in so far as it relates to fastening the liability on the insurer to pay the compensation is set aside and the owner of the offending vehicle is directed to pay the
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compensation as directed by the Commissioner along with interest.
In view of the above, the amount in deposit is ordered to be refunded to the insurer.
(Sd/-) JUDGE JM- paragraphs 1 to 4, YAN - paragraphs 5 till end.List No.: 1 Sl No.: 7