Karnataka High Court
National Insurance Co Ltd vs Hanumantharayappa on 14 March, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF MARCH, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.7490/2008 (WC)
BETWEEN:
National Insurance Co. Ltd.,
Muddappa Complex,
I Floor, Vivekananda Road,
Tumkur,
Now represented by its
Regional Manager
National Insurance Co. Ltd.,.
Regional Office,
Subharam complex,
144, MG Road,
Bangalore-560 001 ... Appellant
(By Sri.A.N.Krishna Swamy, Advocate)
AND:
1. Hanumantharayappa
S/o Anjinappa
Now aged about 34 years
2. H.Ananda
S/o Hanumantharayappa
Now aged about 13 years
3. H.Ramamurthy
S/o Hanumantharayappa
Now aged about 11 years
2
Respondents No.2& 3 herein minors
Represented by their natural guardian
/father the 1st Respondent herein
All are residing at
Arakere Post,
Tumkur District & Taluk.
4. Siddaramaiah
S/o Rangegowda
Now aged about 41 years
Arakere Post,
Tumkur District & Taluk ... Respondents
(By Sri. K.Shantharaj, Advocate for R-1;
R-2 and R-3 are minors and represented by R-1;
Sri.Vijayakumar, Advocate for R-4)
This Appeal is filed Under Section 30(1) of WC Act
against the judgment & award dated 17.4.2008 passed
in WCA/CR No.70/2007 on the file of the Labour Officer
and commissioner for Workmen's Compensation,
Tumkur awarding a compensation of Rs.3,11,970/-
with interest @ 12% p.a.
This Appeal is having been heard and reserved,
coming on for pronouncement of judgment this day, the
Court made the following:
JUDGMENT
Appeal by the Insurer challenging the correctness and legality of the order and award passed by the Commissioner for Workmen's Compensation, Tumkur, 3 (for short 'CWC') in WCA/CR-70/2007 dated 17.04.2008 fastening the liability on the Insurer.
2. Learned advocates appearing for the parties would fairly submit that though appeal has been admitted on 23.02.2010, substantial questions of law have not been formulated by oversight and they request the Court to formulate the same.
3. A claim petition under Section 22 of the Workmen's Compensation Act (for short 'the W.C.Act'), came to be filed by husband and children of one Smt.Rangamma seeking compensation contending interalia that said Smt.Rangamma was working under 4th respondent herein in a Tractor-Trailer as a loader for loading jelly and while she was discharging her duty on 27.06.2006 near Jalagiri quarry, near Amalapur of Tumkur taluk, a heavy rock rolled down from Jalagiri hill and in the course it got shatterd into pieces and one stone piece fell on said Rangamma due to which she sustained grievous injuries and died at the spot. The 4 owner and alleged employer of Smt.Rangamma though served, did not appear before CWC and contest the matter. However, 2nd respondent-Insurer appeared and filed detailed statement of objections and contended that owing to a blast that was conducted, a stone fell on above said Smt.Rangamma and it would not cover the risk since she was not an employee working under the said 4th respondent and Insurer is not liable to pay compensation as it had issued a 'Miscellaneous and Special Type of Policy'. The relationship of `employer' and `employee' came to be denied. Both the parties tendered their evidence and on evaluation of the same, claim petition came to be allowed in part by CWC by awarding a total compensation of Rs.3,11,970/- with interest at the rate of 12% p.a. payable after one month from the date of accident.
4. It is the contention of Sri A.N.Krishnaswamy that there was no relationship of employer and employee and the policy issued to the offending vehicle would cover 5 only the risk of an employee that too when the vehicle is/was under use at the time of accident. He would submit that carrying of employee-coolie in the vehicle is a must for Insurer to indemnify the claim as otherwise it need not indemnify the claim. He would submit that there was no proof of Smt.Rangamma having been employed by 4th respondent herein i.e., Siddaramaiah. On these grounds, he seeks for answering the substantial questions of law in favour of the appellant- Insurer. In support of his submission, he relies upon the following judgments:
i) MESSRS.BRITISH INDIA GENERAL
INSURANCE CO., LTD., VS. SABANNA
SABANNA (1967 ACJ 165),
ii) MAMTAJ BI BAPUSAB NADAF AND OTHERS
VS. UNITED INDIA INSURANCE CO., LTD., AND OTHERS (2010 ACJ 2661),
iii) MALLIKARJUNA G.HIREMATH VS. BRANCH MANAGER, ORIENTAL INSURANCE CO., LTD., AND ANOTHER (2009 AIR SCW 1688), 6
iv) GOTTUMUKKALA APPALA NARASIMHA RAJU AND OTHERS VS. NATIONAL INSURANCE CO., LTD., AND ANOTHER (2007 (2) TAC 385 (SC),
v) NATIONAL INSURANCE CO., LTD., VS.
RENUKA AND OTHERS (2009 ACJ 2083),
vi) Unreported judgment of a division bench rendered in M.F.A.No.9338/2005 disposed of on 27.08.2010.
5. Per contra, it is the contention of Sri K.Shantharaj, learned advocate appearing for respondents 1 to 3 that Insurer has not disputed that deceased Rangamma is not an employee and nothing has been elicited in the cross-examination of claimants and as such, Insurer is liable to indemnify the claim. In support of his submission, he has relied upon the following judgments:
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i) BRANCH MANAGER, NEW INDIA ASSURANCE CO., LTD., VS. MALLAMMA AND OTHERS (2010 ACJ 1218),
ii) NATIONAL INSURANCE CO., LTD., VS.
SMT.BALAWWA AND OTHERS (1993 (2) KLJ
406),
iii) SANJEEV KUMAR SAMRAJ VS. NATIONAL INSURANCE CO., LTD., AND OTHERS (2013 ACJ 1).
6. It is not in dispute that the policy issued to the offending vehicle is Miscellaneous and Special Type of Vehicles Policy which came to be marked as Ex.R.2(1). A perusal of the said policy would indicate that risk of one employee under the W.C Act is also covered by receiving an additional premium of Rs.25/-. Thus, it is a contractual liability which the Insurer will have to indemnify insofar as one employee is concerned under the policy in question.
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7. In the light of grounds urged in the appeal memorandum and rival contentions raised I am of the considered that following substantial questions of law would arise for consideration:
i) Whether CWC was justified in directing the Insurer to indemnify the claim since policy issued to the offending vehicle was 'Miscellaneous and Special Type of Vehicle Policy' on the ground that risk of an employee is covered under the said policy?
ii) Whether the "use of the vehicle" by the injured or dead person being carried in the offending vehicle at the time of accident is a condition precedent for the Insurer to indemnify the claim under Workmen Compensation Act?
8. In order to fasten the liability on the Insurer under the policy in question, two essential ingredients are required to be established; namely there was an `employer' and `employee' relationship between deceased Smt.Rangamma and the employer 9 Sri.Siddaramaiah i.e., 4th respondent herein. It is to be further noticed that in the event of relationship being established, the use of the vehicle would also be a factor which requires to be taken into consideration for fastening the liability on the Insurer. Section 95 of the Motor Vehicles Act, 1939, (for short 'the M.V.Act') which is analogous to Section 147 of the M.V.Act, 1988 came to be examined by the High Court of Mumbai in the case of M/s.British India General Insurance Co., Ltd., Vs Sabanna Sabanna reported in 1967 ACJ 165 and held when an application for recovery of compensation under the W.C.Act, came to be filed by the applicant claiming to be an employee, against his employer and it came to be held that in case of a goods vehicle, risk to an employee of the Insured was required to be covered by a policy under Section 95 (1) (b) of the M.V.Act, only if he was engaged either in driving the vehicle or was being carried in the vehicle. It was held in the said case that if these twin conditions are not satisfied claim against Insurance Company cannot be enforced. 10
9. The Hon'ble Apex Court in the case of MAMTAJ BI BAPUSAB NADAF AND OTHERS VS. UNITED INDIA INSURANCE CO., LTD., AND OTHERS (2010 ACJ 2661) was examining the correctness of the judgment of this Court whereunder appeal filed by the Insurance Company had been allowed and liability of the Insurance Company had been set aside. It was held by the Hon'ble Apex Court that use of the vehicle was not even claimed as being a ground on which the liability was sought to be fastened on the Insurance Company and the cause of death was not proximate to the actual use of the vehicle. However, the judgment of this Court directing Insurance Company to pay and recovery came to be affirmed.
10. The Hon'ble Apex Court in the case of MALLIKARJUNA G.HIREMATH VS. BRANCH MANAGER, ORIENTAL INSURANCE CO., LTD., AND ANOTHER (2009 AIR SCW 1688) has held that casual 11 connection between death of workman and his employment has to be established under Section 3 (1) of the W.C.Act, to fasten the liability on the Insurer.
11. A division bench of this Court in the case of BRANCH MANAGER, NEW INDIA ASSURANCE CO., LTD., VS. MALLAMMA AND OTHERS reported in 2010 ACJ 1218 has held that the expression 'being carried in the vehicle' found in proviso to Sub section (1) of section 147 need not be construed rigidly and strictly and held that loading and unloading forms an integral and dominant purpose of transport activity and as such in the facts and circumstances of the said case, it came to be held that a workman is entitled to be indemnified by the Insurance Company.
12. Yet again, Division Bench of this court in the case of NATIONAL INSURANCE CO., LTD., VS.
SMT.BALAWWA AND OTHERS reported in 1993 (2) KLJ 406 has held that a driver of the tractor who suffered heart attack on account of loading of stones to 12 the truck would amount to the use of the vehicle and death has been caused by the user of the vehicle and as such there is a casual connection between the death of the employee and use of the vehicle and as such insurer is liable to indemnify the claim.
13. In the light of the contours laid down in the above referred judgments, when the facts on hand are examined it would clearly indicate that a claim petition was filed by the husband and the children of Smt.Rangamma contending interalia that she was working under Siddaramaiah (4th respondent herein) in the tractor-trailer belonging to him since two years and on 27.06.2006 as per the directions of her employee she was discharging her duty as a loader while loading jelly to the tractor-trailer, a heavy rock rolled from Jalagiri hill and broke into two pieces, one of which fell on said Rangamma due to which she sustained grievous injuries and died at the spot. The said contention came to be denied by the Insurer by filing detailed statement 13 of objections. An FIR came to be registered which has been marked as Ex.P.1. A perusal of the same would clearly indicate that deceased Smt.Rangamma was engaged in loading jelly to the tractor-trailer and at that point of time, a boulder rolled down from the top of the hill where the quarrying work was going on and after it broke into two pieces, it fell on said Smt.Rangamma and she was crushed under the stone and she succumbed to the injuries at the spot.
14. The employer namely Sri Siddaramaiah (4th respondent herein) though served before CWC, did not appear and contest the claim petition. Insurer was fully aware of this fact. Insurer having denied that deceased Smt.Rangamma was not an employee working under said Sri.Siddaramaiah has not proved this plea. Burden was cast on the Insurer to prove that deceased was not an employee either by summoning the Insured namely the employer or by any other evidence. Such an exercise was not undertaken by the Insurer. The 14 contents of Ex.P.1 - FIR is not disputed by the Insurer. The testimony of the claimant namely the husband of the deceased who deposed before the CWC is not shaken in the cross-examination. In that view of the matter, I am of the considered view that CWC was justified in coming to a conclusion that relationship of `employer' and `employee' existed between deceased Smt.Rangamma and fourth respondent Sri.Siddaramaiah.
15. Now, turning my attention as to whether by virtue of the policy Ex.R.2 (1) issued to the offending vehicle, the appellant-Insurer is liable to indemnify the claim or not has to be examined from two angles; firstly as to whether the policy would cover the risk of an employee; and secondly if it is so covered, whether the Insurer would be liable to indemnify the claim on account of there being nexus to the cause of death and use of the vehicle.
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16. In view of the evidence available on record, namely the contents of FIR Ex.P.1 indicating that deceased Smt.Rangamma had been working as loader/unloader in the tractor-trailer in question from past two years and the evidence of the claimant (husband of deceased Smt.Rangamma) not having been rebutted by the Insurer in any manner, it has to be necessarily held that deceased Smt.Rangamma had sustained fatal injuries in the course of employment and the accident arose out of the employment. It requires to be further noticed that CWC has noticed deceased had been carried in the offending vehicle to the spot of the accident and as such Insurer is liable to indemnify the claim. The words 'being carried in the vehicle' found in proviso (i) to sub section (1) of Section 147 though in literal sense would mean travelling in the vehicle, the social beneficial legislations should be read so as to achieve the laudable object for which it has been enacted and not to frustrate the same, as otherwise, it 16 would become redundant or nugatory. As held by the division bench in Mallamma's case referred to supra, the expression 'being carried in the vehicle' need not be construed rigidly and strictly and the process of loading and unloading forming an integral and dominant purpose of transport activity, the risk of workman who attends to the loading and unloading activity cannot be excluded by strict interpretation. When there is a casual connection between the cause of death of the employee and use of the vehicle, it would suffice for fastening the liability on the Insurer.
Hence, for the reasons aforestated, the substantial questions of law are answered in favour of the claimants.
Accordingly, I proceed to pass following:
ORDER
(i) Appeal is hereby dismissed.17
(ii) Order and award passed by Workmen Compensation Commissioner, Tumkur in WCA/CR.No.70/2007 dated 17.04.2008 is hereby affirmed.
(iii) Amount in deposit along with original records are ordered to be transferred to jurisdictional Commissioner for Workmen Compensation.
(iv) No order as to costs.
Sd/-
JUDGE
Jm/SBN