Karnataka High Court
The Divisional Manager Oriental ... vs Laxmibai @ Ramakka W/O Kempanna Kalloli on 23 August, 2012
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1 R
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 23RD DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
M.F.A. No.23400/2012 (WC).
BETWEEN:
THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO. LTD.,
II FLOOR, MADIWALE ARCADE,
CLUB ROAD, BELGAUM,
REP. BY ITS REGIONAL OFFICE,
SUMANGALA COMPLEX, II FLOOR,
LAMINGTON ROAD, HUBLI,
REP. BY ITS ASSISTANT MANAGER ... APPELLANT
(BY SRI: NAGANGOUDA.R.KUPPELUR, ADV. FOR
M/S.B.C.SEETHARAMA RAO ASSTS.)
AND:
1. SMT.LAXMIBAI @ RAMAKKA,
W/O KEMPANNA KALLOLI,
AGE: 43 YEARS, OCC: HOUSEHOLD,
2. SMT.RENUKA, D/O. KEMPANNA KALLOLI,
AGE: 23 YEARS, OCC: HOUSEHOLD,
3. KUMAR. PRAVEEN S/O KEMPANNA KALLOLI,
AGE: 14 YEARS, OCC: STUDENT,
4. SURESH S/O KEMPANNA KALLOLI,
AGE: 22 YEARS, OCC: NIL,
2
5. NINGAPPA S/O KEMPANNA KALLOLI,
AGE: 19 YEARS, OCC: STUDENT,
6. KUMARI. KAVITA D/O KEMPANNA KALLOLI,
AGE: 17 YEARS, OCC: STUDENT,
7. SMT.LAGAMAVVA W/O KEMPANNA KALLOLI,
AGE: 41 YEARS, OCC: HOUSEHOLD,
8. SMT.SONABAI W/O NINGAPPA KALLOLI,
AGE: 71 YEARS, OCC: NIL
ALL ARE R/O.SANTASENA ROAD,
SHASTRI NAGAR, BELGAUM.
9. M/S. BHARAT HARDWARE AND PAIN MART
PARTNER, SRI RAJU H. BHATIA
NO. 829, MESIGALLI, BELGAUM. ... RESPONDENTS
*****
THIS MFA IS FILED U/S.30(1) OF THE W.C.ACT 1923,
AGAINST THE JUDGEMENT AND AWARD DATED:22.05.2012,
PASSED IN WCA:SR NO.92/2011 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION,
SUB-DIVISION-I, BELGAUM DISTRICT BELGAUM, AWARDING
THE COMPENSATION OF RS.3,74,175/- WITH INTEREST AT THE
RATE OF 12% P.A. FROM THE DATE OF PETITION AND SHALL
BE DEPOSITED WITHIN ONE MONTH FROM THE DATE OF THE
ORDER.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal is filed by the insurer, assailing the order of the Commissioner for Workmens' Compensation (hereinafter, referred to as the "W.C.Commissioner") in WCA.SR.No.92/2011, dated 22/05/2012 on the question of liability.
2. The relevant facts of the case are that on 09/06/2011, Kempanna, who was working as a Driver in a Tempo bearing No.KA-22/A-4730, which was insured with the appellant - insurer, proceeded under the instructions of his employer to M/s.Sahyadri Industries, for the purpose of loading certain materials. When he reached M/s.Sahyadri Industries, he found that the main gate of the industry was closed. He therefore, stopped the vehicle in front of the gate, got down from the vehicle and while opening the gate came in contact with, a live wire which had fallen on the gate and therefore, he was electrocuted and as a result, he succumbed to the grievous injuries sustained by him in the electrocution. A criminal case in 4 Crime No.83/2011 was registered in Hirebagewadi Police Station against M/s.Renuka Auto Garage, to which unit the power supply was being made through the wire and also against the Section Officer of the jurisdictional Electricity Board under Section 304-A of IPC, as well as the contractor, who was to maintain the electricity wire.
3. His Legal Representatives filed the claim petition before the W.C.Commissioner, Belgaum, seeking compensation for the death of Kempanna, on the premise that the accident had occurred during the course of and arising out of employment. The claim petition was contested by the insured i.e., the employer as well as the insurer, by contending that the motor policy issued in respect of Tempo bearing No.KA-22/A-4730 did not cover the risk wherein, the liability arising out of the non-use of the vehicle could also be covered. In other words, it was stated that the policy is a motor policy which had been issued under Section 147 of the Motor Vehicle Act (hereinafter, referred to as the "Act") and therefore, the 5 use of the vehicle was a sine-qua-non for the policy to be made applicable and the insured to be indemnified by the insurer.
4. The claimants let in evidence, while the insurer or the insured did not let in any evidence. On the basis of the evidence on record, the W.C.Commissioner held that the accident occurred during the course of and arising out of employment and granted compensation of Rs.3,74,175/- with interest at the rate of 12% p.a. one month from the date of the order. Being aggrieved by the said order particularly, with regard to fastening of the liability on the insurer, this appeal has been filed.
5. I have heard the learned counsel for the appellant and perused the material on record.
6. It is submitted that the accident in question occurred without the vehicle being in use. In other words, there was no use of the vehicle in question and therefore, the risk of the driver was not covered when the vehicle is 6 not in use. Elaborating the said contention, it is stated that under Section 147 of the Act, the risk of the driver is covered only when the vehicle is used. In other words, there must be use of the vehicle and the death or injury must be one arising out of and during the course of employment in which event, the insurer would be liable to indemnify the insured under a motor policy. In the instant case, the driver of the vehicle drove the vehicle up to M/s.Sahyadri Industries, since the main gate was closed, he got down from the vehicle and proceeded to open the gate and when he touched the gate, he sustained a shock and died as a result of electrocution. Therefore, there was no causal connection between the death and the use of the vehicle.
7. Relying on decisions of the Apex Court as well as this Court, it is contended that when the vehicle is not in use, and the death or the bodily injury occurs, then in that case, the risk of a driver or any employee connected with the vehicle would not be covered under the terms and 7 conditions of the motor policy. Therefore, the W.C.Commissioner was not right in fastening the liability on the Insurance Company and directing it to indemnify the insured.
8. Having heard the learned counsel for the appellant and on perusal of the material on record, it is noted that Kempanna was engaged as a driver to drive Tempo bearing NO.KA-22/A-4730. There is no dispute about his employment with the insured. It is also not in dispute that on the fateful day i.e., on 09/06/2011, on the directions of his employer, Kempanna drove the vehicle to M/s.Sahyadri Industries, in order to load certain material. When he reached the gate of M/s.Sahyadri Industries, he found that the gates were closed. Obviously, the driver of the vehicle could not have proceeded when the gates were closed. It is in order to drive the vehicle into the premises of M/s.Sahyadri Industries, for the purpose of loading certain materials and the gates being closed, that mandated the driver to get down from the vehicle and 8 when he was in the process of opening the gates, came in contact with a live wire which had fallen on the gates, he sustained a shock and died as a result of electrocution. Having regard to the facts of the case, can it be said that there was no causal connection between the death or employment or that the death did not occur as a result of the use of the vehicle? As already stated, what prompted the driver of the vehicle in question to get down from the vehicle to open the gates of M/s.Sahyadri Industries, was in order to take the vehicle to the premises of M/s.Sahyadri Industries, for the purpose of loading material. When the gates were closed and the vehicle could not proceed, the driver got down from the vehicle in order to open the gates. The act of opening the gates cannot be disjuncted from the driving of the vehcile as such. It is quite natural that a driver cannot proceed on account of there being any obstruction such as when the gates are closed, then he would have to get down from the vehicle and open the gates and proceed further. Therefore, the act of getting down from the vehicle and 9 opening the gate was in the process of driving the vehicle to M/s.Sahyadri Industries, for the purpose of loading materials. Hence, use of the vehicle is apparent and it cannot be said that getting down from the vehicle and moving away from the vehicle would imply that there was no use of the vehicle. Such a myopic view of the accident would not further the object of the Act, which is a piece of social legislation which is aimed to foster the welfare of employees and their dependants. The entire act of driving the vehicle has to be taken into consideration in as much as the driving of the vehicle to M/s.Sahyadri Industries, for the purpose of loading certain material was the assignment which was given by the employer and it was during the course of executing the said assignment of work that the accident occurred. In that view of the matter, it cannot be held that there was no nexus between the use of the vehicle and the death of the driver, Kempanna.
9. Infact, under Section 147 of the Act under the proviso to sub-section (1), it is stated that if the death or 10 bodily injury occurs when a person is engaged in the driving of the vehicle, then in that case, the liability under the W.C.Act is statutory. In this case, the death occurred while he was engaged in driving the vehicle. The expression "driving the vehicle" cannot be interpreted to mean only when the driver of the vehicle is at the steering wheel which would be during the course of his employment as a driver of the vehicle. All steps to be taken to proceed to a destination and return back as per instruction of the employer would be with regard to the use of the vehicle during the course of and arising out of employment. Therefore, the narrow of interpretation sought to be given by the counsel for the appellant cannot be accepted.
10. In the same way, the decisions relied upon by the appellant are also not applicable having regard to the peculiar facts and circumstances of the present case.
a) In Akuli Charan Das and another
-v-. Commissioner for Workmen's Compensation and others [2001 ACJ 1320], the workmen was engaged for 11 loading/unloading of boulders in a tipper sustained injury in his eye while breaking boulders for the purpose of loading them in the tipper and in such circumstances, the Apex Court held that the Insurance Company would not be liable since there was no use of the vehicle. Here the act of breaking boulders is distinct from loading boulders to the vehicle.
b) Similarly, in Malikarjuna G.Hiremath v. Branch Manager, The Oriental Insurance Co.Ltd. [2009-LAWS (SC) - 2- 163], the driver of the vehicle had gone to a temple and he was sitting on steps of a pond in the temple, he slipped and fell into water and died due to drowning. Under such circumstances, it was held that there was no causal connection between use of the vehicle and the death. The facts in this case are also distinct from the facts in the present case.
c) Similarly, in Mamtaj Bi Bapusab Nadaf v. United India Insurance Co. [2010 - LAWS (SC) - 9 - 31], the workmen were engaged in uploading Maize from 12 a tractor - trailer. When Maize was being unloaded from the tractor to an underground storage bin, both the labourers climbed the grocery pit in order to clean the same for storing Maize and while cleaning they fell into the grocery pit. They shouted from inside that they were suffocating, a rope was released to them but they did not catch it and they died due to asphyxia. In such circumstances also, the Apex Court held that there was no use of the vehicle and the death occurred at a place away from the vehicle which was stationary and therefore, the liability could not be fastened under a Motor Policy on the insurer. There was no use of the vehicle when the death of the claimants occurred.
d) In case of The Oriental Insurance Company Limited v. Shafiulla and Others decided in MFA.9338/2005 disposed of on 27/08/2010, the facts were that after the Tractor-Trailer reached the agricultural land, the claimant got down from the vehicle and climbed a coconut tree in order to pluck the matured coconuts. 13 While doing so, he fell from the tree, which resulted in multiple fractures. In such circumstances, the Division Bench of this Court held that after reaching the land, the Tractor-Trailer was parked and thereafter, he climbed the coconut tree in order to pluck the coconuts and while doing so, he fell down and sustained injuries, which resulted in paraplegia. Therefore, there was no use of the vehicle at the time when the accident occurred on account of the fall from the coconut tree. In such circumstances also, the Division Bench held that the insurer was not liable. The plucking of coconuts did not involve the use of the vehicle.
11. In the case of Regional Director, E.S.I. Corporation and Another v. Francis De Costa and Another [(1996) 6 SCC 1], it has been stated that in order to succeed, an employee has to prove that (1) there was an accident (2) the accident had a causal connection with the employee (3) the accident must have been suffered in the course of employment. In the said decision, the employee was proceeding to his place of 14 employment (a factory) and met with an accident at place about one k.m. away from the factory. The Supreme Court held that the accident did not occur in the course of his employment and therefore, no compensation could be paid under the Act.
12. However, in the instant case, the deceased who was a driver in question was engaged in the driving of the vehicle and the death occurred during the course of carrying out the instruction of his employer to proceed to M/s.Sahyadri Industries for the purpose of loading certain material. Therefore, it was during the course of his employment and also arising out of employment. The death occurred while carrying out the mandate of the employer as a driver of the vehicle while proceeding to M/s.Sahyadri Industries. Therefore, the decisions which relate to accidents which occurred prior to reaching the place of employment i.e, on the way to the place of employment would also not apply. Similarly, in those cases where the death/injury occurred while performing an 15 activity which is distinct and did not require the use of the vehicle have no bearing on the facts of the case at hand.
13. The decisions which have been relied upon by the learned counsel for the appellant turn on their own peculiar facts. In the instant case, one cannot lost sight of the fact that the deceased was the driver of the vehicle who got down from the vehicle only in order to take the vehicle to M/s.Sahyadri Industries; that the accident occurred at the gates of M/S.Sahyadri Industries as they were closed and he was forced to get down from the vehicle to open the gates at which point of time, he sustained grievous electrical shock due to live wire which had fallen on the gates, he succumbed to the said injuries. Therefore, keeping in mind the nature of the employment of the deceased and the manner in which the accident occurred, the use of the vehicle cannot be lost sight of. The accident has occurred when the workmen was actually engaged in driving of the vehicle as stated in Section 147 16 of the Act. Therefore, the insurer cannot escape his liability.
14. There is no merit in this appeal. Accordingly, the appeal is dismissed.
In view of the dismissal of the appeal, the
Interlocutory Applications would not survive for
consideration.
Sd/-
JUDGE
*mvs