Karnataka High Court
Bajaj Allianz General Insurance ... vs Kiranmai on 16 June, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
-1-
MFA No. 5142 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
MFA. NO. 5142 OF 2010 (WC)
BETWEEN:
1. BAJAJ ALLIANZ GENERAL
INSURANCE COMAPANY,
BELLARY DIVISION, BELLARY
BY ITS DIVISIONAL MANAGER,
REPRESENTED BY ITS
CHIEF LAW OFFICER.
...APPELLANT
(BY SRI. S. K. KAYAKAMATH, ADVOCATE)
AND:
1. KIRANMAI
W/O LATE MOHAN REDDY,
AGED ABOUT 22 YEARS,
2. ESHWARAMMA
W/O OBALAREDDY,
AGED ABOUT 50 YEARS,
3. K. OBALAREDDY
S/O CHINNAPPA REDDY,
AGED ABOUT 53 YEARS,
4. BHASKAR REDDY
S/O. K. CHINNAPPA REDDY
-2-
MFA No. 5142 of 2010
ADULT, S. A. NAGARA,
CHALAMAKUR, YERRAGANTLA,
KADAPA,
ANDHRAPRADESH.
...RESPONDENTS
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR
R1 AND R3;
R2 AND R4 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 30(1) OF
WORKMEN'S COMPENSATION ACT PRAYING TO ALLOW
THIS APPEAL AND SET ASIDE THE ORDER OF THE
COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB
DIVISION-1, BELLARY DATED 30.01.2010 IN WCA-
1/WCC/CR-507/2008 AND CONSEQUENTLY DISMISS THE
CALIM PETITION IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS MFA COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the Insurer lays a challenge to the Judgment dated 30.01.2010 entered by the Commissioner for Employees' Compensation favouring the claim in CR.No.507/2008 whereby a compensation of Rs.4,11,900/- with interest at the rate of 12% p.a. -3- MFA No. 5142 of 2010 has been awarded. The appeal is structured on the ground of liability only.
2. After service of notice, the respondents - claimants having entered appearance through their counsel make submission resisting the appeal. Learned counsel argues in support of the order and the reasons on which it has been structured.
3. BRIEF FACT OF THE CASE:-
The lorry bearing registration No.AP-04-X-2778 belongs to the 4th respondent is not in dispute. The deceased Mohan Reddy was the employee of the 4th respondent is also not in dispute. Learned Panel Counsel appearing for the appellant-Insurer does not dispute that the death may be during and in the course of employment and therefore, the levy of liability on the employer under the provisions of Employees' Compensation Act, 1923 is justified. What he articulately contends is as to the scope of liability under the provisions of the Employees' Compensation -4- MFA No. 5142 of 2010 Act being wider because of the Doctrine of notional extension of employment preventions however, into that scope, the insurer of the employer does not fit. In other words, the employer may be liable and still his insurer may not be. This is disputed by the learned counsel appearing for the claimants.
4. Since the appeal is filed under Section 30(1) of the Employees' Compensation Act, 1923, to maintain such appeal a substantial question of law is a sine qua non, in view a catena of decisions of Apex Court. Due to the volume of contention and counter contention, the following substantial question of law is framed with the assistance of the Bar. Where an employee dies on account of and during the course of employment without the involvement of a vehicular accident, whether award liability can be fastened on the insurer. Prior to the provisions of Section 140 and 143 of Chapter 10 of the Motor Vehicles Act, 1988 the substantial question of law framed as above need not -5- MFA No. 5142 of 2010 detain the Court any longer the same being no longer res integra. The Apex Court in MAMTAJI BI BAPUSAB NADAF AND ORS. VS UNITED INDIA INSURANCE CO. AND ORS. REPORTED IN MANU/SC/1305/2010 has held that where the vehicular accident has not happened, and the death or injury to the workman has occurred, has risen out of and during the course of employment, the insurer of the vehicle concerned cannot be held liable. Subsequently, the Parliament has amended the scheme of the Act providing for the levy of liability on the insurer, is besides the point.
5. Learned counsel appearing for the claimants places heavy reliance on a decision of the Apex Court in POONAM DEVI AND OTHERS VS. ORIENTAL INSURANCE CO. LTD., IN CIVIL APPEAL NO.1836/2020 disposed off on 06.03.2020 to buttress his argument and contention that once the employer is liable under the 1923 Act, the insurer perforce becomes liable. It is bit difficult to accept this -6- MFA No. 5142 of 2010 proposition as particularly argued at the Bar. The above case was one involving a truck which has no air conditioned cabin and the Apex Court describes it as a "baking oven in the middle of the afternoon in the monsoon heat of June, in Meerut where the temperature was stated to be 42.60C"; further the driver having laid the truck at a bay, had been to a canal for fetching water not only for him but also for the vehicle in question. Therefore, Court reasoned that it was a case of liability of the insurer. The House of Lords in QUINN vs. LEATHEM 1901 A.C. 495 had observed that a decision is an authority for the proposition that is actually laid down in a given fact matrix and not for all that which logically follows from what has been so laid down.
In the above circumstances, this appeal succeeds. The impugned Judgment is modified to the effect that the liability of the appellant-insurer is dislodged. However, the liability of the 4th respondent- -7- MFA No. 5142 of 2010 Employer-Owner of the vehicle in question continues. The 4th respondent-employer is directed to pay to the claimant the awarded amount with all the interest amount accruing due thereon within 30 days. Till such payment takes place, he is restrained from alienating and encumbering any of his properties movable or immovable including the vehicle in question.
The Deputy Commissioner, Kadapa, Andra Pradesh is directed to make an entry to this effect in all the properties' records agriculturally or non- agriculturally of the owners.
The amount in deposit, if any, shall be refunded to the appellant forthwith.
Costs made easy.
Sd/-
JUDGE RH