Karnataka High Court
United India Insurance Co Ltd vs Sri Chandrashekara S/O Nagappa ... on 21 October, 2016
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 21st day of October 2016
Before
THE HON'BLE MR.JUSTICE B.MANOHAR
MFA No.6791/2008 C/W MFA No.6790/2008
& MFA No.6789/2008(WC)
MFA NO 6791 OF 2008:
BETWEEN
UNITED INDIA INSURANCE CO LTD
DIVISIONAL OFFICE
ENKAY COMPLEX, HUBLI
REP BY ITS DIVISIONAL MANAGER
SRI H N KHILLEDAR
... APPELLANT
(By Sri : N R KUPPELUR, ADV)
AND
1. SRI CHANDRASHEKARA
S/O NAGAPPA SHIGGAVI
SINCE DECEASED BY HIS LRS.,
1(A) SMT. GANGAWWA W/O NAGAPPA
SHIGGAVI, AGE:59 YEARS
OCC:HOUSEHOLD WORK,
R/O: GUNDENALLI VILLAGE,
TQ:BYADAGI, DIST:HAVERI.
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1(B) SMT. RENUKA W/O
CHANDRASEKHAR SHIGGAVI,
AGE:27 YEARS, OCC:HOUSEHOLD WORK,
R/O: BASTHI ONI, BYADGI,
DIST: HAVERI.
1(C) KUMARI. RANJITA
D/O CHANDRASEKHAR SHIGGAVI.
AGE:7 YEARS, OCC:STUDENT,
R/O:BASTHI ONI, BYADGI,
BYAGI TALUK, DIST: HAVERI.
2.SRI RAJESH NAGAPPA
HONNATTI DODDAVARU
R/O NELOGAL VILLAGE, HAVERI
R/O GUNDENALLI VILLAGE
BYADAGI TALUK, HAVERI
... RESPONDENTS
(By Sri M.H.PATIL, ADV FOR R1(B), R1-ABATE, R1(A)
AND R2 SERVED)
THIS APPEAL IS FILED UNDER SECTION 30(1)
OF WORKMEN'S COMPENSATION ACT AGAINST THE
ORDER DATED 27-03-2008 PASSED IN
WCA:NF/144/2002 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, HAVERI DISTRICT, HAVERI.
MFA NO 6790 OF 2008
BETWEEN
UNITED INIDA INSURANCE CO LTD
DIVISIONAL OFFICE, ENKAY COMPLEX
HUBLI, REPRESENTED BY ITS
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DIVISIONAL MANAGER
SRI H N KHILLEDAR
... APPELLANT
(By Sri : N.R.KUPPELUR, ADV)
AND
1. SRI GURUPADAPPA
S/O NINGAPPA ANGADI
AGED ABOUT 56 YEARS
R/O NELOGAL VILLAGE
BYADAGI TALUK, HAVERI DISTRICT.
2. SMT LAKSHMAVVA
W/O SRI GURUPADAPPA
AGED ABOUT 50 YEARS
R/O NELOGAL VILLAGE
BYADAGI TALUK, HAVERI DISTRICT.
3. MISS FAKIRAVVA
D/O GURUPADAPPA
AGED ABOUT 21 YEARS
R/O NELOGAL VILLAGE
BYADAGI TALUK, HAVERI DISTRICT.
4. SRI RAJESH NAGAPPA HONNATTI
DODDAVARU, MAJOR,
R/OF NELOGAL VILLAGE
BYADAGI TALUK, HAVERI DISTRICT.
... RESPONDENTS
(By Sri: PATIL M H, ADV. FOR R1&R2, R3 &R4 SD.)
THIS APPEAL IS FILED UNDER SECTION 30(1)
OF WORKMEN'S COMPENSATION ACT AGAINST THE
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ORDER DATED 27-03-2008 PASSED IN
WCA:NF/85/2007 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, HAVERI DISTRICT, HAVERI.
MFA NO 6789 OF 2008:
BETWEEN
UNITED INDIA INSURANCE CO LTD
DIVISIONAL OFFICE, ENKAY COMPLEX
HUBLI, REP BY ITS DIVISIONAL MANAGER
SRI H N KHILLEDAR
... APPELLANT
(By Sri: N R KUPPELUR, ADV)
AND
1. SRI NAGARAJA
S/O GADIGEPPA HONNATTI
AGED ABOUT 25 YEARS
R/O NELOGAL VILLAGE
HAVERI MTALUK & DISTRICT.
2. SRI RAJESH NAGAPPA HONNATTI DODDAVARU
R/O NELOGAL VILLAGE
HAVERI TALUK & DISTRICT.
... RESPONDENTS
(By Sri : LOKESH MALAVALLI, ADV FOR R1)
THIS APPEAL IS FILED UNDER SECTION 30(1)
OF WORKMEN'S COMPENSATION ACT AGAINST THE
ORDER DATED 27-03-2008 PASSED IN
WCA:NF/134/2002 ON THE FILE OF THE LABOUR
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OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, HAVERI DISTRICT, HAVERI.
THESE MFA'S ARE COMING ON FOR
ADMISSION, HAVING RESERVED FOR JUDGMENT ON
04-10-2016 THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
JUDGMENT
The United India Insurance Company filed these appeals challenging the judgment and order dated 27-03-2008 made in WCA/NF-134/2002, 144/2002 and 85/2007 passed by the Labour Officer and Commissioner for Workmen's Compensation, Haveri (hereinafter referred to as 'the WCC' for short), fastening the liability on them to compensate the claimants.
2. The common judgment and order passed by the Commissioner has been challenged in these three appeals, hence all the three appeals are clubbed together and disposed of by this common judgment.
3. The claimants in WCA/NF-134 & 144 of 2002 and deceased Laxmana were working as coolies/hamalis in :6: a Tractor and Trailer bearing registration No.KA- 27/3788-3789, belonging to the second respondent herein. The claimants had filed claim petitions contending that on 19-5-2001, as per the instructions of the owner of the vehicle, the Tractor and Trailer was taken to Moopannanakere situated at Kadammanahalli for loading the mud for agricultural purpose. While loading the mud to the Tractor and Trailer, while the driver of the Tractor and Trailer reversing the vehicle, a heap of mud fell on the claimants 1 and 2 and the son of claimants 3 and 4, as a result of which, claimants in WCA Nos.134 and 144 of 2007 sustained grievous injuries all over the body, however the son of the claimants in WCA No.85/2007 i.e. Laxmana died on the spot. The claimants and the legal representatives of deceased Laxmana contended that due to the accident occurred during the course and out of employment, the coolies/hamalis sustained grievous injuries all over the body and one of the coolies died on the spot. The first :7: respondent before the WCC is the owner of the offending vehicle, which was insured with the second respondent- Insurance Company. Hence, both the respondents are liable to compensate the claimants.
4. In response to the notice issued by the WCC, the owner of the vehicle filed written statement admitting that the injured and deceased were working as coolies/hamalis working in the Tractor and Trailer belonging to him and he was paying salary of Rs.100/- per day and batta of Rs.25/-. The accident occurred during the course and out of employment. Hence, the claimants are entitled for compensation. Since the Tractor and Trailer is covered by the insurance policy, the Insurance Company is liable to compensate the claimants and sought for dismissal of the appeals as against the owner of the vehicle.
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5. The second respondent-Insurance Company denied the entire averments made in the claim petitions and contended that there is no relationship of master and servant between the claimants and the owner of the vehicle. The driver of the Tractor and Trailer was not having valid and effective driving license as on the date of accident. The injured and deceased were travelling as unauthorised passengers in the Tractor and Trailer. Further no damage has been caused to the vehicle to show that the vehicle has met with an accident, however due to fall of heap of mud on the coolies, they had sustained injuries and one of the coolies died. Hence, the Insurance Company is not liable to compensate the claimants.
6. On the basis of pleadings of the parties, the WCC has framed necessary issues.
7. In order to prove their case, claimants 1 and 2 and the father of the deceased Laxmana were examined as :9: P.W.1 to P.W.3 and the doctor who treated the claimants 1 and 2 was examined as P.W.4 and got marked the documents as Ex.P1 to Ex.P14. On behalf of the Insurance Company, one of the officials of the Company was examined as R.W.1, however no document has been marked.
8. The WCC, after appreciating the oral and documentary evidence let in by the parties, taking into consideration UDA report, spot panchanama, copy of the complaints and charge sheet held that the coolies/hamalis while loading the mud at Moopannanakere, sustained grievous injuries and one of coolies died on the spot. Hence, the claimants are entitled for compensation.
9. With regard to quantum of compensation is concerned, taking into consideration loss of earning capacity as assessed by the qualified Medical Practitioner, considering the age of the injured : 10 : claimants and the deceased Laxmana, applying the relevant factors awarded compensation of Rs.1,84,266/ in favour of the first claimant, Rs.1,59,386/- in favour of the second claimant and Rs.3,39,570/- in favour of the legal representatives of deceased Laxmana with interest at the rate of 12% p.a. from 30 days after passing of the judgment and order. Since the insurance policy covers the risk of the Tractor and Trailer, the liability was fastened on the Insurance Company to compensate the claimants. Being aggrieved by the judgment and order passed by the WCC, the Insurance Company is before this Court.
10. Sri.N.R.Kuppellur, learned counsel appearing for the appellant in all these appeals contended that the vehicle in question was not involved in the alleged accident and there is no damage to the vehicle. The Tractor and Trailer insured with the appellant is for agricultural purpose. The injury and death of the : 11 : coolies are not due to the accident of the insured vehicle. The insurance policy issued by the appellant- Insurance Company is under the Farmer's Package Policy and do not cover the risk of the coolies and Section 147 of the Motor Vehicles Act would not contemplates the coverage of risk of the coolies being carried with the agricultural Tractor and Trailer unit. There was no casual connection between the death and injury of the coolies and the employment. If the injury sustained by the claimants due to the accident of the vehicle, then only the Insurance Company is liable to compensate the claimants. Hence, the Insurance Company is not liable to compensate the claimants. In support of his contention, he relied upon the judgment reported in (1)AIR 2009 SC 2019 in the case of MALLIKARJUNA G.HIREMATH v/s BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., (2)MAMTAJ BI BAPUSAB NADAF v/s UNITED INDIA INSURANCE CO. reported in (2010) 10 SCC 536 and : 12 : another unreported judgment of this Court made in MFA No.9338/2005 disposed of on 27th August 2010.
11. On the other hand, Sri.M.H.Patil and Sri.Lokesh Malavalli, learned counsel appearing for the respondents/claimants argued in support of the judgment and order passed by the Commissioner for Workmen's Compensation and contended that during the course of loading the mud to the Tractor and Trailer, a heap of mud fell on the coolies/hamalis and they sustained injuries. The Tractor and Trailer was taken to Moopannanakere to load the mud for the purpose of agriculture. Hence, the accident occurred during the course and out of employment and the Insurance Company is liable to compensate the claimants. In support of their contention, they relied upon a judgment of this Court reported in 2009 KANT M.A.C. 164(KANT) in the case of UNITED INDIA INSURANCE COMPANY LTD. v/s PUTTAPPA AND OTHERS.
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12. Having heard the learned counsel appearing for the parties, the only point that arise for consideration in these appeals is whether the judgment and order passed by the WCC is sustainable in law?
13. The evidence on record clearly disclose that the claimants 1 and 2 and son of claimants 3 and 4 deceased Laxmana were working as coolies/hamalis in the Tractor and Trailer belonging to the second respondent. As per the instructions of the owner of the vehicle, while loading the mud to the Tractor and Trailer at Moopannanakere at about 9.00 p.m. on 19-5-2001, a heap of mud fell on the coolies/hamalis. In view of that two of the coolies sustained grievous injuries and one of them died on the spot. The owner of the vehicle clearly admitted that the injured and the deceased were working as coolies in the Tractor and Trailer belonging to him and he was paying them salary. The contention of the Insurance Company is that the vehicle has not : 14 : met with any accident and if there is any accidental injuries during the course and out of employment, then only the claimants are entitled for compensation. The said submission of the appellant cannot be accepted. During the course of loading the mud or doing any work ancillary to the purpose if the accident occurs - that would be deemed to be during the course and out of employment as occurred in the present case. Admittedly, the Tractor and Trailer was taken to Moopannanakere for loading mud for the agricultural purpose. While loading the mud to the Tractor and Trailer, due to falling of heap of mud on the coolies, two of them sustained grievous injuries and one died on the spot. The accident occurred during the course and out of employment. Hence, the Insurance Company is obliged to compensate the claimants under proviso to Section 147 of the Motor Vehicles Act. In the instant case, though the vehicle has not met with any accident, but the coolies while loading the mud to the trailer : 15 : sustained employment injuries. The insurance policy statutorily covers the risk of five employees working in the Tractor and Trailer as provided under Rule 100 of the Motor Vehicle Rules. Hence, the Insurance Company cannot disown its liability just because the Tractor and Trailer has not met with any accident.
14. The judgments relied upon by Sri.N.R.Kuppellur are not applicable to the facts of the present cases. In Mallikarjuna G Hiremath Case, while the driver of the vehicle had gone to the temple and sitting on the steps of the pond in the temple, he slipped and fell into the pond. In those circumstances, the Hon'ble Supreme Court held that the death is due to drowning. There was no casual connection between the death and the accident. In Mamtaj Bi Bapusab Nadaf case, while cleaning the grocery pit, the labourers died due to asphyxia. Hence the Insurance Company cannot be held liable for the death of workmen due to asphyxia. : 16 : In an unreported judgment in MFA No.9338/2005, the workmen while plucking the coconuts fell down from the tree and died, though the vehicle was used for transportation. Hence, the liability cannot be fastened on the Insurance Company. In the instant case, the coolies went to Moopannanakere in the Tractor and Trailer, while loading the mud to trailer, a heap of mud fell on them from the top, as a result of which, two of them injured and one of them died. There is direct connection between the accident and injuries sustained and death of one of the coolies. Hence, the Insurance Company cannot disown its liability.
15. The Commissioner, taking into consideration loss of earning capacity as assessed by the qualified medical practitioner under Section 4(1)(c)(ii) of the Employees Compensation Act, taking into consideration their age, applying the relevant factors and taking the income as Rs.3,000/- p.m., had awarded the compensation, which : 17 : is in accordance with law. The appellant has not made out a case to interfere with the quantum of compensation awarded by the WCC. I find no infirmity or irregularity in the judgment and order passed by the Commissioner for Workmen's Compensation fastening the liability on the Insurance Company to compensate the claimants. Accordingly, all the appeals are dismissed.
The amount in deposit before this Court is directed to be transferred to the Civil Judge (Sr.Dn.), Haveri along with all the records.
Sd/-
JUDGE mpk/-*