Karnataka High Court
National Insurance Co Ltd vs Christine John Gonsalves on 30 September, 2008
Bench: K.L.Manjunath, Jawad Rahim
C£3'§f$&£Cs\ ~9u5*--l
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KUDQE
IN THE may coma' or KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 36"' my OF SEPTEMBER
PRESENT & " _
THE HCNBLE MRJUSTICE V.G.SAB.§-f£i'i9I::I:Tv "'2
AND b' '_ ,_ V' _
THE HONBLE MRJUSTICE " "
A.
MFA No.1'g'T§c---.52. oosiwgig ._
BETWEEN:
NATEONAL INSURANCE cg, L*1iD.V,_ jy
RASIKA CHAMBER, 1
opp. CEN'I'RA¥_,; nrAR xET;__
1)Iv1s1oNAL'o;?m€;E,._»_ ~
MANGALORE. V "' '-
THROUGt'i 3T8 RE€3IC'NA.L.'0.FFICE
NOA4-45, LEO 'SHOPPi~NG' .C§OMPLEX,
RESIDE'-NCY Rx?-')AD'CROSS,
BA§*${}ALORE- 560'*€)2§_,_' ;
" V" - Bvrrs iAssT.. ADMINISTRATIVE OFFICER.
APPELLANT
{BY SRI B.'<§;$;fi:ETHA RAMA me, sm'. PRATHIMA V,
Sm: JgMu.»:A K, ADVs.,)
., Aim';
CHRIS'I'II\IE J01-EN GONSALVES,
AGED ABOUT 5'? YEARS,
R/AWGANDHINAGAR, SIRSI
2. KUMSHAILA JOHN G-GNSALVES,
AGED ABOUT 31 YEARS,
R'/ATGANDHINAGAF2, SIRSI.
3. LAWRENCE LOBO,
s/o PETER LOBO, 1
MAJOR,
HOUSE, BALTILA, KALLADKA, "
aanmwam DISTRICT,'
scum KADSARA. . "
(BY SR1 K.RAGHAVENf)R_A Rm," I$:2f"-.p1~:ARia§}iPAL, ADVs.,
FOR R-185R-2) 2
THIS MFA Is FzLEp"1}'r:_péi§V ;3£)~{1) 01? w.c. ACT
AGAIN.'~3'I'~--'3?I»iI:E. ' ANL~-..o'i2mR DATED 18.10.2005
PASSED u_s:.vA':'cé.'6.:s_1_"~:":<:z2'/«'.?.._t")'i<}.«.4__ 014; THE FILE 0? THE LABOUR
OFFICER - AND"' _j COMMISSIONER FOR WORKMENS
coMPENs}'mbN, '' .m«;." v_ £)IS'§'RIC'I', KARWAR, AWARDING
co1§:;P;«*,s1sATi<:;2~J..¢F'Rs;4,:5,95o/« wrm INTEREST AT 12% RA.
may ;;.19.~:2;)o3 AI*3'D"'f5IRECTING THE APPELLANT' HEREIN 'I'O
» p'E»RQa3.1f:'«'mg"sA_ME.
A 1jH1~s: A}P?EAL HAWNG BEEN HEARD AND RESERVED FOR
_ ORDERSMID comma on FOR PRONOURCEMENT OF ORDERS
V' '1*§«.:1§ 1)AY,8A'!'YAHARAYA1€A J., DELIVERED THE FOLLOWING:
~._ ';';.TIéEs.FpNDENTs
JUDGMENT
This is Ist respondenvlnsuranee appeal filed challengng the judgment u " ~ 18.10.2005 passed by the Commissioner for Workmen"S_V Cd1n15ensat;§en,.... Litters --. * Kannada, Karwar in wcA:sR:%2fi2g2eQ4.
2. The facts are that on 3 1.8.2003 one working as a driver at " /A-7777 belonging to one eneet herein was entrusted the afar}; of tanker from Mangalore to kt ' is..1}he 'of the claimants that while he was mi .a_1nty.:'rxevv"1net:'.%nvith an accident and died. The mother 'ant!-..sist;er the deceased filed claim petition seeking R""--.. C:en3penssfion of Rs.5,00,()00/--- with interest from the .._«esfrier'Aof the tanker] Is': respondent and also against the i:1suIver----respondent-2 before the Commissioner for W'?
Workmen's Compensation, claiming that the Nixson Gonéalves died in the course of A'
3. It is the case of the c1aima.*f§Lf$., étle. deceased was earning salaxy of besides that he was also 2 w from the 15* respoI1dcnt--o\vI::¢vj4§r',,o::)i'.l§fe>n'y. In the said pz0ceedir1gS,'*««iioticf3 vgavé" to respondents- } and 2, they " "through their respc:_:rV:tiv_c'_' statement Thereafter, evidexiccwwas 'recov _ «V "'i":he 1°' clam ant lead evidence as 1., gdt 'eyewitness, viz, , the er%dem%$ed as PW.2, who had accompanied I additional driver in the said trip and got marked to P6 in support of her claim. The Ofiicer and Commissioner for Workmexfs Qinipcnsation based on the pleadings, evidence and 'tiocumcnts on record accepted the contention of the WI claimants that the deceased Nixson Gonsaljzee an eeeident caused during the ' K employement and partly aHowedm'flie' » sum of Rs.4,l5,960/- witha 29¢ respondent-Insurance the V enfire amount of interest from 1. :.o.2oo3m1 da:¢%o£_payr;1ents§it.*1s:a so days from the date of 'V 2!"! respondent- insuranee__'V:(i'soitn:i:2f;ny by the judment and challengng the same.
;~ ' I1:.Vthis" afjpeel, the claimants are arrayed as " and the owner of the tanker is u ifeeopndent No.3, all are duly served and heve appearance thmugh their counsel. ' 5. Heard the learned counsel for the parties.
"WI
6. It is the ease of the eompany that there is no relationship of K employee between Lawrexxce Lobe] and deceased, Nixson Got1solvee;._i""!'11at:
was not having valid. that of the accident. That the .uGi:>11_solvesVi1as taken place due to same cannot be attfibuileéi account of the use of veiiigic .VN:oiKA'§"i'3/:A--7777. '-.'I:f'Iiev of appellant/insurance eohzgpany inetant case is that the accident death of Nixson Gonsolves is not in the et"_vi'1ie;;'eij1ployme1it. its liability arises only when 'this occurred during and in the course of emglojihient, in such an event, it is iiable to satisfy the even in the absenm of the use of the irehiele. ""\
8. In View of the aforesaid appellant in this appeal, the qua-st:ion_" 1":-3"' V' consideration is:
proved that was worfcing bearing No. time of the fthe cmm gm proéesz causing death of Nixon " 'axisen during the course of his A V' " _ under the IS' respondenbowner? V\ \« . V order?' .. , 4_ 9." the first and second questions are inter they are take-n~--up together for consideration.
" is the case of the clam ants, that the deceased Nixsen "Y Gonsolves was qualified driver holding licence which is produced and marked as" " » was Working as a driver respondent herein and L' bearing Ne.KA 31/A~",7.777. _A 1act.is Hsiiupported by the salary .2" reseondent marked in $133 u d' It is also seen from the who had accomwidedvi taking the aforesaid ta11ke'r. fi'o_1I1 E61181}? and back, who has deposed below to the effect that at of the"accédent the deceased Nixon Gonsalves taken the aforesaid tanker to Bellary. on which they reached Bellary was a hOli'd"E1£7':.tIVZ1€y could not unload the goods, hence they A "ii in Bellaxy along with the vehicle loaded with the V. 'goods and by parking the vehicle near a canal went to take their food, while coming back after having their ""7 food the deceased Nixon Gonsaives slipped the wnal and died. According to the the accident took place WI1e§:1"""both' ' Nixon Gonsaives were in Bella1':y._'in__the oon:*se'~ oI':.their--.V employment and the the employment. This .__ jé . . is not assailed by the and the Insurance lead independent evidence of deceased Nixon Gonsalxfega of his employment and the acL"--it1net jaied also arises in the course of emfiioyfinent A"'.'IV'fi'erefore, 18* and 2M respondents V' . fiaiile to comjneiisate the claimants in this case. r fine proceedings before the Labour Officer, V ~V herein has produced and marked the copy K of'ta«-insnrance policy issued to the aforesaid tanker
-- in the name of Lawrence Lobo which clearly W"! 10 discloses that the appe11ant---Inso.ran£:c covered the liability of the 3*?' provisions of Workmon's employees and oolloctcd addifioo;ai pmmioo: of >' from him, therefore it is " to"""i'k ie Insurance Company liable to pay the componsatio;;V_vfaLas{aoi_i6§i Officer and Commisgsiogfxor for Wo'i9méI1_'s"«'(jompex1sation.
1. o§JpoHo{1t+I1_;ourancc Company While donyizig the judgment and award has; 'relicd 1V113o:_V1'i11o'v'fol..'1owiI2g decisions to substantiate aooident which has caused the death of I_\I'i-_i;:_oi1" cannot be contended as arising out of eniployjinorit.
(ay The. first of said decisions is reported in 2001 1320 (AKULI CHARAN oas ---vs~ COMMISSIONER '"'15OR WORKMEWS COMPENSATION). This case M?
pertains to the claim made by a person was engaged in breaking boulders for the purposgrcif and unloadingof tipper. In the said has rightly heid thatthe job the purpose of loading and V A. ' have caused by an accidcrefe' in the course of employmene. :'tcfif1:1e
(b) ILR- 2001. %4#9%5A'ce:'% SENIOR cIvIs=:0Ngge%ceV<;cIméci.LER,W NWKRTC -vs» SMT. SHOBA)%V_ 4' to the conductor who was on cwajuia collapsed in the midway and thev""l;IAospita1. In this case the deceased 'exact reached his place of work, hence it was rig' held in the said judment that his death is by the accident arising out of his ' eiiipioymcnt. W7 f=<-it i it: e ' c
(c) AC} 1996 1281 (EMPLOYEES STATE INSURANCE CORPORATION --vs--~ FRANCIS be
- This case is also similar to the earlier Workman was proceeding on a pycle "
employment on the way, he met sustained injuries. In 5135; it_i;~fi~iig_;'1t1y held * that the injuries sustained tize 'accident cannot be attributed employment. (cl) 2()O£;é;0J £373 (i§E\V:'§NDiA:.§ASSURANCE co. LTD. A; ?$}1A;1j§IEfAVb_iBIVI AND OTHERS)- This is the case where a dI*ivei*Ainrae'pi'oceedi11g on his cycle to meet _ his. eonoployer an accident and died due to the »ii'1j--uI'i~e$ case is also similar to the earlier two ._ Court held that the said accident is g notééagieing out of and in the course of employment V' V. A plain reading of four cases clearly disc-Ioses that each of those cases, neither the accident nor the "7 13 injuries sufiered by the victim could atuibuted to their employment, henm, tlf;¢:_ K of the said case is rightly «£1353 the facts and crimumstanoes *' Admittediy, at the time of Nixon Gonsalves :4 toe loaded tanker/lorry in the I and his stay at part of his employen:1€e;1tf§_4_"ff! vaocident which was to stopped his vehicle to procoed to necessarily be construed as U be connected to the job he was the relevant point of time and the caused to him could be attributabie to his emiiioymcnt. Therefore, the Labour Ofiicer and the "_Cooigmissioner for Worlmcns' Compensation has rightly " gfllowod the claim made by his lgal representatives. Therefore, there is no infirmity in the judgment and W7 é' ya 14 award passed by the Labour Commissioner for Workznensf-V V' ' Kannada, Karwar in WCA:SR:215;fV2(§{(_)4; 1 A' I In the msult, the £51' insurance Company is disnaissVe§ci._;':%'-- _ 1 W' §Sdfi-
Iudge Sfi/'3 Judge TL__ fig