Karnataka High Court
The Divisional Manager vs Smt. Chandbi W/O Nijamuddin Rampur on 29 June, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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MFA No. 21749 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
MFA NO. 21749 OF 2010 (WC)
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
BELGAUM, THROUGH THE DIVISIONAL
MANAGER,NATIONAL INSURANCE COMPANY
LIMITED, SUJATA COMPLEX, OPPOSITE GLASS
HOUSE,HUBLI, DIST: DHARWAD.
... APPELLANT
(BY SRI. S. K. KAYAKAMATH, ADVOCATE)
AND:
1. SMT. CHANDBI W/O NIJAMUDDIN RAMPUR,
AGE 36 YEARS, R/O: GUDUR,
TALUK: HUNGUND, DIST: BAGALKOT.
2. KUMAR JAVED S/O NIJAMUDDIN RAMPUR,
AGE 16 YEARS, R/O: GUDUR,
Digitally
signed by
TALUK: HUNGUND, DIST: BAGALKOT.
ROHAN
HADIMANI T
ROHAN
HADIMANI Location:
DHARWAD
T Date:
2022.07.02
11:08:28
3. KUMARI RESHMA D/O NIJAMUDDIN RAMPUR,
+0530
AGE 14 YEARS, R/O: GUDUR,
TALUK: HUNGUND, DIST: BAGALKOT.
4. KUMAR MEHABOOB S/O NIJAMUDDIN RAMPUR
AGE: 12 YEARS, R/O. GUDUR,
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MFA No. 21749 of 2010
TALUK: HUNGUND,
DIST: BAGALKOT.
5. KUMARI RUKSANA D/O NIJAMUDDIN RAMPUR
AGE: 10 YEARS, R/O GUDUR,
TALUK: HUNGUND, DIST: BAGALKOT,
RESPONDENT NO.2 TO 5 AREMINORS,
REPRESENTED BY THEIR
M/G NATURAL MOTHER RESPONDENT NO.1.
6. SMT. KASHIMBU W/O ISMAILSAB RAMPUR
R/O GUDUR, TALUK: HUNGUND,
DIST: BAGALKOT.
7. SRI HULLANSA YAMANATHSA SHINGARI,
BADAMI ROAD, GUDUR,
TALUK: HUNGUND, DIST: BAGALKOT.
...RESPONDENTS
(BY SRI. SHIVAKUMAR S.BADAWADAGI, ADV. FOR R1 & R6;
R2 TO R5 ARE MINORS R/BY R1;
SRI. PRASHANT S.HOSAMANI, ADV. FOR R7)
THIS MFA FILED U/S.30(1) OF WORKMEN'S
COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND
ORDER DATED:27.08.2009 PASSED IN W.C.A.F
NO.46/2007, ON THE FILE OF THE LABOUR OFFICER &
COMMISSIONER FOR WORKMEN'S COMPENSATION,
BAGALKOT, AWARDING THE COMPENSATION OF
RS.3,54,708/- WITH INTEREST AT THE RATE OF 12% P.A.,
FROM THE DATE OF PEITTION TILL ITS DEPOSIT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY. THE COURT DELIVERED THE FOLLOWING.
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MFA No. 21749 of 2010
JUDGMENT
This appeal by the insurer seeks to lay a challenge to the Judgment & Order dated 27.08.2009 made by the Commissioner for Workmen's Compensation whereby the claim in W.C.A/F/46/2007 having been favoured a compensation of Rs.3,54,708/- with 12% statutory rate of interest per annum has been awarded.
2. After service of notice, the claimants have entered appearance through their advocate; however, the owner of insured vehicle despite service of notice, has remained unrepresented. Learned counsel appearing for the claimants vehemently opposes the appeal contending that no question of law much less substantial question of law would arise in this appeal and therefore, there is absolutely no scope of indulgence of this Court under Section 30(1) of the Employees' Compensation Act, 1923. -4- MFA No. 21749 of 2010
3. The admitted fact matrix of the case is that the driver of the lorry whilst sleeping on the load, died because of fall therefrom to the ground. The deceased being the driver of insured lorry having reached the destination point at night, was sleeping on the load; that it is the duty of driver to protect the vehicle during night in an alien place and therefore, he was notionally in the course of employment; the liability of the insurer being co-extensive with that of the insured, appeal by the insurer has to fail. In support of his contention, learned counsel for the claimants banks upon two decisions of the Apex Court namely POONAM DEVI AND OTHERS VS. ORIENTAL INSURANCE CO. LTD., (2004) 3 SCC 386; and DAYA KISHAN JOSHI & ANR. VS. DYNEMECH SYSTEMS PVT. LTD., AIR 2017 SCC 4134.
4. Per contra, learned counsel for the insurer submits that before 2019 Amendment to the Motor Vehicles Act, 1988, the liability of the insurer would -5- MFA No. 21749 of 2010 arise only if the death or injury was suffered on account of use of the vehicle and not otherwise; the change of law post 2019 Amendment being prospective in nature would not come to the rescue of claimants.
5. Having heard the learned counsel for the parties and having perused the original TCR, the following substantial question of law is framed:
Whether in the case of death of a driver of an insured vehicle because of an accident, whether the insurer is liable even when that accident is not on account of user of the vehicle concerned?
6. The above question need not detain this Court any longer. This Court in identical fact matrix in MFA No.5142/2010 (WC) between BAJAJ ALLLIANZ GENERAL INSURANCE CO. BELLARY VS. KIRANMAI AND OTHERS disposed off on 16.06.2022 has -6- MFA No. 21749 of 2010 answered the same in the negative. Paragraphs 4 & 5 in the said Judgment read as under:
"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 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 -7- MFA No. 21749 of 2010 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 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 -8- MFA No. 21749 of 2010 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 liability fastened on the appellant- Insurer is dislodged; however, the liability otherwise resting on the respondent-owner of the insured vehicle shall continue. The owner shall not alienate or encumber any of his properties movable or immovable including the vehicle bearing Registration No.KA- 29/0245 till after the award is satisfied.
Costs made easy.
Sd/-
JUDGE RH