Karnataka High Court
The Oriental Insurance Company Limited vs Sri Manjegowda on 12 December, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF DECEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.NO.2323/2010 (WC)
BETWEEN:
The Oriental Insurance
Company Limited
Hassan branch.
Through its Regional office,
Leo Shopping Complex,
#44/45, Residency Road,
Bangalore- 560 025.
Represented by its
Deputy Manager
Smt. Sudha Ganesh ..Appellant
(By Sri.B.C.Seetharama Rao, Advocate)
AND:
1. Sri.Manjegowda,
Aged about 38 years
S/o Devegowda
Resident of Devarayanapatna
Kandali post,
Hassan Taluk.
2. Sri.Malappa,
Major
S/o Karigowda
Resident of Kurubarahalli,
2
Mosale Hosally post,
Shanthigrama Hobli,
Hassan Taluk. ..Respondents
(By Smt.A.R.Sharadamba, Advocate for R-1;
Sri.Girish B. Baladare, Advocate for R-2)
This Appeal is filed Under Section 30(1) of
Workmen's Compensation Act against the judgment
dated 02.12.2009 passed in WCA/NF/SR-37/2006 on
the file of the Labour Officer and Commissioner for
Workmen Compensation, Hassan Sub-Division, Hassan
awarding a compensation of `2,83,766/- with interest at
12% p.a.
This Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, the
Court delivered the following:
JUDGMENT
Insurer is in appeal questioning the correctness and legality of order and award passed by the Commissioner for Workmen's Compensation, Hassan Sub-Division, Hassan, in WCA/NF/SR-37/2006 dated 02.12.2009 whereunder claim petition filed by the injured workman has been allowed in part and a compensation of `2,83,766/- with interest @ 12% P.A payable after 30 days from the date of accident has been awarded.
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2. Heard the arguments of Sri.B.C.Seetharama Rao, learned advocate appearing for appellant and Smt.A.R.Sharadamba, learned advocate appearing for R-1 and Sri.Girish B. Baladare, learned advocate appearing for R-2. This appeal has been admitted on 02.08.2011 to consider the following substantial question of law:
"1.Whether the Commissioner has acted perversely in the appreciation of evidence in assessing the loss of earning capacity?
2. Whether the Commissioner is justified in fastening the liability on the appellant to satisfy the award?"
3. It is the contention of Sri.B.C.Seetharama Rao that first respondent herein had suffered injuries in the accident caused by lorry No.KA-03/B-8787 and not while driving the offending lorry No.KA-13/A-7999 which has been insured with the appellant and appellant-insurer would be liable to indemnify the insured if the workman engaged in operating the insured vehicle were to meet with an accident as 4 contemplated under section 140 of the Motor Vehicles Act and submits that in the instant case there was no such accident involving the lorry insured with the appellant and as such liability fastened on the appellant is liable to be set aside. He would submit that insurer would be liable to indemnify the claim only when the offending vehicle was in use and the use of the vehicle is a condition precedent for directing the insurer to indemnify the claim. He would also elaborate his submission by contending that award of interest is contrary to the law laid down by the Hon'ble Apex Court in the case of ORIENTAL INSURANCE CO., LTD., VS MOHAMMED NASIR AND ANOTHER reported in 2009 AIR SCW Page 3717. He submits that loss of earning capacity at 60% arrived at by the Commissioner is erroneous since medical practitioner has not assessed the loss of earning capacity as required under section 4(1)(c)(ii) of Workmen's Compensation Act. In support of his submission he has relied upon the following Judgments:
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1. 2004 ACJ 1719 - Divisional Manager, United India Insurance Co. Ltd., Vs Gujjamma and others
2. (2010) 10 SCC 536 - Mamtaj Bi Bapusab Nadaf and others Vs United India Insurance Company and others
3. AIR 2008 SCW 5806 - Harijan Mangri Siddakka and others Vs Oriental Insurance Co., Ltd., and anr
4. 2011 ACJ 2209- Oriental Insurance Co., Ltd., Vs Shafi and anr.
4. Per contra, Smt.Sharadamba, learned counsel appearing for first respondent-workman would support the order and award in question and contends that similar contention raised by the insurer had been rejected by this Court while dismissing the Insurer's appeal in MFA No.3460/2009 on 30.10.2013 and as such the present appeal also deserves to be dismissed. She would further submit that when relationship is admitted use of the vehicle would be immaterial and even otherwise there is notional extension of employment and as such liability fastened on the insurer by the Commissioner does not call for interference. She would submit that evidence of 6 Dr.Radhakrishna would indicate that towards fracture of head and fracture of nasal bone disability has been assessed at 60% to the whole body and there is no error in construing the same as the loss of earning capacity by the Commissioner and as such she contends that award in question be affirmed. In support of her submission she has relied upon the following Judgment:
1. ILR 2008 Karnataka 3599 - United India Insurance Co., Ltd., Vs Doddahallappa and anr BRIEF BACKGROUND OF THE CASE:
5. First respondent-workman filed a claim petition under section 3 and 5 of the Workmen's Compensation Act against his employer and the insurer of the lorry bearing KA-13/A-7999 seeking compensation of `6,00,000/- contending interalia that he was working under second respondent herein as a driver from past two years on a monthly salary of `4,000/- and `50/- bata per day. It was contended by the workman- claimant in the petition that on instructions from his employer he loaded the said lorry on 01.02.2006 with 7 coca cola bottles and was proceeding from Shivamogga to Kushal Nagar and at about 12.30 P.M he heard a sound was emanating from the lorry when the said vehicle reached Birur Railway Gate and while he was checking the vehicle to ascertain the cause of sound, another lorry bearing Registration No.KA-03/B-8787 proceeding towards Shivamogga from Birur dashed against him on account of rash and negligent driving of the said driver resulting in grievous injuries being sustained and he lost consciousness and was shifted to Birur Government Hospital and later shifted to Hassan Government Hospital for higher treatment. On account of disability sustained due to the injuries he sought for compensation. There is no dispute with regard to these factual aspects inasmuch as the FIR Exhibit P-1, Charge Sheet Exhibit P-4 would clearly establish the said fact. The evidence available on record is also to the same effect.
8RE: SUBSTANTIAL QUESTION OF LAW NO.1:
6. The Commissioner has taken note of the disability certificate Exhibit P-6 which would indicate that workman had sustained following injuries:
"(i) Comminuted mildly depressed fracture of frontal bone.
(ii) Small haemorrhagic contusions with pneumocephalus at bilateral frontal cortex; and minimal subarachnoid haemorrhage (SAH) at anterior falx cerebri.
(iii) Nasal bone fracture with blood in nasal cavity.
7. Doctor who has treated the claimant has been examined as PW-2. He has categorically stated that on account of above said injuries sustained by the workman he is often loosing conscious and his loss of income in respect of his avocation is to an extent of 60%. Undisputedly there is "Haemorrhage" sustained 9 by the claimant and as such the disability has been assessed by the doctor at 60% and same being construed as loss of earning capacity by the Commissioner cannot be held to be contrary to records or facts or medical evidence. Hence, Substantial question of law No.1 is answered in the negative. RE: SUBSTANTIAL QUESTION OF LAW NO.2:
8. Under section 3 of Workmen's Compensation Act, 1923 an employer will be liable to pay compensation in accordance with the provisions of the Act and three primary requirements to be fulfilled to seek compensation are:
(i) there must be an injury;
(ii) said injury must arise in the course of
employment; and
(iii) it should arise out of such employment.
9. In a given circumstances of a case if the workman while travelling in a vehicle in the course of employment and in discharge of his duties sustains 10 injury on account of a road traffic accident then employer would become liable to pay compensation. On this proposition there cannot be any dispute. However, if the workman in the course of his employment while travelling in the offending vehicle and when he is out of the said vehicle sustains injuries or succumbs to the injuries sustained in a road traffic accident that may occur question would be whether such claim would also fall within the four corners of section 3? And, whether employer is liable to answer such claim? And, if there is a insurance policy taken out by the employer, whether such insurer is liable to indemnify the claim?.
10. Thus, to be entitled to seek compensation under Workmen's Compensation Act what is required to be proved and established is the injured or deceased was an employee of the insured and he sustained injuries or died as the case may be on account of said injuries sustained in an accident and it was in the course of employment and arising thereto. 11
11. The liability of the insurer under the Workmen's Compensation Act, 1923 would extend as provided under the Act if the above said ingredients are present. However if the claim is under the Motor Vehicles Act, 1988 third party liability would be unlimited as provided under sub-section (2) of section 147 of Motor Vehicles Act. Both these acts being social beneficial legislations their interpretations should be in consonance with the avowed object of these enactments. Any attempt made to interpret the provisions of these Acts to nullify the object or negate such object then courts would be loath in adopting such a course.
12. The insurer in the instant case does not dispute the fact of issuance of policy to the offending vehicle nor its liability under the Workmen's Compensation Act. The said policy was not produced in the instant case. Though insurer denied the issuance of policy to the offending vehicle namely KA-13/A-7999 it did not tender any evidence in this regard before the Commissioner. Even in the present appeal also there is 12 no ground urged to deny the issuance of policy. Hence, it can be held that it is too late in the day to deny the issuance of policy to the offending vehicle.
13. The insurer is attempting to stave off its liability in the instant case only on the ground that there was no use of the offending vehicle giving rise to make a claim against it. Evidence on record would indicate that workman has reiterated the contents of the claim petition namely he has stated that on the date of accident while he was driving the offending vehicle he found there was a noise emanating from the offending vehicle and to check the cause of such noise or sound and while carrying out such an exercise another lorry bearing No.KA-03/B-8787 dashed against him on account of which he sustained injuries. The cross examination do not indicate of any suggestion having made about there being no nexus to the injuries sustained by him on account of the use of the vehicle. The use of the vehicle by an employee is to be understood in a pragmatic sense namely the repair 13 being carried out to the offending vehicle cannot be said that it does not amount to "use of the vehicle" by an employee. Extending the same analogy to the facts on hand it can be safely concluded that there was use of the vehicle by the workman namely in order to check the noise that was emanating from the vehicle, the workman namely driver had got down from the offending vehicle and while he was carrying out a check on the vehicle to identify the noise another lorry had dashed against him. Thus, there is element of employment and workman had sustained the injuries during the course of employment. Hence, it is to be held that injuries sustained by the workman is in the course of the employment and it arose out of the employment. In the case of UNITED INDIA INSURANCE CO., LTD., VS DODDAHALLAPPA AND ANOTHER reported in ILR 2008 KARNATAKA 3599 Division Bench of this Court has held as under:
"The facts clearly show that the deceased was employed in connection with the motor vehicle insured by the appellant. The journey of the deceased in the lorry bearing No.KA-37/2528 14 is deemed to be in the course of employment under R1. The deceased may be the gratuitous passenger in KA-37/2528. The claimants may have right and scope to sue the owner and insurer of the lorry MH-10/A 2286. But the deceased being the employee and in the course of employment met with the accident, therefore, R1 is liable to pay compensation. The appellant having issued a policy covering the risk under W.C Act is very much liable to pay compensation. When the deceased was travelling in the lorry MH-10A 2286, there will be notional extension of employment and such a journey would be in the course of employment and within the meaning of proviso to Section 147 of Motor Vehicles Act".
14. In the light of the dicta laid down by the Division Bench I am of the considered view the Judgments relied upon by the learned counsel for insurer would be inapplicable to the facts of the present case.
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15. Infact in the case of PREMILA AND OTHERS VS SHALIWAN AND ANOTHER reported in 2006 ACJ 890(KARNATAKA) driver of the motor vehicle had stopped the vehicle temporarily en route to attend call of nature and was hit by a truck resulting in his death and this Court has held that temporary stoppage of vehicle and driver getting out of vehicle for bonafide reason does not result in suspension/cessation of legal contract of driving of vehicle merely because vehicle in which he was travelling is not involved in the accident and insurance company was liable to pay compensation under Workmen's Compensation Act, 1923. In the present case, we are faced with same factual matrix.
16. Infact, this Court was poised with similar facts in the case of UNITED INDIA INSURANCE COMPANY LIMITED V/S SMT. JANAKI AND OTHERS in MFA No.3460/2009 (WC) disposed of on 30.10.2013 and it was held as under:
"The death of Harish being on account of his employment as a cleaner and on the instructions of the driver, he had proceeded 16 to procure the token at MRPL gate and was hit by an unknown truck and said injury having arisen out of employment, it cannot be gainsaid by the appellant-insurer that it should be absolved of the liability as there was no nexus to the use of vehicle and cause of his death. But for his travelling in the offending vehicle as an employee, he would not have sustained injury which resulted in his death."
17. In the light of above dicta, laid down by this Court and facts of this case when examined, the only conclusion that can be drawn would be that first respondent-workman had sustained injuries in the course of employment and it arose out of employment and as such appellant-Insurer is liable to indemnify the claim. Hence, I am of the considered view that substantial question of law No.2 is to be answered in the affirmative and accordingly it is answered. 17
18. For reasons aforestated I proceed to pass the following:
ORDER
1. Appeal is hereby dismissed.
2. Order and award dated 02.12.2009 passed by Commissioner for Workmen's Compensation, Hassan, in WCA/NF/SR-37/2006 is hereby affirmed.
3. Amount in deposit with accrued interest is ordered to be paid by the registry to the first respondent-workman on proper identification forthwith.
4. No Costs.
Sd/-
JUDGE SBN