Karnataka High Court
The Branch Manager vs Shyamamma W/O. Late Irappa Walikar on 8 December, 2022
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MFA No. 21416 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 21416 OF 2013 (WC-)
BETWEEN:
THE BRANCH MANAGER,
M/S. IFFCO TOKIO GENERAL
INSURANCE CO. LTD., HUBLI,
R/BY AUTHORIZED OFFICER,
T.P. CLAIMS IFFCO TOKIO GENERAL
INSURANCE CO. LTD.,
CUSTOMER SERVICE CENTER,
SHANTI TOWERS, 5TH FLOOR,
3RD MAIN, 141 EAST OF N.G.E.F. LAYOUT
KASTURINAGAR, BANGALORE
...APPELLANT
(BY SRI. S K KAYAKAMATH, ADVOCATE)
AND:
1. SMT. SHYAMAMMA
W/O. LATE IRAPPA WALIKAR
AGE: 43 YEARS,
OCC:HOUSEHOLD WORK,
R/O. TAVARAGERE, TQ: KUSHTAGI,
DIST: KOPPAL
2. SRI. MANJUNATH S/O. SHYAMANNA WALIKAR
AGE: MAJOR, OCC: DRIVER
R/O. TAVARAGERE,
TQ: KUSTHAGI, DIST: KOPPAL
3. SHYAMANNA S/O. SIDDAPPA WALIKAR
AGE: MAJOR, OCC: OWNER
R/O. TAVARAGERE,
TQ: KUSTHAGI, DIST: KOPPAL
...RESPONDENTS
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MFA No. 21416 of 2013
(BY SRI. P G MOGALI, ADV., FOR R1;
SRI. N. P. VIVEK MEHTA, ADV., FOR R2)
THIS MFA IS FILED U/SEC.30(1) OF WC ACT 1923, PRAYING
TO SET ASIDE THE JUDGMENT AND AWARD DTD:09.01.2013
PASSED IN WC NO.111/2011 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMENS COMPENSATION,
KOPPAL DISTRICT KOPPAL BY ALLOWING THIS APPEAL.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The insurer is in appeal challenging the judgment and order dated 09.01.2013 in WC No.111/2011 passed by the Labour Officer and Commissioner for Workmen's Compensation, Koppal (for short "the Commissioner") fastening the liability upon it to pay the compensation determined under the provisions of Workmen's Compensation Act, 1923.
2. The claim petition discloses that the claimant is the mother of deceased, who died in a road traffic accident that occurred on 15.02.2011 when he was employed as a Coolie in a tractor bearing registration No.KA-37/TA-4665 & TA-2244 (henceforth referred to as "offending vehicle"). The -3- MFA No. 21416 of 2013 mother of the deceased claimed that she was dependant on the deceased as she was a widow and therefore, filed a claim petition claiming compensation from the owner and insurer of the offending vehicle.
3. The insured and the driver of the offending vehicle admitted the averments of the claim petition and claimed that the deceased was paid a sum of Rs.150/- per day as daily wage. They alleged that the deceased fell from the tractor and died at the spot and that the driver is not responsible for the same. They claimed that the driver of the offending vehicle possessed a licence and the offending vehicle was duly insured and therefore, the insurer was liable to indemnify the owner. The insurer claimed that there was no relationship of employer and employee between the deceased and the owner of the offending vehicle. It contended that the deceased was an unauthorized passenger in the offending vehicle and as the risk to any coolie was not covered as no premium was paid by the owner, it was not liable. It also claimed that the deceased was sitting on the -4- MFA No. 21416 of 2013 mudguard of the offending vehicle and therefore, it was not liable to indemnify the owner of the offending vehicle.
4. Based on the rival contentions, the claim petition was set down for trial.
5. The claimant was examined as PW1. Though the insurer claimed that the deceased was sitting on the mudguard of the offending vehicle, not even a suggestion was put to PW1 during the course of her cross-examination. It also did not deny the employment of the deceased with the owner of the offending vehicle. The Commissioner, therefore, held that the claimant had proved that the accident occurred during the course and out of employment and since the vehicle was covered by a policy of insurance, it determined the compensation payable to the claimant at a sum of Rs.4,05,396/- and directed the insurer to pay the compensation along with interest @ 12% per annum w.e.f. 30 days after the date of accident till deposit. Being aggrieved by the same, this appeal is filed. -5- MFA No. 21416 of 2013
6. Learned counsel for the insurer submitted that the complaint lodged by the brother of the deceased indicated that the deceased was sitting on the mudguard of the tractor and therefore, the insurer was clearly exempted from indemnifying the liability of the owner. She relied upon the judgment of the Full Bench of this Court in the case of Gadhilingappa @ Gadhilinga and another vs. K. Guleppa [2021 ACJ 2588].
7. Per contra, learned counsel for the claimant submitted that there was no evidence placed on record to indicate that the deceased was sitting on the mudguard of the offending vehicle. He also submitted that not even a suggestion was put to PW1 that the deceased was sitting on the mudguard of the offending vehicle. He, therefore, contended that the insurer was under a statutory duty to indemnify the owner of the offending vehicle.
8. I have considered the submissions made by the learned counsel for the claimant as well as learned counsel for the insurer.
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9. The insurer did not seriously dispute the fact that the deceased was employed with the owner of the offending vehicle. It also did not seriously dispute the fact that the deceased died in an accident while he was a coolie. The only contention urged by the insurer is that the deceased was sitting on the mudguard of the tractor and that he died due to the accident. In a petition under the provisions of the Employees Compensation Act, 1923, unlike a claim under Section 166 of the Motor Vehicles Act, 1988, once it is proved that the death or injury arose out of and in the course of employment, the insurer cannot escape liability to indemnify the owner of the vehicle. The reliance placed by the learned counsel for the insurer on the judgment of the Full Bench of this Court in Gadhilingappa (referred to supra), is not applicable to the case on hand as in that case it was a claim under Section 166 of the Motor Vehicles Act, 1988 while in the present case, the claimant is claiming under the provisions of the Workmen's Compensation Act, 1923. In that view of the matter, this appeal lacks merit and is dismissed.
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10. The amount in deposit, if any, shall be transferred to the jurisdictional Commissioner/Court, for necessary orders.
Sd/-
JUDGE YAN List No.: 1 Sl No.: 19