Karnataka High Court
The Icici Lombard General Insurance ... vs Smt Mangala W/O Dhanapal Patil on 11 January, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 11TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MFA NO.20365/2008 (WC)
BETWEEN:
THE ICICI LOMBARD GENERAL INSURANCE
COMPANY LTD.,
REGISTERED OFFICE, ICICI TOWERS,
BANDRA-KURLA COMPLEX, BANDRA(EAST),
MUMBAI-400051,
THROUGH ITS DIVISIONAL MANAGER, HUBLI.
...APPELLANT
(BY SRI.S.K.KAYAKAMATH AND SRI.R.S.ARANI, ADVS)
AND:
1. SMT.MANGALA W/O DHANAPAL PATIL,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O BHAVIHAL, TAL: BAILHONGAL.
2. SRI.SURESH S/O DHANAPAL PATIL,
AGE: 20 YEARS, OCC: STUDENT,
R/O BHAVIHAL, TAL: BAILHONGAL.
3. SRI.SANJU S/O DHANAPAL PATIL,
AGE; 18 YEARS, OCC: SGUDENT,
R/O BHAVIHAL, TAL: BAILHONGAL.
4. SRI.GANGAPPA SANNABHIMAPPA
BHANDIVADDAR, AGE: MAJOR,
R/O HARUGOPPA, NOW RESIDING AT
SAMPGAON, TAL: BAILHONGAL.
...RESPONDENTS
(BY SRI.B.M.ANGADI, ADV. FOR R1-R3,
SRI.SRINAND A.PACHCHAPURE, ADV. FOR R4)
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THIS APPEAL IS FILED UNDER SECTION 30(1) OF
W.C.ACT AGAINST THE JUDGMENT AND ORDER DATED
05.06.2008 PASSED IN WCA/F-63/2007 ON THE FILE OF
THE OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, BELGAUM AWARDING COMPENSATION
OF RS.2,23,661/- ALONG WITH INTEREST OF 12% P.A.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING: -
JUDGMENT
The Insurance Company is in appeal challenging the order and award passed by the Commissioner for Workmen's Compensation, Belgaum in WCA/F-63/2007 dated 05.06.2008, whereunder claim petition filed under Section 22 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'Act' for the sake of brevity) by legal heirs of the deceased Sri.Dhanpal Patil namely, wife and children came to be allowed in part and compensation of Rs.2,23,661/- with interest at 12% p.a. payable after 30 days from the date of order.
2. I have heard the arguments of Sri.S.K.Kayakamath, learned counsel appearing for the appellant-Insurance Company, Sri.B.M.Angadi, learned counsel appearing for R1 to R3 and Sri.Srinand :3: A.Pachchapure learned counsel appearing for R4. Perused the order and award passed by the Commissioner as also the records secured from the office of the Commissioner for Workmen's Compensation, Belgaum relating to WCA/F-63/2007.
3. The contention of the learned counsel appearing for the appellant is that, Commissioner was not justified in fastening the liability by enlarging liability of the insurer which is not contemplated under Section 147(1)(ii) of the Motor Vehicles Act. By elaborating the submissions in this regard, he contends that, there is no nexus to the cause of death of Sri. Dhanapal Patil to the use of the vehicle and the vehicle in question which was insured by the owner was to be used for agricultural purposes, whereas it was used for commercial purposes, namely loading and unloading of the mud for the purpose of laying the road and it amounts to violation of policy conditions and as such Insurance Company is not liable to indemnify the claim of the owner. He would also submit that tractor trailer :4: which is said to be the offending vehicle is in no way connected to the accident and when the death has not occurred out of the use of the motor vehicle as contemplated under Section 140(1) of the MV Act, appellant-Insurance Company cannot be fastened with the liability. He would also contend that, Commissioner could not have ignored the contents of complaint, FIR and charge sheet namely, Exs.P2, P1 and P3 respectively which would establish that there is no nexus between death of Dhanpal Patil and use of the vehicle. In support of his submission, he has relied upon the following judgments:
i) AIR 2002 SC 651 in the case of New India Assurance Co. Ltd., vs C.M. Jaya & Others.
ii) 2007 ACJ 1928 in the case of Oriental Insurance Co. Ltd., vs Premlata Shukla and Others.
ii) Civil Appal No.7428/2010(WC) in the case of Mamtaj Bi Bapusab Nadaf & Others vs United India Insurance Co. & Others disposed of on 07.09.2010.:5:
iii) MFA No.9524/2007 (WC) in the case of The Divisional Manger Oriental Insurance Co.
Ltd., vs Smt.Kasturavva and Others
disposed of on 31.08.2012.
iv) MFA No.9338/2005 (WC) in the case of The
Oriental Insurance Co. Ltd., vs. Mr.Shafi @ Shafiulla and Another disposed of on 27.08.2010.
4. Per contra, Sri.B.M.Angadi, learned counsel appearing for respondent Nos.1 to 3 would support the award passed by the Commissioner and contends that, in the instant case, the owner of the offending vehicle was examined as P.W.2 and he has stated in unequivocal terms that on his instructions the deceased, along with a coolie by name Rafiq and driver Mahantesh, had gone to procure the mud from the quarry to lay road in his land and he also contends that, compliant Ex.P1 would indicate that deceased had also gone as a coolie in the same tractor and the accident in question had occurred in the course of employment and it arose out of the employment and as such, the award passed by the Commissioner fastening :6: the liability on insurance company deserves to be affirmed since the vehicle in question was insured and as such, it cannot be absolved of its liability. In support of his submission, he relies upon the Division Bench judgment of this Court in the case of New India Assurance Company vs Channamma reported in 2007-LLR-0-1149, 2007-KCCR-2-1493. Sri.Srinand Pachchapure, learned counsel would support the arguments of Mr.Angadi and would also contend that award passed by the Commissioner is just and proper and it does not call for interference and he prays for dismissal of the appeal.
5. This appeal was admitted on 24.08.2010. Learned advocates appearing for both parties admit that substantial question of law having not been framed it requires to be framed. Having heard the learned advocates appearing for the parties, I am of the considered view that following substantial question of law would arise for my consideration:
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"Whether the cause of death of Sri. Dhanpal Patil was in the course of the employment and arose out of employment? and if so, whether it had any nexus to the use of the vehicle so as to fasten the liability on the Insurance Company?
6. A claim petition under Section 22 of the Workmen's Compensation Act came to be filed by the wife and children of one Sri.Dhanapal Patil contending inter alia that respondent No.4 herein is the owner of the tractor trailer bearing Reg.No.KA-24/T-3919-3920 and deceased was working as a cleaner-cum-coolie in the said vehicle since six months prior to the date of accident. On 22.03.2006, the owner of the tractor trailer had instructed said Dhanapal, driver Sri. Mahantesh and another coolie by name Sri.Rafique K.Mujawar to bring mud from quarry for forming a road in his land and on instruction of their employer, they had gone to the land of one Sri. Ajjappa Borannavar to load the mud and while Dhanapal started digging, the driver of the tractor was carrying on the mud and loading the same :8: in the trailer and when he was so digging, suddenly the mud quarry collapsed and fell on the Dhanapal and the driver who was assisting him, as a result, they were struck in the mud and Mr. Rafique the driver got up from the said heap of mud and he also retrieved Sri. Dhanapal who is lying under the heap of mud and tried to shift him in the half loaded tractor for being treated at Primary Health Centre, Kittur, but unfortunately, he succumbed to the injuries sustained by him on the way to the hospital. It was also contended by the claimants that deceased was aged 45 years and he was being paid salary of Rs.3,500/- per month and Rs.50/- as Batta and as such, he was maintaining the family. On account of his death, claim petition was filed seeking compensation of Rs.6,00,000/- with interest of 18% p.a.
7. Respondents appeared and filed their statement of objections. Respondent No.1-employer admitted the relationship. However, it was contended that he was paying only Rs.2,250/- per month and other facts relating as to cause of death of Sri. Dhanapal :9: Patil and the manner in which he expired was admitted. Respondent No.2-Insurance Company appeared and filed its statement of objections and averments made in the claim petition came to be denied in toto. Thereafter, parties tendered their evidence and on appreciation of said evidence, Commissioner allowed the claim petition in part as noticed herein supra. The jurisdictional police namely, Kittur P.S. registered a case under Section 174 of Cr.P.C. as U.D.No.12/2006.
8. The contention of Mr.Kayakamath is that, under Section 143 of MV Act, 1988, the provisions of Chapter 10 would also apply in relation to any claim petition filed for compensation in respect of death or permanent disablement of any person and in the Workmen's Compensation Act, 1923, which would be as a result of an accident of the nature referred under Sub Section (1) of Section 140 and when Section 143 of MV Act is so read along with Section 140, it would clearly indicate that, where death or permanent disablement of any person has resulted and the very accident has : 10 : arisen out of the use of the motor vehicle or motor vehicles, then alone, the owner of the vehicle shall be liable to pay compensation in respect of such death or disablement in accordance with the provisions of section and only in such circumstances, the insurer is required to indemnify the claim of the owner and if there is no nexus between the cause of death and the use of the vehicle, such claim need not be indemnified by the insured.
9. In view of the learned advocates having relied upon the judgments of this Court as well as Hon'ble Apex Court, the same are required to be noticed at 1st instance before answering the substantial question of law formulated herein above.
10. In the case of Oriental Insurance Co. Ltd., Vs Premlata Shukla and Others reported in 2007 ACJ 1928, the Hon'ble Apex Court considered the issue where relevance has been placed on a particular document, whether only a part of the said document can be relied : 11 : upon and the other part which may not be favourable to a party can be ignored and answered the same in the negative and concluded as under:
"Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise."
11. In the instant case, a complaint came to be lodged by the driver of the tractor trailer, which came to be marked as Ex.P2. He has virtually reiterated what has been stated in the claim petition. In sum and substance, it can be crystallized by noticing the fact that, he has stated that death of Shri. Dhanapal Patil occurred while he was digging mud in a mud quarry and heap of mud fell upon him. In fact even in FIR : 12 : registered by Kittur P.S., which came to be marked as Ex.P1, it has been recorded as to how death occurred by referring to the contents of compliant. Even the charge sheet Ex.P3 is also to the same effect. In view of the fact that claimants themselves have relied upon these documents for payment of compensation, said documents are required to be accepted at its face value. In fact the author of the complaint namely, son of the deceased was not examined by the claimants before the Commissioner. However, the wife of the deceased was examined as P.W.1 and she has produced the copy of the said compliant, FIR and charge sheet including spot panchanama and has got them marked as Exs.P2, P1, P3 and P4 respectively. The employer who had been arrayed as respondent No.2 before the Commissioner also entered the witness box and he has admitted the relationship of 'employer' and 'employee' between him and deceased. He also states that, he had instructed the deceased as well as driver Sri. Mahantesh of the tractor and one Sri.Rafiqu to procure the mud for : 13 : quarry and he has reiterated in his examination in chief the contents or plea put forward in his statement of objection. However, he admits that, he has not seen as to how the accident in question occurred. These facts would indicate the fact that, there was relationship of 'employer' and 'employee' between the deceased and respondent No.4 herein namely, Sri.G.S.Bhandivaddar and the records as well as evidence would clearly indicate that accident in question occurred during the course of employment and it arose out of the employment.
12. In view of the said finding arrived at, the next incidental question formulated would arise is as to who has to pay compensation amount namely whether the 'employer' or whether the insurance company since the vehicle was insured on the ground that the tractor trailer which was despatched for being loaded with the mud is to be fastened with the liability and on the ground that accident in question occurred on account of use of the vehicle. To answer this question, it requires : 14 : to be examined as to whether there is any nexus between the cause of death and the use of the vehicle. At this juncture, it would be necessary to note the judgments relied upon by the learned advocates appearing for the parties.
13. Civil Appal No.7428/2010 in the case of Mamtaj Bi Bapusab Nadaf & Others vs United India Insurance Co. & Others disposed of on 07.09.2010.
"7. According to the reasoning of the High Court, the vehicle was not involved in the accident and the death of the workmen by ho stretch of imagination can be said to have any proximate or direct connection with the vehicle. The High Court also observed that the mere fact that Maize was brought to the spot where the workmen had died in the insured vehicle, would not render the Insurance Company liable in respect of the death, the cause of which was not proximate to the actual user of the vehicle.
9. Learned counsel appearing on behalf of the appellants placed reliance on the decision of this Court in Shivaji Dayanu Patil : 15 : and Anr. vs. Vatschala Uttam More, (1991) 3 SCC 530. Brief facts of that case are that a collusion between a petrol tanker and a truck took place on a National Highway at about 3.00 a.m. as a result of which the tanker went off the road and fell on its left side at a distance of about 20 feet from the Highway. Due to overturning of the tanker, the petrol contained in it leaked out and collected nearby. At about 7.15 a.m. an explosion took place in the tanker causing burn injuries to those assembled near it including the respondent's son who later succumbed to the injuries. The facts of this case are entirely different and are not applicable to the present case. In this case, the petrol tanker was directly involved in the accident and that all the workmen were directly connected with the accident. This case does not help the appellants in any manner.
Paragraph-10: Learned counsel for the appellants has also placed reliance on a Division Bench judgment of the Karnataka High Court delivered on 24th February, 2006 in M.F.A. No.1870/2005 (WC). In that case, the workman who was working as a loader, : 16 : went in the lorry and loaded the lorry with stones and thereafter he was required to unload the same close to the Crusher near the quarry along with other loaders. At about 2.30 p.m. in the afternoon, the deceased workman got down from the lorry in order to unload the stones along with other loaders and when they opened the lock at the hind portion of the lorry, the entire load of stones in the lorry fell on him, as a result of which he sustained injuries and succumbed to the injuries on the spot. In this case, the vehicle was directly involved in the unfortunate accident.
14. In our considered opinion, on the facts of this case, the view taken by the learned Single Judge of the Karnataka High Court seems to be justified and correct. Therefore, no interference is called for. This appeal being devoid of any merit is accordingly dismissed. However, in the facts and circumstances of this case, the parties to bear their own costs."
14. MFA No.9524/2007 (WC) in the case of The Divisional Manger Oriental Insurance Co. Ltd., vs : 17 : Smt.Kasturavva and Others disposed of on 31.08.2012.
"3. The claim made before the Commissioner is that at the time of digging the soil, the soil in the quarry fell on the body of the deceased and as a consequence of which he died. There is no reference that the vehicle in question was involved in the incident. The vehicle in question was not involved nor is relatable in any manner whatsoever to the incident or the death of the deceased. Hence, under these circumstances, it is evident that the insurer is not liable to satisfy the award. Hence we are of the view that the order of the Commissioner is incorrect and liable to be set aside. The award could be passed only when the nexus between the vehicle in question and the injury or death of the deceased is established. Both are not present in the instant case. Under these circumstances the order passed by the Commissioner is erroneous and liable to be set aside.: 18 :
8. A plain reading of the above quoted explanation, would make it crystal clear and manifest that the Insurance Company cannot be held liable for the death of the workman. Therefore, we are of the considered view that the Insurance Company cannot be held liable to pay the compensation to the claimants"
15. MFA No.9338/2005 (WC) in the case of The Oriental Insurance Co. Ltd., vs. Mr.Shafi @ Shafiulla and Another disposed of on 27.08.2010.
"Paragraph-11: As could be seen from the pleadings, the 1st respondent has categorically stated that on the unfortunate day, he along with other loaders, went to the garden land of the 2nd respondent in the tractor and trailer of the 2nd respondent. After reaching the land, the tractor and trailer was parked and thereafter he climbed the coconut tree in order to pluck the coconuts. While doing so, he fell from the tree and sustained injuries, which resulted in paraplegia. From pleadings of the claimant-1st respondent, it is clear that he has sustained injuries not on account of the : 19 : accident arising out of the use of the motor vehicle, but it is on account of fall from the coconut tree. Merely because the 2nd respondent has brought the claimant-1st respondent and the other loaders from his residence to the land, it cannot be said that the permanent disablement has been caused to the 1st respondent on account of use of the motor vehicle. The Commissioner, without examining the provisions of sub- Section(1) of Section 140 of the M.V. Act and so also the provisions of Section 143 of the M.V. Act, and without considering the background under which policy had been issued by the appellant and that respondent No.1 did not sustain injuries on account of the accident caused while using the motor vehicle, therefore, we are of the opinion that the order passed by the Commissioner fixing the liability on the Insurance Company has to be set aside."
16. In order to hold that the appellant-Insurance Company is liable to indemnify the claim of the insured, the ingredients of Section 140 requires to be satisfied or in other words the death or disablement should have : 20 : occurred as a result of an accident arising out of use of motor vehicle. The owner of the vehicle would be liable to pay compensation and in the event of there being a insurance coverage to the said vehicle, the insurer has to indemnify the insured which would clearly indicate that the cause of death should be on account of use of the vehicle as otherwise the statutory liability cannot be fastened on the Insurance Company. In this regard, the judgment of the Apex Court in the case of New India Assurance Co. Ltd., Vs C.M.Jaya & Others reported in 2002(2) SCC 278, can be noticed, wherein their Lordships after analyzing the provisions of the Act has held to the following effect:
"10. Thus, a careful reading of these decisions, clearly shows that the liability of the insurer is limited, as indicated in Section 95 of the Act, but it is open to the insured to make payment of additional higher premium and get higher risk covered in respect of third party also. But in the absence of any such clause in the insurance policy the liability of the insurer cannot be unlimited in : 21 : respect of third party and it is limited only to the statutory liability. This view has been consistently taken in the other decisions of this Court.
Paragraph-11: xxxx
12. On a careful reading xxxxxxxx statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it, unlimited or higher. If it is so done, it amounts to re-writing the statute or the contract of insurance which is not permissible."
Emphasis supplied by me.
17. Keeping in view the dicta laid down and when Section 140 is perused as already noticed herein : 22 : above and at the cost of reputation, it can be said that fastening a statutory liability can only occur in case of death or disablement resulting from an accident by use of vehicle and this factual matrix has to be there or in other words, the nexus between use of vehicle and cause of death has to be established as otherwise the statutory liability cannot be fastened.
18. In the case of Mamtaj Bi extracted herein above, Hon'ble Apex Court noticed that workman had been engaged for uploading Maize (food grain) from a tractor trailer to an underground storage bin and both the labourers had climbed down to the grocery pit in order to clean the same for storing Maize and while cleaning they fell into the grocery pit and they shouted from inside that they were suffocating, and as such a rope was released to them but they could not hold on to it and they died due to asphyxia. Learned counsel for the claimants has contended that, facts in the said case would indicate that there is no nexus to the use of vehicle, whereas in the instant case, it is so. The : 23 : portion of the complaint, FIR and charge sheet and the contention raised in the objection would not support such a contention. These records clearly indicates that for the purpose of loading the mud into the tractor, the deceased was digging in the mud quarry and while doing so, the mud collapsed and he was struck in the heap of mud and on account of asphyxia he died and as such, the finding recorded by the Commissioner holding that liability is to be fastened on the Insurance Company was set aside by this Court and the same came to be affirmed by the Apex Court in the above said judgment.
19. The said factual matrix is also present in the instant case, namely in the claim petition, claimants have contended as under:
"The Tractor & Trailer was stopped at the mud quarry, then the deceased Dhanpal started to fill the mud in the tray (Butti) after digging the mud quarry and driver of the tractor was taking the mud tray and pouring in the trailer and after taking half load mud : 24 : from the quarry then suddenly the mud quarry collapsed and fell upon the Dhanpal patil and Rafiq K.Mujawar. As a result the Dhanpal Patil and Rafiq Mujawar struck in that mud."
20. In fact Hon'ble Apex Court in Mamtaj Bi case, noticed that, Division Bench judgment of this Court rendered in MFA No.1870/2005 (WC) wherein it was held that the Insurance Company was liable to indemnify the claim by noticing the facts therein namely, which was to the effect that the loader in the lorry in question went with the stones, when he was required to unload the same close to the Crusher near the quarry along with other loaders, he got down from the lorry and in order to unload the stones along with other loaders he opened the lock at the hind portion of the lorry, and immediately entire load of stones from the lorry fell on him, as a result, of which, he sustained injuries and succumbed to those injuries at the spot. On facts, their Lordships found that vehicle was directly involved in the unfortunate accident and said judgment : 25 : came to be distinguished on facts in Mamtaj Bi case. In the instant case, it is noticed by the Hon'ble Apex Court that, cause of death was not on account of use of the vehicle and tractor was not directly involved in the unfortunate accident. Hence, in that view of the matter, I am of the considered view that judgments relied upon by the learned counsel for the claimants in the case of Channamma referred to supra would not be of any assistance in view of the judgment of the Hon'ble Apex Court in Mamtaj Bi Bapusab Nadaf's case referred to supra.
21. It is also required to be noticed that, Channamma's case again came to be pressed into service before the Division Bench in MFA No.9524/2007 (WC) which was disposed of on 31.08.2012, wherein facts are identical and similar to the facts on hand came to be noticed and applying the principles of Mamtaj Bi Bapusab Nadaf's case referred to supra, the Division Bench held that the Insurance Company cannot be held liable to pay the compensation.
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22. Yet again another Division Bench judgment in MFA No.9338/2005(WC) disposed of on 27.08.2010 referred to supra also held on facts that, even if the workman had been engaged as a coolie and when there was no nexus to the cause of death to the use of the vehicle, liability cannot be fastened on the Insurance Company by considering Section 140 and 143 of M.V. Act. Hence, I am of the considered view that Commissioner was not justified in fastening the liability on the appellant-Insurance Company, to indemnify the claim of insurer since there was no nexus between the death of Dhanpal Patil and the use of the vehicle in question. Hence, substantial question of law formulated herein above is answered in the negative i.e., against the claimants and in favour of the appellant-Insurance Company. However, it is made clear that claimant would be at liberty to recover the amount awarded by the Workmen's Compensation Commissioner from the employer namely, respondent No.4 herein. : 27 :
23. For the reasons aforesaid, following order is passed:
ORDER
i) Appeal is hereby allowed;
ii) Order and award dated 05.06.2008 passed by the Commissioner in WCA/F-63/2007 fastening the liability on the appellant- Insurance Company is hereby set aside;
iii) However, it is made clear that, compensation awarded by the Commissioner can be enforced by the claimants 1 to 3 namely, respondent Nos.1 to 3 herein against the employer respondent No.4;
iv) Amount in deposit is ordered to be refunded to the appellant-Insurance Company on proper identification;
v) No order as to costs.
SD/-
JUDGE
MBS/-