Bangalore District Court
Are Not Entitled To Get Any Compensation vs Alone Liable To Pay Compensation To The ... on 1 December, 2016
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND
ADDL. MACT., BANGALORE, (SCCH-7)
Dated this, the 1st day of December, 2016.
PRESENT : SMT.INDIRA MAILSWAMY CHETTIYAR,
B.Com.,LL.B.(Spl.),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
E.C.A.No.54/2014
1. Smt. S.D. Rani, ..... PETITITONERS
W/o. Late S.R. Raju @ Rajugowda,
Aged about 20 years.
2. Sri. S.N. Ramegowda
S/o. Late Narayanagowda,
Aged about 65 years.
3. Smt. Mahadevamma,
S/o. S.N. Ramegowda,
Aged about 50 years.
All are R/at;
No.46/11,
2nd Floor, Ward No.16,
Power Huchha Building,
Chokkasandra,
T. Dasarahalli,
Bangalore-560 057.
(By Sri. Harisha. G., Adv.,)
V/s
1. National Insurance Co. Ltd., ..... RESPONDENTS
Represented by its Manager,
Regional Office, No.11,
SCCH-7 2 ECA.No.54/2014
Subbaram Complex,
M.G. Road,
Bangalore.
(Insurer of the Lorry bearing
Reg.No.CNO-8343)
(Policy No.602401/31/10/6700011553,
Valid from 12.03.2011 to 11.03.2012)
2. Sri. E.B. Dhanapal
S/o. Boraiah,
Major,
Ijjalaghatta,
Honakere Hobli,
Nagamangala Taluk,
Mandya District.
(Owner/Insured of the Lorry)
3. Sri. N.B. Guruprasad,
S/o. Basavaraju,
Major,
Old Pot Office Road,
Nagamangala Town and Taluk,
Mandya District.
(Erstwhile Owner of the Lorry)
4. Mangalore Electricity Supply
Company Limited,
Represented by its Assistant
Executive Engineer,
Mudigere Taluk,
Chikkamagalur District.
(R-1 By Sri. S.R. Murthy, Adv.,)
(R-2 By Sri. H.N. Raveesha, Adv.,)
(R-3 By Sri. K.L. Ranganatha, Adv.,)
(R-4 By Sri. N. Krishnananda Gupta,
Adv.,)
SCCH-7 3 ECA.No.54/2014
JUDGMENT
The Petitioners No.1 to 3 have filed the present petition as against the Respondents No.1 to 4 under Section 22 of the Workmen's Compensation Act, 1923, praying to grant compensation of Rupees 10,00,000/- with interest at the rate of 12% p.a., from the date of petition till realization of the amount of compensation and costs.
2. The brief averments of the Petitioners' case are as follows;
a) The Petitioner No.1 is a wife and the Petitioners No.2 and 3 are parents of the deceased, namely, S.R. Raju @ Rajugowda, respectively and the deceased was a driver by profession working under the 2nd Respondent and was aged about 27 years.
b) On 24.11.2011, at about 6.00 p.m., the deceased by name, S.R. Raju @ Rajugowda being a driver of the Lorry, bearing Registration No.CNO-8343 had been carrying a machine, namely, JCB Earth Movers loaded in the said Lorry by driving himself. The said Lorry and JCB owned by the 2nd Respondent were taken on hire by one Jayaramagowda of Boopasamudra as he was taken contract to dig pit in the Aldur Forest Division/Region to avoid elephants menace. While proceeding on the way of Kundra to Talvar, the deceased had noticed the hanging electric line, which passes above the road at backside road of the Talvara School. Expecting the possibility of touching the electricity line to JCB SCCH-7 4 ECA.No.54/2014 machine loaded in the Lorry, the deceased has stopped the Lorry and went up to the Lorry cabin so as to lift the electric wire/line from touching the JCB. While lifting the electric line with the help of wooden reaper, the deceased received electric shock, owing to electric short circuit and fell down in front of the Lorry, due to which, the left tyre of the said Lorry ran over his head and he died at the spot. Thereafter, the deceased was taken to the nearby Aralugguppe Mallegowda District Hospital, Chikkamagalur and post mortem was conducted.
c) As a matter of fact, the death of the deceased driver occurred on account of use of the offending vehicle-Lorry and also during the course of employment as he was engaged by the employer, i.e., the second Respondent.
d) The deceased was earning a monthly wages/salary of Rupees 8,000/- per month excluding the daily bata at the rate of Rupees 200/-.
e) The 4th Respondent being the Electricity Supply Company engaging in the service of supplying electricity to the general public ought to have taken utmost care and maintenance to see that, electric lines, which passes over negligence on above the public road should not touch any vehicle with load or without load while passing on the way, but, unfortunately the 4th Respondent-Electricity Supply Company having allowed the electric line, which were drawn and hanging very low level to the ground took the life of the deceased at his young age of 27 years. Accordingly, the jurisdictional Aldur Police have registered a SCCH-7 5 ECA.No.54/2014 complaint under Cr.No.171/2011 for the offences punishable under Section 304(A) of IPC and have submitted charge sheet after the investigation.
f) The deceased was hale and healthy and not suffering from any infirmities, but, his untimely death at his young age of 27 years was under the said reason put them into great misery and mental agony as they are completely dependents on him. The deceased being the sole bread earning member of the family had been contributing his entire income/earnings to them. However, they having lost the deceased at his young age, have been put into untold hardship, injury, pain and sufferings. The 1st Petitioner has lost her husband, i.e., the deceased at her young age of 20 years, due to which, their life became pathetic and miserable without their being any source of income to eak out their livelihood.
g) Inspite of their hardship and difficulty, they were obliged to spent considerable amount of Rupees 20,000/- towards transportation and Rupees 50,000/- towards cremation and obsequies ceremonies.
h) The death of the deceased was occurred due to use of vehicle Lorry and in the course of employment. The first Respondent is the Insurer and the 2nd Respondent is the Owner of the offending Lorry at the time of occurrence of death. The 3rd Respondent is the Erstwhile Owner of the offending Lorry, who has got insured the vehicle with the 1st Respondent Company before selling/transferring vehicle Lorry. The 4th Respondent being the Electricity Supply Company has not taken proper care in SCCH-7 6 ECA.No.54/2014 maintaining the electric lines, which passes above the road. The policy of the offending vehicle was in force at the time of occurrence of death/accident of the deceased. Thus, in the said circumstances, the Respondents are jointly and severally liable to pay compensation to them.
i) They are residing in Bangalore with the brother of the deceased. The claim petition is filed before this Hon'ble Authority having jurisdiction to try the claim petition.
j) There are no other petition/claims, etc., of any nature filed in respect of the same claim before any Courts/Tribunal/Authority, except the claim made herein.
k) The claim is on time from the date of occurrence of accident. Hence, this petition.
3. The Respondents No.1 to 4 have appeared before the Tribunal through their respective Learned Counsels and have filed the written statements respectively.
4. The Respondent No.1 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) It is the Insurer of the Lorry bearing Registration No.CNO-8343 and liability of it, is subject to the terms and conditions of the Policy as held under Section 147 of the Motor Vehicles Act and the restrictions and defences as contained under Section 149(2) of the Motor Vehicles Act and the provisions of the SCCH-7 7 ECA.No.54/2014 W.C. Act. As the policy of insurance is issued under section 147 of the Motor Vehicles Act, it is entitled to take all the defences that are available to the owner of Car as applicable under Section 12 and Section 19 read with Rule 39 of the Workmen's Compensation Act and also under the provisions of Section 149(2) of the Motor Vehicles Act.
b) The Insured/Owner is duty bound under Section 134(c) of the Motor Vehicles Act, to inform the accident and submit all vehicular documents including the driving licence, permit, R.C., F.C. and the Insurance particulars to it, to seek indemnification. The Insured/Owner has failed and neglected to perform the statutory obligation to seek indemnification. Violation of Motor Vehicles Act in this regard and also the terms and conditions of the contract would disentitle the Insured/Owner to claim indemnification from it. As such, the claim petition deserves to be dismissed as against it on this score alone.
c) As per Section 158(6) of Motor Vehicles Act, 1988, it is mandatory duty of the concerned Police Station to forward all the relevant documents to the concerned Insurer within 30 days from the date of information, but, Chickmagalur Police Station failed to forward the documents and not complied with the statutory demand. Under such circumstances, the entire claim petition deserves to be dismissed.
d) Without prejudice to the contentions raised above, it craves leave of this Hon'ble Tribunal under Section 170 of the Motor Vehicles Act to urge all the grounds that are expressly open SCCH-7 8 ECA.No.54/2014 for the Insrued/3rd Respondent, if the Insured fails to contest the case effectively.
e) The said case is liable to be dismissed as this Hon'ble Authority does not have jurisdiction since the Petitioners are not ordinary residents of Bangalore and accident took place at Kundur Thalvar Road, near Thalvara School Bankal Hobli, Chikmagalur Taluk and Policy issuing Office also at Mandya.
f) The deceased Sri. S.R. Raju @ Rajugowda was not having a valid and effective driving license to drive Lorry at the time of accident and he was not working as a driver under 3rd Respondent at any point of time and the Petitioners are called upon to produce copy of Driving licence to prove that, the deceased Sri. S.R. Raju @ Rajugowda was working as a driver by holding valid and effective driving license to driver Lorry (Transport) at the time of accident.
g) The Owner/Insured knowing fully well and consciously entrusted his Lorry to the deceased Sri. S.R. Raju @ Rajugowda, who was not having a valid and effective driving license at the time of accident and the Owner/Insured has violated the terms and conditions of the Policy of Insurance and the provisions of the Motor Vehicles Act by entrusting consciously his Lorry to deceased Sri. S.R. Raju @ Rajugowda, who did not possess a valid and effective driving license at the time of accident and without valid permit and F.C. as on the date of accident. Under these circumstances the entire petition is liable to be dismissed.
SCCH-7 9 ECA.No.54/2014h) The incident occurred due to the negligence on the part of deceased Sri. S.R. Raju as per the Police documents. In view of the Judgment rendered by the Hon'ble High Court of Karnataka the W.C. Act, does not permit the workman to seek compensation if the injury is caused on account of his own negligence. The Petitioners are not entitled to get any compensation, as the entire negligence is on the part of deceased is involved in the accident.
i) The Petitioners have specifically contended that, the deceased was earning a sum of Rupees 8,000/- per month and Rupees 200/- as batta per day. The entire burden would shift on the Petitioners to prove and substantiate that, the deceased was working as a driver under the 2nd Respondent as on the date of accident and drawing a monthly salary of Rupees 8,000/- and Rupees 200/- as batta per day by producing documentary proof, namely, D.L. Extract, wage register and attendance Register. If the documentary evidences are not produced to prove his relationship with 2nd Respondent as employer and employee, the petition is liable to be dismissed. If the relationship is proved and no documentary evidence are produced to prove and substantiate the wages of the deceased, the Hon'ble Authority having left with no other option, as decided by the Hon'ble High Court of Karnataka, has to take into consideration the minimum wages that are fixed by the State Government of Karnataka under Minimum Wages Act in respect of transport employees. In any event, the wages of the Petitioner cannot exceed a sum of Rupees 3,000/- per month.
j) The Hon'ble Authority does not have jurisdiction since the Petitioners are not ordinary resident of Bangalore and accident SCCH-7 10 ECA.No.54/2014 took place at Kundur Thalovra Road, near Thalvara School Bankal Hobli, Chikmagalur Taluk and Policy issuing Office also at Mandya.
k) There was no previty of contract of insurance between the 2nd Respondent with it.
l) The deceased Sri. S.R. Raju @ Rajugowda was not employed under the Insured/Owner at any point of time including on the date of accident.
m) Owner of the vehicle permitted to load the goods or any item above the body level of the vehicle.
n) The Respondent No.3 has not given any intimation to Insurance Company about the transfer of the vehicle as per Section 157 of M.V. Act.
o) Incident occurred due to the negligence on the part of deceased Sri. S.R. Raju @ Rajugowda, while lift the electric wire/line.
p) Incident occurred due to the negligence on the part of deceased Sri. S.R. Raju @ Rajugowda, who was not having a valid and effective driving license to drive Lorry at the time of accident and he was not working as a driver under any employer at any point of time.
q) Incident occurred due to the negligence on the part of Mangalore Electricity Supply Company Limited, not maintained SCCH-7 11 ECA.No.54/2014 properly to see that, electric line, which passed over and above the public road, should not touch any vehicle with load and without load while passing on the way.
r) The issuances of notices to it cannot be dispensed with.
s) The Petitioners are called upon to prove that, they have not filed claim petition before any other Court/Tribunal/Forum at any place.
t) It reserves the right to file additional written statement under the changed circumstances of the case.
u) It is not liable to pay any compensation or interest under the Workmen's Compensation Act as the Insured/R.C. Owner has violated the terms and conditions of the policy and the provision of the Motor Vehicles Act by entrusting his Lorry to the deceased Sri. S.R. Raju @ Rajugowda, who did not possess a valid and effective driving license at the time of accident and without having valid permit, F.C. and no jurisdiction and incident took place due to negligence on part of the deceased S.R. Raju @ Rajugowda and negligence on the part of Mangalore Electricity Supply Company Limited, hence, the 2nd and 3rd and 4th Respondents alone liable to pay compensation to the Petitioners and it is totally exonerated from its liability. Hence, prayed to dismiss the claim petition.
SCCH-7 12 ECA.No.54/20145. The Respondent No.2 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The Petitioners have filed this claim petition as against them for the relief of workmen compensation and other relief's and the Petitioners are not entitled for any relief, much less, the relief sought for in the claim from this Hon'ble Authority.
b) The Petitioners have purposefully suppressed the material facts. Hence, this claim is not maintainable either in law or on facts and the same is liable to dismissed in limine.
c) The Lorry bearing Registration No.CNO-8343 and JCB owned by him, were taken on hire by one Jayaramegowda of Boopasamudra and as he was taken contract to dig pit in Aldur Forest Division/Region to avoid elephants meance are all true and correct.
d) The deceased driver of the said Lorry bearing Registration No.CNO-8343 was never appointed by him as a driver at any point of time.
e) This Hon'ble Authority has no jurisdiction to entertain the matter/claim petition to grant any order/orders as the accident occurred at Chikkamangalore District and further, the Petitioners are residents of Sanabadha Koppalu, Narayanapura Post, Pandavapura Taluk, Mandya District and they are not having the residents in Bangalore City at any point of time. The Petitioners created the residential address to file this false claim SCCH-7 13 ECA.No.54/2014 petition, on this score alone, the claim petition will be dismissed with cots.
f) He reserves the right of filing additional written statement in the changed position of law, facts and circumstances of the case. Hence, prays to dismiss the claim petition with exemplary costs.
6. The Respondent No.3 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) He sold the said Lorry bearing Registration No.CNO- 8343 to the second Respondent, which was duly covered with a valid Insurance as per vide Policy No.I.P. No.602401/31/10/6700011553 and valid from 12.03.2011 to 11.03.2012 and the driver of the said Lorry got valid driving licence to drive the same. In the event, if the Petitioners establish all their claim as stated in their application within a bonafide manner and without suppression of actual facts, the Petitioners are at liberty to recover the same from the first Respondent Insurance Company, but, not from the other Respondents.
b) This Hon'ble Authority has no jurisdiction to entertain the matter/claim petition to grant any order/orders as the accident occurred at Chikkamangalore District and further, the Petitioners are residents of Sanabadha Koppalu, Narayanapura Post, Pandavapura Taluk, Mandya District and they are not having the resident in Bangalore City at any point of time. The Petitioners created the residential address to file this false claim SCCH-7 14 ECA.No.54/2014 petition, on this score alone the claim petition will be dismissed with costs.
c) The sum of compensation claimed is highly excessive, arbitrary and disproportionate. The Petitioners are trying to make a windfall out of an unfortunate accident.
d) He reserves the right of filing additional written statement in the changed position of law, facts and circumstances of the case. Hence, prayed to dismiss the claim petition with exemplary costs.
7. The Respondent No.4 inter-alia denying the entire case of the Petitioners, has further contended as follows;
a) The 1st Applicant claimed to be the wife of deceased S.R. Raju @ Raju Gowda and the Applicants 2 and 3 claiming to be the father and mother of the deceased S.R. Raju @ RajuGowda, have filed the said application purporting to be one under Section 22 of the Workmen's Compensation Act, praying this Hon'ble Court to direct the opponents to pay compensation of Rupees 10 lakhs to the Applicants with interest at 12% p.a., from the date of application till realization of the amount of compensation and the claim application is not maintainable as against it as there is no privity of contract neither the Applicants nor the deceased with it and there is no relationship as to the employer and employee and therefore, the said claim application against it is not maintainable under law and on facts and the same is liable to be dismissed with exemplary costs.
SCCH-7 15 ECA.No.54/2014b) The death of the deceased is an account of his own negligence as an act of God and therefore, the claimants are not entitled to claim any compensation as against it and admittedly, the deceased was not an employee under it and there is no privity of contract with it neither the deceased nor their dependants and as such, the claim of the Applicants invoking the provisions of Workmen Compensation Act to claim compensation is not maintainable.
c) The complaint registered by the jurisdictional Police and as to the filing of the charge sheet punishable under Section 304(A) of IPC and Section 127 and 166 of the Indian Motor Vehicles Act, which clearly shows that, the cause for death due to the negligence of the deceased and therefore, the claimants are not entitled to claim compensation as against him.
d) The death of the deceased was occurred due to the use of the vehicle Lorry during the course of employment and even according to the averments of the application, the 1st Respondent is the Insurer and the 2nd Respondent is the Owner of the vehicle and the post mortem report clearly shows that, the death of the deceased is due to shock as a resulting injuries sustained to vital organs.
e) There is no negligence on the part of it and the alleged incident alleged to have been occurred on account of the negligence of the deceased and even according to the post mortem report, it clearly shows that, the death is due to shock as a result of injuries and there is no negligence of it since it has been SCCH-7 16 ECA.No.54/2014 maintaining the vertical and horizontal distance as provided under the Rules 79 and 80 of the Indian Electricity Rules, 1957 ensuring safety and maintaining the transmission o line and therefore, there is no contributable negligence on the part of it and as such, it is not liable to be reimbursed any compensation as alleged in the claim application. Hence, prayed to dismiss the petition with exemplary costs.
8. Based on the above said pleading, I have framed the following Issues;
ISSUES
1. Whether the Petitioner proves that, they are the legal representatives and dependents of deceased SRI S.R. RAJU @ RAJU GOWDA S/o.
RAMEGOWDA?
2. Whether the Petitioners prove that, the deceased Sri. S.R.Raju @ Raju Gowda S/o. Ramegowda was working as a driver under the Respondent No.2 and during the course of employment, he died on the spot as alleged?
3. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
4. What order?
SCCH-7 17 ECA.No.54/20149. In order to prove their case, the Petitioners have examined the Petitioner No.1 as P.W.1 and have also examined one witness as P.W.2 by filing the affidavits as their examination- in-chief and have placed reliance upon Ex.P.1 to Ex.P.13. On the other hand, the Respondent No.2 himself has been examined as R.W.1 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.1 and Ex.R.3. On the other hand, the Respondent No.1 has examined its Administrative Officer as R.W.2 and has also examined the Investigating Officer as R.W.4 and has placed reliance upon Ex.R.4 to Ex.R.18. On the other hand, the Respondent No.4 has examined its Assistant Executive Engineer as R.W.3 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.R.1. Ex.P.13 and Ex.R.1 are marked through P.W.2 and Ex.P.13, Ex.P.14, Ex.P.15 and Ex.R.2 are marked through R.W.1, during the course of cross-examination, by confrontation. Ex.P.13 and Ex.R.1 are marked twice, i.e. through P.W.2 and R.W.1. Therefore, to avoid the confliction in identifying the said documents, Ex.P.13 True copy of Notice under Section 133 of M.V. Act, which is marked during the course of cross-examination of R.W.1, is treated as Ex.P.13(a) and Ex.R.1 Letter dated 03.09.2015 issued by MESCOM along with Xerox copies of Sport Hand Sketch, Letter dated 05.04.2012, Report dated 28.11.2011 and Statement of Sri. Sathish. H.N. dated 28.11.2011, which are marked during the course of examination- in-chief of R.W.1, is treated as Ex.R.1(a), in the following discussion.
SCCH-7 18 ECA.No.54/201410. Heard the arguments. The Learned Counsel appearing for Respondent No.1 has filed the written arguments.
11. In support of the submission, the Learned Counsel appearing for the Respondent No.1 Sri. S.R. Murthy has placed reliance upon the decisions reported in,
i) 2008 AIR SCW 2075 (Sardari and Others V/s. Sushil Kumar and Others), wherein, it is observed that, Motor Vehicles Act (59 of 1988), Section 147 - Liability of Insurance Company -
Motor Accident claim - Driver not holding driving licence at all - Insurance Company gets exonerated - However, driver and owner are responsible.
ii) 2013 ACJ 1332 High Court of Punjab and Haryana At Chandigarh (Mam Chand and Another V/s. Sunita Devi and Others), wherein, it is observed that, Motor Vehicles Act 1988, Section 149(2)
(a) (ii) - Motor insurance - driving licence - liability of Insurance Company - Tractor -
Trolley used for transporting goods from one place to another - Tribunal found that, driver did not possess licence to drive a transport/commercial vehicle - Whether Tribunal was justified in exonerating Insurance Company from liability held: Yes.
SCCH-7 19 ECA.No.54/2014iii) 2008 ACJ 1133 High Court of Judicature At Allahabad (Prabha Shankar Shukla V/s. Shrikant Tiwari and Others), wherein, it is observed that, Motor Vehicles Act 1988, Section 149(2)
(a) (ii) - Motor insurance - driving licence - liability of Insurance Company - owner of offending vehicle contended that, he was driving the vehicle and produced his driving licence which was found expired 2 years before the date of accident - owner subsequently changed his version that, a named driver was driving the vehicle and produced his licence which was also found not valid at the time of accident - onus of proof of Insurance Company stood discharged by the evidence led by the insured himself - owner was the best person to tell who was driving the vehicle at the relevant time and he was supposed to prove that, driver had a valid driving licence but, he failed to do so - whether the Tribunal was justified in drawing adverse inference against the insured and concluding that, driver of offending vehicle had no valid licence at the time of accident and exempting Insurance Company from liability.
iv) M.F.A.No.9398/2008 (MV) High Court of Karnataka, Bangalore (Hanumanthu @ Hanumanthegowda V/s. The Manager, J.P. Industries and Another), wherein, it is observed that,
5. With regard to the liability the Tribunal has taken note of the contention which had been put forth by the parties. On SCCH-7 20 ECA.No.54/2014 referring to the evidence available on record, the Tribunal has considered as to whether the Respondent No.1/insured has proved that, the driver of the vehicle had possessed a valid driving licence in view of the contention put forth by the Insurance Company. While considering this aspect of the matter the Tribunal in fact has taken note of the effort put in by the Insurance Company by issuing notice to Respondent No.1 to produce the driving licence of the driver of the car in question. Despite service of the said notice the Respondent No.1 viz., the insurer did not come forward to produce the licence and take the benefit of the insurance coverage if the terms had not been violated. It is in that context, the Tribunal has come to the conclusion that, Respondent No.1 has not proved that, the driver of the vehicle had possessed valid driving licence and therefore, absolved the Insurance Company from paying the compensation.
6. Though the Learned Counsel for the appellant contends that, no proceedings were initiated against the owner of the vehicle under Section 180 of the Motor Vehicles Act the same would not be relevant in the present circumstances inasmuch as the said provision provides for prosecution. In the instant case, what requires to be noticed is the Respondent No.1 being the insured should produce such material before the Court to indicate that, there is no lapse on his part to take benefit of the insurance coverage. When that, is not done the Tribunal was very much justified in absolving the Insurance Company. That being so the enhanced compensation shall also be deposited by the Respondent No.1. If the said amount is not deposited it would be SCCH-7 21 ECA.No.54/2014 open for the appellant to recover the amount from the Respondent No.1. The claimant would be entitled to withdraw the entire amount enhanced by this Court.
v) M.F.A.No.7701/2008 (MV) High Court of Karnataka At Bangalore (Bajaj Allianz General Insurance Company Ltd., V/s. Smt. Selvi and Others), wherein, it is observed that,
2. The Tribunal has awarded compensation of Rupees 4,64,000/- with interest and has directed to pay and recover the same from the owner. As against the said direction, the insurer is in appeal as against the claim petition the insurer took a specific defence that, the driver of the offending vehicle did not had valid licence. In this regard on behalf o the Insurance Company one representative was examined as R.W.1 and a copy of the Charge Sheet was produced as Ex.R.2. Wherein the driver and the owner of the vehicle have been Charge Sheeted and the driver was Charge Sheeted for the offence punishable under Sections 3(1) read with Section 196 of M.V. Act for not possessing the licence to drive and notice was also issued to the owner to produce the licence of the offending vehicle and the same has been acknowledged as Ex.R.2. The Tribunal has relied on these documents and has held that, Respondent No.1 the owner had entrusted the vehicle to one Selvaraj the driver who had no licence to drive. As such, there is violation of the terms of the policy and further has held that, the Respondent No.2 Insurance Company is not liable to indemnify Respondent No.1.
SCCH-7 22 ECA.No.54/2014vi) 1999(1) T.A.C. 613 High Court of Orissa (New India Assurance Co. Ltd., V/s. Narayan Dhar Swain and Another), wherein, it is observed that,
(i) Motor Vehicles Act, 1988, Section 147 - third party - meaning of - use of the word - Injured, a driver met with an accident - Disability assessed at 45% -
Contention that, driver is to be treated as third party - Whether driver is third party.
12. My answer to the above said Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : Partly in the Affirmative,
The Petitioners are entitled
for total compensation of
Rupees 8,36,920/- with
interest at the rate of 12% p.a.
from 24.12.2011 till the date
of payment, from the
Respondent No.2.
Issue No.4 : As per the final Order,
for the following;
REASONS
13. ISSUE NO.1 :- The P.W.1, who is the Petitioner No.1 has stated in her examination-in-chief that, the Petitioners No.2 and 3 are her father-in-law and mother-in-law respectively and SCCH-7 23 ECA.No.54/2014 she is a legally wedded wife of the deceased S.R. Raju @ Rajugowda, who died in a road traffic accident on 24.11.2011 at about 6-00 p.m., and the Petitioners No.2 and 3 are the parents of the said deceased. The P.W.1 in her cross-examination has further stated that, her in-laws are residing along with her. The Petitioners have produced Ex.P.1 FIR, Ex.P.2 Postmortem Report, Ex.P.4 Inquest, Ex.P.5 Charge Sheet, Ex.P.7 Genealogical Tree issued by Village Accountant, Pandavapura, Ex.P.8 Marriage Invitation Card, Ex.P.9 Election Identity Card relating to the Petitioner No.2, Ex.P.10 Election Identity Card relating to the Petitioner No.3, Ex.P.11 Election Identity Card relating to the deceased S.R. Raju and Ex.P.12 Allotment Letter issued by Indane Gas Company. On perusal of the contents of the said material documents as well as the said oral evidence of P.W.1, it clearly goes to show that, the Petitioner No.1 is a wife and the Petitioner No.2 is a father and the Petitioner No.3 is a mother of the deceased S.R. Raju @ Rajugowda S/o. Ramegowda, who died on 24.11.2011 at 6-00 p.m., on the accidental spot itself due to ran over the Lorry bearing Registration No.CNO-8343 on his head, i.e., due to the accidental injuries. Since, the Petitioner No.1 is a wife, the Petitioner No.2 is a father and the Petitioner No.3 is a mother of the said deceased, they are legal representatives of the said deceased. The P.W.1 has stated that, they are completely dependents on her deceased husband. She has further stated in her cross-examination that, she is a house wife. No doubt, the P.W.1 in her cross-examination has stated that, her in-laws have agricultural land. But, based on the said evidence of P.W.1, it cannot be said that, the Petitioners No.2 and 3, who are the SCCH-7 24 ECA.No.54/2014 parents of the said deceased are not dependents upon the said deceased, as, since the Petitioner No.3 is a mother, who can very well be considered as a dependent upon the said deceased and the Petitioner No.2, who is a father of the deceased is aged about 65 years at the time of filing of the present petition, which is clear from the cause title of the petition and the Petitioner No.1 is a wife of the deceased and hence, all the Petitioners No.1 to 3 are the dependents upon the said deceased. Hence, it can be safely held that, all the Petitioners are the legal representatives and the dependents upon the said deceased S.R. Raju @ Rajugowda S/o. Ramegowda. Accordingly, I answered Issue No.1 in the Affirmative.
14. ISSUE NO.2 :- The P.W.1, who is the wife of the deceased and the Petitioner No.1, has stated in her examination- in-chief that, her deceased husband was a driver by profession working under the Respondent No.2 and he was earning a monthly wages/salary of Rupees 8,000/- per month excluding the daily bata at the rate of Rupees 200/-. She has further stated that, on 24.11.2011 at about 6.00 p.m., her husband being a driver of the Lorry bearing Registration No.CNO-8343 had been carrying a machine, namely, JCB Earth Movers, loaded in the said Lorry by driving himself and the said Lorry and JCB owned by the 2nd Respondent were taken on hire by one Jayaramagowda of Boopasamudra as he was taken contract to dig pit in the Aldur Forest Division/Region to avoid elephants menace and while proceeding on the way of Kundra to Talvar, the deceased had noticed the hanging electric line, which passes above the road at SCCH-7 25 ECA.No.54/2014 backside road of the Talvara School and expecting the possibility of touching the electricity line to JCB machine loaded in the Lorry, her husband has stopped the Lorry and went up to the Lorry Cabin so as to lift the electric wire/line from touching the JCB and while lifting the electric line with the help of wooden reaper, her husband received electric shock, owing to electric short circuit and fell down in front of the Lorry, due to which, the left tyre of the said Lorry ran over his head and he died at the spot. She has further stated that, thereafter, her husband was taken to the nearby Aralugguppe Mallegowda District Hospital, Chikkamagalur and post mortem was conducted. She has further stated that, as a matter of fact, the death of her husband occurred on account of use of the offending vehicle-lorry and also during the course of employment as he was engaged by the employer, i.e., the second Respondent and the 4th Respondent being the Electricity Supply Company engaging in the service of supplying electricity to the general public ought to have taken utmost care and maintenance to see that, electric lines, which passes over negligence on the public road should not touch any vehicle with load or without load while passing on the way, but, unfortunately the 4th Respondent- Electricity Supply Company having allowed the electric line, which were drawn and hanging very low level to the ground, took the life of her husband at his young age of 27 years and accordingly, the jurisdictional Aldur Police have registered a complaint under Cr.No.171/2011 for the offences punishable under Section 304(A) of IPC and have submitted charge sheet after the investigation. She has further stated that, the death of her husband was due to use of vehicle-Lorry and was occurred during the course of SCCH-7 26 ECA.No.54/2014 employment. She has further stated that, the Respondent No.4 being the Electric Supply Company has not taken proper care in maintaining the electric line, which passes above the accidental road.
15. The P.W.1 has further stated in her cross-examination that, she came to know that, her husband fell down from the Lorry and Lorry ran over his body and due to which, he died. She has further clearly admitted that, the wheel of the Lorry ran over the head of her deceased husband.
16. The Petitioners have also examined the eye witness, who was also present at the time of alleged accident, who also lodged the complaint in respect of the accident in question, caused to the said deceased, as, P.W.2, who has stated in his examination-in-chief that, he is working as a 'writer' with one Jayaramegowda of Bhusamudra Village since long time. He has further stated that, on 24.11.2011, at about 6-00 p.m., he along with the deceased, by name, S.R. Raju @ Rajugowda, a driver of Lorry bearing Registration No.CNO-8343 and others had been carrying a JCB Machine loaded in the said Lorry and driven by the deceased S.R. Raju @ Rajugowda and the said Lorry and JCB Earth Mover owned by the Respondent No.2, namely, Sri. E.B. Dhanpal S/o. Boraiah of Ijjalaghatta Village, Honakere Hobli, Nagamangala Taluk, with whom the deceased S.R. Raju @ Rajugowda working as a driver, were taken on hire by her owner Jayaramegowda, as, he was taken contract to dig fits at Aldur Forest Division/Region to avoid elephants menace and while on the way of Kundra to Talvar, the deceased driver S.R. Raju @ SCCH-7 27 ECA.No.54/2014 Rajugowda had noticed the hanging electric line, which passes above the road at back side road of the Talvara School and expecting the possibility of touching the electric line to JCB Machine loaded in the Lorry, the deceased S.R. Raju @ Rajugowda has stopped the Lorry and asked him to get down from the Lorry and went up the Lorry Cabin alone so as to lift the electric wire/line with the help of wooden reaper and while lifting the electric wire, the deceased has received electric shock owing to electric short circuit and fell down in front of the Lorry and due to which, the left tyre of the Lorry ran over his head and he died at the spot. He has further stated that, he has informed the jurisdictional Aldur Police by giving a complaint and the said Police have registered a case and the deceased S.R. Raju @ Rajugowda was working as a driver with the Respondent No.2 E.B. Dhanpal.
17. The P.W.2 in his cross-examination has further stated that, the deceased was a Lorry driver and he knows him one week before the accident and at the time of accident, he was traveling in the said Lorry. He has further stated that, he has lodged complaint before the Police about the incident as per Ex.P.13 and he knew the deceased 3 months prior to the accident, who is the native of Kerethonnuru, Pandavapura Taluk, Mandya District. Further, the P.W.2 has clearly identified Ex.R.1 Spot Hand Sketch and its contents, during the course of cross-examination.
18. To corroborate the oral evidence of P.W.1 and P.W.2, the Petitioners have produced Ex.P.1 FIR, Ex.P.2 Postmortem SCCH-7 28 ECA.No.54/2014 Report, Ex.P.3 Mahazar, Ex.P.4 Inquest, Ex.P.5 Charge Sheet and Ex.P.6 IMV Report.
19. The R.W.1, who is the Respondent No.2, who was the owner of the Lorry bearing Registration No.CNO-4383 has stated in his examination-in-chief that, after the incident, he enquired with the Mangalore Electricity Supply Company Ltd., wherein, the State Executive Engineer have enquired about the accident due to the current and in his enquiry, he had reported to the Engineer on 05.04.2012 stating that, the said accident occurred due to negligence of the said Raju, who tried to remove the electric wire with a reaper and he died on the spot.
20. But, based on the said oral evidence of P.W.1, P.W.2 and R.W.1 coupled with the contents of Ex.P.1 to Ex.P.5, Ex.P.13 and Ex.R.1, it cannot be believed and accept the case made out by the Petitioners as against the Respondent No.4 that, the Respondent No.4 Electricity Supply Company having left the electric lines, which were hanging very low to the ground level and due to which, it took the life of the deceased and as such, the negligence is also attributed on the part of the Respondent No.4 in the commission of the said incident, which caused to the said deceased, as, it is very much clear from the oral evidence of P.W.1 and P.W.2 as well as the contents of Ex.P.1 FIR, Ex.P.5 Charge Sheet and Ex.P.13 Complaint itself that, when the deceased was driving the Lorry bearing Registration No.CNO-8343 with loaded of JCB Earth Movers, he had noticed on the way of Kundra to Talvar, about hanging electric line, which passes above the road at the backside road of the Talvara School and expecting the possibility SCCH-7 29 ECA.No.54/2014 of touching the electricity line to JCB machine loaded in the Lorry, he has stopped the Lorry and went up the Lorry Cabin so as to lift the electric wire/line from touching the JCB and while lifting the electric line with the help of wooden reaper, he received electric shock owing to electric short circuit and fell down in front of the Lorry and due to which, the left tyre of the said Lorry ran over his head and he died at the spot itself, which clearly disclosed that, though the deceased had knowledge about the passing of the electrical line, which was endangers to human life, without intimating the same either by him or P.W.2 to the Respondent No.4, he himself had taken risk to lift the electrical wire/line without intimating to the same to the Respondent No.4 or its officials. Further, admittedly, at the time of accident, the JCB Earth Movers was transported in the Lorry bearing Registration No.CNO-8343 and as such, the height of the said Lorry was more and since the said electric line was touching to the said JCB Earth Movers and hence, the deceased had taken such negligent act to pass through the said road. In this regard, the P.W.2, who is an eye witness, has stated in his cross-examination that, the deceased himself went to the cabin of the Lorry and by using reaper, he lift the high power tension wire. He has further stated that, neither he nor the deceased informed to the Electricity Department about the hanging of the said high power tension wire. He has further clearly stated that, the loaded lorry were not moving on the road, on which, the accident was taken place and the height of the JCB was 12 ft. and the high power tension line was situated on the left side of the vehicle. From the said evidence of P.W.2, it is made crystal clear that, the road on which, the SCCH-7 30 ECA.No.54/2014 accident was taken place was not using for moving of loaded lories and at the time of accident, since the JCB was transported in the Lorry bearing Registration No.CNO-8343, it was height loaded, as, the JCB was 12 ft., which was above the body of the said Lorry and due to which, it was touching to the said high power tension line and to avoid the same, the deceased has taken such risk negligently without any precautionary measures. Further, the P.W.1 in her cross-examination has clearly stated that, she has not seen the accident and she has not seen the accidental spot and she does not know the height of loaded Lorry, wherein, JCB is loaded. From the said evidence of P.W.1, it appears that, the Petitioner No.1 does not know anything about the things, which were happened on the accidental spot. But, it is clear from her examination-in-chief itself that, expecting the possibilities of touching the electricity line to JCB Machine, which was loaded in the Lorry, her husband had stopped the Lorry and went up the Lorry Cabin so as to lift the electric wire/line from touching the JCB and while lifting the electric line with the help of wooden reaper, he received electric shock owing to electric short circuit and fell down. From the said evidence of P.W.1, it is made crystal clear that, the entire negligence is on the part of the deceased in touching high power tension wire. Further, the Respondent No.4 has examined its Assistant Executive Engineer (Ele), O and M Sub-division, MESCOM as R.W.3, who has stated in his examination-in-chief that, the distribution line, which is in existence and there is no sag and hanging the electric line, maintained by the supply company as per the rules prescribed by maintaining vertical and horizontal distance and the driver of the SCCH-7 31 ECA.No.54/2014 Lorry bearing Registration No.C.No.8343 had been carrying out a JCB Machine with heavy height, which is contrary to rules and the death of the said Raju was due to the lorry run over his head and he died at spot and therefore, as there is no attributable negligence on the part of the supply company maintaining distribution lines and the death of the deceased is on account of his own negligence as Act of god. He has further stated that, the Electric Supply Company engaged in services of supply electricity to the general public to have taken utmost care and maintenance to see that, electric line, which passes over and above the said public road, which should not touch any vehicle with or without load while passing on the way and accordingly, the supply company has been maintaining the 11 KV Transmission Line as per the Rule 79 of the Indian Electricity Supply Rules, 1956 and there is no complaint as to the alleged hanging or sag of the Electric Line by any of the public and since, the road, which had been used by the vehicle as usual. He has further stated that, the death of deceased is only due to his own negligence and there is no contributable negligence on the part of the Supply Company. He has further stated that, there is no negligence on the part of the Supply Company and the alleged incident to have been occurred on account of the negligence of the deceased and even according to the post mortem report, it clearly shows that, the death was due to shock, as a result of injuries and thereby, there is no negligence on the part of the Supply Company, since the Supply Company has been maintaining its Vertical and Horizontal distance as provided safety and maintaining the Transmission line and thereby, there is no contributable negligence on the part of SCCH-7 32 ECA.No.54/2014 the Supply Company. He has further stated in his cross- examination that, the electricity line was 11,000 volts and its height was 16 feet and if the said electricity line was erected on other than the main road, its height is usually of the same height of 16 feet and the cabin of the said Lorry was within 10 ft and he has seen the accidental spot and the electrical power line was on the height of 16 feet from the ground level. From the said evidence of R.W.3, it is further made crystal clear that, on the accidental spot, the electric line was not hanging, but, since the Lorry bearing Registration No.CNO-8343 was loaded with JCB Earth Movers, which was height of more than 16 feet from the ground level and due to which, it was touching to the said Lorry and not otherwise as alleged by the Petitioners as against the Respondent No.4 in not maintaining the said electric line with a proper height from the ground level. Further, though it is alleged by the Investigating Officer in Ex.P.5 Charge Sheet that, the electric line was hanging on the accidental road, no allegations made by him as against the Respondent No.4 in respect of its negligence in maintaining the said electric line in a proper height. Further, the Investigating Officer has filed Ex.P.5 Charge Sheet only as against the deceased. Further, in Ex.P.2 Postmortem Report, it not mentioned that, the death caused to the deceased is due to electrocution. But, it is clearly mentioned in Ex.P.2 Postmortem Report that, the death is occurred within 24 hours prior to the time of postmortem examination and the death is due to shock as a result of injuries sustained to vital organ. If really, the death is caused to the deceased due to electrocution, the same could have been come out during the postmortem examination and the same SCCH-7 33 ECA.No.54/2014 could have been opined and noted by the Doctor, who has conducted the postmortem, in Ex.P.2 Postmortem Report. Therefore, it cannot be said and come to the conclusion based on the said oral evidence of P.W.1 and P.W.2 that, the contributory negligence is also attributed on the part of the Respondent No.4. It is further pertinent to note here that, along with Section 304(A) of IPC, the Investigating Officer has inserted Section 122 R/w Section 177 of M.V. Act as against the deceased, which clearly disclosed that, the said accident was taken place due to the negligence on the part of the deceased, when he was lifting the electric wire/line by using a reaper. Furthermore, it is clearly established by the Respondent No.4 through the evidence of R.W.3 that, no public were complained to it in respect of the hanging of electric line, which was passing on the accidental road. Therefore, the case made out by the Petitioners as against Respondent No.4 that, the Respondent No.4 being the Electric Supply Company has not taken proper care in maintaining electric line, which passes above the road, cannot be believed and accept.
21. Except the oral evidence of P.W.1 and P.W.2, the Petitioners have not produced any authenticated documents issued by the Respondent No.2 to show that, at the time of accident, the deceased was working as a driver under the Respondent No.2 and as such, the relationship in between the Respondent No.2 and the deceased was that off employer and employee. Even, the Petitioners have not produced any authenticated documents to show that, at the time of accident, the deceased was receiving monthly wages/salary of Rupees 8,000/-
SCCH-7 34 ECA.No.54/2014p.m., excluding the daily bata at the rate of Rupees 200/- from the Respondent No.2. The non-production of the documents to consider the avocation and income of the deceased and the relationship of deceased with the Respondent No.2, is clearly admitted by the P.W.1 in her cross-examination. Further, the Petitioners have not produced the driving licence relating to the deceased to show that, by having the driving licence, the deceased was doing driving work with the Respondent No.2. Though the P.W.1 in her cross-examination has stated that, her deceased husband was having driving licence, she has shown her ignorance by stating that, what had happened the said licence. Though she has stated that, she has no hurdle to produce the driving licence extract relating to her deceased husband, the Petitioners did not care to produce the driving licence extract issued by the competent RTO Authority to the deceased. Further, the R.W.1, who is the Respondent No.2 has stated in his examination-in-chief that, the deceased husband of Petitioner No.1 at no point of time was working as a driver to his vehicle and he is the driver as well as the owner of the said vehicle and he was carrying on the work as well as the business with a Lorry and on 24.11.2011, he was taken his Lorry bearing Registration No.CNO-8343 with JCB for laying the trenches as per his principal employer and on that day at about 6-00 p.m., he parked the vehicle and went back to his native due to the sunset. He has further stated that, he came to know that, the deceased S.R. Raju, who took his vehicle without any permission and met with an accident on his own and died on the spot when the Lorry flows on the said deceased Raju and the said fact came to him on the very next morning and immediately, SCCH-7 35 ECA.No.54/2014 rush to the spot and found out the reason of the said accident occurred and he came to know that, the said accident occurred due to the negligence and ignorance of the deceased. He has further stated that, the deceased Raju at no point of time working with him as a driver to his vehicle and he had no occasion to employee Raju as his driver, as himself was the driver-cum-owner of the said Lorry and the claim made in the petition by the Petitioners that, he has engaged Raju as his employee and paying salary to him are all absolutely false. He has further stated that, the Petitioners have filed this petition as against him only with an intention to extract money as his vehicle was involved in the accident, other than that, he has no relation whatsoever in the nature with the said Raju. The R.W.1 has further stated in his cross-examination that, he is the owner of the Lorry bearing Registration No.CNO-8343 at the time of accident and at the time of accident, the JCB was transported in the said Lorry, which is also owned by him and the said JCB was shifted from one sight to another sight and the said Lorry and JCB was given to Jayaramegowda on hire basis and the public informed him about the accident to his phone and he went to the accidental spot at 10.30 p.m. The Respondent No.2 has produced Ex.R.1(a) Letter dated 03.09.2015 issued by MESCOM along with xerox copies of Spot Hand Sketch, Letter dated 05.04.2012, Report dated 28.11.2011 and Statement of Sri. Santhosh. H.N. dated 28.11.2011 and Ex.R.3 Driving Licence relating to him.
22. From the said evidence of R.W.1, it is made crystal clear that, the Respondent No.2 was a R.C. Owner of the Lorry SCCH-7 36 ECA.No.54/2014 bearing Registration No.CNO-8343, wherein, JCB Earth Movers was loaded and transported and he was having a valid driving licence to drive such class of Lorry and he was not present on the accidental spot.
23. But, based on the non-production of the material documents by the Petitioners to show that, the relationship of the deceased with the Respondent No.2 was that off employee and employer, i.e., as a driver, non-production of the driving licence relating to the deceased by the Petitioners and the oral evidence of R.W.1, it cannot be believed and accept the defence taken by the Respondent No.2 that, the deceased never working under him as a driver and as such, there was no relationship of employer and employee between him and the deceased at the time of accident, as, whatever stated by the Respondent No.2 in his evidence is quite contrary of Ex.P.14 Reply issued by him to the Investigating Officer in respect of the Notice under Section 133 of M.V. Act, i.e., Ex.P.13(a), to the Investigating Officer, wherein, he has clearly stated that, he has received the Notice under Section 133 of M.V. Act and he replied to the said notice by stating that, on 24.10.2011, he was engaged Raju @ Rajugowda S/o. Ramegowda, 27 years, driver in profession, Vokkaliga Gowda Caste, Sanabadakoppalu, Narayanapura Post, Pandavapura Taluk, to drive his Lorry bearing Registration No.CNO-8343 and when the said Raju @ Rajugowda S/o. Ramegowda on 24.10.2011 at 6.00 p.m., was driving his Lorry bearing Registration No.CNO-8343 on the back road of Thalavara of Kunduru Village within the jurisdiction of Alduru Police Station, at that time, the electric line SCCH-7 37 ECA.No.54/2014 was hanging and it was possible to touch to the JCB, which was loaded in the said Lorry and as such, the said Lorry driver Raju was stopped the Lorry and though he knows that, the electricity power was running on the electric line, negligently, he went up the Lorry cabin and when he was trying to lift the said handing electric line with a wooden reaper for the reason not to touch the said JCB, at that time, he received electric shock due to short circuit and he fell down on the front portion of the Lorry and since the said Lorry was not stopped in a proper condition on the said road, the Lorry was moved further and the front left wheel of the said Lorry ran over on the head of the said Raju and he died on the accidental spot itself and he was not having a valid driving licence at that time. From the contents of Ex.P.14 Reply to the Notice under Section 133 of M.V. Act, it is made crystal clear that, at the time of accident, the deceased was working as a driver under the Respondent No.2 and as per the direction of the Respondent No.2, the deceased was driving the Lorry bearing Registration No.CNO-8343 at the time of accident without driving licence, wherein, the JCB Earth Movers was transporting and the said Lorry bearing Registration No.CNO-8343 was belonging to the Respondent No.2. when the Respondent No.2 himself issued Ex.P.14 Reply to Notice under Section 133 of M.V. Act to the Investigating Officer, which is very much available on record, now, he cannot escape from his liability, which involved in the present petition, by taking a false defence that, the deceased never working as a driver under him and he never allowed the deceased to drive his Lorry bearing Registration No.CNO-8343 and without his permission, the said deceased took his Lorry and met with an SCCH-7 38 ECA.No.54/2014 accident on his own. Further, the R.W.4, who is an Investigating Officer has clearly stated in his examination-in-chief that, he has conducted part investigation in Crime No.171/2011 and he has issued Ex.P.13(a) Notice under Section 133 of M.V. Act to the owner of the offending vehicle and as per Ex.P.14, the owner of the offending vehicle has issued reply and in Ex.P.14 Reply, the owner of the offending vehicle has clearly mentioned that, the driver of the offending vehicle was not having a valid driving licence to drive the offending vehicle at the time of accident. Therefore, it can be safely held that, whatever the evidence adduced by the Respondent No.2 both oral and documentary is false and it is for away from truth and quit contrary to his own evidence, which is already produced before the Investigating Officer.
24. Based on the said evidence and reasons, it can be safely held that, at the time of accident, the deceased S.R. Raju @ Rajugowda was working as a driver under the Respondent No.2 without having driving licence and at the time of accident, he was driving the offending Lorry bearing Registration No.CNO-8343, which was belonging to the Respondent No.2 with his permission and as such, the relationship in between the said deceased and the Respondent No.2 was that off employee and employer.
25. While discussing above, this Tribunal has already observed and come to the conclusion that, the case made out by the Petitioners as against Respondent No.4 that, the Respondent No.4 being the Electric Supply Company has not taken proper care in maintaining electric line, which passes above the road, cannot be believed and accept. Therefore, it cannot be said and SCCH-7 39 ECA.No.54/2014 come to the conclusion based on the said oral evidence of P.W.1 and P.W.2 that, the contributory negligence is also attributed on the part of the Respondent No.4.
26. It is clear from the oral evidence of P.W.1, P.W.2, R.W.1 and R.W.3 as well as contents of Ex.P.1 FIR, Ex.P.2 Postmortem Report, Ex.P.3 Mahazar, Ex.P.4 Inquest, Ex.P.5 Charge Sheet, Ex.P.6 IMV Report, Ex.P.13(a) Notice under Section 133 of M.V. Act, Ex.P.14 Reply to the Notice under Section 133 of M.V. Act and Ex.P.15 Indemnity Bond that, the said Lorry bearing Registration No.CNO-8343 was belong to the Respondent No.2 at the time of accident and it was driving by the said deceased S.R. Raju, which was loaded with JCB Earth Movers and while lifting the electrical line with the help of reaper, the said deceased received electrical shock owing to electric short circuit and fell down in front of the said Lorry and due to which, the front left wheel of the said Lorry ran over on his head and he died on the accidental spot itself. As this Tribunal has already observed and come to the conclusion that, as per Ex.P.2 Postmortem Report, the cause of death is due to shock as a result of injuries to vital organs and not electrocution. From this materials, it is made crystal clear that, the deceased was not stopped the said Lorry bearing Registration No.CNO-8343 in a proper manner and due to his own negligence itself, when he fell down from the cabin of the said Lorry in front of it, the front left wheel of the said Lorry ran over on his head and died on the accidental spot itself. From this, it is further made crystal clear that, the death of the said deceased caused from offending Lorry bearing Registration No.CNO-8343, which was SCCH-7 40 ECA.No.54/2014 owned by the Respondent No.2, which occurred during the course of employment under the Respondent No.2. Therefore, it can be safely held that, during the course of employment under the Respondent No.2, as a driver, the deceased succumbed on the accidental spot due to the accidental injuries itself and the relationship in between the said deceased and the Respondent No.2 was that off employee and employer at the time of accident. Accordingly, I answered Issue No.2 in the Affirmative.
27. ISSUE No.3 :- The P.W.1 has stated that, her deceased husband died at his young age of 27 years. The Petitioners have produced Ex.P.11 Election Identity Card relating to the deceased, which disclosed that, the deceased was 24 years as on 11.01.2005. The date of accident is on 24.11.2011. From the said dates, it appears that, at the time of accident, the deceased was 30 years old. Hence, the age of the deceased is considered as 30 years at the time of accident.
28. The P.W.1 has stated that, her deceased husband was a driver by profession working under the Respondent No.2 and he was earning a monthly wages/salary of Rupees 8,000/- per month excluding the daily bata at the rate of Rupees 200/-. While answering Issue No.2, this Tribunal has already observed and come to the conclusion that, during the course of employment under the Respondent No.2, as a driver, the deceased succumbed on the accidental spot due to the accidental injuries itself and the relationship in between the said deceased and the Respondent No.2 was that off employee and employer. No authenticated documents are produced by the Petitioners to show that, at the SCCH-7 41 ECA.No.54/2014 time of accident, the deceased was earning monthly wages/salary of Rupees 8,000/- p.m., excluding daily bata of Rupees 200/-. By issuing Ex.P.14 Reply to the Notice under Section 133 of M.V. Act, the Respondent No.2 has clearly admitted that, at the time of accident, the deceased was a driver in the offending Lorry bearing Registration No.CNO-8343. At the time of accident, the deceased was 30 years old, who was having the Petitioners as his legal representatives and dependents. Further, as per the Gazette Notification dated 31.05.2010, the monthly wages of the workers is specified as of Rupees 8000/- with effect from the date of publication of the said Notification in the Gazette, i.e., on 31.05.2010, which reads thus, "MINISTRY OF LABOUR AND EMPLOYMENT NOTIFICATION New Delhi, the 31st May, 2010 S.O. 1258(E) - In exercise of the powers conferred by sub-section (1B) of Section 4 of the Employee's Compensation Act, 1923 (8 of 1923), the Central Government hereby specifies, for the purposes of Sub- section (1) of the said Section, the following amount as monthly wages, with effect from the date of publication of this Notification in the Official Gazette, namely :-
"Eight thousand rupees"
29. The date of accident is on 24.11.2011. This Tribunal has already held that, the deceased was working under the Respondent No.2 as a driver and during the course of employment SCCH-7 42 ECA.No.54/2014 under the Respondent No.2, the deceased S.R. Raju @ Rajugowda, succumbed to the injuries, which is clearly proved by the Petitioners. Therefore, the amount of Rupees 8,000/- as monthly wages as per the said Gazette Notification is aptly applicable to the present case. Hence, without much discussion, the monthly wages of the deceased is considered as Rupees 8,000/- p.m. at the time of incident.
30. The P.W.1 has stated that, her deceased husband has been put them in to great misery and mental agony as they are completely dependents on him and her husband being the sole bread earning member of the family had been contributing his entire income/earnings to the family and however, he is having lost her husband at her young age of 20 years have been put into untold hardship, injury, pain and sufferings and due to which, their life became pathetic and miserable without there being any source of income to eak out their livelihood.
31. While answering Issue No.1, this Tribunal has already observed and come to the conclusion that, the Petitioner No.1 being a wife, the Petitioner No.2 being a father and the Petitioner No.3 being a mother of the said deceased are the legal representatives and dependents upon the said deceased at the time of accident. While answering Issue No.2 this Tribunal has further come to the conclusion that, during the course of employment under the Respondent No.2, as a driver, the deceased succumbed on the accidental spot due to the accidental injuries itself and the relationship in between the said deceased and the Respondent No.2 was that off employee and employer at the time SCCH-7 43 ECA.No.54/2014 of accident. Hence, the Petitioners being the legal representatives and dependents of the said deceased are entitled for compensation under the following heads.
32. The factors, which determine the amount of compensation, is already decided by this Tribunal in the above said discussion and Issues.
33. The wages of the deceased is already held at Rupees 8,000/- per month. As per Section 4(1)(a) of the Employees' Compensation Act, 1923, where death results from the injury, an amount equal to 50% of the monthly wages of the deceased, i.e., employee multiplied by the relevant factor or an amount of Rupees 1,20,000/-, whichever is more shall be considered. Therefore, the income per month comes to Rupees 4,000/- (Rs.8,000/- x 50%).
34. As this Tribunal has already come to the conclusion that, at the time of accident, the age of the deceased was 30 years. The applicable multiplier corresponding to the said age of 30 years as per Schedule IV is 207-98. Therefore, the loss of dependency arising out of the death of the deceased Sri. S.R. Raju @ Rajugowda, for monthly income of Rupees 4,000/- by applying multiplier 207-98 comes to Rupees 8,31,920/-, i.e., (Rupees 4,000/- x 207-98). Hence, the Petitioners are entitled for Rupees 8,31,920/- towards loss of dependency due to death of Sri. S.R. Raju @ Rajugowda.
35. As per Section 4(4) of the Employees Compensation Act, 1923, the employer shall pay not less than Rupees 5,000/-
SCCH-7 44 ECA.No.54/2014towards the expenditure of the funeral of the deceased employee. Therefore, the Petitioners are entitled for a sum of Rupees 5,000/- towards funeral expenses.
36. In this way, the Petitioners are entitled for the following amount of compensation:-
Sl. No. Compensation heads Compensation amount
1. Loss of dependency Rs. 8,31,920-00
2. Funeral expenses Rs. 5,000-00 TOTAL Rs. 8,36,920-00
37. In all, the Petitioners are entitled for total compensation of Rupees 8,36,920/-.
38. The Respondent No.2 was aware of the employment of the deceased, accident, injuries and death of deceased in the road traffic accident and having aware that, the Petitioners have filed the present case, he has neither deposited the required compensation within the stipulated time nor intimated the incident to the concerned Authority in accordance with law. Hence, it is just, proper and necessary to award interest at the rate of 12% per annum on the said compensation amount from 24.12.2011 till the deposit of the said compensation amount. Therefore, the Petitioners are entitled for total compensation of Rupees 8,36,920/- along with interest at the rate of 12% per annum from 24.12.2011 till payment.
SCCH-7 45 ECA.No.54/201439. The P.W.1 has stated that, the Respondent No.1 is the Insurer and the Respondent No.2 is the Owner of the offending Lorry at the time of occurrence of death and the Respondent No.3 is the Erstwhile Owner of the offending Lorry, who has got insured the vehicle with the Respondent No.1 Company before selling/transferring Lorry and the Respondent No.4 being the Electricity Supply Company has not taken proper care in maintaining the electric lines, which passes above the road and the policy of the offending vehicle was in force at the time of occurrence of death/accident of the deceased and thus, in the said circumstances, the Respondents are jointly and severally liable to pay compensation to them owing to death of her husband, which occurred during the course of employment.
40. The R.W.1, who is the Respondent No.2, has stated in his examination-in-chief that, he was carrying business with a Lorry bearing Registration No.CNO-8343, which was owned by him. He has further stated in his cross-examination that, he is the Owner of the Lorry bearing Registration No.CNO-8343 at the time of accident. He has further clearly admitted that, Ex.R.2 Insurance Policy relating to the offending Lorry, which is standing in the name of Guruprasad S/o. Basavaraj, i.e., the Respondent No.3. He has further stated in his cross-examination that, he has purchased the said Lorry from the Guruprasad S/o. Basavaraj, i.e., the Respondent No.3.
41. The R.W.2, who is the Administrative Officer of the Respondent No.1, has stated in his examination-in-chief that, the Respondent No.1 is an Insurer of the Lorry bearing Registration SCCH-7 46 ECA.No.54/2014 No.CNO-8343, which issued in favour of the Respondent No.3 and the driver of the said Lorry, i.e., deceased Sri. Raju @ Rajugowda did not possess any driving licence at the time of accident. The Respondent No.1 has also produced Ex.R.4 Insurance Policy. The R.W.2 has further clearly stated in his cross-examination that, at the time of accident, the Insurance Policy relating to the offending vehicle was valid. The Respondent No.1 has also made letter correspondence and Legal Notice to the Respondents No.2 and 3 and in this regard, it has produced Ex.R.5 Office copy of Legal Notice dated 25.11.2015, Ex.R.6 Postal Receipt, Ex.R.7 Postal Acknowledgement, Ex.R.8 Office copy of Legal Notice dated 25.11.2015, Ex.R.9 Postal Receipt, Ex.R.10 Postal Acknowledgement, Ex.R.11 Office copy of Application dated 25.11.2015, Ex.R.12 Postal Receipt, Ex.R.13 Postal Acknowledgement, Ex.R.14 Endorsement dated 03.12.2015 issued by RTO, Mandya, Ex.R.15 Opened Postal Cover, Ex.R.16 Office copy of Application dated 25.11.2015, Ex.R.17 Postal Receipt and Ex.R.18 Postal Acknowledgement.
42. The R.W.4, who is Investigating Officer has stated in his examination-in-chief that, in Ex.P.14 Reply, the owner of the offending vehicle has clearly mentioned that, the driver of the offending vehicle was not having a valid driving licence to drive the offending vehicle at the time of accident.
43. From the above said oral evidence of P.W.1, R.W.1, R.W.2, R.W.3 and R.W.4 as well as the contents of the said material documents, it is made crystal clear that, at the time of accident, the Respondent No.1 was an Insurer, the Respondent SCCH-7 47 ECA.No.54/2014 No.2 was a R.C. Owner, the Respondent No.3 was an earlier R.C. Owner and also insured of the offending Lorry bearing Registration No.CNO-8343 and at the time of accident, the deceased, who was a driver of the said offending Lorry bearing Registration No.CNO-8343 was not having a driving licence to drive such class of offending Lorry.
44. While answering Issue No.2, this Tribunal has already observed and come to the conclusion that, during the course of employment under the Respondent No.2, as a driver, the deceased succumbed on the accidental spot due to the accidental injuries itself and the relationship in between the said deceased and the Respondent No.2 was that off employee and employer at the time of accident. It is also clearly observed and come to the conclusion that, the Respondent No.4 no way related in respect of the accident caused to the said deceased. Hence, the Respondent No.4 is not liable to pay any compensation to the Petitioners.
45. When the deceased, who was a driver of the said offending Lorry bearing Registration No.CNO-8343 was not having a valid and effective driving licence to drive such class of offending Lorry at the time of accident, even though the Insurance Policy was valid relating to the said Lorry at the time of accident, the Respondent No.1, who is an Insurer of the offending Lorry, is not liable to pay any compensation to the Petitioners by indemnifying either the Respondent No.2 or the Respondent No.3, as, the Respondent No.2, who was a R.C. Owner of the offending Lorry at the time of accident, had allowed the deceased to drive the said offending Lorry without driving licence. Further, as per Ex.R.4 SCCH-7 48 ECA.No.54/2014 Insurance Policy, the Respondent No.3 was an insured and not a R.C. Owner of the said offending Lorry at the time of accident. Hence, the Respondent No.2 being the R.C. Owner of the said offending Lorry bearing Registration No.CNO-8343 at the time of accident, is alone liable to pay the above said compensation and interest to the Petitioners. Hence, the petition filed by the Petitioners as against the Respondent No.2 is liable to be allowed and it is liable to be dismiees as against the Respondents No.1, 3 and 4. In view of the above said reasons and findings on Issues, the principles enunciated in the decisions cited by the Learned Counsel appearing for the Respondent No.1 are aptly applicable to the present facts and circumstances of the case on hand. Hence, Issue No.3 is answered accordingly.
46. ISSUE NO.4 :- For the aforesaid reasons, I proceed to pass the following, ORDER The petition filed by the Petitioners under Section 22 of the Workmen's Compensation Act, 1923, is hereby partly allowed with costs.
The Petitioners are entitled for compensation of Rupees 8,36,920/-
with interest at the rate of 12% p.a. from 24.12.2011 till the date of payment, from the Respondent No.2.
SCCH-7 49 ECA.No.54/2014The Respondent No.2 shall deposit the said compensation and interest in this Tribunal, within two months from the date of this Order.
The Petitioners No.1 to 3 shall share the compensation and interest in the ratio of 60:20:20.
In the event of deposit of compensation and interest, 50% share relating to Petitioners No.1 to 3 shall be released in their favour through account payee cheques, on proper identification.
Remaining 50% shares relating to the Petitioners No.1 to 3 shall be kept in F.D in their respective names in any nationalized Bank of their choice, for a period of 3 years.
Advocate's fee is fixed at Rupees 1,000/-.
SCCH-7 50 ECA.No.54/2014Draw award accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 1st day of December, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PETITITONERS :-
P.W.1 : Smt. S.D. Rani
P.W.2 : Sri. Shivalingaiah. B.N.
2. DOCUMENTS MARKED BY THE PETITITONERS :-
Ex.P1 : Copy of FIR
Ex.P2 : Copy of Postmortem Report
Ex.P3 : Copy of Mahazar
Ex.P4 : Copy of Inquest
Ex.P5 : Copy of Charge Sheet
Ex.P6 : Copy of IMV Report
Ex.P7 : Copy of Genealogical Tree issued by
: Pandavapura Village Accountant
Ex.P8 : Marriage Invitation Card
Ex.P9 : Election Identity Card relating to
Ramegowda
Ex.P10 : Election Identity Card relating
to Mahadevamma
Ex.P11 : Election Identity Card relating to S.R. Raju
Ex.P.12 : Allotment Letter issued by Indane
Gas Company
Ex.P.13 : Copy of Complaint
SCCH-7 51 ECA.No.54/2014
Ex.P.13(a) : True copy of Notice under Section 133
of M.V. Act
Ex.P.14 : Reply to the Notice under Section 133 of M.V.
Act
Ex.P.15 : Indemnity Bond
3. WITNESSES EXAMINED BY THE RESPONDENTS :-
R.W.1 : E.B. Dharmapal
R.W.2 : G. Shivakumar
R.W.3 : R. Rajashekar
R.W.4 : H.N. Panchaksharappa
4. DOCUMENTS MARKED BY THE RESPONDENTS :-
Ex.R.1 : Spot Hand Sketch
Ex.R.1(a) : Letter dated 03.09.2015 issued
by MESCOM along with Xerox copies
of Sport Hand Sketch, Letter
dated 05.04.2012, Report
dated 28.11.2011 and Statement of
Sri. Sathish. H.N. dated 28.11.2011
Ex.R.3 : Notarized Xerox copy of D.L. relating
to Dhanapal. E.B.
Ex.R.4 : True copy of Insurance Policy
Ex.R.5 : Office copy of Legal Notice
dated 25.11.2015
Ex.R.6 : Postal Receipt
Ex.R.7 : Postal Acknowledgement
Ex.R.8 : Office copy of Legal Notice
dated 25.11.2015
Ex.R.9 : Postal Receipt
Ex.R.10 : Postal Acknowledgment
Ex.R.11 : Office copy of Legal Notice
dated 25.11.2015
Ex.R.12 : Postal Receipt
Ex.R.13 : Postal Acknowledgement
Ex.R.14 : Endorsement dated 03.12.2015 issued
SCCH-7 52 ECA.No.54/2014
by RTO, Mandya
Ex.R.15 : Opened Postal Cover
Ex.R.16 : Office copy of Application
dated 25.11.2015
Ex.R.17 : Postal Receipt
Ex.R.18 : Postal Acknowledgement
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.