Karnataka High Court
Manager National Insurance Co Ltd vs Imamsab S/O Fattesab Bhairakadar on 17 July, 2013
Bench: N.Kumar, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 17TH DAY OF JULY 2013
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
M.F.A.NO.7837/2007 (WC)
Between:
MANAGER
NATIONAL INSURANCE CO. LTD.,
STATION ROAD, GADAG
NOW REPRESENTED BY ITS
REGIONAL OFFICE
NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE
SUBHARAM COMPLEX
144, M.G. ROAD, BANGALORE - 1.
...APPELLANT
(BY SMT. PREETHI SHASHANK, ADV.,)
AND :
1. IMAMSAB
S/O. FATTESAB BHAIRAKADAR
AGE: MAJOR.
2. SMT. ZANNATABI,
W/O. IMAMSAB BHAIRAKADAR,
AGE: MAJOR.
3. MAHADEVAPPA .F. GAVALI
AGE: MAJOR
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R.O. SHIRAHATTI
TQ. SHIRAHATTI.
...RESPONDENTS
(BY SRI.SURESHA P. HUDEDAGADDI, AND
SRI. SPACE LAW ASSOCIATES, ADV., FOR R.1 AND R.2
R.3 SERVED)
THIS APPEAL IS FILED UNDER SECTION 30 (1) OF
THE W.C.ACT, 1923, AGAINST THE JUDGMENT AND
AWARD DATED 10.1.2007 PASSED IN WCA 22/2006 ON
THE FILE OF THE LABOUR OFFICER AND COMMISSIONER
FOR WORKMEN COMPENSATION, DHARWAD DIVISION,
HUBLI, AWARDING THE COMPENSATION OF RS.5,23,481/-
.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
N.KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred challenging the order passed by the Commissioner for Workmen Compensation, Dharwad Division, Hubli, awarding a sum of Rs.5,23,481/- as compensation for the death of an employee in the course of employment.
2. The facts are not in dispute. The deceased Hazarat Ali was employed as a coolie by the owner of the tractor trailor. He was paid a sum of Rs.3,000/- per month as salary. The deceased while travelling on the :3: tractor fell down and succumbed to the injury sustained. The said accident occurred in the course of employment. He was not married. Therefore, his parents preferred a claim petition under the provisions of Workmen's Compensation Act, 1923. The aforesaid facts are not disputed.
3. Insurance Company contended, as the deceased was travelling on the mudguard of the tractor, he is responsible for the accident. The death is on account of the accident. The driver of the vehicle committed violation of Regulation 28 of the Central Motor Vehicles Road Regulations, 1989 and therefore, the insurance company is absolved the liability to compensate the owner.
4. The Commissioner over-ruling the said objection proceeded to award compensation in accordance with the provision of the Act. It is against :4: the said order, the present miscellaneous first appeal is filed.
5. Learned counsel for the appellant/Insurance Company assailed the order on two grounds; firstly on the ground that the risk of the deceased was not covered under the insurance policy. The deceased was travelling on the mudguard, which is contrary to the regulations and therefore, the insurance company is not liable to compensate the injured or victim of the accident. Secondly, she contended that when admittedly the deceased was paid a sum of Rs.3,000/- as salary, the Commissioner for Workmen's Compensation committed a serious error in taking the income at Rs.4,000/- i.e. the minimum wages payable under the Minimum Wages Act and awarded compensation, which is excessive, illegal and contrary to the law. Therefore, she submits, for the aforesaid reasons the impugned judgment requires to be set aside.
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6. Per contra, learned counsel appearing for the claimants supported the impugned order.
7. Learned counsel for the appellant in support of her contention relied on several judgments. She also relied on the judgment of the Apex Court in the case of Susheelabai and Others v. Basavaraj and Another, reported in (2009)17 SCC 663 arising out of the Motor Vehicles Act, 1988, where it has held; tractor being the vehicle with one seat, nobody else apart from driver there of could travel in the tractor. Therefore, when two Courts concurrently held that the deceased was not entitled to compensation, the Apex Court did not interfere with the said finding.
8. In the case of National Insurance Co. Ltd. v. Bramaranbike reported in 2005 - LAWS (KAR) - 7- 30, it has held by the learned Single Judge of this Court that the provisions of Regulation 28 in appendix 2 pertaining :6: the Rules of the Road Regulations, 1989, formulated under Motor Vehicles Act, categorically declares that the driver when driving a tractor shall not carry or allow any person to be carried on the mudguard of a tractor. The effect of the regulation makes any person travelling in a tractor apart from the driver as illegal and would be an unauthorised passenger. The policy of insurance issued does not cover the risk of an inmate of the tractor. The permitted seating capacity for the tractor at the time of accident is one. There is no legal possibility of coverage of the risk of an inmate of a tractor. Therefore, it has held the award passed against the insurer was illegal.
9. Reliance is also placed on the judgment of Kerala High Court in the case of United India Insurance Co. Ltd., v. C.I. Abraham, reported in 2009 ACJ 492, where it has been held that since the accident occurred due to the negligence of the claimant by sitting on the :7: mudguard, the insurance company is not liable to pay compensation. A Division Bench of this Court in the case of Oriental Insurance Co. Ltd., Bangalore, v. Smt. Shobha & Ors., held that the insurance company has collected a sum of Rs.25/- under the head, legal liability towards employee/driver. Admittedly, it is a tractor. The policy is in respect of an engine of a tractor, which has got only one seating capacity, which is provided for driving the tractor. In other words, when seating capacity of the tractor engine is only one and the liability is in respect of the driver, the tribunal was not justified in fixing the liability on the insurance company.
The aforesaid judgments have no application to the facts of this case.
10. In this case, the liability arises under the provisions of Workmen's Compensation Act, 1923. The relationship between the deceased and the owner of the :8: tractor is that of employer and employee. It is in the course of employment the accident occurred and the employee died. The vehicle involved in the accident is insured. It is in this context, it is necessary to look at the insurance policy issued by the insurer. The insurance policy discloses, under the insurance policy a sum of Rs.785/- is collected as premium for the tractor engine, a sum of Rs.375/- is collected for trailor, a sum of Rs.100/- is collected for compulsory PA to the owner- driver, the amount upto Rs.2 lakh, then Rs.25/- is collected as WC to employee-1. Gross total is Rs.1,285/. However, a sum of Rs.3,618/- is collected towards first party risk. In all, a sum of Rs.4,903/- is recovered. Another sum of Rs.3,808/- is added towards loading on OD premium, a sum of Rs.5,211/- is collected towards service tax and net amount paid is Rs.5,743/-. Therefore, it is clear that it is a comprehensive policy. The risk of an employee arising out and in the course of employment is statutorily covered under Section 147 of :9: M.V. Act, 1988, i.e, the employee who is engaged in driving the vehicle and if it is a goods vehicle being carried in the vehicle. Therefore, the risk of the driver of the tractor is statutorily covered. Therefore, when Rs.25/- is collected towards WC to employee-1, it is to cover contractual liability as well as statutory liability. Now the evidence on record discloses that as the deceased was an employee under the owner of the vehicle, who has insured the vehicle at the time of accident, though travelling on mudguard is contrary to law, that by itself would not disentitle the person from claiming compensation. There should be evidence to connect the accident to his negligence act. In the instant case, no such evidence is forthcoming, because he was travelling on mudguard, the accident took place and he died. He died while travelling on the mudguard, which is not permissible. In fact, this Court had an occasion to consider the effect of contravening the provision of the Act and whether that by itself would : 10 : disentitle the persons form claiming any compensation, in the case of North East Karnataka Road Transport Corporation V. Smt. Vijayalaxmi and Others reported in 2012 (3) Kar.L.J. 281 (FB) at paras 16 and 17, it has been held;
16. Section 123 of the Act casts a duty on the driver and conductor of a motor vehicle to prevent any person from travelling on the running board or on the top of the vehicle. There is an obligation cast on them under the statute to see that all persons are within the body of the vehicle. Inspite of this statutory provision, if they permit any person to travel on the running board or on the top of the vehicle, it is breach of duty. It is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do. The drier and conductor of a motor vehicle owe a duty to the passenger of a motor vehicle to see that they do not : 11 : travel on the running board or on the top of the vehicle. They have a duty to take care of them while on board the vehicle. Similarly, no person shall travel on the running board or on the top or on the bonnet of the motor cycle. If he travels, it is a careless conduct, the commission of which amounts to negligence. A duty of care exists as it is embodied in a statute with foresight for the benefit of such persons travelling in a motor cycle. Mere breach of law or duty would not create a liability to pay damages. Such a breach should result in injury which is the foundation of a claim for damages. Therefore, the question of contributory negligence does not depend upon any breach of duty as between the plaintiff and defendant. Such a breach of duty should result in injury and consequent loses. In other words, there should be a nexus between the breach of duty and the injury. If there is a blame causing the accident on both sides, the loses lies where it falls. This omission constitute : 12 : a careless conduct. Foresight is the test for duty and remoteness.
17. From the aforesaid provisions it is clear that in Chapter XIII where offences, punishments and procedures are dealt with, there is no specific provision for contravention of Section 123 of the Act. Therefore Section 177 is attracted and if a person travels on th4e running board or on the top or on the bonnet of a motor vehicle, for such contravention, he is liable to pay, if the act complained of is the first offence, a fine which may extent to Rs.100.00 and for the second or subsequent offence, a fine which may extent to Rs.300.00. Therefore, a harmonious reading of the aforesaid provisions makes it clear that under Section 123, there is an obligation/duty cast on the driver and the conductor of a motor vehicle not to carry on any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle.
: 13 :Similarly, a passenger shall not travel on the running board or on the top or on the bonnet of a motor vehicle. If there is contravention of these provisions, the Act provides for a punishment.
Therefore, in the scheme of the Act and in the right of the aforesaid provisions in the Act, the right of a third party passenger to claim compensation in the event of an accident on account of which any injury is caused or life is lost, is in no way denuded. The contravention of the aforesaid provisions is nothing to do with the entitlement of compensation. Therefore, the argument of the learned Counsel for the Corporation that a passenger who has traveled on the rooftop of the bus is not entitled to compensation tot he full extent and he will be entitled to compensation to the extent of only 50% in the event of any accident resulting in injury or death cannot be sustained". : 14 :
11. In the absence of any such evidence to show it is the negligence on the part of the deceased in travelling on the mudguard, which is the cause for the accident, it is not possible to hold that by such travelling he is disentitled from claiming compensation. The Commissioner has rightly held the insurance company is liable. In the facts of this case, we do not find any justification to interfere with the said finding.
12. Insofar as quantum of compensation is concerned, the evidence on record shows that the deceased was paid Rs.3.,000/- per month as salary. The tribunal committed a serious error in taking the salary at Rs.4,000/- per month on the basis of the Minimum Wages Act and then awarded compensation. To that extent, the award of the Commissioner requires to be interfered with. If Rs.3,000/- is taken into consideration as the salary of the deceased as on the date of the accident, the compensation payable would : 15 : be Rs.3, 29, 925/-. To that extent, the award requires to be reduced. Hence we pass the following:-
ORDER
(i) Appeal is allowed in part.
(ii) The finding of the Commissioner holding the insurance company is liable to pay compensation is affirmed. However, the amount of compensation payable is reduced to Rs.3,29,925/- with interest at 12% after month from the date of accident till the payment.
Parties to bear their on costs.
If any amount in deposit is in excess, the same shall be refunded to the insurance company.
SD/-
JUDGE SD/-
JUDGE SA