Karnataka High Court
The Oriental Insurance Co Ltd, vs Mastan Son Of Mallayya on 6 March, 2013
Author: Huluvadi G.Ramesh
Bench: Huluvadi G. Ramesh
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 6TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE HULUVADI G. RAMESH
MISCELLANEOUS FIRST APPEAL NO.31420/2009
C/W MFA NOS. 31423/2009, 31419/2009,
31421/2009 & 31422/2009 (WC)
MFA NO.31420/2009
Between:
THE ORIENTAL INSURANCE
COMPANY LTD., RAICHUR THROUGH
ITS DIVISIONAL MANAGER,
N.G.COMPLEX, OPP: MINI VIDHAN
SOUDHA, MAIN ROAD, GULBARGA.
....APPELLANT
(BY SMT. SUMITRA H., ADV.)
And:
1. MASTAN SON OF MALLAYYA
AGE: 31 YEARS, OCCU: EX-HAMAL
(LABOUR) R/O SIDDAPUR CAMP,
TQ. SINDHNOOR, DIST. RAICHUR.
2. GADILINGAPPA S/O ERANNA
AGE: MAJOR, OCC: OWNER OF
THE LORRY BEARING NO.KA-35/
5165, R/O VINAYAKNAGAR,
BELLARY.
....RESPONDENTS
(SRI BASAVARAJ R. MATH, ADV. FOR R1)
2
THIS MFA IS FILED UNDER SECTION 30 (1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED 25,06.2009
PASSED IN WC NO.681/2006 ON THE FILE OF LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN'S COMPENSATION,
RAICHUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AWARDING AMOUNT OF RS.1,00,589/-.
MFA NO.31423/2009
Between:
THE ORIENTAL INSURANCE
CO., LTD., RAICHUR NOW THROUGH
ITS DIVISIONAL MANAGER,
N.G.COMPLEX, OPP: MINI VIDHAN
SOUDHA, MAIN ROAD, GULBARGA.
....APPELLANT
(BY SMT. SUMITRA H., ADV.)
And:
1. VEERESH S/O GADILINGAPPA
AGE: 24 YEARS, OCCU: CLEANER
R/O SIDDAPUR CAMP, TQ.SINDHNOOR,
DIST. RAICHUR.
2. GADILINGAPPA S/O ERANNA
AGE: MAJOR, OCC: OWNER OF THE
LORRY BEARING NO.KA.35/5165
R/O VINAYAK NAGAR,
BELLARY, DIST. BELLARY.
....RESPONDENTS
(SRI BASAVARAJ R. MATH, ADV. FOR R1)
THIS MFA IS FILED UNDER SECTION 30 (1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED 25.06.2009
PASSED IN WC NO.678/2006 ON THE FILE OF LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN'S COMPENSATION,
3
RAICHUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AWARDING AMOUNT OF RS.1,23,025/- WITH
INTEREST AT 12% P.A.
MFA NO.31419/2009
Between:
THE ORIENTAL INSURANCE
COMPANY LTD., RAICHUR THROUGH
ITS DIVISIONAL MANAGER,
N.G.COMPLEX, OPP: MINI VIDHAN
SOUDHA, MAIN ROAD, GULBARGA,
DIST. GULBARGA.
....APPELLANT
(BY SMT. SUMITRA H., ADV.)
And:
1. MANJUNATH S/O ESHAPPA
AGE: 25 YEARS, OCCU: HAMAL
(LABOUR) R/O SIDDAPUR CAMP,
TQ.SINDHNOOR, DIST. RAICHUR.
2. GADILINGAPPA S/O ERANNA
AGE: MAJOR, OCC: OWNER OF THE
LORRY BEARING NO.KA.35/5165
R/O VINAYAKNAGAR,
BELLARY, DIST. BELLARY.
....RESPONDENTS
(SRI BASAVARAJ R. MATH, ADV. FOR R1)
THIS MFA IS FILED UNDER SECTION 30 (1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED 25.06.2009
PASSED IN WC NO.682/2006 ON THE FILE OF THE
COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-DN-2,
RAICHUR, ALLOWING THE CLAIM PETITION FOR
4
COMPENSATION AND AWARDING RS.1,20,159/- WITH
INTEREST AT 12% P.A.
MFA NO.31421/2009
Between:
THE ORIENTAL INSURANCE
CO., LTD., RAICHUR THROUGH
ITS DIVISIONAL MANAGER,
N.G.COMPLEX, OPP: MINI VIDHAN
SOUDHA, MAIN ROAD, GULBARGA.
DIST. GULBARGA.
....APPELLANT
(BY SMT. SUMITRA H., ADV.)
And:
1. SEENU ALIAS SRINIVAS
S/O NAGAPPA AGE: 32 YEARS,
OCCU: HAMALI (LABOUR)
R/O SIDDAPUR CAMP, TQ.SINDHNOOR,
DIST. RAICHUR.
2. GADILINGAPPA S/O ERANNA
AGE: MAJOR, OCCU: OWNER OF
LORRY BEARING NO.KA.35/5165
R/O VINAYAK NAGAR,
BELLARY, DIST. BELLARY.
....RESPONDENTS
(SRI BASAVARAJ R. MATH, ADV. FOR R1)
THIS MFA IS FILED UNDER SECTION 30 (1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED 25.06.2009
PASSED IN WC NO.680/2006 ON THE FILE OF LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN'S COMPENSATION AT
RAICHUR, PARTLY ALLOWING THE CLAIM PETITION FOR
5
COMPENSATION AND AWARDING AMOUNT OF RS.1,13,944/-
WITH INTEREST AT 12% P.A.
MFA NO.31422/2009
Between:
THE ORIENTAL INSURANCE
CO., LTD., RAICHUR THROUGH
ITS DIVISIONAL MANAGER,
N.G.COMPLEX, OPP: MINI VIDHAN
SOUDHA, MAIN ROAD, GULBARGA.
DIST. GULBARGA.
....APPELLANT
(BY SMT. SUMITRA H., ADV.)
And:
1. ANANDU S/O ANJANAPPA
AGE: 24 YEARS, OCCU: HAMAL (LABOUR)
R/O SIDDAPUR CAMP, TQ.SINDHNOOR,
DIST. RAICHUR.
2. GADILINGAPPA S/O ERANNA
AGE: MAJOR, OCC: OWNER OF
LORRY BEARING NO.KA.35/5165
R/O VINAYAK NAGAR,
BELLARY, DIST. BELLARY.
....RESPONDENTS
(SRI BASAVARAJ R. MATH, ADV. FOR R1)
THIS MFA IS FILED UNDER SECTION 30 (1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED 25.06.2009
PASSED IN WC NO.679/2006 ON THE FILE OF LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN'S COMPENSATION,
RAICHUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AWARDING AMOUNT OF RS.1,20,886/- WITH
INTEREST AT 12% P.A.
6
The Misc. First Appeals coming on for admission this day,
the court delivered the following:-
JUDGMENT
These appeals are arising out of the common judgment rendered by the Labour Officer and Labour Commissioner for Workmen's Compensation, Raichur in WC No.678, 679, 680, 681 and 682 of 2006.
2. The claimants are the injured. They are the Hamals and one cleaner who were travelling in the heavy goods vehicle bearing No. KA-35/5165 on 13.09.2006. These claimants were travelling in the said lorry from Bellary towards Halkundi Mine Planting for the purpose of loading. Due to negligence of the driver of the lorry in question bearing No. KA-28-A-1669 which dashed against the vehicle in which the claimants were travelling, the claimants sustained injuries. For the injuries sustained, the claimants who are the Hamals and cleaner in the vehicle bearing No. KA- 35/5165 claiming compensation have filed the claim petitions 7 before the Commissioner for Workmen's Compensation. The Commissioner having raised two points for determination - 1) Whether the claimants were workmen as per Section 2(1)(n) of the Workmen's Compensation Act, 1923? and 2) Whether the accident has taken place during the course of employment? and while determining these issues, after inquiry and matter being contested by the owner and insurer of the vehicle in question, has held that the claimants have sustained injuries in the accident that occurred during the course of employment and the claimants are all Hamals and Cleaner and awarded compensation saddling the liability on the insurer of the vehicle in question. Aggrieved by the fastening of liability, the insurer is before this Court.
3. Heard the counsel representing the parties.
4. Alleging violation of the policy conditions i.e., as per policy condition the claim petition could only be considered in respect of 2+1 passenger and not beyond that and that false claim is made by the claimants and as such, the insurer is 8 not liable to satisfy the award passed by the Commissioner for Workmen Compensation, and accordingly, counsel representing the insurer in all these cases sought for shifting the liability on the owner of the vehicle in question.
5. Learned counsel appearing for the respondents has submitted that the vehicle is a heavy goods vehicle within the meaning of the Motor Vehicles Act. The use of employees has been permitted and Hamals are permitted within the purview of the Workmen's Compensation Act, 1923, which provides for 6+1 passengers to be carried in heavy goods vehicle. Having regard to the nature of vehicle in question, Section 147 of Motor Vehicles Act, 1988 read with Rule 100 of Karnataka Motor Vehicles Rules, 1989, provides for carrying 6+1 passengers in a heavy goods vehicle as per the ratio laid down by the Supreme Court and this Court in the case of National Insurance Co. Ltd., Haveri -Vs- Rudregowda alias Rudregowdappa Shivannagowda and another reported in 2012 Kant M.A.C. 456 (kant) 9
6. In the judgment of this Court relied upon by the counsel for the respondents, referring to Section 147 (1)(b)(i) of the Motor Vehicles Act, 1988 and Rule 100 (1), Proviso (iii) of Karnataka Motor Vehicles Rules, 1989 which refers to the risk and liability of the insurance company, it is held that in order to comply with the requirement of coverage of insurance, the policy must cover the risk of owners or representatives of the goods apart from statutory coverage of the driver. It is held that as long as the number of person to be carried in the cabin of the goods vehicle as authorised under Rule 100 of the Karnataka Motor Vehicles Rules is not violated, such persons' risk is covered under Section 147 of the Act and the insurer is liable to indemnify the liability of the owner.
7. Admittedly, vehicle in question is a heavy goods vehicle. The provisions of the Workmen's Compensation Act which is in parimateria, so far as the liability of the owner/insurer and the extent of coverage of risk of the 10 number of employees/Hamals, to the provisions provided in the Karnataka Motor Vehicles Rules, 1989, Rule 100 read with Section 147 of the Act. Further, it is seen that the vehicle in question is heavy goods vehicle and cabin capacity is 7+2. But however, general provision providing for carrying the Hamals in heavy goods vehicle is 1+6 i.e., driver + 6 hamals. In the case on hand, there are only five claimants and as the liability is saddled on the insurer, insurer is before this Court contending that their liability is only 2+1 passengers and not beyond that.
8. The provisions of Section 147 of Workmen's Compensation Act read with Rule 100 of the Karnataka Motor Vehicles Rules prescribe for carrying persons i.e., 6+1 Hamals in case of heavy goods vehicle. That is also the general policy condition which mentions use of/carrying passengers in the vehicle and also carrying of employees not exceeding the number permitted within the purview of Workmen's Compensation Act, 1923, in view of the fact that provision of 11 Section 147 of Motor Vehicle Act read with Rule 100 of the Karnataka Motor Vehicles Rules 1989, provide for carrying of 6+1 passengers in a heavy goods vehicle as per the capacity of the engine.
9. Then, necessarily limiting the liability in the policy does not enure to the benefit of insurer to contend that they are only liable for payment of compensation for 2+1 passengers. In view of the above, the appeals filed by the Insurer are dismissed.
10. Insofar as the quantum of compensation awarded is concerned, the respondent No.1- in MFA No.31420/2009 i.e., claimant Mastan is shown to have sustained fracture of the head of the fibula and also fracture of the collis. As per the wound certificate issued by the doctor, Primary Health Centre, Toranagallu in Sandur taluka, Dist. Bellary the claimant has sustained two grievous injuries. Rs.1,00,589/- awarded by the Commissioner as compensation appears to be reasonable and does not call for reduction. 12
11. Insofar as, the quantum of compensation in MFA No.31423/20089 is concerned, the claimant Veeresh sustained fracture of humerous and also lower end of fibula. He has sustained two grievous injuries. He was awarded compensation of Rs.1,23,025/- which appears to be just and proper.
12. Insofar as, the quantum of compensation in MFA No.31419/2009 is concerned, as per the wound certificate, the claimant-Manjunatha is shown to have sustained fracture of the head of the radius and compression fracture of the L-1, L-2 vertebra. Compensation awarded is Rs.1,20,159/- which appears to be just and proper and does not require any reduction.
13. Insofar as, the quantum of compensation in MFA No.31421/2009 is concerned, claimant Seenu alias Srinivas is shown to have sustained clavicle and also fracture of LA-1 and L-2 vertebra risk compressed fracture. Compensation 13 awarded is Rs.1,13,944/-. Having regard to nature of injuries sustained by the claimant, the quantum of compensation is just and proper, and does not require any reduction.
14. Insofar as, the quantum of compensation in MFA No.31422/2009 is concerned, the claimant is Anandu who is shown to have sustained two grievous injuries and fracture of radius bone and also ulna and fracture of patella. The compensation awarded at Rs.1,20,886/- appears to be just and proper and does not require any reduction. Accordingly, these appeals are dismissed being devoid of merits.
15. Amount in deposit be transferred to the Commissioner for Workmen's Compensation, Raichur for disbursement.
Sd/-
JUDGE nsp