Karnataka High Court
Smt. Prema vs Sri G Krishna Murthy on 19 July, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC:25597
MFA No. 8535 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2023
R
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 8535 OF 2012 (WC)
BETWEEN:
SMT. PREMA
W/O LATE KP HANUMANTHRAJU,
NOW AGED ABOUT 35 YEARS,
RESIDING AT:
KADANOORU VILLAGE, MADURE HOBLI,
DODDABALLAPURA TALUK,
BANGALORE RURAL DISTRICT,
PIN-561 204.
...APPELLANT
(BY SRI. KUSHAL GOWDA, ADVOCATE FOR
SRI. ABHINAY Y.T., ADVOCATE)
AND:
Digitally signed by
VIJAYALAKSHMI B N 1. SRI. G. KRISHNA MURTHY
Location: HIGH S/O GANGAIAH,
COURT OF
KARNATAKA AGED MAJOR,
#65, FORT B STREET,
KALASIPALYAM,
BANGALORE 560 002.
2. M/S ORIENTAL INSURANCE CO LTD,
BRANCH OFFICE, #342,
SAMPIGE ROAD,
MALLESHWARAM,
BANGALORE 560 003.
...RESPONDENTS
(BY SMT. HARINI SHIVANANDA, ADVOCATE FOR R2;
R1 IS SERVED)
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NC: 2023:KHC:25597
MFA No. 8535 of 2012
THIS APPEAL IS FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT DATED: 29.3.2012 PASSED IN WCA/FC/CR/NO.
109/2002 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISION-I, BANGALORE, ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant challenging the judgment and award passed in WCA-FC:CR-109/2002 dated 29.03.2012 by the Commissioner for Workmen's Compensation, Division-I, Bengaluru-29 (for short, hereinafter referred to as 'Commissioner'), seeking enhancement of the compensation.
2. The brief facts of the case are that, the appellant/claimant is the wife of the deceased K.P. Hanumantharaju, resident of Kadanur Village, Mudhure Holi, Doballapura Taluk, Bengaluru Rural, Bengaluru. It is -3- NC: 2023:KHC:25597 MFA No. 8535 of 2012 alleged that, on 07.01.2001, the husband of the appellant/claimant by name Late Sri K.P.Krishnamurthy, while discharging his work as cleaner in the Bus bearing No. TN.31/D.7575 belonging to Respondent No.1 - Sri G.Krishnamurthy, fell from the said Bus due to rash and negligent driving of the driver of the said bus and who has not cared to ascertain that the deceased cleaner is inside the bus or not. As a result of the rash and negligent driving of Respondent No.1, the deceased was thrown out from the bus and the body of the deceased was found lying on the road on 13.01.2001 in decomposed state and the police after having photographs of the deceased, cremated the dead body of the deceased. Thereafter, on filing of missing complaint by the relatives of the deceased, the police investigated the matter and filed charge sheet against the driver of the Bus in question.
3. Heard Sri. Kushal Gowda, Advocate for Sri. Abhinay Y.T., the learned counsel for the appellant and -4- NC: 2023:KHC:25597 MFA No. 8535 of 2012 Smt. Harini Shivanand, learned Advocate for Respondent No.2-M/s. Oriental Insurance Company Limited. Perused the records.
4. On 18.12.2021, this Court while admitting the appeal has framed the following substantial questions of law:
(i) Whether learned Commissioner was correct in taking the income of the deceased by looking into the minimum wages prevailing at that time without having regard to the income that has been established before the learned Commissioner?
(ii) Whether the learned Commissioner was correct in holding that insurance company is not liable to pay the compensation awarded and thereby fixing the liability to pay the compensation only on the owner of the vehicle?
5. This Court framed the following substantial question of law as follows:
(iii) Whether, under the facts and circumstances involved in the case, when additional premium is collected covering the risk under the category as driver/conductor/workman No.2, it does -5- NC: 2023:KHC:25597 MFA No. 8535 of 2012 not amount to covering the risk of workman, but only covering the risk of driver/conductor?
6. On hearing the learned Advocates appearing on both sides and on perusal of records, the Commissioner for Workmen's Compensation has assessed the monthly wage of the deceased at Rs.1,488/- and awarded compensation of Rs.1,54,737/- with interest at 12% per annum, and fixed the liability on the owner of the bus, on the ground that, additional premium is not paid and hence the risk of workman/cleaner is not covered under the Insurance Policy.
7. Learned counsel for the appellant/claimant submits that the monthly wage assessed by the learned Commissioner is on lower side. He further submits that, as could be seen from the Insurance Policy, it is a comprehensive Insurance Policy and also extra premium of Rs.30/- is paid towards covering the risk of the driver and conductor and 2 workmen. Therefore, he submitted that, -6- NC: 2023:KHC:25597 MFA No. 8535 of 2012 the cleaner is the workman traveling in the bus and since additional premium of 30/- is paid, the risk of cleaner, who is the workman is covered under the policy and hence, prays to fasten the liability on the Respondent No.2- Insurance Company instead of owner of the bus.
8. On the other hand, learned counsel for the Respondent/Insurance Company submitted that, as per Section 147(1)(B)(ii) of the M.V. Act, the risk in respect of Workman is not covered. Therefore, the learned Commissioner is correct in not fastening the liability on the Insurance Company. Therefore, she sought to justify the order passed by the Commissioner for Workmen Compensation and prays to dismiss the appeal.
9. Further it is submitted that there is fraud played by taking note of chronological events of alleged dates of accident, finding the dead body lying by the side of the road, lodging complaint and the driver and conductor did not inform the death of the deceased to his -7- NC: 2023:KHC:25597 MFA No. 8535 of 2012 family members. Therefore, it is submitted that all the circumstances shows that there is fraud played.
10. Learned counsel for the Insurance Company places reliance on the judgments of the Hon'ble Supreme Court as well as this Court as follows:
(i) Ramashray Singh Vs. New India Assurance Company Limited & Others reported in AIR 2003 SC 2877 (for short Ramashray Singh's case)
(ii) Bhimavva and Others Vs. Shankar alias Adya and Others reported in ILR 2003 KAR 3538 (for short Bhimavva's case)
11. Insofar as the contention raised by the Insurance Company that the risk of cleaner is not covered, the insurance policy produced before the learned Commissioner is to be looked into. Admittedly, the insurance policy is the comprehensive policy and premium of Rs.30/- is collected under the nomenclature as driver/conductor/workman No.2. If additional premium is -8- NC: 2023:KHC:25597 MFA No. 8535 of 2012 collected only for driver/conductor, then it should have been only for "driver-cum-conductor". But the nomenclature for collection of additional premium of Rs.30/- is for driver/conductor/workman No.2. Then there is no necessity of mentioning workman No.2 in the said nomenclature. Therefore, if premium of Rs.30/- is collected only for driver/conductor, then it should be only for driver/conductor. It means the premium is collected covering the risk of driver/conductor, but where it is stated that apart from driver/conductor, workman No.2 is also there in the said head/nomenclature.
12. Therefore, upon perusing the insurance policy, premium of Rs.30/- is collected under the head/nomenclature as driver/conductor/workman No.2, it means the premium of Rs.30/- is collected for driver/conductor/workmen No.2. Therefore, collection of this premium of Rs.30/- also includes workman No.2. Otherwise, it would have been only for driver/conductor -9- NC: 2023:KHC:25597 MFA No. 8535 of 2012 without mentioning workman No.2. If workman No.2 is mentioned in the insurance policy, then it means collection of premium of Rs.30/- is for covering the risk of workman No.2. In the present case, the deceased is a cleaner means he is workman/employee working in the bus. Moreover, the insurance policy is a comprehensive policy, which means it is a contractual policy, but not only covering the risk compulsorily as per statute. Therefore, as per Section 147 (1)(b)(ii) of Motor Vehicle Act, there is no requirement of policy to be taken in respect of the categories stated in Sub-clauses (a), (b), (c) of Clause (i) under the first proviso. But when it is stated that for workman No.2 also apart from driver and conductor, additional premium is collected, it means collection of premium is also in respect of covering risk of workman, which means in the present case the cleaner. Therefore, this insurance policy as above discussed clearly proves that the additional premium is also collected for covering the risk of workman also apart from driver or conductor. Therefore, in this regard, the learned Commissioner is not
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NC: 2023:KHC:25597 MFA No. 8535 of 2012 correct in holding that the risk of cleaner is not covered as it is contrary to evidence. Thus, it is perverse.
13. In Ramashray Singh's case, the contention was raised by the owner that the seating capacity is 13 +
1. Hence, it includes covering the risk of khalasi/cleaner. In that contention and facts and circumstances, it was held that if premium is collected for seating capacity of 13 + 1, it does not mean that covering the risk of cleaner + khalasi, but the facts and circumstances and evidence and insurance policy are different. In the present case, the contention is additional premium is collected for driver/conductor/workman No.2. This makes difference in factual matrix in the above stated case and the present case. It was not the contention in the above stated judgment that under the insurance policy, an extra premium covering the risk of workman is also collected. Therefore, the above stated judgment is not helpful for the Insurance Company supporting their contention.
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NC: 2023:KHC:25597 MFA No. 8535 of 2012
14. Further the Constitute Bench of this Court in Bhimavva's case, the principle of law laid down is the liability of insurance company is limited to the liability arising under the Workmen's Compensation Act qua the employees specified in the proviso to Section 147 of Motor Vehicle Act where stated in Sub-Causes (a), (b), (c) of Clause (1) of first proviso to Section 147 of Motor Vehicle Act.
15. Learned counsel for the Insurance Company is correct if additional premium is collected by not mentioning workman No.2, then it would have been only for driver or conductor, but the evidence revealed is different. The evidence of insurance policy document shows collection of additional premium of Rs.30/- also for workman No.2 apart from driver/conductor. Therefore, upon perusal of the insurance policy and collection of additional premium for three categories of persons such additional premium was collected namely for driver, conductor and workman No.2. This mentioning of
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NC: 2023:KHC:25597 MFA No. 8535 of 2012 "workman No.2" does not mean that it is for two persons only for driver and conductor. If that was the intention of the Insurance Company, then it would have been only by mentioning driver/conductor without mentioning workman No.2. But under the insurance policy by mentioning workman No.2, it means additional premium is also collected for workman No.2. This makes difference in factual matrix and evidence in the above stated Bhimavva's case and in the present case. Therefore, in principle the risk is not covered for cleaner under Section 147 of Motor Vehicle Act as discussed above, but the evidence revealed that for covering the risk of workman No.2 also, additional premium is collected. Therefore, the difference in evidence in the present case and in the above stated case makes the present case footing on different stand other than the cited case. Therefore, the said citation in Bhimavva's case is also not helpful in support of the contention raised by the Insurance Company.
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NC: 2023:KHC:25597 MFA No. 8535 of 2012
16. Therefore, it is held that since the collection of additional premium is proved for covering the risk of workman, in the present case under the insurance policy and deceased is a cleaner, thus, the risk of cleaner is also covered. For this risk, the learned Commissioner is not correct in exonerating the Insurance Company from payment of compensation by indemnifying the owner.
17. Regarding the contention raised by the learned counsel for the Insurance Company that fraud is played in the case, the chronological events occurred in the case are perused. The accident was caused on 07.01.2001 and the dead body of the deceased was found on 13.01.2001. The brother-in-law of the deceased had given complaint before the police on 25.01.2001. When the case is considered the deceased was working as a cleaner in the lorry and when the bus goes for transportation, then the cleaner may not come to the house regularly and there is no fixed timing for working of cleaner. Under such circumstances, the
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NC: 2023:KHC:25597 MFA No. 8535 of 2012 cleaner may not come to the house regularly every day and this is also accustomed by other family members of the deceased. Therefore, just because, for some days, if the deceased had not come to the home that does not make suspicious in the claim petition. The owner has admitted that the deceased was working as a cleaner under him. While the cleaner was under the employment of respondent No.1, the deceased died. There was no other evidence that the deceased died on other circumstances. Therefore, it is proved that the deceased died under the employment of respondent No.1-owner out of and in the course of employment. The driver and other conductor might have not intimated the death of deceased to his family members for the best reason known to them. Therefore, the family members of the deceased might not know as to what happened to the deceased. Therefore, the police found that there are no other persons claiming the body. Hence, after completion of procedures by taking photo and conducting panchanama the dead body was cremated. Then, for longer time, when the deceased did
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NC: 2023:KHC:25597 MFA No. 8535 of 2012 not return to the house, the brother-in-law of the deceased had lodged the missing complaint on 25.01.2001 and while lodging the missing complaint, the police shown the photo, then the deceased was identified with the photographs and by that time, the body was already cremated.
18. Therefore, these facts and circumstances do not depict that fraud is played either the deceased sustained employment injury and succumbed to the injury on account of accident or death is caused for any other reason, but the fact remains proved that when the deceased was under the employment in the bus as a cleaner, he died. Therefore, under these circumstances, it cannot be said that there is fraud played. But death is proved to be occurred out of and in the course of employment. Hence, substantial question of law Nos.(i) and (ii) are answered in negative and substantial question of law No.(iii) is answered in negative.
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NC: 2023:KHC:25597 MFA No. 8535 of 2012 Regarding quantum of compensation:
19. In the present case, the learned Commissioner has erred in considering the monthly wage of Rs.1,200/- only, but monthly wage of Rs.4,000/- ought to have been taken. Since the claimant was aged 30 years, therefore, the relevant factor is 207.98. Therefore, the quantum of compensation assessed by the learned Commissioner is liable to be re-assessed and quantified as follows:
Rs.4,000/- x 50% x 207.98 =Rs.4,15,960/-
Accordingly, compensation of Rs.4,15,960/- is awarded as against Rs.1,54,737/- awarded by the learned Commissioner under the head loss of dependency. Thus, the appeal is liable to be allowed.
20. Accordingly, I proceed to pass the following
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NC: 2023:KHC:25597
MFA No. 8535 of 2012
ORDER
i. The appeal is allowed.
ii. The impugned judgment and award passed in
WCA-FC:CR-109/2002 dated 29.03.2012 by the Labour Officer and Commissioner for Workmen's Compensation, Division-I, Bengaluru-29, is modified holding that the appellant/claimant is entitled to total compensation of Rs.4,15,960/- along with interest at the rate of 12% p.a., from the date of accident till realization.
iii. Respondent No.2-Insurance Company shall pay compensation to the claimant.
iv. The appellant/claimant is not entitled to interest for the delay period of 95 days in filing the appeal.
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NC: 2023:KHC:25597 MFA No. 8535 of 2012 v. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith.
vi. No order as to costs.
vii. Draw award accordingly.
Sd/-
JUDGE
KGR: Para 1 to 8
PB: para 9 to 20
List No.: 1 Sl No.: 10