Karnataka High Court
The Divisional Manager vs Smt Kashamma W/O Lkate Veerupanna ... on 2 July, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
GULBARGA BENCH
DATED THIS THE 2ND DAY OF JULY, 2014
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
MISCELLANEOUS FIRST APPEAL NO.30771/2010
C/W
MISCELLANEOUS FIRST APPEAL NO.30795/2010 (WC)
MFA 30771/2010
BETWEEN:
Kashamma
W/o Late Veerupanna Biradar
Age: 54 years,
Occupation: House hold
R/o Kallur,
Taluka: Humnabad
District: Bidar now at Gulbarga.
... APPELLANT
(Shri Babu H. Metagudda, Advocate)
AND:
1. Basavaraj S/o Revan Siddappa Sherikar
Age: Major, Occupation: Agriculture
Owner of Tractor and Trailer bearing
No.KA-39/T-466 and 467,
2
R/o Kallur ,
Taluka: Humnabad
District: Bidar.
2. The Divisional Manager,
M/s United India Insurance
Company Limited,
Gulbarga.
... RESPONDENTS
(Shri Manvendra Reddy, Advocate for respondent-2
Respondent-1 served)
This Miscellaneous First Appeal is filed under Section 30
(1) of the Workmen's Compensation Act, 1923 against the
Judgement and Award dated 25.02.2010 passed in WCA/CR
No. 146/2008 on the file of the Labour Officer and
Commissioner for Workmen's Compensation, Gulbarga, partly
allowing the claim petition and awarding the compensation.
MFA 30795/2010
BETWEEN:
The Divisional Manager,
M/s United India Insurance
Company Limited,
Gulbarga. ... APPELLANT
(Shri Manvendra Reddy, Advocate)
AND:
1. Kashamma
W/o Late Veerupanna Biradar
3
Age: 54 years,
Occupation: House hold
R/o Kallur,
Taluka: Humnabad
District: Bidar now at Gulbarga.
2. Basavaraj S/o Revan Siddappa Sherikar
Age: Major, Occupation: Business
Owner of Tractor and Trailer bearing
No.KA-39/T-466 and 467,
R/o Kallur village,
Taluka: Humnabad
District: Bidar.
... RESPONDENTS
(Shri Kailash L. Jidage, Advocate for respondent-2
Shri Babu H. Metagudda, Advocate for respondent-1)
This Miscellaneous First Appeal is filed under Section 30
(1) of the Workmen's Compensation Act, 1923 against the
Judgement and Award dated 25.02.2010 passed in WCA/CR
No. 146/2008 on the file of the Labour Officer and
Commissioner for Workmen's Compensation, Gulbarga, partly
allowing the claim petition and awarding the compensation of
Rs.2,76,255/- with interest 12% p.a.
These appeals coming on for Admission this day, the
Court delivered the following:
JUDGMENT
These appeals are filed framing the following substantial questions of law:
4
"IN MFA.30771/2010:
1. Whether the Commissioner for Workmen's Compensation was justified in awarding interest after one month of the adjudication i.e. from 26.3.2010 instead of interest from date of accident. (17.7.2007)?
2. Whether the Commissioner for Workmen's Compensation was justified in considering the monthly wages/salary of the deceased at Rs.3,000/- per month in spite of he earning Rs.4,000/- per month?
"IN MFA.30795/2010:
1. Whether the finding of the Commissioner that there exists relationship of employer and employee between the deceased and the owner of the vehicle - Respondent No.2 is justified?
2. Whether the Commissioner is justified in fixing the liability on the appellant even though it is established that the vehicle in question was used other than the agricultural purpose for which the policy was issued?
3. Whether the Commissioner is justified in fastening liability on the appellant looking into the terms of the policy since the tractor and trailer bearing No.KA-39/T-466 and 467 is insured with the appellant and the policy was issued is a 5 Special and Miscellaneous type of policy and the same is meant only for agricultural purpose which is against the law and statute laid down in a decision reported in ILR 2007 Karnataka, page 138 and (2008) SCCR Page 62 between United India Insurance Co. Ltd., vs. Serjerao and others?
4. Whether the Commissioner is justified in fastening liability on the appellant looking into the terms of the policy since the appellant has not collected any extra premium to cover the risk of coolies in a tractor and trailer bearing No.KA-39/T- 466 and 467 and fastening liability on the appellant is against the law and statute laid down in a decision reported in 2009 SAR (Civil) Supreme Court, Page 85 between Deokar Exports Pvt. Ltd., vs. New India Assurance Co. Ltd.?
5. No legal proceedings or litigations either past or present concerning any part of the subject matter of the dispute is pending."
2. Since the questions framed can be answered on the face of it, the appeals are admitted and considered for final disposal. The Commissioner having awarded interest on the compensation amount one month from the date of award, was not in accordance with law. It should have been one month 6 from the date of accident. Therefore, the award to that extent shall stand modified. Secondly, the wage adopted at Rs.3,000/- per month by the Commissioner was also not in accordance with the general notional income that has been attributed by this Court in innumerable matters during the relevant period, wherein this Court has adopted the wage at Rs.3,500/- to Rs.4,000/-, which is the maximum permissible under the unamended Employees' Compensation Act, 1923. Therefore, if Rs.3,500/- is attributed as the notional monthly income of the workman, he would be entitled to an additional compensation.
3. However, the appeal filed by the insurer is the effect that there is no liability that could be fastened on the Insurance Company, since the workman was admittedly travelling in a Tractor-trailer and hence, the risk to a passenger in a Trailer is not covered under the Insurance Policy.
4. The learned counsel for the workman - appellant in the connected appeal would however point out that this question is 7 no longer res integra, as there is a Division Bench judgment of this Court in the case of Mounesh vs. Thimmanna and Others (2011 (1) MACR 7 (Kar)), wherein this Court has dealt at length on the question whether a trailer attached to a tractor could be categorized as a transport vehicle and a goods carriage vehicle, and has answered the question in the affirmative with reference to the notification of the Central Government issued under Section 41(4) dated 5.11.2004 and has held as follows:
"4. On close reading of the notification the trailers at item No.6 is categorized as a transport vehicle. The trailer is not an automobile, unless it is attached to a tractor or any other automobile vehicle. At item No.11 of cl.No.2 trailers to carry personal effects are also categorized as non- transport vehicle. The tractor with a trailer for transportation of agricultural produce and other goods would be very much a goods vehicle. Besides such a tractor and trailer would be a goods carriage within the meaning of Section 2(14) of the M.V. Act, in which event the risk of 8 workmen/loaders of the tractor/trailer is necessarily to be covered under Section 147 as an Act Policy without collecting any additional premium. In that view of the matter, the insurer in this case would be liable to pay the entire compensation in terms of the Workmen's Compensation Act."
5. In that view of the matter and since premium has been collected in respect of loaders and unloaders in the present case on hand, the Insurance Company is not in a position to deny its liability. Consequently, the appeal of the appellant in MFA.30771/2010 is allowed and the appeal filed by the Insurance Company in MFA.30795/2010 stands dismissed.
The appellant - wife of the deceased workman in MFA.30771/2010 is held entitled to an additional compensation of Rs.46,043/- with interest from one month from the date of the accident. The judgment and award of the Commissioner for Workmen's Compensation stands modified accordingly. 9
The appellant in MFA.30771/2010 is permitted to withdraw the amount in deposit before this Court.
Sd/-
JUDGE KS