The New India Assurance Company ... vs Peta Lakshmi Devi 4 Ors
2021 Latest Caselaw 1719 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

          CIVIL MISCELLANEOUS APPEAL No.859 of 2009

JUDGMENT

This Civil Miscellaneous Appeal is directed against the order of the

Commissioner for Workmen's Compensation and Deputy Commissioner of

Labour, Kadapa in W.C.No.7 of 2006 dated 29.12.2008.

2. The 2nd respondent insurer before the Commissioner preferred

this appeal. The respondents 1 to 4 are the legal heirs of the deceased Sri

P.Mohanaiah. While the 4th respondent is his mother, the 1st respondent is

his wife and respondent no.2 as well as respondent no.3 are his

daughters.

3. On account of the death of Sri P.Mohanaiah in the accident on

05.03.2005 at 9.00 a.m. at a tank known as 'Sibyala Pedda Cheruvu' in

the village Eguva Indukurupalli, H/o. Diguva Abbavaram, a claim

application was presented before the Commissioner at kadapa. The

accident occurred when the deceased Sri Mohanaiah as one of the

labourers working on tractor trailor belonging to the 5th respondent AP 04J

3936/3937 went to the above tank bed along with other labourers and

when they were digging and loading earth at this tank bed, on account of

loosening of the soil, a mound of earth fell on him leading to his

instantaneous death, while others who were working at the same place

suffered grievous injuries. Cr.No.28 of 2005 under Section 174 Cr.P.C. was

registered in Urban P.S.,Rayachoty in this context.

4. The respondents 1 to 4 also contended before the Commissioner

that Sri Mohanaiah was in the employment of the 5th respondent on his

tractor trailor regularly, who was being paid Rs,.3,500/- per month and MVR,J CMA No.859 of 2009

that the tractor trailor of the 5th respondent was insured with the

appellant by then. Thus stating they claimed a compensation of

Rs.4,00,000/-.

5. The 5th respondent filed a counter and opposing the claim of the

respondents 1 to 4 denying the allegations in the application, while

admitting the relationship between him and the deceased as 'master and

servant' as well as the deceased being employed by him in his tractor as a

labourer and the wages being paid. He contended that since the tractor

was insured with the appellant by the date of accident, he stood

indemnified.

6. The appellant filed a separate counter resisting the claim of the

respondents 1 to 5 denying the entire accident as well as its liability. It

contended that the policy of insurance was issued only for agricultural

purpose and since at the time of the alleged accident the tractor trailor

was being used for transportation of earth from a tank bed, the use of

tractor trailor was improper, which exonerates from its liability.

7. The commissioner upon the material settled the following issues

for enquiry:

"1. Whether the deceased was a workman as per the provisions of the Workmen's Compensation Act, 1923 and he met with the accident arising out of and in the course of his employment?

2. What is the age of the deceased at the time of accident?

3. What were the wages paid to the deceased at the time of the accident?

4. What is the quantum of compensation payable to the appellants?

5. Who are liable to pay the compensation to the applicants?"

8. On behalf of the respondents 1 to 4, the 1st respondent

examined as A.W.1 before the Commissioner, while relying on attested MVR,J CMA No.859 of 2009

copies of First Information Report in Cr.No.28 of 2005 of Rayachoty Urban

Police Station, Inquest Report, Postmortem Report and the legal notice

served on the respondent No.5 and the appellant. On behalf of the

appellant, its Assistant Manager was examined as R.W.1 while Ex.B1

policy of insurance was produced in respect thereof.

9. Basing on the material, the Commissioner held that the

appellant and the 5th respondent are liable to pay compensation of

Rs.2,53,099/- jointly and severally.

10. Against this order, the present Civil Miscellaneous appeal is

preferred on behalf of the insurer.

11. Substantial questions of law are also raised in the grounds of

appeal.

12. Heard Sri Krishna C.V.Grandhi, learned counsel for the

appellant, and Sri K.Rathangapani Reddy, learned counsel for the

respondents 1 to 4.

13. Now, the points for determination are, as under:

1. Whether the appellant insurer is liable to satisfy the claim of

respondents 1 to 4 and if the order under appeal is proper?

2. To what relief?

POINT No.1:

14. It is in the evidence of the 1st respondent as A.W.1 that her

husband on 05.03.2005 at about 9.00 a.m. while digging earth at Sibyala

Pedda Cheruvu, died on account of fall of a mound of earth which resulted

in caving in of surface at the tank bed. Though she is not an eyewitness MVR,J CMA No.859 of 2009

to the alleged incident, her version in this context stood corroborated by

the contents of copies of FIR and inquest report. The nature of this

incident was not effectively rebutted before the Commissioner by leading

appropriate evidence on behalf of the appellant. Significant to note that

the 5th respondent though had chosen to file counter admitting the

relationship and nature of the incident, did not enter the witness box nor

adduce any evidence. It is a strong circumstance to support the version of

the respondents 1 to 4. It is further proving that the deceased Mohanaiah

was under the employment of the 5th respondent on his tractor trailor as a

labourer.

15. One of the objections of the appellant is that the policy of

insurance was issued only for agricultural purpose and the activity

concerned to the incident in this case is not of that nature. It is a well

known fact that carting earth or manure using a tractor trailor is a part of

agricultural operations. When the incident occurred was on account of

digging out earth at tank bed as stated above, which was to be brought,

when the tractor trailor was being driven by the 5th respondent himself it

can by no means be stated that it was not for agricultural purpose.

Therefore, the contention of the appellant in this context should be

rejected.

16. The main contention of the appellant is that the tractor trailor

was insured only for limited purpose and the workers on this tractor trailor

or labourers are not covered by this policy of insurance. A consideration of

the insurance policy produced by the appellant reflected that no separate

premium was paid covering the risk of the labourers or workers on this

tractor trailor. However, it has to be seen that in terms of Section

147(1)(b) of the M.V.Act it is not necessary to take out insurance policy MVR,J CMA No.859 of 2009

under a special contract in cases covered by Workmen's Compensation

Act. (vide National Insurance Co. Ltd., V. Prembai Patel1)

17. When the claim on behalf of the respondents 12 to 4 is

confined to awarding compensation in terms of Workmen's Comepnsation

Act, it cannot be stated that want of payment of special premium, to

cover the risk of such labourers is necessary. As already stated the

relationship between the 5th respondent and the deceased was of the

master and servant within the fold of Section 3(1) of Workmen's

Compensation Act. The material on record is also making out that the

deceased died in and during the course of employment and not otherwise.

Therefore, when there is a policy of insurance covering this tractor trailor

on the date of the accident, in the above circumstances, the appellant

cannot contend that the insurer gets exonerated.

18. The appellant relied on United India Insurance Company

Limited vs. Serjerao and others2, Sk. Peeramma v. Dama

Masthanaiah and another3 and Sajjan Singh Laxman Singh and

others v. Phoolibai and others4, to support its contentions.

19. The above decisions are not applicable since they differ on

facts, where the effect of Section 147(1)(b) of the M.V.Act in terms of

application of Workmen's Compensation Act, was not considered.

20. Admittedly, the 5th respondent had Ex.B1 policy of insurance in

his favour issued by the appellant relating to tractor trailor. Therefore,

. AIR 2005 SC 2337

. (2008) SCCR 62

. 2007(4) ALD 859

. 1993 ACJ 586 MVR,J CMA No.859 of 2009

when there is already a valid policy of insurance in favour of the 5th

respondent, there is no reason why the workers or labourers employed by

the 5th respondent shall not be treated even otherwise, as third parties to

the contract of insurance between the 5th respondent and the appellant.

Significant to note that under Chapter-XI of the M.V.Act, in terms of

Section 145(g), third party is defined to include 'the Government'. Thus, it

is an inclusive definition. It did not exclude specifying the category of

individuals including those covered as the workers or employees under

Section 2(n) of the Workmen's Compensation Act.

21. A workman is a third party to the contract of insurance

between the insured and master or employer, in this case between the 5th

respondent and the appellant. When policy of insurance also covers the

risk relating to third parties when these servants or labourers, are thus

third parties, any liability with reference to such employees or labourers or

workers should be deemed a third party risk. It is further to be noted that

the Workmen's Compensation Act did not have similar provision relating to

insurance coverage, relating to certain risks including third party risks.

Therefore, when there subsists such contract of insurance between the

employer and the insured, it is well-nigh possible to bring these

employees within the fold of third parties and covering their risk by the

contract of insurance.

22. Significant to note further that the insurance policy produced in

this case is not a complete document by itself. It did not contain the terms

and conditions as per IMT. Thus, this contract of insurance when not

produced in complete shape as a document in the enquiry before the

Commissioner, the inference to draw is that there is no evidence to

support the contention of the appellant of exclusion of its liability in the MVR,J CMA No.859 of 2009

context of the claim of the respondents 1 to 4. Thus, it is a ground on

which the liability of the insurer stands.

23. The commissioner took into consideration the minimum wages

payable to a labourer and applying the factor applicable to the age group

of the deceased, awarded a compensation in terms of Workmen's

Compensation Act at Rs.2,53,099/-. Therefore, it cannot be found fault

with as such. Therefore, the order under appeal requires no interference.

24. Thus, it is held that the appellant is liable to satisfy the claim of

the respondents 1 to 5 along with the 5th respondent. Thus, this point is

answered.

POINT No.2:

25. In view of the findings on point No.1, this Civil Miscellaneous

Appeal is dismissed confirming the order of the Commissioner for

Workmen's Compensation and Deputy Commissioner of Labour, Kadapa in

W.C.No.7 of 2006, dated 29.12.2008. No costs.

As a sequel, pending miscellaneous petitions, if any, stand closed.

Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt:24.03.2021 RR MVR,J CMA No.859 of 2009

HON'BLE SRI JUSTICE M.VENKATA RAMANA

CIVIL MISCELLANEOUS APPEAL No.859 of 2009

Dt:24.03.2021

RR