Bombay High Court
The United India Insurance Co. ... vs Baburao Devrao Bodke And Ors on 21 January, 2022
Bench: R. G. Avachat
FA-3548-2018.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3548 OF 2018
The United India Insurance Company Ltd.,
Through its Branch Manager,
Branch Office at Dayawan Complex,
2nd Floor, Station Road, Parbhani
Through its Authorised Signatory,
Manager (Legal Hub), at Aurangabad ... Appellant
[Orig. Respondent No.2]
Versus
1. Baburao S/o Devrao Bodke
Age: 62 years, Occu.: Labour,
2. Sumitra W/o Baburao Bodke
Age: 59 years, Occu: Household
Both R/o Falegaon,
Taluka and District: Hingoli
At present Taroda (Bk.)
Taluka and District: Nanded [Orig. Claimant Nos. 1 and 2]
3. Raju S/o Kundlikrao Khorne
Age: 44 Yrs, Ocu: Business,
R/o: Falegaon, Taluke and
District Hingoli ... Respondents
[Original Respondent No.3]
....
Mr. V. R. Mundada, Advocate for appellant
Mr. V. B. Dhage, Advocate for respondent Nos. 1 and 2
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 23rd AUGUST, 2021
PRONOUNCED ON : 21st JANUARY, 2022
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O R D E R :-
. This is Insurance Company's appeal, taking exception to
the judgment and order dated 11.09.2017 passed by the
Commissioner for Employees Compensation Act and Judge, Labour
Court, Nanded in E.C.F.A. No.65 of 2014, granting compensation
under the Employees Compensation Act, on account of death
occurred as a result of injuries suffered in the course of employment.
2. The facts giving rise to the present appeal are as under:
The Tractor (No.MH-38-B-4121) met with an accident
on 04.06.2013 while it was on its way carrying sand in a trolley
attached thereto. The deceased Vishnu, along with three others was
travelling on the tractor. As a result of the injuries suffered, the
deceased died. His parents therefore preferred application for
compensation under the Employees Compensation Act (for short, 'EC
Act') contending that the deceased had been employed by the tractor
owner, respondent No.3 herein for loading and unloading of goods.
The deceased was returning with the tractor after loading sand
therein. It is the case that the deceased was paid salary of
Rs.10,000/- per month.
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3. Before the Commissioner under the EC Act, the tractor
owner did not file written statement. The appellant - Insurance
Company took exception to the claim contending that there was no
employer - employee relationship. The insurance cover granted
towards tractor is in the nature of agricultural package policy. The
deceased was travelling as unauthorised passenger. Passenger
carrying capacity of the tractor is only one. The tractor was being
used for commercial purpose, etc.
4. The Commissioner, on appreciation of the evidence,
allowed the claim granting compensation of Rs. 8,85,480/- with
interest at the rate 12% p.a. A sum of Rs. 5,000/- was also awarded
towards funeral expenses. The appellant - Insurance Company takes
exception to the impugned order on the very ground on which the
claim was opposed before the Commissioner. Learned Advocate for
the appellant - Insurance Company would submit that there was no
iota of evidence to establish employer - employee relationship. It was
agricultural package policy. The deceased was travelling as
unauthorised passenger. The tractor was being used for commercial
purpose. In support of his contentions, the learned Advocate has
relied on the following authorities.
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(i) Oriental Insurance Co. Ltd. Vs. Brij Mohan & Ors
2007(7) SCC 56;
(ii) United India Insurance Company Ltd. Vs. Sarjerao and
Ors - 2008(7) SCC 425;
(iii) New India Assurance Company Ltd. Vs. Diwakar S/o
Daulatrao Rohankar and others - 2005(4) Mh.L.J. 773;
(iv) Shivaraj Vs. Rajendra and another - 2019(4) Mh.L.J. 16.
The learned Advocate, ultimately, urged for allowing the
appeal.
5. Learned Advocate for the respondents - claimants
would, on the other hand, submit that the tractor owner did not file
his written statement. The appellant - Insurance Company had
appointed an Advocate to make investigation of the accident. The
Advocate had admitted in his report that the deceased was employed
by the tractor owner for loading and unloading of goods. The
appellant - Insurance Company did not lead any evidence in proof of
its claim. The sand was being transported in the tractor for making a
bed/floor in a cattle shed. The same was nothing short of an
agricultural purpose. The policy of insurance covers risk of an
employee engaged for loading and unloading of goods. In the
alternative, learned Advocate urged for passing order of pay and
recover the amount of compensation.
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6. Considered the submissions advanced. Perused the
evidence in the case. Although the employer - employee relationship
has been disputed by the appellant - Insurance Company, the report
of investigation made by its official admits that the deceased was
employee of the tractor owner for unloading and loading of goods.
The appellant - Insurance Company, therefore, could not be heard to
say that there was no such relationship between the deceased and
the tractor owner. Quantum of salary of the deceased is a fact within
the knowledge of the claimants and the tractor owner. No written
statement was filed by the tractor owner. The Commissioner
considered the claim of the applicants and held the deceased was
employed at a monthly pay of Rs.8,000/-. Under the EC Act,
compensation on account of death arising out of and in the course of
employment is awarded considering the maximum pay of Rs.8,000/-
per month. 50% thereof is only to be taken into consideration for
grant of compensation. The accident took place in June 2013. For
want of any evidence in the rebuttal, this Court has no reason to
interfere with the findings recorded by the Commissioner that the
deceased was serving at a monthly pay of Rs.8,000/-.
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7. The facts undoubtedly indicate that the deceased died as
a result of injuries suffered during the course of his employment. The
cause of death has causal connection with the nature of his
employment. The question is whether the appellant - Insurance
Company is liable to pay the claimants compensation. The policy of
insurance (Exh.C-21) is on record. It is ' Farmer's Package Policy '.
The accident took place during the policy was in force. The
appellant - Insurance Company charged the tractor owner
Rs.4,760/- as premium for own damage claim and Rs.1,608/-
towards third party. As such, the terms of the policy of insurance do
indicate that no risk of employees of the tractor owner engaged on
the tractor was covered. It has, therefore, to be held that the
appellant - Insurance Company has no liability to indemnify the
tractor owner for compensation required to be paid under the
impugned award. The learned Commissioner simply went by the
policy of insurance without looking into the terms thereof.
8. The authorities relied on by the learned Advocate for the
appellant - Insurance Company do indicate that in spite of Insurance
Company having not been held liable to pay compensation, have
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been directed to pay the same and recover from the owner of the
vehicle. True, the cases relied on, were arising out of the award
passed under the Motor Vehicles Act. The same analogy needs to be
adopted here. The claimants are the poor parents of the deceased.
They are, however, not entitled to receive compensation as of right.
This Court is therefore inclined to direct the appellant - Insurance
Company to pay 70% of the amount under the impugned order to
the respondents - claimants and recover the same from the tractor
owner. With this, the appeal succeeds in terms of following order.
ORDER
(i) The appeal is allowed.
(ii) The order dated 11.09.2017, passed by the Commissioner for
Employees Compensation Act and Judge, Labour Court,
Nanded in E.C.F.A. No.65 of 2014, is hereby set aside as
against the appellant - Insurance Company.
(iii) The appellant - Insurance Company, is however directed to
pay 70% of the amount under the impugned order to the
respondents - claimants and recover the same from the tractor
owner directly taking recourse of execution proceedings.
(iv) 70% amount in deposit with this Court or the Commissioner,
be paid to the respondents - claimants with interest accrued
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thereon. The balance amount be paid back to the appellant -
Insurance Company with interest accrued thereon.
(v) Pending civil application Nos.11662 of 2018 and 9737 of 2019
stand disposed of.
[ R. G. AVACHAT, J. ]
SMS
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