The Divisional Manager M/S ... vs Sri. Shanekr S/O Kanappa And Anr
2021 Latest Caselaw 3148 Kant

                          1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH
      DATED THIS THE 13TH DAY OF AUGUST, 2021
                       BEFORE
 THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
                 MFA NO.30381/2013
                         c/w
  MFA.No.30382/2013, MFA.NO.30383/2013 AND
              MFA.NO.30384/2013 (WC)
IN MFA.No.30381/2013
BETWEEN:
THE DIVISIONAL MANAGER,
M/S. NATIONAL INSURANCE CO. LTD., RAICHUR
NOW REPRESENTED BY ITS SR. DIVISIONAL MANAGER,
OPP. MINI VIDHAN SOUDHA,
GULBARGA.
                                    ... APPELLANT
(BY SRI. SUDARSHAN M. ADVOCATE)

AND:
01.    SRI. SHANKER S/O KANAPPA
       EX. CLEANER AGE: 20 YEARS
       R/O: NEERMANVI VILLAGE
       TQ: MANVI DIST: RAICHUR-585 202.
02.  SRI. P. MUTTU SWAMI S/O PALANI
     GOUNDAR, LORRY NO.TN-28/H-1629,
     R/O: C/O: MUBARAK TRANSPORT OFFICE,
     CHALLEKERE CIRCLE,
     CHITRADURGA-577501.
                                  ... RESPONDENTS
(SRI. B.C JAKA, ADVOCATE FOR R1
NOTICE TO R2 DISPENSED WITH
VIDE ORDER DATED 14.01.2016)
                              2




       THIS   MISCELLANEOUS       FIRST   APPEAL   IS FILED

UNDER     SECTION    30     (1)    OF     THE    WORKMEN'S

COMPENSATION      ACT,    1923    PRAYING   TO     CALL   FOR

RECORDS IN LOB/WCA/CR/43/2011 ON THE FILE OF THE

LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S

COMPENSATION, RAICHUR AND SET ASIDE THE ORDER

DATED 27.12.2012.

IN MFA.NO.30382/2013
BETWEEN:
THE DIVISIONAL MANAGER,
M/S. NATIONAL INSURANCE CO. LTD., RAICHUR
NOW REPRESENTED BY ITS SR. DIVISIONAL MANAGER,
OPP. MINI VIDHAN SOUDHA,
GULBARGA.
                                    ... APPELLANT
(BY SRI. SUDARSHAN M. ADVOCATE)
AND:
01.    SRI. RANGAPPA S/O SANGAPPA EX. LOADER
       AGE: 24 YEARS R/OL NEERMANVI VILLAGE
       TQ: MANVI DIST: RAICHUR - 585 202.
02.    SRI. P. MUTTU SWAMI S/O PALANI
       GOUNDAR, LORRY NO.TN-28/H-1629,
       R/O: C/O: MUBARAK TRANSPORT OFFICE,
       CHALLEKERE CIRCLE,
       CHITRADURGA-577501.
                                    ... RESPONDENTS

(SRI. B.C JAKA, ADVOCATE FOR R1
NOTICE TO R2 DISPENSED WITH
VIDE ORDER DATED 22.02.2016)
                              3




       THIS   MISCELLANEOUS       FIRST   APPEAL   IS FILED

UNDER     SECTION    30     (1)    OF     THE    WORKMEN'S

COMPENSATION      ACT,    1923    PRAYING   TO     CALL   FOR

RECORDS IN LOB/WCA/CR/44/2011 ON THE FILE OF THE

LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S

COMPENSATION, RAICHUR AND SET ASIDE THE ORDER

DATED 27.12.2012.

IN MFA.NO.30383/2013

BETWEEN:

THE DIVISIONAL MANAGER,
M/S. NATIONAL INSURANCE CO. LTD., RAICHUR
NOW REPRESENTED BY ITS SR. DIVISIONAL MANAGER,
OPP. MINI VIDHAN SOUDHA,
GULBARGA.
                                    ... APPELLANT
(BY SRI. SUDARSHAN M. ADVOCATE)
AND:
01.    SRI. POTAPPA S/O JAYANNA, EX. LOADER
       AGE: 22 YEARS OCC: NEERMANVI VILLAGE
       TQ: MANVI DIST: RAICHUR-585 202.
02.  SRI. P. MUTTU SWAMI S/O PALANI
     GOUNDAR, LORRY NO.TN-28/H-1629,
     R/O: C/O: MUBARAK TRANSPORT OFFICE,
     CHALLEKERE CIRCLE,
     CHITRADURGA-577501.
                                  ... RESPONDENTS
(SRI. B.C JAKA, ADVOCATE FOR R1
NOTICE TO R2 DISPENSED WITH
VIDE ORDER DATED 22.02.2016)
                              4




       THIS   MISCELLANEOUS       FIRST   APPEAL   IS FILED

UNDER     SECTION    30     (1)    OF     THE     WORKMEN'S

COMPENSATION      ACT,    1923    PRAYING    TO    CALL   FOR

RECORDS IN LOB/WCA/CR/45/2011 ON THE FILE OF THE

LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S

COMPENSATION, RAICHUR AND SET ASIDE THE ORDER

DATED 27.12.2012.


IN MFA.NO.30384/2013


BETWEEN:


THE DIVISIONAL MANAGER,
M/S. NATIONAL INSURANCE CO. LTD., RAICHUR
NOW REPRESENTED BY ITS SR. DIVISIONAL MANAGER,
OPP. MINI VIDHAN SOUDHA,
GULBARGA.

                                            ... APPELLANT

(BY SRI. SUDARSHAN M. ADVOCATE)


AND:


01.    SRI. PRABHU S/O NATRAJ, EX. LOADER,
       AGE: 23 YEARS R/O: NEERMANVI VILLAGE
       TQ: MANVI DIST: RAICHUR-585 202.
                              5




02.   SRI. P. MUTTU SWAMI S/O PALANI
      GOUNDAR, LORRY NO.TN-28/H-1629,
      R/O: C/O: MUBARAK TRANSPORT OFFICE,
      CHALLEKERE CIRCLE,
      CHITRADURGA-577501.

                                          ... RESPONDENTS


(SRI. B.C JAKA, ADVOCATE FOR R1
NOTICE TO R2 DISPENSED WITH
VIDE ORDER DATED 22.02.2016)


      THIS   MISCELLANEOUS        FIRST   APPEAL   IS FILED

UNDER    SECTION     30     (1)    OF     THE    WORKMEN'S

COMPENSATION      ACT,    1923    PRAYING   TO     CALL   FOR

RECORDS IN LOB/WCA/CR/46/2011 ON THE FILE OF THE

LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S

COMPENSATION, RAICHUR AND SET ASIDE THE ORDER

DATED 27.12.2012.



      THESE MFAS HAVING BEEN HEARD, RESERVED FOR

JUDGMENT     ON   27.07.2021      AND     COMING    ON    FOR

PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT

DELIVERED THE FOLLOWING:-
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                           JUDGMENT

These appeals are filed by the insurer challenging

the judgment and award passed by the Labour Officer and

Commissioner for Workmen's Compensation, Raichur

(henceforth referred to as 'Commissioner') dated

27.12.2012 in case WCA/CR/NO.43 to 46/2011.

02. The records before the Commissioner discloses

that the claimants were all engaged as cleaner and loaders

in a vehicle owned by the respondent No.2 herein bearing

Reg.No.TN-28-H-1629 (henceforth referred to as

'offending vehicle'). It is stated that the respondent No.1

in MFA.No.30381/2013 who was employed as cleaner was

paid a sum of Rs.4,000/- as monthly salary while other

claimants who are employed on daily wages were paid

Rs.150/- per day. On 15.05.2004, on instructions of the

respondent No.2 the claimants were in the offending

vehicle from Hospet to Chitradurga. At about 05.30 a.m.,

the driver of the offending vehicle who drove it in a rash

and negligent manner, dashed against a Tata Sumo

bearing Reg.No.KA-04-A-7840. The claimants suffered

injuries and were taken to Govt. Hospital for treatment

and later were treated by a private doctor. The claimants

contended that the accident occurred during and in the

course of employment and therefore the respondent No.2

and appellant - insurer herein were liable to indemnify for

the injuries sustained by them. The claimants therefore

filed appropriate claim petitions under Section 10 of the

Workmen's Compensation Act. Since the claimants had

filed claim petitions belatedly, they filed an application

under Section 5 of the Limitation Act seeking condonation

of delay in filing the claim petitions.

03. The respondent No.2 admitted the fact that the

claimants were employed as cleaner and loaders in the

offending vehicle and they were paying a sum of Rs.100/-

per day to each of them. He also admitted the relationship

of employer and employee and that accident occurred

during the course of employment. He contended that the

vehicle in question was covered by a comprehensive policy

and therefore the appellant is liable to indemnify the

compensation that may be awarded by the Commissioner.

04. The appellant - insurer contested the claim

petitions and denied the relationship of employee and

employer between the claimants and the owner of the

offending vehicle. It contended that the claimants were all

unauthorized gratuitous passengers and therefore the

policy of insurance did not cover the risk to gratuitous

passengers. It contended that the claimants were not

residing in the addresses mentioned in the cause title. It

further claimed that the driver of the offending vehicle did

not possess authorization to drive the offending vehicle

and therefore there was violation of the terms of insurance

policy.

05. Based on these rival contentions the claim

petitions were set down for trial.

06. The claimants examined themselves and

marked common documents as Exs.A.1 to A.16. The

appellant - insurer examined its official as DW.1 and

marked exhibits Ex.D.1 and 2.

07. Based on the oral and documentary evidence,

the Tribunal condoned the delay in filing the application for

claiming compensation. It further held that the claimants

were all employed in the offending vehicle as cleaner and

loaders on daily wages. The Commissioner held that each

of the claimants were paid a monthly payment of

Rs.3,000/- and having regard to the evidence of the doctor

who treated the claimants that the claimants had suffered

permanent partial disability to the extent of 45%,

determined the following compensation:-

   Claimant       Per            Age        Relevant    Loss    of   Compensation
    Name          month                     Factor      earning      awarded
                  salary                                capacity
Sri.   Shankar    Rs.3,000/-     20         224.00      45           Rs.1,81,440/-
Sri.   Rangappa   Rs.3,000/-     19         225.22      45           Rs.1,82,428/-
Sri.   Potappa    Rs.3,000/-     19         225.22      45           Rs.1,82,428/-
Sri.   Prabhu     Rs.3,000/-     20         224.00      45           Rs.1,81,440/-



          08.     Insofar      as      the        liability     to      pay        the

compensation, the Tribunal held that the appellant -

insurer had insured the offending vehicle by a

comprehensive policy of insurance and since the insurance

policy itself covered 03 coolies and the cleaner was

statutorily covered as the offending vehicle was permitted

to carry 02 persons in the cabin, the Commissioner held

that the appellant - insurer is liable to pay the

compensation. The Commissioner disallowed the interest

from the date of accident in view of delay caused in filing

the application and therefore, granted interest from

11.04.2011.

09. Being aggrieved by the judgment and orders

referred above, the insurer has filed the present appeals.

10. The learned counsel for the appellant - insurer

contended that no premium was collected for covering the

risk of cleaner and hamalies. He also contended that in

terms of Rule 100 of the Karnataka Motor Vehicle Rules,

1989 no hamalie is permitted to travel in a goods vehicle

from one district to another. He also contended that the

Doctor who deposed before the Commissioner is not a

doctor who treated the claimants and therefore the

commissioner could not have relied upon his evidence to

allow the claim petitions.

11. Per contra, the learned counsel for the

claimants invited my attention to the policy of insurer

which is marked Ex.R.1 and claimed that 03 employees

were covered and premium was collected. The learned

counsel submitted that since the vehicle in question is a

lorry, the claimants were cleaner and loaders and the

sitting capacity in a lorry included the driver and a cleaner

and therefore, he is impliedly covered.

12. Having regard to the above contentions, the

following substantial question of law arise for

consideration:-

"Whether the claimants are covered under the

policy of insurance issued by the appellant?"

13. The accident in question is not disputed by the

appellant - insurer. The injures suffered by the claimants

are also not disputed. The respondent No.2 admitted that

the claimants were all employed with him and that the

accident occurred during and in the course of their

employment. Therefore, the only question that needs to be

considered is whether the insurer is liable to pay the

compensation. Ex.R.1 - Policy indicates that the insurer

had collected the premium for 03 employees towards claim

under the Workmen's Compensation Act. The vehicle in

question is a lorry which was covered by a comprehensive

policy of insurance and the cleaner is statutorily covered as

a seating capacity in a lorry is two. Therefore, the insurer

cannot avoid its liability to pay the compensation. Thus,

the substantial question of law is answered against the

appellant-insurer. Hence, these appeals lack merits and

same are dismissed.

The amount in deposit shall be transferred to the

Tribunal for necessary orders.

Sd/-

JUDGE KJJ