The Divisional Manager vs Smt Annapurna Gurappa @ ...
2021 Latest Caselaw 5634 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 7 T H DAY OF DECEMBER, 2021

                       BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                M.F.A.No.21747/2010
            C/W M.F.A.No.21748/2010 (WC)


IN MFA No.21747/2010

BETWEEN:

THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
BELAGAVI,
R/BY BY ITS ASST.MANAGER,
DIVISIONAL OFFICE,
SUJATA COMPLEX,
NEAR BUS STAND,
P.B.ROAD, HUBBALLI.
                                        ... APPELLANT
(BY SMT.ANUSHA A., ADVOCATE FOR
 SRI S.K.KAYAKAMATH, ADVOCATE)

AND

1.    SMT.ANNAPURNA GURAPPA
      @ GURALINGAPPA AMBLIKOPPA.
      SINCE DECEASED R1(A-D) ARE
      TREATED AS LR'S.

1A.   KUMARI CHAITRA,
      D/O GURAPPA @ GURALINGAPPA AMBLIKOPPA.

1B.   KUMARI SHRUTI,
      D/O GURAPPA @ GURALINGAPPA AMBLIKOPPA.
                          2




1C.   SMT.LAKSHMIBAI,
      W/O BASAPPA AMBLIKOPPA.

1D.   SHRI BASAPPA CHANNABASAPPA AMBLIKOPPA,
      R/O SEEMIKERI,
      TALUK/DISTRICT: BAGALKOT.

2.    SHRI PANDU,
      S/O GOUDAPPA @ GOVINDAPPA KALE.
                                  ... RESPONDENTS

(BY SRI MRUTYUNJAYA TATA BANGI , ADVOCATE FOR
 R1 (A & B);
 SRI S.C.HIREMATH, ADVOCATE FOR R1(C AND D);
 SRI S.B.HEBBALLI, ADVOCATE FOR R2)

     THIS MISC.FIRST APPEAL IS FILED UNDER SECTION
30(1) OF WORKMEN'S COMPENSATION ACT, 1923,
AGAINST THE JUDGMENT AND ORDER DATED 27.10.2009
PASSED IN WCA/F-186/2008 ON THE FILE OF THE
LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION,      BAGALKOT   DISTRICT,  BAGALKOT,
AWARDING COMPENSATION OF RS.3,25,365/- WITH
INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF
PETITION TILL I TS DEPOSIT.

IN MFA No.21748/2010

BETWEEN:

THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
BELAGAVI, R/BY BY ITS ASST.MANAGER,
DIVISIONAL OFFICE, SUJATA COMPLEX,
NEAR BUS STAND, P.B.ROAD, HUBBALLI.
                                      ... APPELLANT

(BY SMT.ANUSHA A., ADVOCATE FOR
 SRI S.K.KAYAKAMATH, ADVOCATE)
                              3




AND

1.    SHRI HAVALAPPA SIDLEPPA
      @ SIDDAPPA MADAR,
      R/O SEEMIKERI,
      TALUK/DISTRICT: BAGALKOT.

2.    SHRI PANDU,
      S/O GOUDAPPA @ GOVINDAPPA KALE,
      R/O SEEMIKERI,
      TALUK/DISTRICT: BAGALKOT.
                                  ... RESPONDENTS

(BY SRI S.B.HEBBALLI, ADVOCATE FOR R1;
 NOTICE TO R2 SERVED)


      THIS MISC.FIRST APPEAL IS FILED UNDER SECTION
30(1)    OF    WORKMEN'S    COMPENSATION      ACT,       1923,
AGAINST THE JUDGMENT AND ORDER DATED 27.10.2009
PASSED    IN   WCA/F-187/2008    ON    THE   FILE   OF    THE
LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION,       BAGALKOT     DISTRICT,      BAGALKOT,
AWARDING       COMPENSATION      OF    RS.69,170/-       WITH
INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF
PETITION TILL I TS DEPOSIT.


      THESE     APPEALS    HAVING     BEEN   HEARD        AND
RESERVED FOR JUDGMENT ON 12.11.2021 COMING ON
FOR 'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
                                    4




                            JUDGMENT

Challenging common order dated 27.10.2009

passed by Labour Officer and Commissioner for

Workmen's Compensation, Bagalkot (for short, 'the

Commissioner') in WCA/F-186 and 187 of 2008, these

appeals are filed.

2. Though these appeals are listed for

admission, with consent of learned counsel for parties,

they are taken up for final disposal.

3. Brief facts as stated are that Gurappa @

Guralingappa Amblikoppa and Havalappa Madar

(hereinafter known as 'workmen') were employed by 1 s t

respondent (hereinafter referred to as 'employer') to

work as driver and loader in tractor-trailer belonging to

him bearing registration No.KA-29/3846-8359. On

30.03.2008, they were returning in tractor-trailor after

unloading manure, when the tractor met with accident

near Gaddankeri cross and turned turtle. Accident

occurred due to rash and negligent driving by driver.

In the accident, driver-Gurappa died on the spot, while

loader-Havalappa sustained grievous injuries and was

admitted to hospital for treatment. Despite treatment,

he did not recover fully and sustained permanent

physical disability.

4. Claiming compensation the wife, children and

parents of deceased Gurappa filed application under

Section 22 of Workmen's Compensation Act (for short,

'W.C.Act') before Commissioner seeking for

compensation from employer and insurer. Likewise,

Havalappa filed separate application for compensation.

5. On receipt of notice, respondent no.1-owner

filed objections admitting Gurappa and Havalappa

employed as coolies on monthly salary of Rs.4,500/-

and also that accident occurred during course of

employment and arose out of employment. It was also

stated that vehicle was insured with respondent no.2-

insurer and driver was having valid and effective

driving licence. The 2nd respondent-insurer in its

objections specifically denied relationship of employer

and employee between workmen and employer and

occurrence of accident during course of and out of

employment. Even dependency of applicants on income

of deceased Gurappa and disability of Havalappa as

well as their age and monthly income were also denied.

Insurer contended that its liability was limited as per

terms and conditions of policy.

6. As both arose out of same accident, they

were clubbed together, common issues were framed as

follows:

1. 1£É à CfðzÁgÀgÀ ¥Àw, 2£Éà CfðzÁgÀ£ÀÄ 1£Éà ¥Àæ w ªÁ¢UÀ¼À ªÁºÀ£ÀzÀ°è PÀÆ°UÀ¼ÉAzÀÄ ¸ÉêÁ ¤gÀvÀgÁVzÁÝUÀ PÉ®¸ÀzÀ ªÉüÉ, PÉ®¸ÀzÀ ¥ÀjuÁªÀÄ¢AzÀ GAmÁzÀ C¥ÀWÁvÀzÀ°è 1£Éà CfðzÁgÀgÀ ¥Àw ªÀÄgÀt ¹ 2£Éà CfðzÁgÀgÀÄ ±Á±Àé v À CAUÀ£ÀÆå£ÀvÉ ºÉÆA¢gÀĪÀzÁV ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ? ªÀÄvÀÄÛ 1jAzÀ 1-r CfðzÁgÀgÀÄ ªÀÄÈvÀ£À CªÀ®A©vÀgÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?

2. CfðzÁgÀgÀÄ ªÀÄÈvÀjUÉ ªÀÄvÀÄÛ 2£Éà CfðzÁgÀ¤UÉ C¥ÀWÁvÀzÀ PÁ®zÀ°è 24 ªÀÄvÀÄÛ 37 ªÀµÀð ªÀAiÀĸÁì V vÀÄÛ ªÀÄvÀÄÛ 1£Éà ¥Àæ w ªÁ¢UÀ½AzÀ wAUÀ½UÉ gÀÆ.5000/- ¸ÀA§¼À PÉÆqÀÄwÛ z ÀÝgÀÄ JAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?

3. CfðzÁgÀgÀÄ C¥ÀWÁvÀ¢AzÁV ªÉÊAiÀÄQÛ P À ºÁ¤UÁV ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ? ºÁVzÀÝ°è ¥ÀgÀºÁgÀzÀ ªÉÆvÀÛ ª ɵÀÄÖ ? ºÁUÀÆ ¤ÃqÀ®Ä AiÀiÁgÀÄ ¨ÁzÀå¸ÀÜgÀÄ?

4. CfðzÁgÀgÀÄ ¥ÀjºÁgÀzÀ ªÉÄÃ¯É zÀAqÀ ºÁUÀÆ §rØ U É CºÀðgÉÃ? ºÁVzÀÝ°è zÀAqÀ ºÁUÀÆ §rØ A iÀÄ ªÉÆvÀÛ ª ɵÀÄÖ ? ºÁUÀÆ ¤ÃqÀ®Ä AiÀiÁgÀÄ ¨ÁzÀå¸ÀÜgÀÄ?

5. DzÉñÀªÉãÀÄ?

7. Claimant no.1-wife of deceased was

examined as PW1, while injured claimant was examined

as PW2. Dr. G.R.Kanthi was examined as PW3. Exhibits

P1 to P14 were marked. On behalf of respondents,

Suresh Kulkarni was examined as RW1 and copy of

insurance policy was marked as Ex.R2(1).

8. On consideration, Commissioner answered

issues in favour of applicants. He held that age of

workmen on date of accident was 25 years in case of

Gurappa and 37 years in case of Havalappa and their

monthly salary was Rs.3,000/-. Commissioner also

determined functional disability of 20% in respect of

Havalappa. The Commissioner awarded compensation

of Rs.3,25,365/-. In case of Gurappa and Rs.69,170/-

to Havalappa with interest at 12% per annum from

30.04.2008 till payment. Aggrieved by said order,

insurer is in appeal.

9. Heard learned counsel for appellant and

respondent. Perused impugned judgment and award.

10. Sri S.K.Kayakamath, learned counsel for

appellant-insurer submitted that impugned order was

contrary to facts and evidence on record. Main grounds

urged were that seating capacity of vehicle involved

was only one and therefore workmen were traveling as

unauthorised passengers in vehicle. As same was in

violation of terms and conditions of policy, insurer was

not liable. It was further contended that insurance

policy issued to vehicle involved was an 'Act liability

only policy' and did not cover risk of passengers

traveling in vehicle as they would not be third parties.

Learned counsel relied upon decision of Hon'ble

Supreme Court in the case of Ramashray Singh V/s

New India Assurance Company Limited and others

reported in AIR 2013 Supreme Court 1125. He

further submits that following proposed substantial

questions of law arise for consideration:

1. Whether Commissioner is justified in fastening liability upon appellant-insurer though the policy issued in respect of offending vehicle is 'Act Liability only Policy' and admittedly when the deceased was traveling in the offending vehicle at the time of accident?

2. Whether Commissioner was justified in fastening liability upon appellant-insurer though the offending vehicle has been registered as Commercial Goods Carrying vehicle and permit has been issued and as per permit only one

person is permitted to travel i.e. the driver and there cannot be any liability beyond the seating capacity of the vehicle?

11. On the other hand, Sri Mrutyunjay Tata

Bangi, learned counsel appearing for respondents

no.1(a) and 1(b) and Sri S.C.Hiremath, learned counsel

appearing for respondents no.1(c) and 1(d) and Sri

S.B.Hebballi, learned counsel for respondent no.2-

employer supported the award and opposed insurer's

appeal. It was contended that vehicle involved was

admittedly tractor trailer which was a light goods

vehicle and therefore permitted carrying of two

employees/loaders in terms of Rule 100(6) of Motor

Vehicles Act ('M.V.Act' for short) apart from driver of

vehicle.

In support of his submissions, Sri S.C.Hiremath,

learned counsel relied upon decisions in the case of

Divisional Manager, United India Insurance

Co.Ltd. V/s Smt.Mallamma and others in MFA

No.131/2007 (WC) and connected matters disposed

of on 04.07.2012 and in United India Insurance

Company Limited V/s Sri Basavaraja and others in

MFA No.1457/2005 and connected matters disposed

of on 11.11.2011.

He further contended that Rule 100 stipulates

authorities carrying of employees of owner in goods

vehicle. Further Section 147(1) (b) of M.V. Act

stipulates mandatory coverage of liability of employees

of insured. In view of Rule 100, there was no

prohibition for loaders traveling in goods vehicle.

Therefore, neither of proposed substantial questions of

law arose for consideration and sought for dismissal of

appeals.

12. From the above submissions, occurrence of

accident involving insured tract-trailor in which

Gurappa died and Havalappa sustained partial

permanent physical disability is not in dispute.

Relationship of employer and employee as well as

occurrence of accident during course of employment

and out of employment is also not in dispute.

13. Re-proposed substantial question of law

No.1: As the counsel for respondents have urged

defence under Section 147(1)(b) of M.V.Act and Rule

100 of Karnataka Motor Vehicle Rules, a brief reference

to the said provisions would be necessary.

Section 147(1) of MV Act and Rule 100 of KMV

Rules is extracted hereunder:

147. Requirements of policies and limits of liability. --

(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--

(a) is issued by a person who is an authorised insurer; and

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--

(i) against any liability which may be incurred by him in respect of the death of or bodily 27 [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided        that    a     policy         shall     not    be
required--

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee--

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability.

Explanation. --For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub- section (1), shall cover any liability incurred

in respect of any accident, up to the following limits, namely:--

(a) save as provided in clause (b), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of rupees six thousand:

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.

(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.

Rule 100 of KMV rules reads as under:

    100.       Carriage               of     persons             in        goods
    vehicle.-(1)            subject         to       the   provisions         of
    this       rule,        no person shall be carried in a
    goods vehicle:               Provided that             the    owner       or

the hirer or a bona fide employee of the owner of the hirer of the vehicle carried free of charge or a police officer in uniform traveling on duty may be carried in a goods vehicles, the total number of person so carried.- (i) in light transport goods vehicle having registered laden weight less than 990 kgs. Not more than one;

(ii) in any other light transport goods vehicle not more than three; and (iii) in any goods vehicle not more than seven: Provided that the provisions of sub-clauses (ii) and (iii) of the above proviso shall not be applicable to the vehicles plying on inter- State routs or the vehicles carrying goods from one city to another city. (2) Notwithstanding anything contained in sub- rule (i), but subject to the provisions of sub- rules (4) and (5), a Regional Transport Authority may, by an order in writing permit that a larger number of persons may be carried in the vehicle, on conditions that no goods at all are carried, free of charge in connection with the work for which the vehicle is used, and that such other conditions as may be specified by the

Regional Transport Authority are observed, and where the vehicle is required to be covered by a permit, the conditions of the permit. (3) Notwithstanding anything contained in sub-rules (1) and (2), but subject to the provisions of sub-rules (4) and (5),- (a) for the purpose of celebration in connection with the Republic Day or Independence Day or any other public congregation, the Regional Transport Officer; (b) For the purpose of enabling a co-operative society or class of co-operative societies owning or hiring a goods vehicle to carry its members under its authority in such goods vehicle when used for the purpose of carrying goods of the society in the ordinary course of its business, the Secretary of the Regional Transport Authority;

(c) where it considers expedient in public interest in respect of vehicles owned or hired by it, and in respect of other vehicles on such inescapable grounds or urgent nature to be specified in the order, the Stage Government may, by general or special order, permit goods vehicle to be used for

the carriage of persons for the purpose aforesaid, and subject to such conditions, as may be specified in the order. (4) No person shall be carried in any goods vehicle.-

(a) unless an area of not less than 0.40 square meter of the floor of the vehicle is kept open for each person; and (b) in such manner- (i) that such person when carried on goods is otherwise in danger of falling from the vehicle; (ii) that any part of his body, when he is in a sitting position is at a height exceeding three meters from the surface upon which the vehicle rests. (5) The provisions of this rule shall not apply to motor vehicles registered under Section 60. (6) No person other than an attendants required by Rule 226 shall be carried on a trailer which is a goods vehicle.

14. Re-proposed substantial questions of law

no.2: Claimants themselves have produced insurance

policy issued to vehicle in question as per Ex.P11,

which is an 'Act liability only' policy. The Hon'ble

Supreme Court in Ramashray Singh's case after

examining the provisions of Section 147 of MV Act

held that as no additional premium was paid to cover

risk of khalasi being carried in a trekker passenger

vehicle, liability of insurer would not cover risk of said

passenger. In Sanjeev Kumar Samrat V/s National

Insurance Company Limited's case, the question

that arose for consideration was, whether insurer

would be liable to indemnify owner against risk of

employees engaged by hirer of vehicle traveling with

goods. The Hon'ble Supreme Court on examination of

various provisions of the Act including Section 147 of

M.V. Act held that provisions mandated coverage of

risk of six employees of insured other than driver and

as employee of hirer of vehicle would not fall within

coverage, upheld insurer's liability to pay

compensation to claimants with right to recover same

from insured owner. Vehicle involved in said case was

a truck and claim was filed under provisions of Motor

Vehicles Act.

15. Admittedly, claims in the instant case are filed

under provisions of Workmen's Compensation Act,

which permit claims made by or on behalf of only

employees. Relationship of employer and employee in

this case is not in dispute. Further in Ramashray

Singh's case, vehicle involved was a passenger vehicle

and not a goods vehicle. Admittedly, tractor-trailer in

the instant case is a goods vehicle. As rightly

contended by learned counsel for respondents-

claimants relying upon decision in Basavaraja's case

(supra), tractor-trailer unit is a light goods vehicle. As

per Rule 100 of Karnataka Motor Vehicle Rules, three

persons are permitted to be carried as coolies in a

goods vehicle. A learned single judge of this Court has

held that risk of three coolies in a light goods vehicle

would be statutory. Similar challenge has been

negatived by another learned single judge of this Court

in Smt. Mallamma's case. Decisions cited by learned

counsel for insurer being distinguishable on facts and

judgments relied upon by counsel for claimants being

apposite, resultant conclusion would be that mere limit

of seating capacity would not limit liability of insurer in

case of a goods vehicle. The statutory coverage would

extend to covering risk of employees namely coolies/

loaders as stipulated in Rule 100. As risk is statutory,

insurer cannot escape liability even on the ground that

policy issued as an 'Act liability only' policy.

16. Therefore, neither of proposed substantial

questions of law arise for consideration. Appeals are

devoid of merit, they are accordingly dismissed.

Amount in deposit is ordered to be transmitted to

jurisdictional Court for payment.

Sd/-

JUDGE

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