The New India Assurance Co Ltd vs Smt Sharavva Kom Shivappa ...
2021 Latest Caselaw 7122 Kant

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     IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

       DATED THIS THE 23 R D DAY OF DECEMBER, 2021

                            BEFORE

         THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

                 M.F.A.No.20706/2009 (WC)

BETWEEN:

THE NEW INDIA A SSURANCE COM PA NY
LIMITED, DIVISIONAL OFFI CE
REP. BY ITS DIVIS IONAL MANAGER
N.C.MARKET SRIN ATH COM PLEX
HUBLI , REP. BY IT S REGI ONAL MANAGER
REGIONAL OFFICE-2 B- UNITY BUI LD ING
ANNEXE P KA LIGA RAO ROAD, BANGA LORE.
                                             ... APPELLANT
(BY SRI G.N . RAI CHUR, ADVOCATE)

AND

1.     SMT. SHARAVVA
       KOM SHIVAPPA AJ ANNAVAR,
       AGE: 38 YEARS , OCC: HOUS EHOLD
       R/O MANGUNDI , T Q & DIST: DHARW AD
       (SINCE DECEASED R2 IS LR OF R.1)

2.     MR. MANJUNATH
       S/O SHIVA PPA AJA NNAVAR
       AGE: 22 YEARS , OCC: N OT KNOWN
       R/O MANGUNDI , T Q & DIST DHARWA D

3.     HASANSAB
       S/O ALLISAB PEND ARI, A GE: MAJ OR,
       OCC: AGRICULT URE & OWNER
       OF TRACT OR AND TRAILER
       R/O KANNADA S CHOOL
       SATAPUR DHARWA D.
                           -2-


4.   SMT. MAHADEVI
     KOM SHIVAPPA AJ JANNAVAR VARAGE
     AE: 32 YEARS, OCC: HOUSEHOLD
     R/O MANGUNDI , T Q & DIST DHARWA D.

5.   KUMAR CHANNA PPA URF RAMESH
     S/O SHIVA PPA AJJ ANNAVAR, A GE: 10 YEARS
     SMT. MAHADEVI K OM SHIVAPPA AJJ ANNAWAR
     R/O MANGUNDI , T Q: DHARWAD .

6.   SMT. IRAMMA
     KOM SANGAPPA AJ JANNAVAR
     AGE: 55 YEARS , OCC: HOUS EHOLD
     R/O MANGUNDI , T Q & DIST DHARWA D

     SINCE DECEASED REP. BY LRS 6(A) TO (C)

6(a) SHRI SHEKA PPA
     S/O SANGA PPA AJJ ANAVAR
     AGE: 55Y EARS, OCC: NOT KNOWN
     R/O MANGUNDI VI LLAGE,TQ: GADA G
     (BROTHER OF DECEASED)

6(b) MISS DYAMAVVA
     D/O SANGA PPA AJ JANNAVAR
     AGE: 50 YEARS , OCC: HOUS EHOLD
     R/O MANGUNDI VI LLAGE, TQ: GADA G
     (SISTER OF DECEA SED)

6(c) MR. JAGFAD EESH SANGAPPA AJJANN AVAR
     AGE: 45 YEARS , OCC: HOUS EHOLD
     R/O MANGUNDI VI LLAGE, TQ: GADA G
     (BROTHER OF DECEASED)
                                        ... RES PONDENTS


      THIS MISC.FIRST APPEAL IS FI LED UNDER S ECT ION
30( 1) OF W.C. A CT AGAINST THE JUDGMENT AND AWARD
DATED 29/11/ 2008 PASSED IN WC NO.52/2007 ON THE FILE
OF    THE     LA BOUR  COMMISSIONER    FOR   W ORKMEN
COMPENSATION ,    SUB   DIVISION-I  HUBLI , AWARDING
COMPENSATION OF RS.2,99,100/- ALONG WITH INTEREST OF
12% P.A .
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    THIS APPEA L HAV ING BEEN RESERVED FOR JUDGMENT
ON 04.12.2021, THIS DAY, THE COURT , D ELIVERED THE
FOLLOWING:

                            JUDGMENT

Challenging order dated 29.11.2008 passed by the Labour

Officer & Commissioner for Workmen's Compensation, Sub-Division

I, Hubli, in W.C. No.NF.52/2007, this appeal is filed by the insurer.

2. Brief facts as stated are that Shivappa Sangappa

Ajjannavar (hereinafter referred to as 'workman' for short) was

employed as coolie by respondent no.3 (hereinafter referred to as

'employer' for short) in his Tractor-trailer bearing registration

No.KA-25/T-2349/2350. As per instructions of the employer, when

he was traveling in the said tractor- trailor as loader on 24.01.2003,

while it was going towards Hanumanthnagar at Dharwad, it met

with accident due to rash and negligent driving by its driver. The

vehicle fell into a ditch by roadside causing grievous injuries to

workman. He was admitted to Government Hospital, Dharwad. As

his condition was critical, he was referred to KIMS Hospital, Hubli

for higher treatment. But he could not recover and succumbed to

injuries during treatment. Claiming compensation on account of his

untimely death, his wife and minor son filed application before

Commissioner under Section 22 of the Workmen's Compensation

Act, 1923 (hereinafter referred to as 'Act' for short) against

employer and insurer of tractor-trailor. Thereafter, claiming that

deceased had another wife, her son and mother of deceased got

themselves impleaded as respondents no.3 to 5 to the application.

Respondents opposed the application.

3. Despite service of notice, respondent no.1 - owner did

not file objections. Only insurer field objections denying relationship

of employer and employee and denied that accident occurred during

the course of employment and arose out of employment.

4. Based on pleadings Commissioner framed following

issues:

"1. CfðzÁgÀgÄÀ ºÁUÀÆ ¥ÀæwªÁ¢-3, 4 ªÀÄvÀÄÛ 5 EªÀgÀÄUÀ¼ÀÄ vÁªÀÅ ªÀÄÈvÀ ²ªÀ¥Áà vÀAzÉ ¸ÀAUÀ¥Áà CdÓtÚªg À ï FvÀ£À CªÀ®A©üvÀgAÉ zÀÄ ºÁUÀÆ ¸ÀzÀj ªÀÄÈvÀ£ÀÄ 1£Éà ¥ÀæwªÁ¢AiÀĪÀg° À è 'ºÀªiÀ Á®' JAzÀÄ PÉ®¸À ªÀiÁqÀÄwÛgÀĪÁUÀ GAmÁzÀ C¥À¥Ás vÀ¢AzÀ DzÀ UÁAiÀÄUÀ½AzÁV ªÀÄÈvÀ¥Àng Ö ÄÀ vÁÛ£AÉ zÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÃÉ ?

2. CfðzÁgÀgÄÀ ºÁUÀÆ ¥Àw æ ªÁ¢-3, 4 ªÀÄvÀÄÛ 5 EªÀgÄÀ UÀ¼ÄÀ ªÀÄÈvÀ¤UÉ CªÀ£À ªÀÄÈvÀ ¸ÀªÀÄAiÀÄzÀ°è EzÀÝ ªÀAiÀĸÀÄì ºÁUÀÆ ªÀiÁ¹PÀ ªÉÃvÀ£À gÀÆ.3,000.00 ºÁUÀÆ ¢£À¨v Às åÉ gÀÆ. 20.00 gÀAvÉ 1£Éà ¥ÀæwªÁ¢AiÀĪÀgÀÄ PÉÆqÀÄwÛzÝÀgAÉ zÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÃÉ ?

3. CfðzÁgÀgÄÀ ºÁUÀÆ ¥Àw æ ªÁ¢-3, 4 ªÀÄvÀÄÛ 5 EªÀgÄÀ UÀ¼ÄÀ PÁAiÉÄAÝ iÀÄrAiÀÄ°è ªÀÄÈvÀ£À ¸Á«UÁV £ÀµÖÀ ¥ÀjºÁgÀzÀs£À ¥ÀqAÉ iÀÄ®Ä CºÀðgÉÃ? ºÁVzÀÝgÉ ¸ÀzÀj £ÀµÖÀ ¥ÀjºÁgÀz£ Às ÀzÀ ªÉÆvÀªÛ ɵÀÄ?Ö

4. CfðzÁgÀjUÉ ºÁUÀÆ ¥ÀæwªÁ¢-3, 4 ªÀÄvÀÄÛ 5 EªÀgÀÄUÀ½UÉ £ÀµÖÀ ¥ÀjºÁgÀz£ Às À ¤ÃqÀ®Ä AiÀiÁgÀÄ ¨ÁzsåÀ ¸Àg Ü ÀÄ?

5. wÃ¥ÀÄð K£ÀÄ?"

5. Thereafter, claimant no.1 got herself examined as

PW-1. Exs.P.1 to P.73 were marked. Driver of tractor-trailor was

also examined as PW-2. Copy of his driving licence was marked as

Ex.P.8. Respondents examined one witness as RW-1 and marked

Exhibits R.1 to R5.

6. On consideration, Commissioner answered issues in

favour of applicants. Applicants as well as respondents no.3 to 5

were held as dependents of deceased. That deceased was employed

by respondent no.3 as loader and there was relationship of

employer and employee between deceased and respondent no.3.

That accident occurred during the course and arose out of

employment and further that age of deceased was 34 years at the

time of accident, monthly wages as Rs.3,000/- and by applying the

factor of 199.40 awarded compensation of Rs.2,99,100/- with

interest at 12% per annum from 29.12.2008 and held insurer liable

to pay the same. Aggrieved by the said order, insurer is in appeal.

7. Sri. G.N. Raichur, learned counsel for appellant-insurer

submitted that Commissioner erred in holding that at the time of

accident, deceased was traveling in the vehicle as a loader. That

referring to Ex.P.2-complaint, it was submitted that deceased was

traveling as unauthorised passenger in the tractor. It was further

contended that insurance policy issued to vehicle was

"Miscellaneous and Special Type of Vehicles Policy", which did not

cover the risk of loader. While referring to contents of complaint

and spot panchanama, it was submitted that vehicle was being

used for commercial purposes and therefore risk of loader was not

covered under insurance policy.

8. In support of his submissions, learned counsel

submitted following proposed substantial questions of law:

1) Whether Commissioner was justified in holding insurer liable to pay compensation as owner acted contrary to terms and conditions of policy by carrying

coolie/hamali in a vehicle insured for agricultural purposes?

2) Whether Commissioner was justified in holding insurer liable to pay compensation even policy issued was 'Act Liability Only' policy?

3) Whether Commissioner erred in fixing liability on insurer despite evidence on record establishing that deceased was traveling on mudguard of tractor engine which had authorised sitting capacity of one?

9. Respondents are served and unrepresented. Though the

matter is not yet admitted, with consent of learned counsel, it is

taken up for final disposal.

10. From above submissions, occurrence of accident on

24.01.2003 due to rash and negligent driving of tractor-trailor by

driver leading to death of the workman is not in dispute.

Re- proposed Substantial question of law no.1.

11. In order to substantiate the challenge on the ground

that vehicle was being used for commercial purpose, attention of

this Court was drawn to admission by PW-1. That on the date of

accident, tractor was carrying mud and that she did not know to

whom the mud belonged to. It was also elicited that mud did not

belong to the owner. But PW-1 is the wife of deceased and is a

house wife. She cannot be deemed to be in knowledge of the

events that occurred on the date of accident. Claimants have

examined driver of tractor as PW-2. In his deposition, PW-2 clearly

stated that on the date of accident, tractor was on its 3rd trip to

unload the mud in agricultural field belonging to owner and that

tractor was unloading mud to fields since about one week. PW-2

has been cross-examined but nothing worthwhile is elicited during

his cross-examination. As PW-2 was driver of vehicle on the date of

accident his evidence regarding usage of vehicle and manner of

occurrence of accident would be relevant. In the absence of any

specific contrary evidence placed on record, regarding commercial

use of vehicle, finding of Commissioner regarding use of vehicle

would be based on evidence, would be a finding of fact. Therefore

proposed substantial question of law No.1 would not arise for

consideration.

Re- proposed Substantial question of law no.2.

12. Insurer has led evidence by examining its official and

marking copy of insurance policy as Ex.R.1. Though Ex.R.1 a

"Miscellaneous and Special Type of Vehicles Policy" covering in

respect of Act Liability Only, in view of Full Bench decision of this

Court in New India Assurance Co., Ltd., Vs. Yallavva and

Another, reported in 2020 (2) KCCR 1405 (FB), in case the risk

of loaders as per Sub Rule 6 of Rule 100 of Karnataka Motor Rules,

would permit carriage of loaders/employee of owner, even in a

goods vehicle as provided there in. Since, vehicle in question is a

light goods vehicle it permitted carriage of two loaders.

13. In view of Section 147, coverage of risk of

loaders/employees of owner is mandated statutorily. Therefore,

there is no merit in the challenge of insurer. Even second proposed

substantial question of law does not arise for consideration in this

case.

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Re- proposed Substantial question of law no.3.

14. In support of the said challenge, attention of this Court

was drawn to contents of Ex.P.2- complaint. Complaint is given by

one Lokesh Shankarappa Lamani. On the date of accident

complainant states that while he was working as watchman at the

building site of Sri. Joshi, he saw tractor-trailor being driven in rash

and negligent manner in excessive speed. On a downhill road, when

one of the occupant jumped out of the tractor, when tractor was

about to enter into a road side ditch. After entering the ditch,

tractor-tailor toppled down. On going near the accident site, he

found that deceased had sustained grievous injuries. The passers-

by immediately sent him to hospital in an autorickshaw.

15. After investigation, police filed charge sheet, in which it

is specifically stated that deceased was traveling on engine along

with driver. Based on above evidence, appellant is contending that

deceased was traveling on mudguard of engine and therefore has to

be termed as an unauthorised occupant, whose risk was not

covered under the policy issued. As stated above, claimants have

examined driver of vehicle, who has clearly stated that on the date

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of accident, deceased was traveling as a loader in trailor. Despite

cross-examining PW-2, nothing worthwhile is elicited from PW-2.

Complainant is not examined by insurer. Based on the evidence,

Commissioner arrived at a finding of fact that deceased was

traveling in trailor and insurer was liable to pay compensation. The

conclusion arrived at by Commissioner is a finding of fact as it is

based on evidence available on record and conclusion is not either

perverse or suffers from any material irregularity. Proposed

substantial question of law as contended does not arise for

consideration.

16. In the result, there is no merit in the appeal. Appeal is

dismissed.

Amount in deposit is ordered to be transmitted to the

jurisdictional court for payment.

Sd/-

JUDGE BVK