Karnataka High Court
The Divisional Manager vs Sri Palaxayya S/O Fakkirayya ... on 6 July, 2021
Author: P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06th DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO.20574 OF 2009 (WC)
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
SUJATA COMPLEX, P.B. ROAD, HUBLI.
...APPELLANT
(BY SRI.S.K.KAYAKAMATH, ADVOCATE)
AND:
1. SRI. PALAXAYYA S/O FAKKIRAYYA HIREMATH
AGE:25 YEARS, OCC:COOLIE, R/O DYAMANAKOPPA,
TQ:HANGAL, DIST:HAVERI.
2. MOHAMMADSAB RAJESAB GUTTAL
R/O HOSPETE ONI, HANGAL, DIST:HAVERI.
...RESPONDENTS
(BY SRI.UMESH FOR SRI. MALLIKARJUN B HIREMATH, ADVS.)
THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S
COMPENSATION ACT, 1923 PRAYING TO CALL FOR THE RECORDS AND
TO SET-ASIDE THE JUDGMENT AND ORDER DATED 29.11.2008 PASSED
BY THE COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-
DIVISION-I, HUBLI IN WCA/NF-126/2007 AND TO PASS ANY OTHER
ORDER OR ORDERS AS THIS HON'BLE COURT DEEMS FIT UNDER THE
FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
This is an insurer's appeal calling in question the
legality of the award dated 29.11.2008 passed in WCA/NF
No.126/2007 by the learned Labour Officer
and Commissioner for Workmen's Compensation,
Sub-Division-I, Hubli (for short, 'Commissioner').
2. Brief facts are that the claimant was working as
Hamali in Tractor and Trailer bearing registration Nos.
KA-27/T-3238 and 3239 owned by respondent
No.1/Mohammedsab Rajesab Guttal and insured with the
present appellant. On 20.5.2006, while the claimant was
proceeding in the said tractor and trailer as hamali for
loading and unloading stones, and on account of driver of
the said tractor and trailer driving it in a rash and
negligent manner, it capsized and fell into a ditch
resulting in serious injuries to the claimant.
3. Respondent No.1/Mohammedsab Rajesab Guttal
remained exparte before the learned Commissioner.
Respondent No.2/insurer, who is appellant herein, filed a
detailed written statement denying the material
averments made in the claim petition.
4. During the enquiry, the claimant examined himself
as PW1 and he examined eye-witnesses as PW2 to PW5
and also one qualified medical practitioner as PW6 and
Exs.P1 to P15 were marked. The appellant/insurer
examined one witness and policy of insurance was marked
as Ex.R1
5. Upon consideration of the materials produced and
evidence let in, the learned Commissioner answered all
the points arising for consideration in favour of the
claimant and as against the appellant-insurer herein.
6. Learned counsel appearing for the insurer
contended before me that finding of the learned
Commissioner on the question of employer-employee
relationship is wholly illegal and there is no evidence to
support the finding that the claimant was working as
employee of the insured. He further submitted that there
is breach of material terms of policy inasmuch as at the
time of the accident, vehicle in question was being used
for commercial purpose, even though policy of insurance
was for use of agricultural and forestry purpose. He
therefore, submitted that the appellant is not liable to
reimburse the compensation. Learned counsel further
contended that Ex.R1 is an act policy and therefore, there
is no coverage for the risk of coolie/hamali. He therefore
submits that the award passed by the learned
Commissioner is liable to be set-aside.
7. The learned counsel appearing for the
claimant/respondent submits that the learned
Commissioner is the final fact finding authority and he
having considered the entire evidence has recorded a
finding in favour of the claimant and therefore, this
appeal is liable to be dismissed.
8. I have given my anxious consideration to the
submissions made on either side and also perused the
records.
9. The first contention of the learned counsel for the
appellant/insurance company is that the employer-
employee relationship is not proved and finding recorded
by the learned Commissioner is based on no evidence.
The claimant has specifically pleaded that he was working
as Hamali in the tractor and trailer bearing registration
No.KA-27/T-3238 & 3239 as instructed by respondent
No.1/Mohammedsab Rajesab Guttal. Even before the
learned Commissioner, respondent No.1/owner of the
vehicle in question did not appear and file written
statement denying the said assertion of the claimant. PW2
to PW5 have also deposed before the learned
Commissioner that the claimant was working as Hamali in
the said tractor and trailer. The learned Commissioner
having considered the entire materials has recorded a
finding that there was employer-employee relationship
between respondent No.1/Mohammedsab Rajesab Guttal
and the claimant and that being a finding of fact is not
liable to be interfered with in an appeal filed under
Section 30(1) of the Employees' Compensation Act, 1923
and accordingly, I reject the contention of the learned
counsel for the appellant.
10. The next contention of the learned counsel for
the appellant-insurer is that Ex.R1-policy of insurance
issued by the appellant is an Act policy and it does not
cover the risk of coolie/hamali for whom no premium has
been collected. This aspect of the matter is no longer
res-integra in view of decision of co-ordinate bench of this
Court reported in 2005 (4) KCCR 2325 (M/s. The New
India Assurance Company Limited Vs. Prakash and
Another) wherein this Court has observed that there is
compulsory coverage under Section 147 of the Motor
Vehicles Act, 1988 for the coolies working in the goods
vehicle upto six in numbers. Paragraph-5 of the said
decision reads as under:
"5. In respect of goo ds vehicle , the risk of the
employees i.e . driver, cleaner and the loaders to
the maximum of six pe rson is to be covered as
require d under the W.C. Act. In the case of
passenger transpo rt ve hicle, driver, conductor and
passengers have to be mandatorily covered by the
Act po licy."
11. The above decision clearly shows that there is
statutory compulsory coverage for the coolies/hamalis
working in tractor and trailer which is a goods vehicle.
Therefore, the contention of the learned counsel for the
appellant/insurer in this behalf is rejected.
12. It was the last submission of the learned
counsel for the appellant that even though policy of
insurance was very specific that the risk covered is for the
purpose of use of tractor and trailer for agricultural and
forestry and not otherwise, and in spite of the same, the
evidence clearly shows that the tractor and trailer in
question was used for transport of stones on hire and
reward basis.
13. A perusal of the records show that at the
material time when the accident took place, the tractor
and trailer was used for transporting stones for customers
who were in need of stones for building houses. This is
obviously use of tractor and trailer for commercial
purpose. Therefore, the insured owner has violated the
material term of policy of insurance. In that view of the
matter, principle of "pay and recovery" is required to be
applied and the appellant-insurer is required at the first
instance to pay the amount with interest to the claimant
and thereafter, recover the same from respondent
No.1/Mohammedsab Rajesab Guttal in the same
proceedings. Hence, the following:
ORDER
a) The above appeal is allowed in part.
b) While maintaining the quantum of
compensation, there shall be a direction to
the appellant/insurer to deposit the award
amount with interest thereon and thereafter,
recover the same from respondent
No.1/Mohammedsab Rajesab Guttal in the
same proceedings.
c) The amount in deposit before this Court, if
any, shall be transmitted to the jurisdictional
Court of learned Senior Civil Judge along with
records forthwith.
Sd/-
JUDGE
JTR
