The Divisional Manager vs Kenchappa S/O Sannamayappa Dolli
2021 Latest Caselaw 2280 Kant

                 IN THE HIGH COURT OF KARNATAKA
                         DHARWAD BENCH

               DATED THIS THE 17TH DAY OF JUNE 2021

                             BEFORE

             THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                    MFA NO.21980 OF 2011 (WC)

BETWEEN:

THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, MARUTHI GALLI,
BELGAUM. REP. BY ITS DIVISIONAL MANAGER.
                                                      ...APPELLANT

(BY SRI.N.R. KUPPELUR, ADVOCATE)

AND:

1.     SRI. KENCHAPPA S/O SANNAMAYAPPA DOLLI
       AGE:49 YEARS, OCC:AGRICULTURE

2.     SMT. RATNAWWA W/O KENCHAPPA DOLLI
       AGE:42 YEARS, OCC:HOUSEHOLD WORK,

       BOTH ARE R/O AT/POST:MALAGALI,
       TQ:SAVADATTI, DIST:BELGAUM.

       NOW RESIDING AT/PO HADAGINALA,
       TQ:GOKAK, DIST:BELGAUM.

3.    SRI. BASANAGOUDA S/O CHANNABASAPPAGOUDA PATIL
      AGE:MAJOR, OCC:AGRICULTURE & BUSINESS,
      R/O AT/PO;SIRUR-KOLUR, TQ:MUDDEBIHAL,
      DIST:BIJAPUR.
                                                   ...RESPONDENTS
(BY SRI. HARISH S MAIGUR, ADV. FOR R1 & R2) (R3-HELD SUFFICIENT)
                                   2


      THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORMENS'
COMPENSATION ACT, 1923 PRAYING TO CALL FOR THE RECORDS
CONNECTED WITH WCA:SR:26/2008 MADE BY THE LABOUR OFFICER
AND WORKMENS' COMPENSATION COMMISSIONER, SUB-DIVISION-1,
BELGAUM TO EXAMINE THE SAME AND SET-ASIDE THE ORDER DATED
31.1.2011 IN THE INTEREST OF JUSTICE.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                            JUDGMENT

Being aggrieved by the award dated 31.01.2011

passed in WCA:SR:26/2008 by the learned Labour Officer

and Commissioner for Workmen's Compensation,

Sub-division-1, Belgaum (for short, 'Commissioner'),

insurance company has preferred this appeal under

Section 30(1) of the Employees' Compensation Act, 1923.

2. Brief facts are that the deceased Mayappa

Kenchappa Dolli was working as a Hamali in a tractor and

trailer bearing registration No.KA-28/T-5159/5910 owned

by Sri.Basanagouda Channabasappagouda Patil, who is

respondent No.1 before the learned Commissioner. On

19.5.2005, as per instructions of respondent No.1, the

deceased was proceeding in the said tractor and trailer

along with another Hamali by name Sri. Shivanagouda

Sanganagouda Biradar and on account of negligence of the

driver of the tractor, it capsized and fell into Tunga river

canal and due to the impact, Mayappa Kenchappa Dolli

died in the accident.

3. The only contention advanced before me by the

learned counsel for the appellant-Insurance Company is

that the claim petition itself discloses that the deceased

Mayappa Kenchappa Dolli was sitting on the engine of the

tractor and on account of tractor falling into Tunga river

canal, he had died. His further submission is that as per

contract of insurance and under the statute, the

appellant-insurance company had covered risk of only

driver of the tractor and not the risk of any other person

traveling on the engine of the tractor. In this behalf, he

relies on Regulation 28 of the Road Regulations. He also

drew my attention to the averments in the claim petition

and also evidence of PW1 in support of his contention.

4. I have perused the claim petition as well as

admission made by PW1 during his cross-examination.

Relevant pleadings at para-2 of the claim petition is as

follows:

"That on 19.5.2005, the de ceased was proceeding by the side of the T unga Upper project Nala in said tractor No .KA-28/T-5159 and traile r No.KA-28/T -5910 as a labour, on the said day at e vening at about 7.00 p.m. after de live ry of the sand lo aded in the tractor, driver was driven the tractor engine o nly for turning it, at that time the deceased Mayappa Do lli and another o ne Shivanago uda Sanganagouda Biradar were sitting in the said e ngine o n bo th side mud- guard by that time the drive r drive n it in high speed with rash and negligent manner so as to endangering the human life, suddenly cut the tractor direction, for that the tractor engine fe ll down in the Tunga Upper Proje ct Nala and there by caused accident. The spo t of accident is Tunga Uppe r Proje ct Nala which comes within the limits of Kamalapur village . Due to the heavy impact of the accident, the deceased Mayappa sustaine d grievo us fatal injuries and died on the spot itse lf."

(Emphasis supplie d)

5. Further, PW1, who is father of claimant No.1 has

admitted during his cross-examination as follows:

"£À £ À ß ªÀ Ä ÈvÀ ªÀ Ä UÀ £ À Ä mÁæ ö åPÀ Ö g ï£À ªÀ Ä qÀ U Áqï ªÉ Ä Ã¯É PÀ Ä ½vÀ Ä PÉ Æ AqÀ Ä ¦ü A iÀ i Áð¢AiÀ Ä °è w½¹gÀ Ä vÉ Û Ã £É JAzÀ Ä ¸À Æ a¸À Ä ªÀ Å zÀ Ä ¸À j "

6. In the above background, precise submission of

the learned counsel for the appellant is that as per the

statute, the insurance company is not required to cover

the risk of any person other than driver of the tractor

traveling in the same. He has also submitted that the

appellant-insurance company had also not agreed to cover

the risk of any such person traveling on the tractor engine

except driver of the tractor engine himself.

7. Regulation 28 of the Road Regulations relied upon

by the learned counsel for the appellant-insurer reads as

under:

"28. Dr ivin g of tractors and goods vehicles- A driver when driving a tractor shall not carry or allo w any person to be carrie d on the tractor. A driver o f goo ds carriage shall not carry in the driver's cabin more numbe r of perso ns than that is mentione d in the Registration Certificate and shall not carry passengers fo r hire o r reward."

8. Upon consideration of applicable statute and the

Regulation, Full Bench of this Court in MFA Crob

No.100001/2016 in MFA No.102649/2015 and connected

matters by its judgment dated 20.04.2021 has observed

as follows:

"23. The Ape x Co urt has reiterated that a tractor could lawfully accommodate only one person, namely, the driver. The Ape x Court catego rically held that the appellant in the said case had travele d in the tractor as a passenger even though the tracto r could accommodate only one person namely the drive r. It was cate gorically held that the insurer was no t liable to indemnify the owner o f the tracto r fo r the liability o f a passenger traveling on the tractor. Hence, in view o f the dictum of the Ape x Court refe rred above , the liability of a pe rson sitting on the mud-guard o f a tractor is no t re quired to be covered by statutory insurance policy, as contemplate d by sub-section ( 1) o f Sectio n 147 of the M .V. Act.

33. Hence, in view o f the de cisions o f the Apex Court in the case of V. Chinnamma, Shivaraj and Darshana De vi (supra) and the analysis made above , we have no manner of doubt that a liability of a pe rson working either on the ploughing o r crushing machines attached to the tractor and who is traveling o n the mud-guard o f the tracto r is no t require d to be co vered by the

statuto ry insurance as contemplate d under sub- section ( 1) o f Section 147 of the M.V . Act."

9. The learned Commissioner in the impugned award,

after noticing the averments made in the claim petition

that the deceased was traveling on the engine of the

tractor, has proceeded to fasten the liability for payment

of compensation on the appellant/insurance company,

which is wholly illegal and unsustainable. In that view of

the matter, I proceed to pass the following:

ORDER

a) The above appeal is allowed.

           b) The     impugned          award    dated     31.1.2011
              passed       by     the    learned       Commissioner

insofar as direction regarding payment of compensation by the appellant/insurance company in favour of the respondent- claimant is concerned, is set-aside.

c) The amount in deposit before this Court shall be refunded to the appellant- insurance company forthwith.

Sd/-

JUDGE JTR