Karnataka High Court
The Branch Manager vs Smt Tahaseentaj W/O Shamiulla @ ... on 26 August, 2022
Bench: H.P.Sandesh
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.No.23205/2011
c/w
M.F.A.No.23206/2011 (WC)
IN M.F.A.No.23205/2011
BETWEEN
1. THE BRANCH MANAGER
ORIENTAL INSURANCE CO.LTD.,
BRANCH OFFICE, SIDDESHWAR COMPLEX,
P.B.ROAD, HAVERI.
REPRESENTED BY ASST.MANAGER,
REGIONAL OFFICE,SUMANGALA COMPLEX,
LAMINGTON ROAD,HUBLI.
...APPELLANT
(BY SHRI A G JADHAV, ADV.)
Digitally signed
by J MAMATHA AND
Location:
J Dharwad 1. SMT TAHASEENTAJ W/O SHAMIULLA @ GULLAB,
MAMATHA Date:
2022.08.27
10:17:30 AGE: MAJOR, OCC: HOUSE HOLD,
+0530
R/O NAGENDRANMATTI,TALUK: HAVERI.
2. SRI MAJJU @ MAJJUMEERPASHA
S/O SHAMIULLA @ GULLABN,
AGE: MAJOR, OCC: NIL,
R/O NAGENDRANMATTI,TALUK: HAVERI.
3. KUM.SALMA TAJ D/O SHAMIULLA @ GULLAB,
AGE: MAJOR, OCC: NIL,
2
R/O NAGENDRANMATTI, TALUK: HAVERI.
4. SHRI NASARULLA SHARIFF S/O ATAULLA SHARIFF,
AGE: MAJOR, OCC: BUSINESS,
S.NO.32, KAGBAN ROAD,
SHIVAJINAGAR,BANGALORE - 32.
...RESPONDENTS
(BY SHRI B.M. PATIL, ADV. FOR R1,
SHRI ANJANEYA M., ADV. FOR R1 TO R3
(NOC + VK OBTAINED)
THIS MFA IS FILED U/S.30(1)OF THE W.C.ACT 1923,
AGAINST THE JUDGEMENT AND AWARD DATED:28.02.2011,
PASSED IN W.C.A NO.25/2010 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION,
HAVERI DISTRICT, HAVERI, AWARDING THE COMPENSATION
OF RS.3,26,140/- WITH INTEREST AT THE RATE OF 12% P.A.
FROM THE DATE OF PETITION AND SHALL BE DEPOSITED
WITHIN ONE MONTH FROM THE DATE OF THE ORDER.
IN M.F.A.No.23206/2011
BETWEEN
1. THE BRANCH MANAGER
ORIENTAL INSURANCE CO.LTD.,
BRANCH OFFICE, SIDDESHWAR COMPLEX,
P.B.ROAD, HAVERI.
REPRESENTED BY ASST.MANAGER,
REGIONAL OFFICE,SUMANGALA COMPLEX,
LAMINGTON ROAD,HUBLI.
...APPELLANT
(BY SHRI A.G.JADHAV, ADV.)
AND
1. SMT TAHASEENTAJ W/O SHAMIULLA @ GULLAB,
AGE: MAJOR, OCC: HOUSE HOLD,
R/O NAGENDRANMATTI,TALUK: HAVERI.
2. SRI MAJJU @ MAJJUMEERPASHA
S/O SHAMIULLA @ GULLABN,
3
AGE: MAJOR, OCC: NIL,
R/O NAGENDRANMATTI,TALUK: HAVERI.
3. KUM.SALMA TAJ D/O SHAMIULLA @ GULLAB,
AGE: MAJOR, OCC: NIL,
R/O NAGENDRANMATTI,TALUK: HAVERI.
4. SHRI NASARULLA SHARIFF S/O ATAULLA SHARIFF,
AGE: MAJOR, OCC: BUSINESS, S.NO.32, KAGBAN
ROAD,SHIVAJINAGAR,BANGALORE - 32.
....RESPONDENTS
(BY SHRI B.M. PATIL, ADV. FOR R1,
SHRI M.ANJANEYA, ADV. FOR R1 TO R3
(NOC + VK OBTAINED )
THIS MFA FILED U/S.30(1)(a)(aa) OF THE W.C.ACT 1923,
AGAINST THE JUDGEMENT AND AWARD DATED:28.02.2011,
PASSED IN W.C.A. NO.26/2010 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION,
HAVERI DISTRICT HAVERI, AWARDING THE COMPENSATION OF
RS.3,99,945/- WITH INTEREST AT THE RATE OF 12% P.A.
FROM THE DATE OF PETITION AND SHALL BE DEPOSITED
WITHIN ONE MONTH FROM THE DATE OF THE ORDER.
THESE APPEALS COMING ON FOR FURTHER
HEARING ON 17.08.2022 AND THE SAME HAVING BEEN
HEARD AND RESERVED FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
4
JUDGMENT
These two appeals are filed challenging the judgment
and award dated 28.02.2011 passed by the Commissioner
for Workmen's Compensation, Haveri, (for short 'the
Commissioner) in W.C.A.Nos.25/2010 and 26/2010
questioning the maintainability, liability and quantum.
2. The factual matrix of the case of the claimants
before the Commissioner is that deceased Shamiulla, on
26.05.2009 when the husband of the Tahaseentaj
(claimant/respondent No.1) was travelling in a lorry
bearing registration No.KA-05/B-7009 as a second driver
along with his son Irfan and the said vehicle was driven by
his another son Majju @ Majjumeerpasha and the said
vehicle met with an accident as a result of which Shamiulla
and Irfan both sustained grievous injuries and succumbed
to the injuries on the spot. Hence, wife of Shamiulla, son
and daughter of Shamiulla filed two claim petitions before
the Commissioner seeking for compensation for the death
of Shamiulla and Irfan.
3. In support of their claim, the wife of Shamiulla
got examined herself as PW-1 and also got marked
documents Ex.P.1 to Ex.P.12. On the other hand, the
Administrative Officer of Insurance Company is examined
as RW-1 and got marked documents Ex.R.1 and Ex.R.2
and the owner of the vehicle was placed exparte. The
Commissioner considering both oral and documentary
evidence allowed the claim petitions awarding
compensation of Rs.3,26,140/- in WCA No.25/2010 and
Rs.3,99,945/- in WCA No.26/2010 with interest at the rate
of 12% p.a. after 30 days of the accident. Being aggrieved
by the said judgment and award, the Insurance Company
has filed the present appeals.
4. In M.F.A.No.23205/2011 which is in respect of
death of Shamiulla, the Insurance Company has
vehemently contended that the Commissioner has blindly
held that Shamiulla was the second driver in the vehicle
when the claimants had failed to produce any documents
to show the relationship of employer and employee
between the deceased and respondent No.4 and also failed
to produce the driving licence of the deceased which itself
goes to show that the deceased was travelling as a
passenger in the vehicle at the time of the accident. It is
also contended that the driving licence produced by the
claimants was not valid as on the date of the accident.
Hence, the Commissioner would have held that as per the
conditions of the policy issued, the appellant is not liable to
pay the compensation. In the appeal memorandum,
substantial questions of law are raised contending that the
Commissioner was not justified in holding that the policy
issued by the Insurance Company covered the second
driver. In the absence of any premium, question of
fastening the liability on the Insurance Company does not
arise. It is also contended that the Commissioner was not
justified in awarding interest at the rate of 12% p.a. and
that no material is produced to show that there exists
relationship of employer and employee between the
deceased and the owner of the vehicle.
5. In M.F.A.No.23206/2011 in respect of the
death of Irfan, the Insurance Company has urged similar
grounds as urged in M.F.A.No.23205/2011. Apart from
that contended that only on the version of claimant No.1,
held that deceased was working as a cleaner in the lorry as
on the date of the accident though no document was
produced to show that he was working as a cleaner and
the driver of the lorry is not examined in the case to prove
the case of the claimants. Hence, it clearly shows that the
deceased was travelling as a passenger in the lorry with
his father. It is also contended that the Commissioner was
not justified in awarding compensation in respect of a
minor boy aged 15 years working as a cleaner.
6. Learned counsel for the appellant/Insurance
Company reiterating the grounds urged in both the
appeals, relied upon a judgment of the Hon'ble Apex Court
in Civil Appeal No.5/2013 disposed of on 03.01.2013
wherein the Apex Court ordered to pay and recover the
amount from the owner following the principles laid in
NATIONAL INSURANCE CO., LTD., VS. CHALLA
BHARATHAMMA AND OTHERS (2004) 8 SCC 517..
The learned counsel would vehemently contend that first of
all the minor cannot be made to work as a cleaner and
hence, the Commissioner has lost sight of the said fact and
has awarded compensation. The Commissioner also
committed error in fastening the liability on the Insurance
Company which it was not proved that the deceased
Shamiulla was working as a driver and there exist
relationship of employer and employee in respect of both
the claim petitions. Learned counsel would also submit that
the order to pay and recover is under Article 142 of the
Constitution of India and the exclusive powers are vested
only with the Hon'ble Apex Court and not by any other
Court.
7. Learned counsel would also submit that the
additional premium is not paid in respect of the second
driver but an amount of Rs.50/- is paid only in respect of
one driver and not in respect of additional driver as
contended by learned counsel for the claimants'.
8. Per contra, learned counsel appearing for the
respondents/claimants would vehemently contend that
additional premium of Rs.50/- is paid in terms of the policy
and that All India Permit was given to the said vehicle and
when All India Permit is given, second driver is also
covered under the policy. The learned counsel would also
submit that the claim is made only in respect of one driver
and other driver has not made any claim. Learned counsel
would also submit that the owner of the vehicle made his
statement in terms of Ex.P.12 stating that the deceased
was a second driver and other victim was working as a
coolie. No material is placed by the Insurance Company to
show that the cleaner was a minor. Except relying upon
the post mortem which is not an authenticated document,
no other document is produced to prove the age of the
deceased. Learned counsel would submit that in the claim
petition it is mentioned that Irfan was working as a cleaner
and aged about 18 years and the Commissioner
considering the material on record answered points for
consideration independently by giving the reasons which
do not call for any interference.
9. The learned counsel relying upon the judgment
of this Court in UNITED INDIA INSURANCE COMPANY
VS. SMT.SHANTHAVVA AND OTHERS (2006 ACJ
1212) would submit that in similar circumstances the
Court held that if there are two separate claims in respect
of driver and spare driver unless additional premium is
paid, the insurer may not liable to pay for both the drivers
and if the claim is in respect of only one driver even if he is
not actually driving at the time of the accident still the
insurer becomes liable to pay under Section 147 of the
Motor Vehicles Act as a statutory liability. This Court
referred to the judgment in ORIENTAL INSURANCE
COMPANY LTD., VS. KHASIM wherein it has been laid
down that the insurer is liable to pay compensation for the
spare driver by virtue of provisions of Rule 100 of the
Karnataka Motor Vehicles Rules and Section 147 of the
Motor Vehicles Act which insists statutory cover for
employees employed in connection with the motor vehicle.
Therefore, the insurer in any circumstance cannot avoid
payment of compensation to a spare driver. The learned
counsel referring to this judgment would vehemently
contend that the judgment of this Court is aptly applicable
to the facts of the case on hand. Learned counsel for the
claimants also relied upon the judgment of this Court in
M.F.A.No.22969/2012 dated 25.08.2020 and would
vehemently contend that under Order XLI Rule 33 of the
CPC in the absence of any appeal by the claimants, the
Court can enhance the compensation. Hence, he submits
that the Commissioner has committed an error in taking
the income as Rs.3,500/- p.m. in respect of Irfan and this
Court has to enhance the compensation.
10. Having heard the learned counsel appearing
for the parties and also on perusal of the material available
on record and keeping in mind the grounds urged in the
appeal memo as well as the oral submissions of respective
counsels, the points that arise for consideration of this
Court are:
i) Whether the Commissioner has committed an
error in fastening the liability on the Insurance
Company as contended by the Insurance
Company in both the appeals?
ii) Whether the Commissioner has committed an
error in holding that there exists relationship of
employer and employee between the
respective deceased and the owner of the
vehicle?
iii) Whether the Commissioner has committed an
error in granting compensation in respect of
the claim for the death of Irfan?
iv) Whether the claimants/respondents have made
out a ground to invoke Order XLI Rule 33 of
the CPC to enhance the compensation in the
appeals filed by the Insurance Company?
v) What order?
11. In the claim petitions filed before the
Commissioner the claimants claim that they are the legal
representatives of deceased Shamiulla and the deceased
Irfan is the son of Smt. Tahaseentaj and brother of
claimants Nos.2 and 3 wherein they have claimed the
compensation contending that respondent No.2 is the
insurer and respondent No.1 is the employer of the
deceased. The Insurance Company filed the written
statement disputing the same. The claimants in both the
cases have examined PW-1 who is the wife of Shamiulla
and mother of the deceased Irfan and got marked
documents Ex.P.1 to Ex.P.12.
12. PW-1 was subjected to the cross-examination.
No doubt in the cross-examination, answer is elicited from
the mouth of PW-1 that the deceased Shamiulla was not
driving the vehicle at the time of the accident and also
admits that no documents are produced to show that
Shamiulla was working as a driver and her son Irfan was
working as a cleaner. Since no such documents are
obtained from the owner of the vehicle, it is also elicited
that with regard to the salary, no documents are produced.
It is suggested that Irfan was not aged 18 years and the
same was denied and with regard to the age of her
husband she claims that date of birth is mentioned in the
driving licence but she categorically admits that Irfan had
not studied. PW-1 admits that her son was driving the
vehicle at the time of the accident and the vehicle was
travelling from Bengaluru to Suratkal. But, it is the claim
of the Insurance Company that both of them were
proceeding as unauthorized passengers and the said
suggestion was categorically denied by PW-1 and elicited
that the other son Majju @ Majjumeerpasha who was
driving the vehicle has still continued the job as a driver.
Thus, it is suggested that only in order to get the
compensation, claim petitions are filed claiming that the
deceased were working as driver and a cleaner and the
said suggestion is also denied.
13. The Insurance Company examined its
Administrative Officer as RW-1 and in his evidence, he
states that on the date of the accident both the deceased
persons were proceeding as unauthorized passengers and
as no premium is paid for two drivers, the Insurance
Company is not liable to pay the compensation. In the
cross-examination, it is elicited that the owner of the
vehicle has made a statement before the police that
Shamiulla and deceased Irfan were working in the lorry but
he volunteers that he has made a false statement. It is
suggested that driver was having a valid driving licence
and the same is denied. He admits that he did not
examine the RTO to show that the driver was not having
valid driving license but he admits that in respect of one
driver policy is covered. But he volunteers that the
deceased Shamiulla was not working as a driver.
14. On perusal of the material on record, it is seen
that a case has been registered against the driver of the
offending vehicle and also the fact that he was the son of
Shamiulla is also not in dispute. To prove the relationship,
the claimants have relied upon the document Ex.P.11. The
said statement was recorded by the police on 27.05.2009
i.e., on the very next date of the accident and the owner in
his statement has stated that Shamiulla was working as
first driver and Majju @ Majjumeerpasha was working as a
second driver and Irfan was working as a cleaner. Apart
from that, the document Ex.P.12 is also produced before
the Commissioner to show that Shamiulla was having a
valid driving licence. But in the appeal memo, it is
contended that no document of driving licence of the
deceased was produced and the said contention cannot be
accepted. The driving licence which is produced before the
Court also shows the date of birth of Shamiulla as
15.04.1962. The accident has taken place in the year
2009 and hence, it is clear that Shamiulla was aged about
47 years as on the date of the accident. But, the
Insurance Company mainly relies upon the Post Mortem
report of both the deceased.
15. The Post Mortem report of the deceased
Shamiulla discloses his age as 50 years and it is only an
approximate age mentioned by the doctor while conducting
post mortem and the same is not authenticated document
and authenticated document is Ex.P.12, the driving licence
which shows that he was born in the year 1962. In the
case of deceased Irfan, the doctor has mentioned the age
as 15. The learned counsel for the Insurance Company
based on the post mortem report contends that he was a
minor and in order to prove the said fact, no other
documents are placed. Having considered the age
mentioned in the post mortem report in respect of
deceased Shamiulla wherein this Court found 3 years
difference, the very contention of the Insurance Company
that Irfan was a minor at the time of the accident cannot
be accepted. But PW-1 categorically denied the suggestion
in the cross-examination that Irfan was a minor but she
claims that he was aged about 18 years. It is also elicited
from the mouth of PW-1 that Irfan had not studied. It is
also made to know that Ex.P.11 discloses that the owner
had made the statement on the very next day of the
accident that there were two drivers in the vehicle along
with a cleaner. The fact that no other cleaner was there in
the lorry is emerged during the course of evidence and no
suggestion was made that other cleaner was there in the
lorry. Hence, it is clear that in view of the statement made
by the owner on the very next date of the accident that
two drivers were there in the vehicle and though it is
disputed by the Insurance Company that the deceased was
not a driver and not produced the driving license and when
such being the case, the very contention of the Insurance
Company that no document is produced, cannot be
accepted in view of Ex.P.12.
16. The very contention of the Insurance Company
that he Irfan was a minor and he was not working as a
cleaner and the owner also was placed exparte and in
order to substantiate the said contention of the Insurance
Company, it ought to have summoned the owner to deny
the relationship between the deceased persons and also
the owner and the same has not been done except taking
the defence.
17. With regard to the other defence that
Insurance Company is not liable to pay compensation in
respect of the second driver and the owner being made the
statement before the police that Shamiulla was the first
driver and his son is the second driver and on perusal of
Ex.R.2 no separate premium is paid in respect of the
second driver and in view of the judgment of this Court
relied upon by the learned counsel for the claimants in
UNITED INDIA INSURANCE COMPANY VS.
SMT.SHANTHAVVA AND OTHERS supra wherein in
similar circumstances this Court held that the spare driver
is also very much a person engaged in driving the vehicle,
may be on shift basis and that the word 'engaged in
driving the vehicle' should not be interpreted to mean only
the driver on the steering excluding a spare driver, the
insurer is very much liable to pay compensation in respect
of a spare driver under Section 147 of Motor Vehicles Act if
there is only one claim under the policy. However, if there
are two separate claims in respect of driver and spare
driver unless additional premium is paid the insurer may
not be liable to pay for both the drivers. If the claim is in
respect of only one driver even if he is not actually driving
at the time of the accident still the insurer is liable to pay
under Section 147 of MV Act as a statutory liability.
18. In the case on hand also admittedly the
deceased Shamiulla was not driving the vehicle at the time
of the accident and also only one claim was made before
the Commissioner and witness examined on behalf of the
Insurance Company i.e,, RW-1 has also categorically
admitted in the cross-examination that premium is paid in
respect of one driver. This Court also in ORIENTAL
INSURANCE COMPANY LTD., VS. KHASIM wherein it
has been laid down that the insurer is liable to pay
compensation for the spare driver by virtue of provisions of
Rule 100 of the Karnataka Motor Vehicles Rules and
Section 147 of the Motor Vehicles Act which insists
statutory cover for employees employed in connection with
the motor vehicle.
19. No doubt, in the cross-examination of PW-1, it
is elicited that no document is obtained from the owner to
show that both of them were working with him but owner
himself made statement before the police on the next day
of the accident as per Ex.P.11 that both of them were
working with him and in order to rebut the same,
Insurance Company has not examined the owner of the
vehicle which was involved in the accident and hence the
very contention of the Insurance Company that the
insurance company is not liable to pay compensation in
respect of the spare driver cannot be accepted. The
principles laid in UNITED INDIA INSURANCE COMPANY
VS. SMT.SHANTHAVVA AND OTHERS aptly applied to
the case on hand.
20. Having considered both oral and documentary
evidence available on record and also the finding of the
Commissioner that relationship of employer and employee
has been established and that both the deceased were
travelling in the vehicle as spare driver and cleaner, I do
not find any error in the judgment and award.
21. The main contention of the Insurance
Company that both of them were unauthorized
passengers, to substantiate the said defence no material is
placed before the Court except examining the
Administrative Officer RW-1 and hence I do not find any
error in the order of the Commissioner for Workmen's
Compensation. Hence, I answer points Nos.1 to 3 in the
negative.
Reg:Point No.4:
22. The other contention of the learned counsel
appearing for the claimants is that the Commissioner has
not awarded just and reasonable compensation and
considered only an amount of Rs.4,000/- p.m. as income
for the death of Shamiulla and an amount of Rs.3,500/-
p.m. for the death of Irfan and this Court can invoke under
Order XLI Rule 33 of the CPC to grant adequate
compensation. In support of his argument, he relied upon
the judgment of this Court in M.F.A.No.22969/2012 dated
25.08.2020 wherein it has been held that in the absence of
an appeal by the claimants, the Court can enhance the
compensation.
23. Having considered the submissions and
material on record, there is no dispute with regard to
invoking of Order XLI Rule 33 of the CPC to enhance the
compensation even in the absence of an appeal by the
claimants. But the same is applicable only if the claim of
the claimants is not considered and not awarded just and
reasonable compensation and if there is any error on the
record, then only the Court can exercise the power under
Order XLI Rule 33 of the CPC to meet the ends of justice.
In the case of death of Shamiulla, an income of Rs.4,000/-
p.m. has been taken into consideration as he was working
as a driver and the same is based on the statutory
provisions of the wages fixed. Hence, question of invoking
Order XLI Rule 33 of the CPC does not arise.
24. In case of death of Irfan, it is the claim of the
claimants that he was working as cleaner and the Court
has to take note of the age of the deceased as 18 years.
In terms of the PM report, he was aged about 15 years and
this Court while considering the same has taken note of
the age assessed by the doctor during the course of
conducting the post morten and found the difference as
per the records in terms of Ex.P.12 pertaining to Shamiulla
there was a difference of 3 years and this Court taking
note of the said fact the age of the deceased Irfan would
be 18 years. The Insurance Company has not placed any
documentary evidence except relying upon the post
mortem. Having considered the said age and his avocation
as a cleaner, the Commissioner has rightly taken the
income of Rs.3,500/- and hence question of invoking Order
XLI Rule 33 of the CPC does not arise, Hence, I do not
find any force in the contention of the claimants' counsel
and I answer point No.4 as negative. Accordingly, I do not
find any merit in the both the appeals.
25. In view of the above discussions, I pass the
following:
ORDER
i) The appeals are dismissed.
ii) The amount deposited by the Insurance
Company is ordered to be transferred to the
Tribunal forthwith.
iii) The registry is directed to send back the TCR
forthwith.
[SD/-]
JUDGE
Jm/-
