Karnataka High Court

National Insurance Co Ltd vs Sri Gurumurthy on 10 November, 2022

Bench: H.P.Sandesh

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF NOVEMBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.7206/2013 (WC)
                            C/W
                  M.F.A.NO.5563/2013 (WC)

IN M.F.A.NO.7206/2013:

BETWEEN:

1.     SRI GURUMURTHY,
       S/O LATE PUTTANNA BHOVI,
       AGED ABOUT 47 YEARS.

2.     SMT. SAKAMMA,
       W/O GURUMURTHY,
       AGED ABOUT 40 YEARS.

       BOTH ARE RESIDING AT
       BALYA VADDARATTI,
       BALYA POST, MADUGIRI TALUK,
       TUMAKURU DISTRICT.
                                            ... APPELLANTS

            (BY SRI GOPAL KRISHNA N, ADVOCATE)

AND:

1.     SRI S.M. SYED NOORULLA,
       S/O LATE T.S. SYED MEHABOOB,
       MAJOR IN AGE,
       RESIDING AT NO.7/1, 2ND BLOCK,
       CHANDINI CHOWK ROAD,
       SHIVAJINAGAR,
       BENGALURU-51.
                             2



2.    THE NATIONAL INSURANCE COMPANY LTD.,
      NO.63, RAHEJA PLAZA,
      WEST PRODAKASHANA ROAD,
      KARUR-639002, TAMILNADU.
      REP. BY ITS MANAGER.

3.    SRI S. CHANDRU,
      S/O L.T. SAVANTH,
      MAJOR IN AGE,
      R/A NO.5, CUBBONPET
      BENGALURU-4
                                        ... RESPONDENTS

     (BY SRI ANOOP SEETHARAMA RAO, ADVOCATE FOR R2;
               VIDE ORDER DATED 14.07.2016,
          NOTICE TO R1 AND R3 IS DISPENSED WITH)

     THIS M.F.A IS FILED UNDER SECTION 30(1) OF W.C. ACT
AGAINST THE JUDGMENT DATED 28.03.2013 PASSED IN
WCA/BNG-1/ECA/FC/CR-55/2011 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION,
SUB DIVISION-1, BENGALURU, ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

IN M.F.A.No.5563/2013:

BETWEEN:

NATIONAL INSURANCE CO. LTD.,
No.63, RAHEJA PLAZA,
WEST PRODAKASHANA ROAD,
KARUR, TAMILNADU STATE-639002.
THROUGH ITS REGIONAL OFFICE,
#144, SUBHARAM COMPLEX,
M.G. ROAD, BENGALURU-560001.
REP. BY ITS DEPUTY MANAGER
SRI R. RAVI.
                                             ... APPELLANT

       (BY SRI ANOOP SEETHARAMAA RAO, ADVOCATE)
                               3



AND:

1.     SRI GURUMURTHY,
       AGED ABOUT 47 YEARS,
       S/O LATE PUTTANNA BHOVI.

2.     SMT. SAKAMMA,
       AGED ABOUT 40 YEARS,
       W/O SRI GURUMURTHY.

       BOTH ARE RESIDENTS OF
       BYALYA VADDARAHATTI,
       BYALYA POST, MADHUGIRI TALUK,
       TUMAKURU DISTRICT-572 132.

3.     SRI S.M. SYED NOORULLA,
       S/O LATE T.S. SYED MEHBOOB,
       NO.7/1, 2ND BLOCK,
       CHANDNI CHOWK ROAD,
       SHIVAJINAGAR,
       BENGALURU-560051.

4.     SRI S. CHANDRA,
       MAJOR,
       S/O L.T. SAWANTH,
       NO.5, CUBBONPET,
       BENGALURU-560004.                  ... RESPONDENTS

         (BY SMT. D.N.MAMATA, ADVOCATE FOR R1 & R2;
       VIDE ORDER DATED 27.07.2018, SERVICE OF NOTICE
              IS HELD SUFFICIENT IN R/O R3 & R4)

      THIS M.F.A IS FILED UNDER SECTION 30(1) OF W.C. ACT
AGAINST THE JUDGMENT DATED 28.03.2013 PASSED IN
CWC/B-1/ECA/FC/CR-55/2011 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION,
SUB DIVISION-1, BANGALORE, AWARDING COMPENSATION OF
Rs.3,37,830/- WITH INTEREST @ 12% FROM AFTER ONE
MONTH OF ACCIDENT TILL DEPOSIT.

     THESE APPEALS COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                4




                       JUDGMENT

Heard the respective learned counsel for the parties in

both the appeals

2. These two appeals are filed by the claimants and the

Insurance Company, respectively challenging the judgment

dated 28.03.2013, passed in WCA/BNG-1/ECA/FC/CR-55/2011,

on the file of the Labour Officer and Commissioner for Workmen

Compensation, Bengaluru ('the Commissioner' for short).

3. The factual matrix of the case of the claimants

before the Commissioner is that the deceased was working as a

cleaner in the bus and on account of the accident he died during

the course of his employment and hence the claim was made

before the Commissioner. The Commissioner fastened the

liability on the Insurance Company to pay the compensation and

hence the claimants as well as the Insurance Company have filed

these two appeals.

4. The main contention of the learned counsel for the

claimants is that the Commissioner has committed an error in

taking the income of the deceased as only Rs.3,000/- per month

and awarded lesser compensation. The learned counsel relied

upon the judgment of this Court passed in M.F.A.No.10738/2010

dated 08.08.2013, wherein in a case of cleaner allowed the claim

petition applying IMT 40. The learned counsel also relied upon

the recent judgment of this Court passed in M.F.A.No.242/2013

dated 02.03.2020, wherein earlier judgment was referred and

fastened the liability on the Insurance Company.

5. The main contention of the Insurance Company is

that no separate premium was collected in respect of cleaner

and only it is mentioned as two employees and two employees

means driver and conductor. When there is no liability on the

Insurance Company, the Commissioner committed an error in

fastening the liability on the Insurance Company. The learned

counsel relied upon the judgment of the Apex Court passed in

Civil Appeal No.5147/2003 dated 22.07.2003 and brought to the

notice of this Court paragraph No.12, wherein the Apex Court

held that so a person carried in pursuance of a contract of

employment would be a passenger and would be covered as

such. The exclusion of this clause in the proviso to Section

147(1)(b) of the present Act bolsters our reasoning that

employees other than the three mentioned are not covered by

Section 147(1)(b) of the Workmen's Compensation Act.

6. Having considered the submission of the respective

learned counsel and also considering the material available on

record, it is the case of the claimants before the Commissioner

that the deceased was working as a cleaner. The learned

counsel for the claimants relied upon the document Ex.R.2 policy

copy, wherein premium of Rs.50/- is collected to WC to

employee 2. Hence, it is clear that premium is collected in

respect of two employees. The learned counsel for the

Insurance Company contend that it is only in respect of driver

and conductor in terms of Section 147 of the Motor Vehicles Act.

In terms of Ex.R.2 there was a contract between the insured and

insurer in respect of two employees and the fact that the

deceased was working as a cleaner is not in dispute. This Court

in the two judgments referred supra, in a similar set of facts and

circumstances considering the policy and also considering IMT 40

held that it covers the risk of the cleaner also.

7. Having considered the principles laid down in the

judgment of the Apex Court referred supra, it is held that terms

of the insurance policy as also under the provisions of Section

147(1)(b) Workmen's Compensation Act, no employees of the

insured apart from the driver was covered. But the fact is that

separate premium of Rs.50/- is collected in respect of two

employees. Now the Insurance Company cannot contend that

cleaner is not covered under the risk and the policy is very clear

with regard to two employees and only one claim is made in

respect of this accident. Hence, the very contention of the

Insurance Company cannot be accepted when there is a explicit

contract between the insured and insurer and having collected

premium of Rs.50/- for two persons i.e., two employees. I do

not find any force in the contention of the learned counsel for

the Insurance Company. Hence, M.F.A.No.5563/2013 filed by

the Insurance Company is liable to be dismissed.

8. Now with regard to quantum of compensation is

concerned, admittedly income of Rs.3,000/- per month was

taken and during the accident period, the minimum wages is

Rs.4,000/- per month. Having taken the income of Rs.4,000/-

per month and applicable factor of 225.22 and after deducting

50%, the compensation comes to Rs.4,50,440/-.

9. In view of the discussions made above, I pass the

following:

ORDER

(i) M.F.A.No.5563/2013 filed by the Insurance Company is dismissed.

(ii) M.F.A.No.7206/2013 filed by the claimants is partly allowed.

(iii) The impugned judgment of the Commissioner dated 28.03.2013, passed in WCA/BNG- 1/ECA/FC/CR-55/2011, is modified granting compensation of Rs.4,50,440/- as against Rs.3,37,830/- with interest at 12% per annum from one month after the accident till deposit.