Karnataka High Court
Haleema Begum And Ors vs Jaleel Miyan And Anr on 29 January, 2025
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MFA No. 201072 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C.M. JOSHI
MISCL. FIRST APPEAL NO.201072/2019(ECA)
BETWEEN:
1. HALEEMA BEGUM
W/O. LATE MOHD. IBRAHIM CARPENTER,
AGE 28 YEARS,
OCC. HOUSEHOLD,
2. SAMEENA D/O. MOHD. IBRAHIM CARPENTER,
AGE 10 YEARS,
OCC. NIL.
3. SAMEER S/O. MOHD. IBRAHIM CARPENTER,
AGE 9 YEARS,
Digitally
signed by
LUCYGRACE OCC. NIL.
LUCYGRACE Date:
2025.02.03
10:58:29 -
0800
4. ZUBER S/O. MOHD. IBRAHIM CARPENTER,
AGE 7 YEARS,
OCC. NIL.
5. SHAHIDA BEGUM
W/O. JALEEL MIYAN CARPENTER,
AGE 61 YEARS,
OCC. HOUSEHOLD,
ALL ARE R/O. NANDGAON VILLAGE,
TQ. HUMNABAD,
DIST. BIDAR-584 101,
(THE APPELLANT NOS.2 TO 4 ARE MINORS,
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MFA No. 201072 of 2019
REPRESENTED BY APPELLANT NO.1 - NATURAL
MOTHER).
...APPELLANTS
(BY SRI BIRADAR VIRANAGOUDA, ADVOCATE)
AND:
1. JALEEL MIYAN S/O. MASTAN SAB CARPENTER,
AGE 66 YEARS, OCC. AGRICULTURE & BUSINESS,
R/O. NANDGAON VILLAGE, TQ. HUMNABAD,
DIST. BIDAR-584 101.
2. THE MANAGER,
TATA AIG GENERAL INSURANCE CO., LTD.,
HEAD OFFICE PENISULA CORPORATE PARK,
NICHOLAS PIRAMAL TOWER, 9TH FLOOR,
GANAPATHRAO KADAM MARG,
LOWER PARCEL, MUMBAI-400 013,
MAHARASHTRA.
...RESPONDENTS
(BY SRI BABU H. METAGUDDA, ADV., FOR R1;
SRI S.S. ASPALLI, ADV., FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF THE EMPLOYEES' COMPENSATION ACT,
PRAYING TO CALL FOR THE RECORDS, ALLOW THIS APPEAL
AND MODIFY THE JUDGMENT AND AWARD DATED
31.01.2019 PASSED IN E.C.A. NO.1/2015 BY THE SENIOR
CIVIL JUDGE AND COMMISSIONER UNDER EMPLOYEES
COMPENSATION ACT, AT HUMNABAD AND ENHANCING THE
COMPENSATION FROM RS.7,35,521/- WITH 12% INTEREST
TO RS.14,99,000/- WITH 12% INTEREST, DIRECTING
DIRECT RESPONDENT NO.2-INSURANCE COMPANY TO PAY
THE ENTIRE COMPENSATION TO THE CLAIMANTS.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 201072 of 2019
CORAM: HON'BLE MR. JUSTICE C.M. JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C.M. JOSHI)
1. Heard learned counsel for the appellants and
learned counsel for the respondents.
2. The substantial question of law that arise for
consideration is, whether the learned Commissioner under
the Employees' Compensation Act was justified in absolving
the liability of respondent No.2 even though the present
petition is filed under the provisions of the Employees
Compensation Act and on the ground that the workman had
violated the terms and conditions of the policy by allowing
more than permitted number of passengers?.
3. The appellants herein are the claimants before
the Commissioner under the Employees Compensation Act in
ECA No.1/2015. By judgment and award dated 31.01.2019
the learned Commissioner determined the compensation of
Rs.7,35,521/- and fastened the liability on respondent No.1
- owner, by absolving the liability of respondent No.2-
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Insurance Company, which had issued a motor vehicle
Insurance Policy.
4. The factual matrix of the case are as below:
a) On 07.05.2012 the deceased - Ibrahim was
driving the vehicle No.KA-39/6853 Tata Magic vehicle and
near Fakeer Tekda- Humnabad, the offending vehicle bearing
No.MH-15/CM-1608 came from opposite direction and
dashed to the vehicle of the deceased. It was contended
that the deceased was working under respondent No.1 as a
driver and he died in the said accident.
b) Respondent No.1 appeared before the
Commissioner and admitted that the deceased Ibrahim was
Workman under him. He also admitted that the vehicle was
insured with respondent No.2.
c) Respondent No.2 - Insurance Company
contended that the deceased had allowed more than
permitted number of passengers in the said Tata Magic
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Vehicle and therefore, there is violation of the terms and
conditions of the policy and as such, its liability be absolved.
d) It is noteworthy that several other claim petitions
were also filed by the injured inmates of the Tata Magic
Vehicle against the owner and insurer of the vehicle,
wherein, the Motor Accident Claims Tribunal (MACT) held
that there was contributory negligence on the part of the
deceased also. In those petitions before the MACT, initially
accepting the contention that the deceased Ibrahim had
allowed more than the permitted number of passengers, the
liability was fastened upon the owner of the vehicle. Later,
the findings of the MACT were challenged in MFA
Nos.202065/2017 and 202066/2017 before the Co-Ordinate
Bench of this Court, whereby the said appeals have been
allowed on the ground that the total number of claim
petitions were less than the permitted number of passengers
and therefore, absolving the Insurance Company from
paying the compensation cannot be sustained.
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e) In view of the judgment rendered by the MACT,
the learned Commissioner under the E.C. Act also concluded
that the Insurance Company is not liable and fastened the
liability upon respondent No.1.
4. The learned counsel appearing for the appellants,
who are the claimants before the Commissioner would
contend that the calculation of the compensation amount by
the Commissioner is incorrect. It is contended that the
wages as notified at Section 4(1-B) of the Employees
Compensation Act were not considered by the Commissioner
and therefore, there is error in calculation of the
compensation amount.
5. The second prong of the argument is that the
liability of respondent No.2 - Insurance Company could not
have been absolved by the Commissioner, since, the policy
covered the risk of the driver also. The risk of the driver
covered by the Insurance Company cannot be clubbed with
the risk of the permitted number of inmates of the vehicle.
Therefore, he seeks for indulgence of this Court.
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6. The learned counsel appearing for respondent
No.1 would submit that in view of the judgment of the Co-
Ordinate Bench of this Court in the appeals arising out of the
same accident, it has been held that the Insurance Company
is liable and therefore, the question of absolving the liability
of the insurance company would not arise. He points out
that the contributory negligence of the deceased Ibrahim is
also not permissible to be raised in this petition, which is
filed under the provisions of the E.C. Act. Therefore, he
contends that when the risk of the driver is covered under
the policy issued by respondent No.2 to owner of the vehicle
i.e., respondent No.1, the Insurance Company is bound to
satisfy such claims.
7. The learned counsel appearing for respondent
No.2 would submit that the violation of the terms and
conditions of the policy by allowing more number of
passengers than permitted in the vehicle is a fundamental
breach, therefore the judgment of the learned Commissioner
is proper and correct.
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8. It is worth to note that the proceedings under the
provisions of the Employees Compensation Act is totally on a
different footing. It is aimed to compensate the workmen
who are employed and suffer an injury or death during the
course of and out of the employment. It has nothing to do
with the negligence or the tort, therefore, the question of
contributory negligence is unknown to the proceedings under
the provisions of the E.C. Act.
9. It is to be noted that the policy issued by
respondent No.2 in favour of respondent No.1 invariably
covers the risk of the driver also. In addition to the driver, it
covers the risk of 08 passengers. Therefore, the policy,
prima facie is issued on the premise that the driver who was
driving the vehicle is covered and when he is driving, 08
inmates of the vehicle are also covered. If the risk of the
driver is not covered the question of covering the risk of
inmates only has no meaning. Therefore, not covering the
risk of the driver, but covering the risk of the inmates is an
absurd proposition. Hence, the Insurance Company is liable
to compensate the injuries that could be suffered by a driver
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and also the inmates up to a maximum number of 08. On
this premise, the Co-Ordinate Bench of this Court has
allowed the appeals in MFA Nos.202065/2017 and the
connected matter. Therefore, the dismissal of the claim
petition as against respondent No.2 - Insurance Company is
prima facie incorrect. When there is no such violation of the
terms and conditions of the policy except carrying more
number of passengers, it is the Insurance Company, which is
liable to pay the compensation to the claimants who have
approached the Commissioner under the provisions of the
E.C. Act.
10. The learned Commissioner has failed to note that
the compensation to be calculated under the provisions of
the E.C. Act, are governed by the provisions of Section 4 of
the E.C. Act. The judicial pronouncements of this Court and
that of the Apex Court have held that the notification issued
under Section 4(1-B) of the E.C. Act are binding and
mandatory in nature. There is no room for deviating from
such notifications issued. Therefore, the calculation of the
compensation by the learned Commissioner also appears to
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be incorrect. In case of death, there shall be a deduction of
50%, therefore, the compensation is calculated as Rs.8000 x
50% x 221.37 = Rs.8,85,480/-. In addition to it, a sum of
Rs.5,000/- is to be added towards the funeral expenses.
Thus, the appellants are entitled for a sum of Rs.8,90,480/-.
Accordingly, the substantial question of law raised is
answered in the negative. Hence, the following:
ORDER
i) The appeal is allowed in part.
ii) The petitioner is entitled for a sum of
Rs.8,90,480/- along with interest at the rate
of 12% per annum from the date of expiry of
30 days from the date of the accident till
date of deposit as against Rs.7,35,521/-
awarded by the Tribunal.
iii) The respondent No.2 - Insurance Company is
directed to deposit the compensation amount
within a period of 06 weeks from the date of
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receipt of a copy of this judgment, before the
learned Commissioner.
iv) The rest of the order passed by the learned
Commissioner remains unaltered.
Sd/-
(C.M. JOSHI)
JUDGE
SBS
CT: AK
