The United India Insurance Co Ltd ... vs B. Thimmappa 2 Others
2023 Latest Caselaw 92 Tel

             THE HON'BLE SRI JUSTICE M.LAXMAN

 CIVIL MISCELLANEOUS APPEAL Nos.1148, 1108, 1109 and
                           1171 of 2008

COMMON JUDGMENT:

1.   Since common question of law is involved in the all the

above Appeals, they are disposed of simultaneously.

2.   The challenge in the present Appeals viz., C.M.A.No.1148 of

2008 is the Order dated 21.01.2006 in W.C.No.8 of 2004;

C.M.A.No.1108 of 2008 is Order dated 21.01.2006 in W.C.No.7 of

2004; C.M.A.No.1109 of 2008 is Order dated 21.01.2006 in

W.C.No.8 of 2002; C.M.A.No. 1171 of 2008 is Order dated

21.01.2006 in W.C.No.6 of 2004.

3.   The claims made by the legal heirs of the respective

deceased employees, who died in the accident that occurred on

24.03.2000    was   allowed   by   the    Commissioner,   granting

compensation and fixing joint and several liability on M/s.Yadav

Yuvajana Sangam, who is the opposite party No.1 and United

India Insurance Company Limited, who is the opposite party No.2

before the Commissioner.

4.   The main grievance of the appellant in all the Appeals is

that the vehicle insured by the appellant-Insurance Company is
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the Tractor-Trailer, which was newly purchased. As per the terms

and conditions of the Insurance policy, the said vehicle was

insured for agricultural purpose only. Whereas the subject vehicle

was used for carrying the passengers to attend a marriage. When

the persons were travelling to attend marriage, an accident

occurred resulting in death of four persons and causing injuries

to sixteen others. Therefore, the Insurance Company is not liable

for payment of compensation.

4.    It is also the case of the appellant that the deceased persons

are not employees as there is no employee and employer

relationship between the deceased and the opposite party No.1.

Hence, the claim before the Commissioner is not maintainable as

the persons were only gratuitous passengers travelling in the

vehicle and the policy does not cover the risk of the deceased.

5.    Heard learned counsel for the appellant. There is no

representation from the respondents.

6. The substantial question of law that falls for consideration

is as follows:-

Whether the findings of the Commissioner holding the deceased as workmen when the First Information Report and final report relied by the claimants show that they were the passengers travelling in the vehicle suffer from any perversity ?

7. The claim statements of respondents-applicants show that

the deceased were employees employed by the opposite party No.1

as workmen and the accident occurred during the course of

employment.

8. In support of the case the applicants examined AW1 and

marked Exs. A1 to A5. The opposite party Nos.1 and 2 examined

RW1 and RW2 and marked Ex D1.

9. A perusal of the record shows that the Commissioner

accepted the employee and employer relationship between the

deceased and opposite party No.1 and fastened joint and several

liability on the owner of the vehicle as well as the insured.

Aggrieved by the same, the above Appeals are preferred at the

instance of the Insurance Company.

10. In the counter, the opposite party No.1 admitted that the

deceased were workmen and basing on the said admissions, the

Commissioner has given findings that there exists employer and

employee relationship between the opposite party No.1 and the

deceased workmen.

11. A close reading of the documents relied upon by the

applicants-claimants more particularly the first information

report, charge sheet and other criminal records, clearly

demonstrate that all the persons boarded the vehicle to attend a

marriage and while they were travelling in the said vehicle, an

accident occurred. The Insurance company did not dispute the

contents of Exs. A1 and A2 and relied on F.I.R. and charge sheet,

which clearly demonstrates that the deceased were travelling as

passengers of the vehicle and not as workmen. But the Insurance

Company contended that the Commissioner should not have

given weightage to the claim made by opposite party No.1 who

stated that the deceased were workmen. The evidence of the

applicants clearly demonstrates that at the time of accident, the

deceased were travelling as passengers and it was a goods

vehicle. The contention of the Insurance Company was that the

vehicle was registered and insured for agricultural purpose

contrary to Ex D2. Ex D2 clearly demonstrates that the vehicle is

registered for commercial purpose. Even though, the vehicle is

registered for commercial purpose, it is a goods vehicle and

labourers are permitted to travel in the vehicle and not the

passengers. In the present case, the deceased were not workmen

but they were travelling as passengers. The Commissioner ought

to have taken into consideration the F.I.R. and charge sheet while

holding that the deceased were workmen. Such findings of the

Commissioner suffer from perversity. Therefore, the Appeals

requir to be allowed. In pursuance of the interim order granted by

this Court, the applicants-claimants were permitted to withdraw a

sum of Rs.60,000/- without furnishing any security and the

balance shall be kept in a fixed deposit for a period of three

months in a nationalized bank.

12. In view of the said facts and circumstances, the appellant-

Insurance Company is permitted to recover the paid amount from

the owner of the vehicle and not from the claimants.

13. With the above observation, the Civil Miscellaneous Appeals

are allowed. The impugned Order dated 21.01.2006 in W.C.Nos.6,

7, and 8 of 2004 and 8 of 2002 is set aside to the extent of fixing

liability on the appellant-Insurance Company and the rest of

findings of the Commissioner holds good. No costs.

Miscellaneous Petitions, pending if any, shall stand closed.

______________________ JUSTICE M.LAXMAN 05.01.2023 ESP

THE HON'BLE SRI JUSTICE M.LAXMAN

CIVIL MISCELLANEOUS APPEAL Nos.1148, 1108, 1109 and 1171 of 2008

Dated: 05.01.2023

ESP