1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE8H DAY OF SEPTEMBER, 2021 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.NO.4842/2016 (WC) BETWEEN: SRI. AJJEGOWDA S/O NEELEGOWDA AGED ABOUT72YEARS RESIDENT OF GUNDASHETTIHALLI VILLAGE DODDAGDDAVALLI POST SALAGAME HOBLI HASSAN TALUK-573 201 HASSAN DISTRICT. … APPELLANT [BY SRI CHETHAN B, ADVOCATE]. AND:
1. SMT.LATHA W/O LATE MALLESHAGOWDA AGED ABOUT32YEARS2 PALLAVI D/O LATE MALLESHAGOWDA AGED ABOUT14YEARS3 PAVAN S/O LATE MALLESHAGOWDA AGED ABOUT12YEARS THE APPELLANT NOS.2 AND3ARE MINORS, REPRESENTED BY THEIR MOTHER NATURAL GUARDIAN -RESPONDENT NO.1. 2 ALL ARE RESIDENTS OF GUNDASHETTIHALLI VILLAGE DODDAGDDAVALLI POST SALAGAME HOBLI HASSAN TALUK-573 201.
4. THE MANAGER UNITED INSURANCE COMPANY LTD., VENKATESHWARA BUILDING B.M.ROAD, HASSAN-573 201. … RESPONDENTS [BY SRI LETHIF B., ADVOCATE FOR R1; SRI S.KRISHNA KISHORE, ADVOCATE FOR R4; R2 AND R3 ARE MINORS, REPRESENTED BY R1]. THIS MFA IS FILED UNDER SECTION301) OF WC ACT AGAINST THE JUDGMENT
AND AWARD DATED2402.2016 PASSED IN ECA.NO.80/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND COMMISSIONER FOR EMPLOYEES COMPENSATION, HASSAN, AWARDING A COMPENSATION OF Rs.6,12,000/- WITH INTEREST @ 12% P.A. AFTER ONE MONTH OF THE ACCIDENT TILL REALIZATION. THIS MFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON2608.2021 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by the Insured challenging the judgment and award dated 24.02.2016, passed in E.C.A.No.80 of 2014 by the Principal Senior Civil Judge and Commissioner for Employees compensation, Hassan (‘the Commissioner’ for short).
2. The factual matrix of the case is that the claimants in E.C.A.No.80 of 2014, have contended that the first respondent 3 i.e., the appellant herein is the owner of Tractor and Trailer bearing registration No.KA-13-T-8974-8975. The deceased Malleshagowda was working as loader and unloader under respondent No.1 from the last six months and as per the direction of respondent No.1, on 23.02.2011, Malleshagowda and one Santhosh went to the land of respondent No.1 to load sugarcane.
3. It is also their claim that at about 1:30 p.m, near Yagachi Canal, Gundashettihalli Village, Salagame Hobli, the driver of Tractor and Trailer drove the vehicle in a rash and negligent manner, as a result, the Tractor toppled inside Yagachi canal. Due to the said accident, the said Malleshagowda fell down and sustained grievous injuries and succumbed at the spot.
4. It is also their claim that the death of Malleshagowda is during the course of his employment under respondent No.1. The deceased was aged about 32 years and he was getting salary of Rs.6,000/- per month and Rs.100/- batta per day from respondent No.1 as a loader and unloader. It is also their case that the Tractor and Trailer was insured with the second 4 respondent. Hence, both respondents are liable to pay the compensation.
5. In response to the notice of the claim petition, both respondents have appeared and filed their separate written statement. The first respondent admitted the deceased was an employee and he was working as loader and unloader. He is also admitted the accident and he is the owner of the vehicle but contends that the vehicle was insured with the second respondent and says that if there is any liability, the same has to be saddled on respondent No.2. Respondent No.2 in the written statement contended that the claim made by the claimants to be proved and contended that the registration certificate of vehicle clearly indicates that the seating capacity in the Tractor is only one i.e., for driver and there is no provision for the person to travel in the tractor including loader other than the driver. It is contended that the liability is subject to the terms and conditions of the permit and the liability is only for the driver of Tractor and Trailer. Loader or coolie risk is not covered under the Tractor policy. Respondent No.2 also denied all other claim made in the 5 claim petition. Hence, the Insurance Company is not liable to pay any compensation.
6. The claimants in order to substantiate their claim, they have examined the first claimant as P.W.1 and two other claimants and a Doctor as P.Ws.2 to 4, respectively, since there are three claim petitions and got marked the documents as Exs.P1 to P17. On the other hand, the respondents have examined one witness and got marked the documents as Exs.R1 and R2.
7. The Commissioner, after considering both oral and documentary evidence available on record, allowed the claim petition of the petitioners in part granting compensation of Rs.6,12,000/- with 12% interest per annum after one month of the accident till realization and directed respondent No.1 to pay the compensation. But in other claim petition, fastened the liability on respondent Nos.1 and 2. Hence, the appellant/insured filed this appeal before this Court. The other claim petition of other loader and unloader was dismissed as not proved the disability. 6
8. The main contention of the appellant/insured before this Court is that the Commissioner has committed an error in exonerating the liability on the Insurance Company. The Commissioner has grossly erred in not appreciating the evidence on record in proper perspective. The respondent-Insurance Company has collected premium, which covers the occupational accident and so also the loader. Hence, the Insurance Company is liable to indemnify the appellant. The Commissioner has failed to understand the circumstances under which the incident was occurred. Even the respondent has clearly stated that the deceased was working as a loader and unloader during the course of his employment, the incident had occurred. Hence, the Insurance Company is liable to indemnify the appellant. It is also contended that the Commissioner committed an error in awarding exorbitant compensation without properly appreciating the material placed on record. The income assessed by the Commissioner is on higher side and the same needs to be considered by this Court. The appellant has raised the following substantial questions of law before this Court that:
1. Whether the Trial Court erred in not properly appreciating the evidence on record in proper 7 perspective and the same has resulted in miscarriage of justice?.
2. Whether the Trial Court was justified in fastening the liability on the appellant herein when the insurance was in force at the time of the alleged accident covering the risk of an loader?.
3. Whether the Trial Court erred in determining the liability on the appellant herein though the evidence on record would establish that respondent No.4’s liability to indemnify the loss on the appellant herein?.
4. Whether the Trial Court erred in awarding Rs.6,12,000/- with the interest at 12%, after one month of accident till realization of compensation?.
9. Learned counsel appearing for the appellant, in support of his arguments, he mainly contends that it is the specific pleading of the claimants that the deceased was travelling as a loader in the Tractor and Trailer and PWs.2 and 3 are the eyewitnesses to the accident and also they have suffered the injuries in the accident i.e., driver and other occupant. The other person, who travelled in the Tractor also deposed that they were proceeding in the Trailer. It is not the specific defense of 8 the Insurance Company that the deceased was travelling in the Tractor and not in the Trailer. The learned counsel also would submit that when the Tractor-Trailer was insured by the second respondent and the vehicle is also insured for the specific purpose and the policy is a package policy, the Commissioner ought not to have fastened the liability on the insured instead of the Insurance Company.
10. The learned counsel appearing for the claimants also reiterates the very same grounds urged by the insured and contend that the Commissioner has failed to appreciate both oral and documentary evidence placed on record and erroneously fastened the liability on the insured instead of the Insurance Company.
11. Per contra, learned counsel appearing for the respondent-Insurance Company would vehemently contend that the policy, which is marked as Ex.R2 is clear that the policy is a Miscellaneous and Special Type of Vehicles – Package Policy and the premium of Rs.25/- is collected in terms of the policy that covers only the risk of the driver. Hence, the Commissioner 9 rightly fastened the liability on the Insurance Company in respect of the driver is concerned and no premium is collected in respect of the deceased. Hence, the Insurance Company cannot be made as liable to pay the compensation and the policy is not a motor policy.
12. It is the specific contention of the learned counsel appearing for the Insurance Company that no premium is collected for loader or unloader. The evidence emerged before the Court is that he was travelled in the Tractor and in the Tractor except the driver no one can travel in the vehicle. Under the circumstances, question of fastening the liability on the Insurance Company does not arise.
13. Having heard the learned counsel for the appellant and the learned counsel for the respondents and also on perusal of the records, the points that would arise for the consideration of this Court are:- 1. Whether the Commissioner has committed an error in awarding exorbitant compensation as claimed by the Insured?. 10 2. Whether the Commissioner has committed an error in fastening the liability on the insured instead of the Insurance Company as contended in the appeal?.
3. What order?. Point No.1 :
14. Having heard the respective counsel and also on perusal of the material available on record, it is not in dispute that the deceased was engaged and working as loader and unloader and though the Insurance Company disputes the same but the insured has categorically admitted the accident and that he was travelled in the Tractor and Trailer as loader and unloader and the vehicle was met with an accident on account of negligence on the part of the driver of the Tractor and Trailer. It is also not in dispute that at the time of the accident both Tractor and Trailer were used for agricultural purpose since it is the specific case of the claimants that in order to load the sugarcane they were travelling in the Tractor and Trailer. The Commissioner considering the claim while answering issue No.4 in E.C.A.No.80 of 2014 has taken note of Section 4(1)(a) of Employees’ Compensation Act, 1923 to ascertain the quantum of 11 compensation in case of death. An amount equal to 50% of the deceased is to be multiplied by the relevant factor. The deceased income was considered as Rs.6,000/- per month and 50% of the same is taken as Rs.3,000/- per month and also taking note of the age of the deceased as 32 years and as per Schedule 4 of Employees’ Compensation Act, 1923 for the age of 32 years, the factor is 203.85 has been taken into note of for calculating the compensation and it has been arrived as Rs.6,11,550/- which has been rounded of to Rs.6,12,000/-. It is also not in dispute that the accident was occurred on 22.03.2011. Hence, I do not find any force in the contention of the insured counsel that the compensation awarded is exorbitant and no grounds to interfere with the findings of the Commissioner with regard to the quantum of compensation is concerned. Hence, I answer point No.(i) as ‘negative’. Point No.2:
15. Now coming to the liability is concerned, the Commissioner fastening the liability in paragraph No.37 discussed in detail in respect of the claim made by the claimants in E.C.A.No.80 of 2014. The Commissioner has taken note of the 12 fact that in the evidence they have pleaded that he was travelling in the said tractor as a loader. Respondent No.2 also suggested that he was travelling as a passenger but the said suggestion was denied. The Commissioner has taken note of the fact that even assuming that he was traveling as a loader in the Tractor, the Insurance Company is not liable to indemnify respondent No.1 in payment of compensation for the reason that the Tractor is meant for transportation of goods. The seating capacity of the Tractor is only one i.e., for driver. The rules do not permit the Tractor to carry a coolie or loader. The Commissioner also had taken note of Ex.P8-policy. In the said Ex.P8, policy the premium is paid to only one employee i.e., driver of the Tractor. Hence, the Insurance Company is not liable to pay any compensation.
16. This Court has to re-appreciate the material available on record. On perusal of claim petition, the claimants have contended that when he was proceeding as loader in the Tractor and Trailer, the driver of the Tractor and Trailer drove the vehicle in a rash and negligent manner. It is also a specific case that from the last six months he was working as loader and 13 unloader in respect of the Tractor and Trailer. On account of the accidental injury, he died at the spot.
17. Having considered the pleadings in the claim petition, it is not pleaded that he was travelling in the Tractor. But it is the specific claim that when they were proceeding in the Tractor and Trailer and working as loader and unloader, an accident was taken place.
18. The main contention of the learned counsel appearing for the Insurance Company is that the registration certificate of the vehicle clearly indicates the seating capacity of the Tractor is only one i.e., for driver and there is no provision for the person to travel in the tractor including loaders other than the driver. With regard to the Trailer, there is no provision for any person to travel in the Trailer.
19. P.W.1 has been examined before the Commissioner. P.W.1 – wife of the deceased reiterated the contents of the claim petition and she was cross-examined. While cross-examining, a suggestion was made that there was no provision to travel in the Tractor and only one person can travel in the Tractor, but 14 witness says that her husband was sitting in the Trailer. But admits that in the Trailer no provision is made to sit. P.W.1 also admits that when the accident was taken place at that time tractor was empty.
20. P.W.2 – driver of the Tractor, who made the claim petition and says that the deceased and other injured were working from the last six months in the said Tractor and Trailer as loader and unloader. On account of the accident both of them had sustained the injuries. He was also cross – examined by the Insurance Company. In his evidence, he says that all the three were proceeding in the Tractor and Trailer. He also admits that the driver can only sit in Tractor but he claims that the deceased and the other claimant-Santhosh were sitting in the Trailer. He admits that no separate seating arrangement was there in the Trailer and the Trailer is meant for carrying goods. He also admits that at the time of the accident, the Trailer was empty. It is suggested that both of them were travelling as passengers and the same was denied.
21. The injured is one Santhosh. He also claims that both of them were travelling in the Tractor and Trailer working 15 as loader. It is his evidence that he was working as loader and unloader with this respondent No.1 and met with an accident on account of negligence on the part of the driver of the Tractor and Trailer. It is his evidence that he himself and the deceased Malleshagowda had sustained the injuries. He was not cross- examined.
22. On the other hand, the Insurance Company also has examined one witness i.e., Senior Assistant of United India Insurance Company. He admits the issuance of policy in respect of Tractor and Trailer and he claims seating capacity is only one i.e., for the driver and no other person are allowed to travel in the Tractor and Trailer. Respondent No.1 was carrying the loader and unloader and the same is in violation of policy conditions except the owner and driver no other person can travel in the Tractor and Trailer and no separate premium is also paid for the loader and unloader. Hence, the Insurance Company is not liable to pay any compensation. He was subjected to cross- examination.
23. In the cross-examination, he admits that in the policy they have collected Rs.25/- for employees and witness 16 volunteers that i.e., for driver. He admits that nowhere it is mentioned specifically the same is in respect of the driver. But he volunteers that under the Motor Vehicles Act, 1988, the same is collected for driver. However, he admits that for loading and unloading employees are required for Tractor and Trailer. It is suggested that in order to escape from the liability he is falsely deposing before the Court.
24. Having considered both oral and documentary evidence placed on record, the dispute is with regard to whether they were travelling in the Tractor or Trailer; no where in the pleadings it is mentioned that they were travelling in the Tractor. But it is the claim that they were travelling in the Tractor and Trailer. On perusal of the FIR, which is marked as Ex.P1, it is clear that in order to load the sugarcane, they were travelling in the Tractor. In the cross-examination of P.W.1, it is suggested that he was travelling in the Tractor. But P.W.1 categorically says that her husband was sitting in the Trailer. The driver of the Tractor, who has been examined in respect of his claim, he also categorically says that the deceased and Santhosh both were sitting in the Trailer. In order to substantiate the 17 contention that the deceased was travelling in the Tractor not in the Trailer, no material is placed before the Court by the Insurance Company.
25. It is also important to note that the policy, which is marked as Ex.P8 and also Ex.R2, are one and the same. In Ex.P8, with regard to own damage on Schedule of Premium discloses for A: OD – BASIC collected an amount of Rs.2,727/-; premium for Trailer collected an amount of Rs.464.60 paise and loading on OD Premium NCB50 collected Rs.4/-. In all Rs.1,598/-. Regarding third party liability is concerned, an amount of Rs.800/- was collected and added separate premium for trailer i.e., Rs.550/-. Compulsory PA to Owner-Driver to the extent of Rs.2,00,000/-, an amount of Rs.100/- is collected. WC to employee-1 is collected Rs.25/-. In all Rs.1,475/- in respect of the liability. Both in respect of the own damages and liability, an amount of Rs.3,073/- is collected. The Commissioner while awarding compensation in respect of three claims, fastened the liability on the Insurance Company in respect of the driver, fastened the liability on the Insurance Company. But while fastening the liability in respect of the claimants’ legal heirs of 18 the deceased saddled the liability on the insured. The other claim of the claimants in E.C.A.No.82 of 2014 was dismissed as the claimants have not proved the loss of earning capacity.
26. Now the question before this Court is whether the Insurance Company is liable or the insured?. It is not in dispute that the first claimant’s husband and father were passed away during the course of employment and the same is not disputed by the insured. It is emerged in the evidence that he was working in the Tractor and Trailer as loader and unloader from the last six months. It is also evident that he was travelling in the Trailer and though it is mentioned in the complaint that he was travelling in the Tractor and no one will make the statement while lodging the complaint that he was sitting in the Trailer and instead of in the normal course, it would be referred as that he was travelling in the Tractor but the evidence of P.W.1 is clear that he was sitting in the Trailer and the same is also substantiated by the evidence of the driver of the Tractor. He categorically deposes that the deceased was sitting in the Trailer. It is also not in dispute that in terms of policies – Ex.P8 and Ex.R2, both Tractor and Trailer are insured. 19 On perusal of Ex.R2, it is clear that the policy is a Miscellaneous and Special Type of Vehicles – Package Policy.
27. It is also important to note that the policy covers the owner-cum-driver under PA claim to the extent of Rs.2 Lakhs. In the case on hand, the driver also claimed the compensation and awarded compensation of Rs.76,300/- with 12% interest. The policy-Ex.P8 discloses apart from payment of Rs.100/- under the PA claim for owner-cum-driver Rs.25/- is collected mentioning WC to employee-1, the compensation awarded by the Commissioner in respect of the driver is below the amount of Rs.2 Lakhs i.e., Rs.76,300/-.
28. It is the claim of the Insurance Company that WC to employee-1 is collected towards the driver. No doubt, in the case on hand, the driver is not the owner-cum-driver, but he was working as driver. Ex.R2 is clear that the policy is a Miscellaneous and Special Type of Vehicles – Package Policy. When the policy is a package policy, the Court has to take note of the same and the same is not a liability policy. 20
29. This Court would like to refer the Judgment of this Court in the case of National Insurance Company Limited v. Sri Maruthi and others reported in ILR2011KAR4139 wherein, this Court taking into note of Workmen’s Compensation Act, 1923, particularly, Section 30(1), when the accident was occurred during the course of employment and the claimants claimed to be the coolies travelling in Tractor and Trailer, sustained injuries due to accident. Finding of the Workmen’s Compensation Commissioner is that the Insurer is liable to indemnify the owner as the Tractor-Trailer was a goods vehicle meant for carrying agricultural operations and the claimants being coolies under the owner having met with an accident, sustained injuries, insurer is liable to compensate the injured, the same has been questioned before this Court. This Court considering the definitions of “Tractor” & “Trailer” – “Motor Vehicle” – “Goods” & “Goods Carriage” discussing the same held that the combination of tractor-trailer is nothing short of a goods carriage. Therefore, when once it is held as goods carriage vehicle, by virtue of Section-II-I(1) of fully worded policy and also provisions of Section 147, the claim of the claimants on hand is covered. It is also held that the claimants were neither 21 gratuitous passengers nor persons who were travelling in the tractor-trailer for the purpose other than agricultural operations. It is further held that depending upon the user of the vehicle whether for agricultural purpose or for commercial purpose, the liability of the insurer would be decided. When the intention of the Legislation was to cover compulsorily all the risk arising out of the use of the Motor Vehicle and that the liability of the insurer is co-extensive with that of the insured subject to Section 147(1)(b), coolies or employees are compulsorily covered. Therefore, the argument that Rule 100(6) r/w Rule 226 of the Karnataka Motor Vehicles Rules is relevant is rejected and the same will not authorize or permit the insurer to avoid the liability. It is further held that by reading Sections 147 and 149, it is clear that the Legislative intent was that the insurer has to compulsorily cover all the risks arising out of and use of Motor vehicle and the liability of the insurer is co-extensive with that of insured. However, this is subject to the limitations envisaged under Section 147(1)(b). It is further observed that the coolies who are employees carried in a goods vehicle are to be compulsorily covered under Section 147(1)(b). 22
30. This Court would like to extract paragraph No.31 of the judgment, wherein, after discussing Sections 147 and 149 and also the rules of the Karnataka Motor Vehicles Rules held as follows:- “31. By reading Sections 147 and 149, it is clear that the Legislative intent was that the insurer has to compulsorily cover all the risks arising out of and use of motor vehicle and the liability of the insurer is co-extensive with that of insured. However, this is subject to the limitations envisaged under Section 147(1)(b). It is also clear that the coolies who are employees carried in a goods vehicle are to be compulsorily covered under Section 147(1)(b).
31. This Court also in detail discussed in paragraph No.37 regarding the liability is concerned, when the coolies are carried in the goods vehicle, which reads as follows:- “37. The wordings of the fully worded policy makes it clear that the vehicle in question is a goods vehicle. Therefore, the respondents were justified in saying appellant cannot plead other than what is stated in the policy. If the general exception in the policy were to exclude the liability of the insurer to cover the coolies employed for loading and unloading 23 then the argument of the appellants was justified Though the fully worded policy refers to the terms of contract between the parties, IMT7 21, 24, 36 and 48, on perusal of the same except IMT36none of the other IMTs. are relevant. As a matter of fact IMT7& 48 do not find a place in the fully worded policy. IMT21refers to exclusion of riots, strikes and terrorism coverage. IMT24refers to replacement of parts. When the very policy is referred to as a special package policy, unless the insured was fully made known the exact terms of contract by including them in the terms of policy, it is nothing but with-holding necessary and important information from the insured. Depending upon the user of the vehicle whether for agricultural purpose or for commercial purpose, the liability of the insurer would be decided. When the intention of the Legislation was to cover compulsorily all the risk arising out of the use of the motor vehicle and that the liability of the insurer is co-extensive with that of the insured subject to Section 147(1)(b), coolies or employees are compulsorily covered. Therefore, the argument that Rule 100(6) r/w Rule 226 of the Karnataka Motor Vehicles Rules is relevant is rejected and the same will not authorise or permit the insurer to avoid the liability.” 24 32. In the case on hand also, it has to be noted that the very pleadings of the claimants that on the date of the accident, the deceased Malleshagowda was proceeding in the tractor- trailer as loader and unloader for loading sugarcane, which has been grown in the land of the insured and the insured, who appeared before the Court also did not object the same. He admitted that he was working as loader and unloader in the tractor from the last six months and the vehicle is also used for agricultural purpose not for any other purposes violating the conditions of the policy. The policy is a Miscellaneous and Special Type of Vehicles – Package Policy. When such being the case, the vehicle is combination of tractor-trailer is nothing short of a goods carriage. Once it is held as goods carriage vehicle, by virtue of Section-II-1(1) of fully worded policy and also provisions of Section 147, the claim of the claimants on hand is covered. The claimants in the present case have rightly approached the Workmen’s Commissioner i.e., subsequent to amendment, Employees’ Workmen Commissioner and the Commissioner held that the deceased was a coolie under the insured. In the present case also, the deceased was travelling in the tractor-trailer in order to load the sugarcane in the land 25 belonging to the insured, the same is nothing but a part and parcel of agricultural operations.
33. The contention of the Insurance Company is that the deceased was a gratuitous passenger cannot be accepted. The deceased was travelling for the purpose of agricultural operations not for any other purpose. Having considered the avocation of the deceased as a loader and unloader and in view of the principles laid down in the judgment of this Court referred supra, I am of the opinion that the Commissioner has committed an error in fastening the liability on the owner instead of the Insurance Company. Hence, it requires an interference of this Court. Hence, I answer issue No.(ii) as ‘affirmative’. Point No.3:
34. In view of the discussion made above, I proceed to pass the following:- ORDER
(i) The appeal is allowed. (ii) The impugned judgment and award dated 24.02.2016, passed in E.C.A.No.80 of 2014 by the Principal Senior Civil Judge and 26 Commissioner for Employees compensation, Hassan, is modified fastening the liability on the Insurance Company instead of the insured. (iii) The respondent-Insurance Company is directed to pay the compensation amount of Rs.6,12,000/- with interest @ 12% per annum after one month from the date of accident till realization, within six weeks. (iv) The office is directed to refund the amount to the owner/insured, on proper identification. (iv) The Registry is directed to transmit the records to the concerned Commissioner, forthwith. Sd/- JUDGE cp*