R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE01T DAY OF DECEMBER, 2020 BEFORE THE HON’BLE MR.JUSTICE HANCHATE SANJEEVKUMAR M.F.A. NO.30502/2012 C/W MFA Nos.30499, 30500, 30501 & 30503 of 2012 (WC) IN MFA NO.30502/2012 Between: The Branch Manager, New India Assurance Co. Ltd., Raichur, Represented by its The Divisional Manager, New India Assurance Co. Ltd., 10-2-7, P.B.No.12, II Floor, S.B.Temple Road, Sangameshwar Nagar, Gulbarga. … Appellant (By Sri Uday P.Honguntikar, Advocate) And:
1. Gurunathappa S/o Shantappa, Age :
23. years, Occ : Cleaner, R/o Maski Village, Tq.Lingasugur, Dist. Raichur.
2. Veerareddy S/o Iranna, Age: Major, Occ: Lorry owner, 2 R/o Near Fire Station, Dist: Bellary. … Respondents (By Sri Babu H.Metagudda, Advocate for R1) This MFA is filed under Section 30(1) of the Workmen's Compensation Act, praying to set-aside the judgment and award dated 21.10.2011 passed in WC No.734/2008 by the Commissioner, Workmen's Compensation, Raichur, by allowing the appeal. IN MFA NO.30499/2012 Between: The Branch Manager, New India Assurance Co. Ltd., Raichur, Represented by its The Divisional Manager, New India Assurance Co. Ltd., 10-2-7, P.B.No.12, II Floor, S.B.Temple Road, Sangameshwar Nagar, Gulbarga. … Appellant (By Sri Uday P.Honguntikar, Advocate) And:
1. Nagesh S/o Ramlingappa, Age :
23. years, Occ : Cleaner, R/o Mudgal Village, Tq.Lingasugur, Dist. Raichur.
2. Veerareddy S/o Iranna, Age: Major, Occ: Lorry owner, R/o Near Fire Station, Dist: Bellary. … Respondents (By Sri Babu H.Metagudda, Advocate for R1) 3 This MFA is filed under Section 30(1) of the Workmen's Compensation Act, praying to set-aside the judgment and award dated 21.10.2011 passed in WC No.731/2008 by the Commissioner, Workmen's Compensation, Raichur, by allowing the appeal. IN MFA NO.30500/2012 Between: The Branch Manager, New India Assurance Co. Ltd., Raichur, Represented by its The Divisional Manager, New India Assurance Co. Ltd., 10-2-7, P.B.No.12, II Floor, S.B.Temple Road, Sangameshwar Nagar, Gulbarga. … Appellant (By Sri Uday P.Honguntikar, Advocate) And:
1. Pampapati S/o Shankreppa, Age :
23. years, Occ : Cleaner, R/o Mudgal Village, Tq.Lingasugur, Dist. Raichur.
2. Veerareddy S/o Iranna, Age: Major, Occ: Lorry owner, R/o Near Fire Station, Dist: Bellary. … Respondents (By Sri Babu H.Metagudda, Advocate for R1) This MFA is filed under Section 30(1) of the Workmen's Compensation Act, praying to set-aside the judgment and 4 award dated 21.10.2011 passed in WC No.732/2008 by the Commissioner, Workmen's Compensation, Raichur, by allowing the appeal. IN MFA NO.30501/2012 Between: The Branch Manager, New India Assurance Co. Ltd., Raichur, Represented by its The Divisional Manager, New India Assurance Co. Ltd., 10-2-7, P.B.No.12, II Floor, S.B.Temple Road, Sangameshwar Nagar, Gulbarga. … Appellant (By Sri Uday P.Honguntikar, Advocate) And:
1. Basalingappa S/o Siddalingappa, Age :
24. years, Occ : Cleaner, R/o Maski Village, Tq.Lingasugur, Dist. Raichur.
2. Veerareddy S/o Iranna, Age: Major, Occ: Lorry owner, R/o Near Fire Station, Dist: Bellary. … Respondents (By Sri Babu H.Metagudda, Advocate for R1) This MFA is filed under Section 30(1) of the Workmen's Compensation Act, praying to set-aside the judgment and award dated 21.10.2011 passed in WC No.733/2008 by the 5 Commissioner, Workmen's Compensation, Raichur, by allowing the appeal. IN MFA NO.30503/2012 Between: The Branch Manager, New India Assurance Co. Ltd., Raichur, Represented by its The Divisional Manager, New India Assurance Co. Ltd., 10-2-7, P.B.No.12, II Floor, S.B.Temple Road, Sangameshwar Nagar, Gulbarga. … Appellant (By Sri Uday P.Honguntikar, Advocate) And:
1. Naganath S/o Mallayya, Age :
27. years, Occ : Cleaner, R/o Gurugunta Village, Tq.Lingasugur, Dist. Raichur.
2. Veerareddy S/o Iranna, Age: Major, Occ: Lorry owner, R/o Near Fire Station, Dist: Bellary. … Respondents (By Sri Babu H.Metagudda, Advocate for R1; Notice to R2 served, unrepresented) This MFA is filed under Section 30(1) of the Workmen's Compensation Act, praying to set-aside the judgment and award dated 21.10.2011 passed in WC No.735/2008 by the 6 Commissioner, Workmen's Compensation, Raichur, by allowing the appeal. These appeals coming on for Orders this day, the Court delivered the following:
JUDGMENTThe above appeals are filed by the Insurance Company arising out of the common proceedings passed in WC(CR) No.730 to 735 of 2008 dated 21.10.2011, by the Commissioner, Workmen's Compensation, Raichur (hereinafter referred to as 'the learned Commissioner' for brevity), saddling the burden on the Insurance Company for payment of compensation.
2. Brief facts of the case are as follows :- The respondent No.1/claimants in all the appeals were working as hamalis and cleaners under the employment of respondent No.2-owner of the lorry bearing Reg.No.KA-34/2097, which is insured with appellant/Insurance Company and were travelling from Bengaluru to Ballary, after loading goods like cotton in 7 the said lorry and along with the goods cotton were proceeding as a workmen and authorised representative of the said goods cotton, on 03.08.2008, then the said lorry was met with an accident with another lorry bearing Reg.No.KA-14/6857 and in the said accident, the respondent No.1/claimants in all the appeals have sustained injuries, followed by registration of crime in the police station and then for having sustained injuries in the said road traffic accident which was occurred arising out of and in the course of employment, have filed claim petitions under Section 10 of the Employees Compensation Act before the learned Commissioner, and the learned Commissioner after receiving the evidences on record and considering the same has awarded compensation of Rs.2,07,852/-, Rs.1,89,935/-, Rs.1,68,702/-, Rs.1,69,845/- and Rs.1,68,702/- to the respondent No.1/claimatns in their respective claim by saddling liability on the appellant/Insurance Company. 8 Therefore, the appellant/Insurance Company preferred the above appeals.
3. Learned counsel for the appellant/Insurance Company submitted that the appellant is not liable to pay compensation by making indemnification on the second respondent for the reason that respondent No.1/claimants have travelled in the said lorry as a gratuitous passengers but not as workmen. Therefore, appellant/Insurance Company is not liable to pay compensation.
4. Further submitted that even though the respondent No.1/claimants have travelled in the said lorry as workmen but the said lorry carrying goods along with these respondent No.1/claimants, were moving from Bengaluru to Ballary and there are total workmen six in number and therefore as per the proviso to Rule 100 of the Karnataka Motor Vehicles Rules, 1989 (hereinafter referred to as 'the KMV Rules, 1989' 9 for short), Clause (ii) and (iii) of sub-rule (1) of the said KMV Rules, 1989, is not applicable as the said lorry was moving from one city to another city viz., Bengaluru to Ballary. Therefore, as per this Rule, the appellant/Insurance Company is not liable to pay compensation. Therefore, on these grounds the learned counsel for the appellant/Insurance Company prays to allow the appeals by setting aside the findings of the learned Commissioner so far as fastening liability on the appellant/Insurance Company and the second respondent/owner is liable to pay the compensation.
5. On the other hand, learned counsel for respondent No.1/claimants submitted that as per Section 147 of the Motor Vehicles Act (for short 'the M.V.Act'), the risk of the workmen/coolie/hamali is required to be covered compulsorily as they were travelling in the said lorry along with the goods as representative of the goods. Therefore, even though Insurance Policy is 'Act Policy', but the risk of these 10 workmen/coolie/hamali is compulsorily covered. Therefore, submitted appellant/Insurance Company is liable to pay compensation. Even though in the present case the Insurance Policy is 'Act Policy' but as per the legal provisions stated above, the appellant/Insurance Company is liable to pay compensation by indemnifying the second respondent-owner of the lorry.
6. To resolve the controversy involved into the case, it is necessary to discuss on the legal provision articulated in Section 147 of the M.V.Act. And Rule 100 of the said KMV Rules, 1989. Sub-rule (1) of the said KMV Rules, 1989, stipulates as follows :-
"100. Carriage of persons in goods vehicle.-. (1) Subject to the provisions of this rule, no person shall be carried in a goods vehicle: Provided that the owner or the hirer or a bona fide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform trvelling on duty may be carried in a 11 goods vehicle, the total number of persons so carried, - (i) in light transport goods vehicle having registered laden weight less than 990 kgs. not more than one; (ii) in any other light transport goods vehicle not more than three; and (iii) in any goods vehicle not more than seven: Provided that the provisions of sub-clauses (ii) and (iii) of the above proviso shall not be applicable to the vehicles plying on inter-State routes or the vehicles carrying goods from one city to another city.
7. Learned counsel for appellant/Insurance Company is banking upon the second provision in sub- rule (1) of Rule 100 of the KMV Rules, 1989 that the sub-clause (ii) and (iii) are not applicable where the goods carriage vehicle carrying workmen/coolie/hamali is carrying one city to another city or plying on inter State routes. Therefore, submitted in the present case the lorry was plying from Bengaluru to Ballary. 12
8. Learned counsel for the appellant/Insurance Company submitted that with the aid of the said Rules since in the present case even though it is proved that the respondent No.1/claimants were travelling in the said lorry which is goods carriage vehicle along with goods but because of this embargo the said sub-clause (ii) and (iii) of the KMV Rules, 1989 are not applicable. Therefore, it is the contention of the appellant/ Insurance Company to exonerate the appellant/ Insurance Company.
9. Section 147(1)(b)(i) of the M.V.Act is amended by inserting the clauses that "injury to any person including owner of the goods or his authorised representative carried in the vehicle" by substituting the word as "injury to any person". Therefore, by making amendment to this Section 147 of the Act, 1988 the risk in respect of the persons who are workmen/ coolie/ hamali/employee who were carrying in the goods carriage vehicle and even they are travelling along with 13 goods as authorised representative of the said goods or being the owner then the risk is mandatorily and compulsorily is covered and that is subject to the liability under the provisions of the Workmen's Compensation Act, 1924 in respect of death or bodily injury to any such employee as per said proviso. Therefore, in this regard, I place reliance on the decision of the Hon'ble Apex Court and this Court. In the judgment in National Insurance Co.Ltd., v. Prembai Patel and others [2005 ACJ1323 and while interpreting Section 147 of the M.V.Act were pleased to laid down the ratio at paragraphs 12 to 16, which as follows :- 12. The heading of Chapter XI of the Act is - "Insurance Of Motor Vehicles Against Third Party Risks" and it contains Sections 146 to 164. Section 146(1) of the Act provides that no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that 14 other person, as the case may be, a policy of insurance complying with the requirements of Chapter XI. Clause (b) of sub-section (1) of Section 147 provides that a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him in respect of death of or bodily injury to any person or passenger or damage to any property of a third party caused by or arising out of the use of the vehicle in public place. Sub-clauses (i) and (ii) of clause (b) are comprehensive in the sense that they cover both 'any person' or 'passenger'. An employee of owner of the vehicle like a driver or a conductor may also come within the purview of the words 'any person' occurring in sub-clause (i). However, the proviso (i) to clause (b) of sub-Section (1) of Section 147 says that a policy shall not be required to cover liability in respect of death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Act if the employee is such as described in sub-clauses (a) 15 or (b) or (c). The effect of this proviso is that if an insurance policy covers the liability under the Workmen's Act in respect of death of or bodily injury to any such employee as is described in sub-clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b), it will be a valid policy and would comply with the requirements of Chapter XI of the Act. Section 149 of the Act imposes a duty upon the insurer (insurance company) to satisfy judgments and awards against persons insured in respect of third party risks. The expression "such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy)" occurring in sub- section (1) of Section 149 is important. It clearly shows that any such liability, which is mandatorily required to be covered by a policy under clause (b) of Section 147(1), has to be satisfied by the insurance company. The effect of this provision is that an insurance policy, which covers only the liability arising under the Workmen's Act in respect of death of or bodily injury to any such employee as described in sub-clauses (a) or (b) or (c) to proviso (i) to Section 147(1)(b) of the Act is perfectly valid and permissible under the Act. Therefore, where any such policy has been taken by the owner of 16 the vehicle, the liability of the insurance company will be confined to that arising under the Workmen's Act.
13. The insurance policy being in the nature of a contract, it is permissible for an owner to take such a policy whereunder the entire liability in respect of the death of or bodily injury to any such employee as is described in sub- clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) may be fastened upon the insurance company and insurance company may become liable to satisfy the entire award. However, for this purpose the owner must take a policy of that particular kind for which he may be required to pay additional premium and the policy must clearly show that the liability of the insurance company in case of death of or bodily injury to the aforesaid kind of employees is not restricted to that provided under the Workmen's Act and is either more or unlimited depending upon the quantum of premium paid and the terms of the policy.
14. The aforesaid interpretation of the relevant provisions applicable to the case in hand is in consonance with the view expressed by a Constitution Bench in New India Assurance Co. 17 Ltd. vs. C.M. Jaya and others (2002) 2 SCC278 where, while interpreting the provisions of Section 95(2) of Motor Vehicles Act, 1939, the Court held as under in para 10 of the report: - "...The liability could be statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to rewriting the statute or the contract of insurance which is not permissible."
The Bench also referred to earlier decisions rendered in New India Assurance Co. Ltd. vs. Shanti Bai (1995) 2 SCC539and Amrit Lal Sood vs. Kaushalya Devi Thapar (1998) 3 SCC744 and observed that in case of an insurance policy 18 not taking any higher liability by accepting a higher premium, the liability of the insurance company is neither unlimited nor higher than the statutory liability fixed under Section 95(2) of the Motor Vehicles Act, 1939. It was further observed that it is open to the insured to make payment of additional higher premium and get higher risk covered in respect of third party also. But in the absence of any such clause in the insurance policy, the liability of the insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability.
15. Though the aforesaid decision has been rendered on Section 95(2) of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear that in case the owner of the vehicle wants the liability of the insurance company in respect of death of or bodily injury to any such employee as is described in clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) should not be restricted to that under the Workmen's Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the policy should also contain a clause to that effect. However, where the policy mentions "a policy for Act Liability" or "Act Liability", the liability of the 19 insurance company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen's Act.
16. The High Court, in the impugned judgment, has held that if the legal representatives of the deceased employee approach the Motor Accident Claims Tribunal for payment of compensation to them by moving a petition under Section 166 of the Act, the liability of the insurance company is not limited to the extent provided under the Workmen's Act and on its basis directed the appellant insurance company to pay the entire amount of compensation to the claimants. As shown above, the insurance policy taken by the owner contained a clause that it was a policy for "Act Liability" only. This being the nature of policy the liability of the appellant would be restricted to that arising under the Workmen's Act. The judgment of the High Court, therefore, needs to be modified accordingly.
10. The ratio laid down therein is the liability of the Insurance Company, is limited with the extent of provisions of Workmen's Compensation Act, but not 20 unlimited liability. In the present case also the respondent No/claimants have preferred the claim petitions under the provisions of Workmen's Compensation Act. Therefore, so far as liability of the Insurance Company is concerned which is as per the Workmen's Compensation Act as enunciated under Section 147 of the M.V.Act. Therefore, the ratio laid down in the above cited decision is applicable to the case on hand.
11. Then the Division Bench of this Court in the case of the National Insurance Co.Ltd., v. Lagamanna and others [2007 ACJ50 by relying on the above judgment of the Hon'ble Apex Court held the same ratio by stating that the liability of the Insurance Company is limited in terms of the provisions of the Workmen's Compensation Act.
12. This Court, in the case of The Oriental Insurance Company Limited v. Thukarama Adappa 21 and Others, [ILR2007KAR1712, while making interpretation of Section 147 of the M.V.Act after considering the various judgments rendered by the Hon’ble Apex Court discussed in the said judgment and the said interpretation is splendidly articulated in the said judgment of this Court which is articulated in paragraphs 18 to 20, as follows :-
"18. From the aforesaid statutory provisions and the law laid down by the Supreme Court, it is clear that Chapter 11 of the Act deals with the insurance of Motor Vehicles against third party risk. Section 145 deals with the definitions whereas Section 146 deals with necessity of insurance against third party risk. The requirement of policies or limits of liabilities are found in Section 147. Before any liability could be foisted on the insurance company, a policy of insurance must be a policy which is issued by a person who is authorized insurer. Sub-section (2) of Section 147 deals with the extent of liability of a third party covered under the said policy. In respect of damage to any property of a third party, the liability of the insurance company is limited to Rs.6000/-. In respect of the liability of 22 the 3rd parties and any passenger of a public service vehicle, the liability incurred is unlimited. The cover of insurance is against any liability, which the insured may incur in respect of death of or bodily injury to any person. By amendment Act 54/1994 which came into effect from 14-11-1994 the injury to any person includes the owner of the goods or his authorized representative carried in the vehicles.
19. The Proviso to Section 147 makes it clear the aforesaid policy shall not be required to cover liability in respect of the death, arising out of and in the course of employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of employment other than the liability arising under Workmen's Compensation Act, 1923, in respect of the death of or bodily injury to such employee who is engaged in driving vehicle, or as a conductor or examining tickets in a public service vehicle or who is carried in a goods carriage.
20. Therefore, it follows that under Section 147, the following class of persons are covered in the case of death or bodily injury. They are :- 23 (1) Third parties. (2) Owner of the goods or his authorised representative carried in the goods vehicle. (3) Any passenger of a public service vehicle. (4) The driver who is employed by the insured who is engaged in driving the vehicle. (5) An employee employed by the insured of a public service vehicle engaged as conductor of the vehicle or in examining the tickets of the vehicle. (6) All employees of the insured carried in a goods carriage. In respect of injured falling under class (1) to (3) the liability of the insurance company is unlimited. In respect of injured falling under class (4) to (6) the liability of the insurance company is restricted to the liability arising under Workmen's Compensation Act. Though in respect of class (1) to (3) referred to above, the premium is to be paid as per the terms of the contract, in respect of class (4) to (6) no premium is liable to be paid. The premium paid while taking the policy covering the risk of class (1) to (3) would be sufficient to cover the risk of class (4) to (6). In other words the liability to pay compensation in respect of class (1) to (3) arises out of contract and the liability to 24 pay compensation in respect of class (4) to (6) arises statutorily once the aforesaid contract is entered into. Therefore, it follows all persons who fall outside these classes/categories are not covered under the policy. They may be fare paying passengers, gratuitous passengers employees who do not fall under the aforesaid categories, etc., In Satpal Singh's case, under the Act, the Supreme Court interpreting the word "injury to any person" held, every one injured in the accident is now statutorily covered under the new Act. The liability declared as aforesaid in Satpal Singh's case is now expressly overruled as laying down not good law. In Asha Rani's case, Devi Reddy Kohda Reddy's case, Ajit Kumar's case and Baljit Kaur's case, the Supreme Court has held that the legislative intent was to prohibit goods vehicle from carrying any passengers. Carrying passengers in a goods vehicle is not contemplated under the Act. Though the Act mandates compulsory coverage against death of or bodily injury to any passenger of a public service vehicle and compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle, the liability was limited to liability under the 25 Workmen's Compensation Act, 1923. The legislature never intended to cover the risk of any passenger in goods carriage. The premium paid under the new Act would only cover a third party, any passenger of a public service vehicle as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. However, once such a policy is taken by paying the premium, statutorily the employees of the insured such as driver, conductor, ticket collector and who are carried in the goods carriage, are also covered to the extent of the liability under the Workmen's Compensation Act, 1923, the legislature never intended to provide for the liability of the insurer with respect to passengers in a goods carriage, especially gratuitous passengers who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people. Therefore, it was held injury or death to any person has to be confined only to persons who are expressly mentioned in the Section and the risk of all other persons whose name do not find a place in the Section are not covered under the policy. Therefore, fare paying 26 passengers, gratuitous passengers or even employees other than conductor and ticket collector in a public service vehicle, passengers in a goods carriage who are not employees of the insured are not covered under the policy.
13. Therefore, as per the decision of this Court in the above cited case, owner of the goods or his authorised representative who carried in the goods vehicle is also covered under the risk as per the 'Act Policy' as enunciated in Section 147 of the Act. Therefore, in the present case the respondent No.1/claimants were travelling in the said lorry along with loaded goods which is cotton and as authorised representative of the goods as a workmen/hamali. Therefore, the risk of these respondent No.1/claimants is covered as the principle of law laid down in the above cited decisions are squarely applicable to the case eon hand. 27
14. Further, I place reliance on the decision of the Division Bench of this Court in MFA No.6624/2007 (MV) dated 08.02.2010 in the case of Divisional Manger, United India Insurance Co. Ltd. and Smt. Sumitrabai & others and in this cited case also the very same and similar set of facts are involved that the workmen in the goods vehicle were proceeding from Kapargaon village to Latur along with their agricultural goods. and the said goods vehicle met with accident and two persons died, one is workmen and another one is owner of the goods. Therefore, while considering the case so far as death of the workmen is concerned in the said accident, the Division Bench of this Court while applying Rule 100 of KMV Rules, 1989, were pleased to hold that the Insurance Company is liable to pay compensation.
15. It is worthwhile to extract the ratio laid down at paras 9 and 10, their Lordships’ were pleased to observe as follows:
28. /p>
"9. Rule-100 of the Karnataka Motor Vehicle Rules--1989 provides that subject to provisions of this rule, no person be carried in a goods vehicle. However, the proviso to said section provides that owner or the hirer or a bona fide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform travelling on duty may be carried in a goods vehicle, the total number of persons so carried, in light transport goods vehicle having registered laden weight less than 990 Kgs., not more than one; in any other light transport goods vehicle not more than three and in any of the goods vehicle not more than seven (07) persons.
"10. As the maximum number of persons should be carried in a goods vehicle, as set out under the said provisions is seven, the insurance company is bound to indemnify the insured, in respect of death or injury caused to the person who was carried in the vehicle, as in the instant case, the number of persons carried is six namely, deceased Revanasiddappa, Indersingh and four other Amalies. In that view of the matter, we do not find any substance in the contentions urged by the counsel for the insurance company. Added to this, the learned single Judge of this court in connected MFA No.6628/2007 arose out 29 of the same accident has negatived the said contention. Therefore, we do not find any reason to interfere with the Judgment and award passed by the Tribunal and consequently, the appeal is liable to be dismissed.
16. In the above cited case, the facts are that six persons were carried in the goods vehicle along with the goods. Therefore, it was held that the insurance company is liable to pay the compensation, thereby dismissing the appeal filed by the insurance company.
17. Therefore, in the present case also having similar set of facts and circumstances as stated in the above cited case, by making interpretation of Rule 100 of the KMV Rules, 1989 and in the above cited case also there was death of workmen and owner was happened. Therefore, as per Clause (iii) of Rule 100, it was held the risk is covered. Therefore, in the present case also having similar factual matrix as that of in the above 30 cited case, applying the Clause (ii) and (iii) of Rule 100, the risk of the respondent No.1/claimants is covered.
18. Then coming to the second proviso to Rule 100 of the KMV Rules, 1989 which puts embargo that the sub-clause (ii) and (iii) of the KMV Rules, 1989 are not applicable where the goods carriage vehicle is plying inter State or from one city to another city but those proviso is repugnant to Section 147 of the M.V.Act, where Section 147 of the M.V.Act stipulates covering risk of persons who are authorised representative of the goods carried in the vehicle then putting embargo by way of such second provision to Rule 100 of KMV Rules, 1989, which is nothing but repugnant as stated in Section 147 of the M.V.Act by which amendment is made by the Act 54 of 1994 with effect from 14.11.1994. The Division Bench of this Court in Smt.Sumitrabai's case (MFA No.6624/2007) this second provision is not discussed. Therefore, the 31 above cited judgment is squarely applicable to the case on hand.
19. Section 2(14) of the M.V.Act, defines "goods carriage" as follows :-
"14. "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;" Therefore, considering Section 2(14) of the M.V.Act coupled with Section 147 of the M.V.Act, the risk of workmen/loader of the vehicle is necessarily to be covered under Section 147 of the M.V.Act as an 'Act Policy' without collecting any additional premium. Therefore, under this event the insurer in the present case is liable to pay the entire compensation in terms of the Workmen's Compensation Act. 32
20. As discussed above, a similar views are affirmed by this Court rendered in earlier judgments, in the case of New India Assurance Co.Ltd., v. Sri.Rajkumar and another [2009 Kant. M.A.C. 66 (Kant)].; Oriental Insurance Co.Ltd., v. Hanumantappa and others [1992 ACJ1083-DB].; and the judgment in MFA No.6624/2007 between the Divisional Manager, UIICL v. Smt.Sarojanibai and others.
21. Therefore, by applying the principle of law above stated and considering the factual matrix involved into the present case, respondent No.1/claimants were travelling in the lorry bearing Reg.No.KA-34/2097 which is goods vehicle along with the goods namely cotton as workmen/hamali and being authorised representative of the said goods for loading and unloading purpose. Therefore, when it is held that the second provision to sub-rule (1) of Rule 100 of the KMV Rules, 1989 as described above and in view of interpretation made 33 under Section 147 of the M.V.Act as in detail described above by this Court in previous judgments, the risk of respondent No.1/claimants in the present case is statutorily and compulsorily covered. Even though in the present case the Insurance Policy is 'Act Policy'. Therefore, it is statutorily burden on the appellant/Insurance Company to satisfy the risk covered in favour of respondent No.1/claimants. Therefore, upon considering all these materials on record and also the legal provisions enunciated stated supra, the appeals filed by the Insurance Company are found to be devoid of merits and hence are liable to be dismissed. Hence, I proceed to pass the following :-
ORDERThe appeals filed by the Insurance Companies are dismissed. The Common order in proceedings in WC(CR) No.730 to 735 of 2008 dated 21.10.2011, passed by the Commissioner, Workmen's Compensation, Raichur is 34 hereby modified by saddling burden on the appellant- Insurance Company to pay compensation by indemnifying the second respondent-owner as per the contract of insurance by paying compensation to the claimants/legal heirs of the deceased. iii. No order as to costs. iv. The amount in deposit made by the appellant/Insurance Company shall be transmitted to the learned Commissioner along with records. v. Draw award accordingly. As the appeals are dismissed, saddling burden on the appellant/Insurance Company by indemnifying the second respondent/owner of the vehicle, therefore, issuance of notice to respondent No.2/owner of the vehicle is hereby dispensed with. Sd/- JUDGE sn