Judgment:
1. Second respondent - Insurance Company in CR 6/2006 on the file of Commissioner for Workmen's Compensation. Bangalore, has come up in this appeal challenging the order dated 12.09.2006 passed in the said proceedings.
2. Brief facts leading to this appeal are as under:
Claimant Nos.1 and 2 are respectively the widow and mother of deceased Ranganath. It is their case that the deceased Ranganath was travelling in Tractor bearing No.AP-27/T 454 Trailer No.AAE-776G belonging to first respondent and insured with the second respondent. The ease of the claimants is that the deceased was travelling in the said Tractor - Trailer, while mud was being transported from Doddaballapur to Bangalore. The said Tractor - Trailer met with an accident on 12.02.2004 at about 3.30 p.m.. near Marasandra on the way from Doddaballapur to Bangalore. As a result, Ranganath fell down from the Tractor and went under the tyre of the Tractor, resulting in his instantaneous death. Hence Claim Petition was filed by the widow and mother of the deceased, seeking compensation for his death.
3. In the said proceedings, the Commissioner on appreciation of the pleadings and evidence available on record, proceeded to allow the Claim Petition awarding compensation lo them in a sum of Rs.2,17.607/- payable with interest, at 12% p.a.. from the thirtieth date of order till date of deposit of entire amount. Second respondent -Insurance Company being aggrieved by the same, has come up in this appeal on the ground that the accident resulting in the death of Ranganath has taken place while he was sitting on mudguard of Tractor and Trailer and travelling in the said vehicle, loosing control has fell down, after coming under the wheel of the Tractor has died instantaneously, therefore there is negligence on the part of the deceased himself in causing the accident resulting in his death. It is also the case of the Insurance Company that the policy issued by them in respect of the Tractor cover the risk of only the driver and not that of any passenger, in view of the fact that there is no seating capacity to anybody other than the driver. Since the deceased was travelling on the mudguard of the Tractor -Trailer, the death of Ranganath falling from the said place is due to his own negligence and that there is no liability on the part of the Insurance Company to cover the risk of his death.
4. This Court admitted the appeal to consider the following substantial questions of law raised in the appeal memo:
1. Whether the Commissioner acted perversely in making the appellant liable to pay the compensation assessed in respect of the alleged coolie who died while travelling on the mud-guard of the tractor insured with the appellant whose risk is not covered under the policy produced before hm as per Ex.R-2-1 nor it is contemplated in law?
2. Whether the Commissioner was justified in not noticing that the policy issued by the appellant did not cover the risk of any other workmen, except a driver?
5. Heard the counsel for appellant and respondent No.1. Perused the grounds of appeal and also the findings of the Commissioner in the order impugned. On re-appreciation of the same, this Court answer the first substantial question of law in the affirmative and the second one in the negative, for the following:
REASON
6. The fact that the deceased Ranganath was employee of first respondent is not in dispute. It is also not in dispute that the claimant Nos. 1 and 2 are the widow and mother of the deceased Ranganath. It is further not in dispute that the first respondent is the owner of Tractor, which is insured with the second respondent, appellant herein, it is an admitted fact that on 12.02.2004 at about 3.80 p.m.. deceased Ranganath fell down from the Tractor suffering grievous injuries, resulting in his death. However, material available on record clearly discloses that at the relevant time of accident deceased Ranganath was sitting on the mudguard of Tractor. Admittedly the Tractor is a goods carriage and the seating capacity of the Tractor is only person, i.e., driver. Therefore, travelling of deceased Ranganath sitting on the mudguard of the said Tractor itself is an illegal act, for which he is not entitled to be compensated. Infact, this aspect of the matter is decided by this Court in the matter of National Insurance Company Limited v. Bramaranbike and others reported in 2005(4) KCCR 2359. wherein it is clearly held as under:
"2. The provisions of Regulation 28 in Appendix-2 pertaining to Rules and Road Regulations, 1989. formulated under the Motor Vehicles Act, categorically declares that the driver when driving the tractor shall not carry or allow any person to be parried on the mudguard of a tractor. The effect of the regulations makes any person travelling in a tractor apart from the driver is illegal and would be an unauthorized passenger. The policy of insurance issued does not cover the risk of an inmate of the tractor. The permitted seating capacity for the tractor is only that of a driver and no other person. In the instant case, the vehicle being only a tractor at the time of accident, there is no legal possibility of coverage of the risk of an inmate of a tractor. In that view of the matter, the award passed by the Tribunal against the insurer is illegal."
Similar view is taken by this Court in unreported judgment arising in MFA No.7468/2002 (WC) disposed of on 05.07.2005 and in MFA No.2438/2006 (MV) disposed of on 01.12.2008 and also by the Division Bench of Kerala High Court in the matter of United India Insurance Co. Ltd., v. C.I.Abraham reported in 2009 ACJ 492.
7. In the light of the aforesaid decisions, this Court answer the substantial questions of law as above, in favour of the Insurance Company.
8. In the result, appeal filed by the Insurance Company is allowed. The order dated 12.09.2006 passed by the Commissioner for Workmen's Compensation, Bangalore, so far as fastening the liability to pay the compensation is set aside. In the light of the appeal being allowed, the entire amount in deposit is ordered to be refunded to the appellant.