JAYAMMA v. MAHESHWARAPPA

Judgment

1. JAYAMMA, W/O LATE RUDRAPPA, AGED ABOUT 36 YEARS,

2. KARIYAMMA, D/O LATE RUDRAPPA, AGED ABOOUT 16 YEARS,

3. RANGASWAMY, S/O LATE RUDRAPPA, AGED ABOUT 14 YEARS,

4. ANNAPPA S/O LATE RUDRAPPA, AGED ABOUT 13 YEARS, APPELLANTS NO.2 TO 4 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN NEXT FRIEND MOTHER APPELLANT NO.1 JAYAMMA,

5. THIPPAMMA, W/O LATE RANGAPPA, AGED ABOUT 68 YEARS, ALL ARE R/O SINGATAGERE VILLAGE, HONNALLI TALUK - 577 217,

JYOTHI J Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:3588 MFA No. 9076 of 2017 DAVANAGERE DISTRICT. (BY SRI. SHASHIDHARA R, ADVOCATE) AND:

1. MAHESHWARAPPA, S/O DODDABASAPPA, MAJOR, OWNER OF TRACTOR AND TRAILER BEARING NO. KA-17/T-9948-9949, R/O TARAGANAHALLI VILLAGE, HONNALI TALUK - 577 217, DAVANAGERE DISTRICT.

2. THE MANAGER, CHOLAMANDALAM, MS GENERAL INSURANCE CO. LTD., 1ST FLOOR, KALBURGI SQUARE, DESHPANDE NAGAR, HUBLI - 580 020. (BY SRI. H.S. LINGARAJ ADVOCATE FOR R2; R1 - NOTICE SERVED) …APPELLANTS …RESPONDENTS THIS MFA IS FILED U/S 30(1) OF THE W.C. ACT AGAINST THE JUDGMENT AND AWARD DATED 26.08.2017 PASSED IN ECA NO.19/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC, MACT, HARIHAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2024:KHC:3588 MFA No. 9076 of 2017 JUDGMENT This appeal is filed under Section-30(1) of the Workmen's Compensation Act 1923, (hereinafter referred to as ‘Act’ for brevity) by the appellants-claimants calling in question the impugned judgment and order dated

26.8.2017 passed in ECA 19/2014 on the file of Senior Civil Judge and JMFC., Harihar, , (hereinafter referred to as ‘the Commissioner' for brevity) questioning exoneration of the insurance company from the liability of paying the compensation to them and also seeking enhancement of compensation.

2. Brief facts of the case are that: The deceased was traveling as a coolie on 20.6.2011 in a Tractor-Trailer to unload the paddy grass and due to rash and negligent driving of the driver of the Tractor- Trailer, he fell down and sustained injuries. He was shifted to S.S. Hospital, Davangere where he succumbed to the injuries on 21.6.2011. - 4 - NC: 2024:KHC:3588 MFA No. 9076 of 2017

3. Hence, a claim petition was filed by the appellants-claimants under Section-22 of the Workmen's Compensation Act claiming compensation. The deceased was a Coolie and was earning Rs.6,000/- per month and Rs.50/- as batta per day. The appellants, who are wife, children and mother of the deceased were dependant upon the earning of the deceased. The Commissioner on appreciating the material evidence on record, allowed the petition in part, and awarded a compensation of Rs.7,88,240/-, along with interest at 12% per annum from the date of petition till realization to be paid by owner of the Tractor-Trailer and exonerated the insurance company from liability.

4. Heard the arguments on both sides and perused the records.

5. Learned counsel for the claimants submitted that the deceased was working as a Coolie and after unloading the paddy grass was traveling in a Tractor- Trailer under the employment of respondent No.1, who is - 5 - NC: 2024:KHC:3588 MFA No. 9076 of 2017 owner of the Tractor-Trailer and at that time, the deceased fell down from the said vehicle which was out of and during the course of employment and as a result, he succumbed to the said injuries. He further submitted that as on the date of the accident, the insurance policy was in force and it covered the risk of the employees, who were carried the vehicle, but the Commissioner Workmen's Compensation has held that the death of the deceased was caused due to involvement of the offending vehicle and as he was working under the owner of the Tractor-Trailer as on the date of accident, the risk of the employee was validly covered by the policy and hence, liability ought to have been fastened on the insurance company. He further submitted that when Ex.R-5- insurance policy is the package policy and it is proved that the deceased was an employee as defined under Section 147 of the Motor Vehicles Act, the risk of the employee is compulsorily covered. In so far as the employee is concerned, under the Workmen's Compensation Act also, when the insurance policy is comprehensive policy, it - 6 - NC: 2024:KHC:3588 MFA No. 9076 of 2017 shows that there is an additional collection of premium of Rs.25/- towards the risk of the employee. Hence, the Commissioner has committed an error in exonerating the insurance company and fastening the liability on the owner of the vehicle in question to pay the compensation. Therefore, he submitted that the impugned judgment and order exonerating the insurance company is liable to be set aside by holding that both the insurance company and the owner of the vehicle in question are jointly and severally liable to pay the compensation and in view of the fact that the insurance policy covers the risk of an additional employee as additional amount of Rs.25/- is collected, insurance company shall pay compensation to the claimants by indemnifying the owner of the Tractor-Trailer.

6. On the other hand, learned counsel for the Insurance Company submitted that deceased died while he was traveling as a gratuitous passenger in a goods vehicle with others against the seating capacity and there is no - 7 - NC: 2024:KHC:3588 MFA No. 9076 of 2017 relationship between the deceased and the owner of the vehicle as employer and employee. Even otherwise, the driver of the vehicle had no valid and effective driving licence at the relevant point of time. Therefore, it cannot be said that death of deceased is out of and in the course of employment. Hence, justified the order passed by the learned Commissioner.

7. The undisputed facts are that the deceased was working as a coolie under the 1st respondent/owner of the Tractor-Trailer and was traveling in the said vehicle under the employment of respondent No.1, who is the owner of the vehicle in question.

8. It is the case of the claimants that deceased was working as a coolie under employment of the respondent No.1 and after unloading paddy crops was travelling in the tractor trailer, which is owned by the respondent No.1 and at that time, the deceased fell down and succumbed to injuries. This averment is alleged in the complaint lodged before the police. When at every initial - 8 - NC: 2024:KHC:3588 MFA No. 9076 of 2017 point of time and at an undisputed point of time averments are made, that is having more credentials than later versions. When the deceased was working as a coolie, documentary evidence cannot be expected regarding proof of avocation. Respondent No.1 has not disputed that deceased was working under him as a coolie. Therefore, it is proved that death of deceased is out of and in the course of employment.

9. Further Ex.R-5 - insurance policy is a package policy. Under the package policy what are the risks covered under Section 147 of Motor Vehicles Act and also whether more risks are covered? Therefore, under the package policy it is not only compulsorily coverage of risk, but also additional risk are covered as per premiums are collected. Therefore, package policy is having bigger circle covering more risks under Section 147 of Motor Vehicles Act, as liability is only an act policy comparatively small circle than package policy. In the present case, Ex.R-5 - insurance policy proves an addition premium of Rs.25/- is - 9 - NC: 2024:KHC:3588 MFA No. 9076 of 2017 collected towards risk of employees. The deceased was working as coolie, which proves risk of employee is covered. Therefore, the learned Commissioner has committed an error in exonerating the insurance company. Therefore, both the respondents are jointly and severally liable to pay the compensation to the claimants and thus, insurance company shall indemnify the owner and pay compensation to the claimants.

10. So far as the quantum of compensation is concerned, Commissioner for Workmen's Compensation has correctly considered all the parameters and determined the compensation which needs no interference by this Court. Hence, I proceed to deliver following: ORDER i. ii. Appeal filed by the claimants is allowed- in-part. The impugned judgment and award passed by the Labour Officer and - 10 - NC: 2024:KHC:3588 MFA No. 9076 of 2017 Commissioner Employee's Compensation, Chitradurga District in ECA No.19/2014 is hereby modified holding that the respondent-insurance company shall pay the compensation claimants. iii. No orders as to costs. Sd/- JUDGE NSU List No.: 1 Sl No.: 58 CT: BHK