JUDGMENT
K. Sreedhar Rao, J.
1. All the appeals arise out of the same accident. The lorry was transporting cement loads from Bellary to Kampli and there were about 50 inmates. The lorry met with an accident resulting in 11 deaths and 14 injuries. In respect of the 7 deaths the legal representatives have filed application before the Workmen’s Compensation Commissioner seeking compensation. It is said that all the seven deceased persons were travelling as loaders in the lorry. The Commissioner for Workmen’s Compensation awarded compensation to the petitioners directing the insurer to pay the compensation. The insurer is in appeal seeking avoidance of the liability on the ground that the deceased persons are the unauthorised passengers in the goods vehicle and that the insurer has no liability to pay compensation.
2. The owner of the lorry remained absent before the Workmen’s Compensation Commissioner.
3. The following substantial questions of law arise for consideration:
(i) Whether the Workmen’s Compensation Commissioner committed grave legal error in not considering the evidence which shows that the deceased were unauthorised passengers and as such the insured is not liable to pay the compensation?
(ii) Whether the petitioners are not the dependants of the deceased either partially or wholly and that the petitioners are not entitled to compensation?
(iii) Whether the compensation awarded by the Workmen’s Compensation Commissioner is legally fallacious and not in accordance with the provisions of the Workmen’s Compensation Act?
4. One Sannappa and his son who were waiting for the bus at Kuduthini, boarded the lorry which was coming from Bellary loaded with cement with good number of inmates. After the accident Sannappa has lodged the F.I.R. The legal representatives of the seven deceased persons have let in evidence and testified to the fact that the deceased persons were travelling as loaders. The F.I.R. may not corroborate the contention. But it does not also positively contradict the version of the petitioners. Sannappa boarded the lorry in the midway of the journey. Therefore, he is not competent to speak whether the deceased inmates in respect of whom the claim petitions are filed were travelling as unauthorised passengers or as loaders. Hence, the contents of the F.I.R. cannot be a basis to hold that all the deceased inmates were travelling as unauthorised persons.
5. Two of the deceased are minors aged about 15 years and three of the deceased are female members and two are male persons and majors. It is argued that minors and female persons could not be loaders in the lorry is an untenable contention. In the construction sector we do find women doing hard work. Therefore, the fact that on the ground of three of the deceased are female members, therefore, they cannot be deemed to be loaders is an untenable contention.
6. The contention that the children aged about 15 years cannot be employed because of the legal prohibition and cannot be considered as loaders is an untenable contention. If the children are employed in breach of labour laws, the employer may render himself liable for prosecution. But the fact that the minor was employee cannot be ignored. If any accident occurs, the minor or his legal representatives are indeed entitled to seek compensation.
7. The oral evidence of the legal representatives seeking compensation discloses that some of the petitioners are widowers and some are parents. It is in the evidence of the said witnesses that all of them are dependent on the income of the deceased.
8. In working class families each one of the members do attend to work and pool all their income for the livelihood of the family. Hence, under such circumstances, it is to be deemed that each one of the member of the family is partially dependent on the other. Hence, the petitioners are deemed to be dependant within the definition of Section 2(1)(d) of the Workmen’s Compensation Act.
9. In M.F.A. No. 2708 of 2001 relating to W.C. No. 908 of 1999 deceased is aged 24 years. According to the provisions of Workmen’s Compensation Act the income of the deceased is assessed at Rs. 1,500 p.m. The minimum wage assessed by the Workmen’s Compensation Commissioner is Rs. 1,850 p.m. 50 per cent of the said income multiplied with relevant factor 216.91 works out to Rs. 2,00,642 as legal compensation payable under Workmen’s Compensation Act.
10. The deceased in W.C. No. 909 of 1999 (M.F.A. No. 2709 of 2001) is a minor aged about 15 years. The computable income is Rs. 9,250 multiplied by relevant factor 228.54, works out to Rs. 1,71,405 as the legal compensation payable under the Workmen’s Compensation Act.
11. The deceased in W.C. No. 910 of 1999 (M.F.A. No. 2710 of 2001) was aged about 32 years and his total income was Rs. 9,250. Multiplied by relevant factor 203.85, it works out to Rs. 1,88,561 as the legal compensation payable under Workmen’s Compensation Act.
12. The deceased in W.C. No. 911 of 1999 (M.F.A. No. 2711 of 2001) is aged about 32 years. The computable income is Rs. 9,250 multiplied by relevant factor 221.37, works out to Rs. 2,47,675 as legal compensation payable under Workmen’s Compensation Act.
13. The deceased in W.C. No. 912 of 1999 (M.F.A. No. 2712 of 2001) is aged about 15 years. The computable income is Rs. 9,250 multiplied by relevant factor 228.54, works out to Rs. 1,71,405 as legal compensation payable under Workmen’s Compensation Act.
14. Deceased in W.C. No. 777 of 1999 is aged about 20 years. The minimum income is assessed at Rs. 1,250. 50 per cent of the said income multiplied with relevant factor 228.54 works out to Rs. 1,42,837 as legal compensation payable under the Workmen’s Compensation Act.
15. The compensation awarded in W.C. No. 1002 of 1999 relating to M.F.A. No. 3004 of 2001 is just and proper.
16. Accordingly, the substantial question Nos. 1 and 2 are answered in the negative and question No. 3 is answered partly in the affirmative.
17. The policy is an Act policy, the liability of the insurer is to cover the risk of only six coolies. The insurer shall pay highest of compensation awarded. In six out of the seven cases, the insurer however does not incur liability to pay compensation in M.F.A. No. 3004 of 2001 in respect of W.C. No. 777 of 1999.
18. In case of overloading, the inmates also equally contribute to the inequitable situation when there is an accident. The persons getting highest of the compensation shall be entitled to seek compensation from the insurer. The persons getting lesser compensation have to enforce the award against the insured. The recovery of money from the insured is unpredictable proposition. Therefore, in equity it is necessary that the persons getting compensation from the insurer should donate some percentage of their compensation to the claimants who have no benefit of recovery of compensation from the insurer. In this case the petitioners in W.C. Nos. 908, 909, 910, 911, 912 and 1002 of 1999 shall contribute 15 per cent of their compensation with interest for payment to the petitioners in W.C. No. 777 of 1999. The unpaid balance of compensation in all the 7 cases shall be recovered from the owner.
19. Accordingly, the M.F.A. No. 3004 of 2001 is allowed. The award against the insurer is set aside. The amount in deposit shall be refunded to the appellant insurer.
20. The other appeals are dismissed and the amount in deposit in the other appeals shall be transferred to the Tribunal for payment.