IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 3rd DAY OF NOVEMBER, 2o09:']*..
BEFORE
THE HONBLE MR. JUSTICE ANAND BYRA§'<ED'13_Y I
MISCELLANEOUS FIRST APPEALINOS.' '3V1'33/2--(i_'(i4_
7953/2004 85 8134[2f§{)4
MFA No. 8133/2004 I ' ' I
BETWEEN :
ORIENTALINSURANCE CQLTD "
BELLARY
THROUGH ITS BANGALQRE_'=. 2
REGIONAL 0EE1:::E,'---N0:44/4_:5:, ' "
LEO SHOPPING cg::M_P1.,EX,';_ _ "
RES1DENCY'_'R'O"A13_J 4'
BANGALORE --V 56Of{)2I:3.V
REP BY REGIONAL M,ANAc3E¥-:" APPELLANT
(By Sri. ..: G.1\f.'RAIcHUR;- ABV)
_____
E " ~ .DU~R('}A'IVIMA
31 YRS",
g "1.Aw/0-HANUMAPPA ITAGI
-.12 /Q~i\§A}?:{NAL VILLAGE
TQEKVUSHTAGI, KOPPAL
' *=.13AL}AMMA
= £36 YRS,
'V55
W/O RAMAPPA ITALGI
R/O AIARINAL VILLAGE
TQ: KUSHTAGI, KOPPAL
NAGARAJU
20 YRS,
S /0 HANUMAPPA ITAGI
R/O NARINAL VILLAGE
TQ: KUS1-ITAGI, KOPPAL
AKKAMMA
19 YRS,
D/O HANUMAPPA ITAGI V
R/O NARINAL VILLAGE -
TQ:KUSHTAGL
KOPPAL
DURGAMMA
16 YRS, ,
D /O HANUMAPPA I',IiAGI-, I
R /0 NARI1\§AL VILLAGE '~
TQ:I<USII<_rAGL= I<:QPI?AL'"'
LAXMA1\/IMA' -» A '-
14 YRS, ' I
D / 0 IIANUII/I'API«:A "IT_A'GI
Ia/..0 NARINAL VILLAGE
.. «iIjQ: SI{USHTAG1z._.__'_§C=PPAL
. RA.,MAKRI'SHNA
" V _ 1 'i»'.RS," S/O HANUMAPPA ITAGI
~. " /o«NA_RII~IAL VILLAGE
' TQ: }<.US.,.I1TAGI, KOPPAL
DQDDABASAVA
A 9 YRS, S /O HANUMAPPA ITAGI
/0 NARINAL VILLAGE
V' KUSHTAGI, KOPPAL
8
U.)
9 SI-IIVAGANGAMMA
5 YRS, D /O HANUMAPPA ITAGI
R/O NARINAL VILLAGE
TQ: KUSHTAGI, KOPPAL
- RESPONDENTS6 TO 9 ARE MINORS ,
REP BY THEIR MOTHER AND NATURAL
GUARDIAN — RESPONDENT NO.1.
10 CI-IANDRASHEKAR D KALE ;
MAJOR R/O GODABALEMALA’-._ 1 .. ‘ I _
BIJAPUR V . RESPONIEIAENTS
(By Sri. : UMESH v MAMADHAPv[IRV,IbAD\} EORRI: I
THIS MFA IS FILE.D:”UN’DE;R.SECTION 30(1) OF THE
WORKME3N’S cOMPENSATI=ON.*’ ACT .”;.vA’_c}AINST THE
JUDGMENT AND AWARD’ vDATED.A’1,3.9″;2Q’04’ PASSED
IN NO.WCA.1]~3′,’?,Q’O4 ON; THE. THE LABOUR
OFFICER_S___3’ANDV:;,__CO.MMISSI().NER FOR WORKMEN
COMPEVNSATIOIN, KOPPAD. AWARDING COMPENSATION OF
RS.2,21;.844/~ .WI’f’}I,_Ii”ETI3RE}ST ‘AT 12% P.A. & DIRECTING
THE APPELLANT HEREIN’-TODEPOSIT THE SAME.
MFA NO. 7958/2v0O4._ R’
IIIII
‘*._OE’IENTAL~INSUEANcE co LTD
«EIJ.APUR;–«._, ‘ ”
THROUGH ITSIBVANGALORE REGIONAL
OFFICE NO AA/45,
; LEO SHOPPING COMLEX,
‘RESIDENCY ROAD
6
BANGALORE,
REP BY ITS REGIONAL MANAGER APPELLANT
(BY SR1 G N RAICHUR, ADV)
ANQ
1. HANUMAWWA
W/O KARIBASAPPA _
MAJOR _ v
R/O HOSUR, TQ: YALABURGA’. I ‘
DIST: KOPPAL ,
2 MANJUNATH URF’ MANJAPPPA
MAJOR
S/O II>A” * 1′
R/O HOSUR, TQ: YALABU_Rc.TAV
DIST: KOPPAL
3 C D I<ALE_..
MAJOR H
SI;.§DESHI;i;fARA.DIS:TR’IEUTORS
C /’O RAMA EATTERK _
OPPPWD OFFICE
RAICHUR _ RESRONDENTS
(By J S SHVETTY, ADV FOR R-1 8:; 2
& SR1 UMESAH v MAMADHAPUR, ADV FOR R-3 )
FILED UNDER SECTION 30(1) OF THE
WORE{MEN”S’j_ £=COIvIPENSATION ACT AGAINST THE
JUD’GME’N’I’-,«–AND AWARD DATED 31.8.2004 PASSED IN
T.NO.24,<.20gI4 ON THE FILE OF THE LABOUR OFFICER AND
_COI.IMISSIONER FOR WORKMEN COMPENSATION,
'-.I'PA_TIL, AWARDING COMPENSATION OF’ RS.2,21,004/-
WITH”INTEREST AT 12% P.A. DIRECTING THE APPELLANT
I-IEREIN TO DEPOSIT THE SAME.
<3
MFA NO. 8134/2004
BETWEEN:
ORIENTAL INSURANCE CO LTD
BELLARY
THROUGH ITS BANGALORE
REGIONAL OFFICE, NO 44/45,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE— 560 025
REP BY REGIONAL MANAGER – APPELLANT
(By Sri. : G.N.RAICHUR,–AA’::v)
AND
1 , _ —
W-,1O’~DURGAPPA»A.v
31’YR’S-._ ‘ ‘
_I-I.IRE1\IuII’\'(:}AI?I.3’A
.. «AS/O EYLAPPA_
£0
I3 I ” ‘SAIIGAI’Iv:II§AA
~. ” –.._w}’O”_~I«{IRE’NINGAPPA
‘ 58 ,Y.RS¢._ *
– ~~ ALL ARE R /O NARINAL VILLAGE
TQ: KUSHTAGI, DIST: KOPPAL
142:’ ‘CHANDRASHEKAR I).I<ALE
MAJOR, OWNER OF THE VEHICLE
E
all these three appeals being the insurer of the vehicle
involved in the accident, is before this Court.
3. The common grounds that are raised in [these
appeals are that the deceased victims were unaJ._1thoiis_ed’
passengers being carried in the vehicle and sincie._Vthe:_v.ehicIe _&
involved was a goods vehicle and sinee”Lhe71iabilit§”.did”not7
permit carriage of unauthorised pers’o__nsx_in the’;-_:»a’id veh:i4c’iep,l”
the liability of the appellanlt–‘ivn:s’urer ttakeizx and
therefore the Commissioner was ‘error inhholding and
accepting the contention were harnalis
that were fastening the
liability: on the’ivins_uiA9ed.–_Se’cond_ly, it is contended that even
if it is acc’ept’ed that were hamaiis, the policy of
insurance that hissu-edvlby the appellant did not cover the
l””risk.-_@:f Coolies or harnalis that were carried in the goods
yehicle=. V:flV’_hcVlicert.ificate of insurance would clearly disclose
tha’;__a was paid to cover the risk of the driver and
.”..t1’1C cleaner and not hamalis and under Endian Motor Tariff,
“::prerni’t«1m prescribed under IMT 38 thereto, is a sum of
Rs%.25/– each to cover the risk of the driver and cleaner
which amount had been paid under the policy of insurance.
The maximum number of harrialies that are legally
to be carried in a goods vehicle are five in ]_’1’L1I’I’1iIiE”:’I’vi..:”‘z’3iI1’i’Ci-~_7i’-
unless additional premium was paid_ und,er””the.lM’l”,3£3v
prescribed under India Motor Tariff,*.__the;ir .riskt»is”not coiiereéi_’
and hence even if it is accepted that the dece.ao.e_d were , *
hamalies that were carried in th1i:(:;V._iiy%gehVic1e,ii there is no
additional premium vine.jcoinsideration for the
creation of a contract of risk of such
harnalies and?__i: the for Workmen
compensation the liability on the
insuraricie i my 71
4.iThe”counsie£i:.ifor”respondents, on the other hand,
would. ,su’prnit whether the deceased victims were
i”vhamaliiesf’eor “i1nauthorised passengers was clearly a question
of’ifa_ct;tA the:giCorn_rn.issioner having found that they were infact
haroalies,.is”i–r1ot a question that can be gone into in the
‘present appeals as it does not involve a substantia} question
but is a question of fact and therefore cannot be
adjudicated. The further contention that there was no
6’
10
for the appellants does not render finality to the question
whether liability of the insurer is absent. The counsel would
further submit that the claim being made under ags(‘;.cial
beneficial legislation, has to be viewed in faV'()l.1.lf’qiuO’fV.
claimants and given the room for doubt as to the livability off
the insurer, in View of the fact that policygofV:i11.suvrance”‘.
being issued is not denied, the benefit doubt_–v_has to
favour of the claimants and therefore denialoif pcompeinisation
would result in gross inji.istieep..andiheiice woulidsubmit that
as no substantial question lavv7i:3 invol’v.ed,. the appeals be
dismissed.
El. Givenljhe abow;-“facts and circumstances and on a
close examination’ of-,the ‘1-‘,ec”or’d, it is seen that the liability to
cover. the risk of ‘a driver and cleaner evidence the payment
additional..&premiiirniiof Rs.50/– which is paid under the
As is fully evident, the additional liability
to’c_overf1’1e’-risk of hamalies or coolies carried in the goods
igvehicle’ wculd be attracted under {MT 39 only on payment of
iiadditional premium of R325/– each. This is not apparent
from an examination of the certificate of insurance. The
6
11
standard clause exempting liability in respect of workmen
exceeding the number of persons permissible to be..Vca,riri.ed
under the provisions of the Act by itself does _
liability on the insurer. It would only indicate_:that’~.eVen
such liability is attracted, it cannot exceed; the.’nlu–rnber.__th..at.i
can possibly be carried on v_ehicle,_ under iythie provisions
of Motor Vehicles Act. It is noti’t’tenable to-co:n’teni:l§that the
insurer’s liability is the clause
which restricts its Commissioner
was not justi,fieti«,i.Vp:,eve1i=i__ deceased were
harnalies that where’ vehicle, to fasten the
liability: for of,yc«ovrr1pe’nsation in respect of such
harI1a1ies,fVo”rp allegetfhainalies, on the appellantdnsurer.
However, sinuce._th’e~appellantdnsurer is only to indemnify the
l”‘v.j,nsured:,;». employer Hinipayment of such compensation, the
‘vthepart of employer, who has not seriously
disp_utedv.thal§. the accident has occurred during and in the
l’gcourse”ofiemployment and that the death of the employees
‘ilhas ‘occurred during and in the course of employment, the
6
*SPaadttt
employer would be clearly liable for payment of
compensation.
6. Accordingly, the appeals are a11owedLe’.._””‘T_he
respondents are at liberty to work out their _r;e’zneglie’s5
recover compensation from the employer _.co:_ieeri1.eVd,._ the
appeals stands disposed of accoifidingiiyjev
deposit in each of these »appeaIs~-Ape refurided «tot
appellant.