IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12?" DAY OF NOVEMBER, 2010
BEFORE
THE HONBLE MRS. JUSTECE B.v.NAGARA5?fHN;_A-A Of. _
M.F.A.No.3277/20g9nNC)_- ~ .-- .:'jj., O'
BETWEEN:
UNITED INDIA INSURANCE coMPA1~«1y"--_V_
JAYADEVA COMPLEX, B.H.RoAp A
TUMKUR, NOW REPTD. BY
REGIONAL OFFICE
SHANKARANARAYANA BUELDING
M.G.ROAD, BANGALORE?{560_OQ;1, "
BY ITS MANAGER "
... APPELLANT
{By
.....
‘ 11.,” ” .. Sm ‘3;AI§K.A_pPA
AG,1’i:D’AE:oUT 52 YEARS
‘vs/0 JAJJOIIRANGAPPA
2. SM:*’.pUTTAMMA
A ‘E ._AGED ABOUT 47 YEARS
T _AW/O LAKKANNA
BOTH RESIDENTS OF
GAJAMARANHALLI VILLAGE
SHIRA TQ., TUMKUR DIST.
3. SRI.M.D.JANNAPPA
MAJOR BY AGE
WW,»-“”1
S/O DODDA HONNAPPA
MUGANAHALLY
GULIGENAHALLY POST
SIRA TQ., TUMKUR DIST.
[By S11′: C.M.KEMPEGOWDA, ADV. FOR .
K.HANUMANTHARAYAPPA, ADV. FORVRAS). .’ ‘~
THIS MFA IS FILED U/S OF’ vi/Xe AGAINST
THE JUDGMENT DATEE.g7.0¢iI;2o0jS EASSED IN’ WCA/CR-
108/2007′ ON THE OFFICER AND
COMMISSIONER F’OR_… Vleoii/IPENSATION,
TUMKUR Dfififlgfi §TfiMKU§N7»WflmMMunNG A
COl\/IPENSA’lf:I(‘j1l\i_.._Qi?v-I{S..’3-313?,Goijf-“‘lWITH INTEREST @ 12%
RA __ h’i I
This a~ppe.sl’lc’omTii1gl”for Hearing this day, the court
delivered the followingjo l”
f*0UDGMENT
.fl.lTl;1iSV is filed by the insurance company by
-c hallenlginlga. lithe order dated 27.1.2009 passed in
V’ 108/07 by the Labour Officer
–.éi-ncl’:Commissione1′ for Wo:rkmen’s Compensation, Tumkur
” -« lfjilsfrict, Tumkur (herein after referred to as
uW.C.C0mmissi0ner), raising the following Substantial
question of law: iii
,.M”‘
Whether the Commissioner was justified
holding that there was relationship of empl&oyee”‘«k7
and employer between the deceased is
insured contrary to the specific stand__o..f « A
of the said relationship by theWinsure–d
and also granting compensatien ”
decision of the Apex Court relied’ on gtheggg
appellant and saddling liability on tl1e_app-ellant
to pay the compzegrlsation lwith””-.interestweven
though admittedly = A d.ece_ase’d fvwas travelling
sitting on the heap in the ‘thailer?
2. For the parties shall be
referred in ‘telm’s:,or before the W.C Commissioner.
3. Respondent 2 herein who are claimants
.’*.f:il€d the cl_airr1__ petition ….. seeking compensation in respect of
son Manjunatha in a road traffic accident
that.ocourredV’cjon.?V¥l.1.2006 when the deceased was travelling
in traiie.rl”Aiwhich was attached to the tractor bearing
llx\”o.KAs-Q6413′-9809~9810 belonging to the first respondent the
of the tractor. It was the case of the claimants that
‘ythleilr son was employed as a coolie earning a sum of
xRs.l50/– per day and that on the date of the accident the
deceased was travelling on the trailer on a load of manure.
ii fl
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At about 12.00 noon on Sira–~Changavara Road the driver
drove the vehicle in a rash and negligent mann.elr~_as a
consequence of which the deceased who was s_iitti’ng.f_’on”the* _
heap manure fell down and sustained grievous and 2
was shifted to Victoria Hospital whperephéye jj.succ:umber3*tol
injuries on 13.1.2006.
4. After service of resisted the
claim in respect of respondent
herein as t1’1€3’Ol}i;”i%1él’ oftgthfiiyehicleuijétplfifigired and they filed
their denying that the
deceasedyVas.: thelllinjsured. According to the
owner of was not his employee and
therefore, was notaliab’le to pay any compensation and
ideath vyalsvvoniaccount of the fault of the deceased.
:also took up similar contentions that the
deceased was not an employee of the insured. Therefore, the
liability cannot be fastened on the insured.
0′ H On the basis of the aforesaid pleadings, the W.C.
Commissioner raised the following issues for his
COI1Sid€1’at10I1I
5
2 E3’BCS1-)0§fi°33.J 3
1. eazssmdda me): ainozamznqi {said taaiiaofléda axowdzdgl
eaarcsadda 5323633 fifizfodzfie?
2. 1289 game 23¢? asaas mowmqs eaafida
mfimafifisdoé 5’3c:l3E’3U9hCg60&3Jd?3%l €_9?.1″>§T.3Te),C5}’.’_3§ 253:?-t’:a’J””‘
fiafiafitfie?
3. asaflzgeg E:-asaoés 4.1.2ooa.6o:5_o use “zg,’_§é&eE>oi3 s;Eié£:-‘\g-Vaéarifi
Kbaisaowcfsocsgri e9 3e.a”~.3tS war}:-aéiboci’ esa”»z;:»v2»:=§d_eg”.:
aiaoaanmqi esaida wow a31aoE)d3:a’36’+;~oé,;»:c_iaigA eaésrgooda
mazes» mamas? _ .
4. eaarla.-“sans 336%? a>e;és’i’;eoi5::3,_ ”
aomdzfgl
as-2se’::sacSd3 :-59273633 aarmae? _ = V ‘
C361 .
5. wide prism-gas _’€3i=3oji as-mks aszurire <a:§c5
E!J\)$23'eI3Ji€''§F'l°?1'$.''E5'VéE;!'25i.)~'J_!'_ » " '
e;{:é;s;:';3,.« g;.§?a;a.~:§:5~..«§::a;_s aeaomeg sq 338596. same
«ass ems. sass: gum-.~».-+..:a5~s.;;~;se3_g._cs.a'2'
7. vi’ a Lug véi1§J 4′ of
~ . Bi of their claim, the claimants examined PW1
documents Exs.P–1 to P-11. The
let in any evidence, but the officer of the
lV._ir1su1l’ance. company let-in evidence as DW1 and produced
“:l:”tt2vol’documents which were marked as Exs.R-2{1) and R–2{2).
the basis of the said material on record, the
mW.C.Commissioner held that there was a relationship of
employer and employee between the insured and the
deceased and that the claimants were dependents of the
22..
Jeri
the judgment and award impugned in this appeal requires to
be set aside as against the insurance company. _ ._
9. Per contra, counsel for the respondent-claimants:while
supporting the award of the W.C.Commissio*ner
that the deceased was an employs;-e”‘of the; aridkthat ‘
under the policy the risk of the C()V'{3I'(\:Q”i«,.,tV3tiifiii_
therefore, the W.C.Commissio_ner was “_justili'”i.ed”~.iri’ holding”
that the claimants had proved:.the’i’r..pAcase”and has rightly
fastened the liability or: as the insurer
and that the award does any«.:in’terference.
10. lliavingl >i’thett-.,:lcg:unsel for both sides and on
perusal “the record, the only point that arises
1°0:fp_’..l§30IisideAr’atio.n«is as to whether award passed by the
‘ WIS… CorrirI1is’si.oner calls for any interference in this appeal.
p. “On”~a_ caj:’ei°ul scrutiny of material on record, it is not in
disputethat on 4.1.2006, the deceased Manjunath died in a
road “traffic accident which involved tractor–trailer
” ,Nh.r:A-06-r-9809 KA~06–‘i’-9810 and that the death was on
at …account of the road traffic accident. The question that
however arises for my consideration is, as to whether the
plea taken by the insured and the insurer that there was no
relationship of employer and employee between the deceased
and the insured that the liability could not be fastenezilnnder
the Act on the insurance company is erroneously i.
against the appellant herein. _ _ . V , V
12. In support of their case, the: claimants l’et—iin’–ef..rjxdence«
of the father of the deceased.._ En this”–examinati’o’niiniychief’r.L
has stated that his son was lwolrlxring as._a”‘Acb.oli{§.: xivith the
insured Jannappa and”‘tl:_1at t.he”tI’a.cto’lr-and trailer belonged
to the said Jannappa and -on :da_te accident, while
he wa)s”‘d’ischa;rgin:g “hisvcluties”‘as’ labour and was travelling
on the “heap of_man1.3re._loaded in the tractor, on account of
his negIigence.ahe fell’._do12sl–*7r1 from the tractor and succumbed
t0injuries;~.. ….. ..The said witness PW} has been
‘cross5e.xam_i«ned._ by the insurance company. In the
c:oss–examji–nation, there is no contra–material elicited by
zefccept stating that he was not working with the
it insured: In fact, the plea made out by the insurance
company is wholly based on the statement of objections filed
the first respondent–insured who had denied that the
deceased was his employee. Apart from placing reliance on
the said statement of objections filed by the insured. there is
Z I. gm”
‘ ./’
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before the W.C.Commissioner. On a perusal of the schedule
to the policy, it is noticed that an additional premi.1im:’has
been collected in respect of the trailer i.e., a sum _
the said additional premium is collected
that the persons who travel as labgourersj.oliigloadersa
vehicle are covered under the:policy.”;_I’n vievcflof additional
premium collected in respect oillltl:iTe’ir_ailer,’-tlille ‘contention of
the learned counsel for oompanyl the risk
is not covered cannot belaccepted the policy in
question is a» type of policy
covering instant case who was
an employ ll lift: ‘ ‘r’espondent–insured. The
Commissioner’ justified in awarding
compensation in VVlE§WA~.v0l”~.*Lll1C vehicle being covered by an
«. l_insL1r;i:r1C¢’P91icy. ….. 14 «
1.4′ “‘vAs’lfalrfas’i1’the decision relied upon by the counsel for
‘V the insurance company is concerned, in the case of United
l:’India._.AInslurance Co. Ltd., 1275. Setjerao and others (2007
7280), it has been held that when labourers are
travelling in tractor–trailer, the insurance company has no
i liability. The question of liability of the insurance company
would have to be considered on the facts and circumstance
-11″
of each case having regard to the terms of the policy and the
premium collected. In the instant case, since it i_s..al.rueady
held that an additional premium of Rs.375/– _
with regard to the tractor, reliance plac_e~d*~,–o:n..
decision cannot be straight away fappli.ed}
the facts of the present case,; As farlas”anotheijdecisiogn of
the Apex Court in the case of Ltd.
V/s. Brij Mohan scizii 13734) is
concerned, the liability regard to a
labourer heap; in the trailer
attached to the said case, there
was no in of the trailer, it was
held thatthe was not liable. The said
judgment \liTC”,J_lCi’ also ri,otl’~apply to the facts of the present
&_case_”ii11 Vi_ev’.fl_of therealneing insurance coverage of the tractor
“i:raii.er;, reliance placed on the judgment of this
co’u,rt’*ilin of The Divisional Manager V/s. Smt.
‘VAkk¢ivzgci’.g3z.llcznother (ILR 2007 Kar.1382) is also of no
V’ ‘assistance of the appellant since the said case is with regard
‘farrher’s package insurance policy, Whereas in the present
‘ncase, the policy issued to the insured is miscellaneous and
A. special type Policy.
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15. National Insurance Company Ltd._ V/s.
Bramarambike and others [2006 ACJ 6’71) isLa4_4iiCase
where this court held that the permitted seating{c’aoa’city “i7-qr’
the tractor is only that of a driver and no _o’iher:pe’rs.oI1_and””
hence, no other person’s risk is covered iotheifithanVfdiiveer;
The facts of the said case would notivapply pri33sent.:ii~
case as the deceased fell fromivtfientraileriiwhiichj was covered
under the policy and’ aforesaid
reasons, the the claim
H A A V A awarding the
of the responfi’ent?_c1aiinantsI ‘and.5
compensation. _.-Vfiflence. ”there’—- is f;;o’merit in this appeal.
Accordingly, it is tiisriieisfased. ‘V7§?ai*ties.A’tobearfltheir owncosts.
The amount in. deposit Abeifore this court is to be
translrlitted .:W”Qr1irnen’s”~€*oir1pensation Commssioner.
Sd/~=
JUDGE