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2006 DIGILAW 878 (KAR)

NATIONAL INSURANCE COMPANY LIMITED. v. MUMTAZ

2006-11-02

V.JAGANNATHAN

body2006
V. JAGANNATHAN, J. ( 1 ) HEARD the learned Counsel for the parties. ( 2 ) IN this appeal, the Insurance Company has questioned the order of the Commissioner in fastening the liability on it in so far as payment of compensation to the claimants who are the L. Rs of deceased Lalsaheb dangi. The facts in brief are to the effect that on 25-1-2003, at about 9. 00 A. M. , the deceased took the motor cycle belonging to the first respondent and went to see his wife at village Konnur and on the way back, the accident occurred leading to the deceased sustaining injuries all over his body and later on he succumbed to the said injuries. As per the P. M. report, the cause of death was due to coma as a result of head injuries sustained. A claim petition was filed by the respondents 1 to 4 herein. The Commissioner for workmen's Compensation, Belgaum, allowed the claim petition and granted a sum of Es. 2,29,394/- as compensation. The liability was put on the appellant/insurance company. Aggrieved by the said order, this appeal is preferred. ( 3 ) IT is the submission of the learned Counsel for the appellant shri O. Mahesh, that the impugned order is liable to be set-aside on three main grounds. First is that the deceased was not a Workman coming within the purview of definition of 'workman' under Section 2 (n) of the workmen's Compensation Act. On the other hand, he was a supervisor. The second ground is that the motor cycle in question was not a transport vehicle and the policy issued in respect of the vehicle was a private vehicle policy and not in respect of transport vehicle policy. The third ground is that the deceased had gone to see his wife and as such it cannot be said that the accident occurred in the course off his employment. ( 4 ) ON the other hand, learned Counsel for respondent No. 5-owner submitted that the order of the Commissitner is just and proper and the deceased was a workman under 5th respondent and he was going to carry out the instructions given to him by his employer and therefore, the accident was in the course of his employment. ( 5 ) THE learned Counsel for the claimants contended that the statement recorded under Section 161 of Cr. ( 5 ) THE learned Counsel for the claimants contended that the statement recorded under Section 161 of Cr. P. C. by the police would go to show that the deceased was a workman under Respondent No. 5 and that he was going on the motor cycle as a part of his work. ( 6 ) HAVING heard the submissions as above and upon careful perusal of the entire records in this case, I find that the submissions made by the appellants' Counsel merits consideration. It is the case of the claimants that the deceased was a workman. The facts and pleadings disclose otherwise. In the claim petition that is filed before the Commissioner, it is stated that the deceased was working as a supervisor under Respondent no. 5. The said finding also finds support from the evidence of P. W. I who has stated that the deceased was working as a Supervisor under respondent No. l. Therefore, in view of such consistent stand taken both in the pleadings as well as in the evidence and having regard to the definition of workman under Section 2 (n) of the Act, I have no hesitation to hold that the deceased was a Supervisor and not a workman under respondent No. l. On this ground alone, the impugned order is liable to be set-aside. ( 7 ) NOTWITHSTANDING like above, it is also on record as per the complaint lodged by the younger brother of the deceased that the accident occurred when the deceased had gone on a motor cycle to his wife's place at Konnur village. There is nothing in the complaint to indicate that the deceased was a workman under Respondent No. 5 or the deceased was going on the motor cycle to carry out the work entrusted to him by the Respondent No. 5. ( 8 ) GOING to wife's place to see her cannot be said to be an act arising out of and in the course of employment. The said act was not part of the employment duty. Hence, no liability under Section 3 of the Workmen's compensation Act arises, on the part of the employer. Unless the act comes within the sphere of employment duties, law does not come to the rescue of the claimants merely because the injuries led to the death. The said act was not part of the employment duty. Hence, no liability under Section 3 of the Workmen's compensation Act arises, on the part of the employer. Unless the act comes within the sphere of employment duties, law does not come to the rescue of the claimants merely because the injuries led to the death. Hence, in the instant case, no liability arises on the part of the employer. ( 9 ) LAST of the grounds urged by the appellants' Counsel is that the policy in question does not cover the risk of a person travelling in the motor cycle belonging to Respondent No. 5. The policy copy has been produced and has been marked as Ex. R 2 (1) and the said policy does not mention that the vehicle in question was a transport vehicle. In the light of the aforesaid reasons, the impugned order is unsustainable in law and hence, I pass the following order. ORDER the appeal is allowed. The impugned order of the Commissioner is set-aside and the amount in deposit shall be refunded to the insurance company. At this stage, the learned Counsel for the claimants submitted that liberty be given to the claimants to approach the Claims Tribunal under the Motor Vehicles Act for the relief. The liberty sought is given to the claimants and they can pursue other remedies available to them in law, if they are so entitled.