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2014 DIGILAW 359 (KAR)

National Insurance Co. Ltd. v. Hanumantharayappa

2014-03-14

ARAVIND KUMAR

body2014
JUDGMENT : Aravind Kumar, J. Appeal by the insurer challenging the correctness and legality of the order and award passed by the Commissioner for Workmen's Compensation, Tumkur (for short 'CWC') in WCA/CR-70 of 2007 dated 17.4.2008 fastening the liability on the insurer. Learned advocates appearing for the parties would fairly submit that though appeal has been admitted on 23.2.2010, substantial questions of law have not been formulated by oversight and they request the court to formulate the same. 2. A claim application under section 22 of the Workmen's Compensation Act (for short 'the W.C. Act') came to be filed by husband and children of one Rangamma seeking compensation contending inter alia that said Rangamma was working under the respondent No. 4 herein on a tractor-trailer as a loader for loading jelly and while she was discharging her duty on 27.6.2006 at Jalagiri quarry, near Amalapur of Tumkur taluk, a heavy rock rolled down from Jalagiri hill and in the course it got shattered into pieces and one stone piece fell on said Rangamma due to which she sustained grievous injuries and died at the spot. Owner and alleged employer of Rangamma, though served, did not appear before CWC and contest the matter. However, insurer, respondent No. 2, appeared and filed detailed statement of objections and contended that owing to a blast that was conducted, a stone fell on above said Rangamma and it would not cover the risk since she was not an employee working under the said respondent No. 4 and insurer is not liable to pay compensation as it had issued a 'miscellaneous and special type of policy'. The relationship of 'employer' and 'employee' came to be denied. Both the parties tendered their evidence and on evaluation of the same, claim petition came to be allowed in part by CWC by awarding a total compensation of Rs. 3,11,970 with interest at the rate of 12 per cent per annum payable after one month from the date of accident. 3. It is the contention of Mr. A.N. Krishna Swamy that there was no relationship of employer and employee and the policy issued to the offending vehicle would cover only the risk of an employee that too when the vehicle is/was under use at the time of accident. 3. It is the contention of Mr. A.N. Krishna Swamy that there was no relationship of employer and employee and the policy issued to the offending vehicle would cover only the risk of an employee that too when the vehicle is/was under use at the time of accident. He would submit that carrying of employee-coolie in the vehicle is a must for insurer to indemnify the claim as otherwise it need not indemnify the claim. He would submit that there was no proof of Rangamma having been employed by respondent No. 4 herein, i.e., Siddaramaiah. On these grounds, he seeks for answering the substantial questions of law in favour of the appellant insurer. In support of his submission, he relies upon the following judgments: (i) British India General Insurance Co. Ltd. Vs. Sabanna Sabanna and Others, ; (ii) Mamtaj Bi Bapusab Nadaf and Others Vs. United India Insurance CO. and Others, (2010) 10 SCC 536 ; (iii) Malikarjuna G. Hiremath Vs. The Branch Manager, The Oriental Insurance Co. Ltd. and Another, AIR 2009 SC 2019 ; (iv) Gottumukkala Appala Narasimha Raju and Others Vs. National Insurance Co. Ltd. and Another, AIR 2007 SC 2907 ; (v) National Insurance Company Limited Vs. Smt. Renuka and Others, (2008) ILR (Kar) 5122; (vi) Unreported judgment of a Division Bench rendered in Oriental Insurance Co. Ltd. v. Shafi, M.F.A. No. 9338 of 2005; decided on 27.8.2010 (Karnataka). 4. Per contra, it is the contention of Mr. K. Shantharaj, learned advocate appearing for respondent Nos. 1 to 3, that insurer has not disputed that deceased Rangamma was not an employee and nothing has been elicited in the cross-examination of claimants and as such, insurer is liable to indemnify the claim. In support of his submission, he has relied upon the following judgments: (i) The Branch Manager, New India Assurance Co. Ltd. Vs. Smt. Mallamma, Puttamallaiah and Shahabuddheen, (2009) ILR (Kar) 1934; (ii) National Insurance Co. Ltd. Vs. Balawwa, (1993) 2 KarLJ 406 ; (iii) Sanjeev Kumar Samrat Vs. National Insurance Company Ltd. and Others, AIR 2013 SC 1125 . 5. It is not in dispute that the policy issued to the offending vehicle is miscellaneous and special type of vehicle policy which came to be marked as Exh. R2(1). Ltd. Vs. Balawwa, (1993) 2 KarLJ 406 ; (iii) Sanjeev Kumar Samrat Vs. National Insurance Company Ltd. and Others, AIR 2013 SC 1125 . 5. It is not in dispute that the policy issued to the offending vehicle is miscellaneous and special type of vehicle policy which came to be marked as Exh. R2(1). A perusal of the said policy would indicate that risk of one employee under the W.C. Act is also covered by receiving an additional premium of Rs. 25. Thus, it is a contractual liability which the insurer will have to indemnify insofar as one employee is concerned under the policy in question. 6. In the light of grounds urged in the appeal memorandum and rival contentions raised, I am of the considered opinion that the following substantial questions of law would arise for consideration: (i) Whether CWC was justified in directing the insurer to indemnify the claim since the policy issued to the offending vehicle was 'miscellaneous and special type of vehicle policy' on the ground that risk of an employee is covered under the said policy? (ii) Whether the 'use of the vehicle' by the injured or dead person being carried in the offending vehicle at the time of accident is a condition precedent for the insurer to indemnify the claim under Workmen's Compensation Act"? 7. In order to fasten the liability on the insurer under the policy in question, two essential ingredients are required to be established; namely, there was an 'employer' and 'employee' relationship between deceased Rangamma and the employer Siddaramaiah, i.e., respondent No. 4 herein. It is to be further noticed that in the event of relationship being established, the use of the vehicle would also be a factor which requires to be taken into consideration for fastening the liability on the insurer. Section 95 of the Motor Vehicles Act, 1939 (for short 'the M.V. Act'), which is analogous to section 147 of the M.V. Act, 1988 came to be examined by the High Court of Mumbai in the case of British India General Insurance Co. Ltd. Vs. Section 95 of the Motor Vehicles Act, 1939 (for short 'the M.V. Act'), which is analogous to section 147 of the M.V. Act, 1988 came to be examined by the High Court of Mumbai in the case of British India General Insurance Co. Ltd. Vs. Sabanna Sabanna and Others, (1967) ACJ 165 and held that when an application for recovery of compensation under the W.C. Act came to be filed by the applicant claiming to be an employee against his employer and it came to be held that in case of a goods vehicle, risk to an employee of the insured was required to be covered by a policy under section 95(1)(b) of the M.V. Act, only if he was engaged either in driving the vehicle or was being carried in the vehicle. It was held in the said case that if these twin conditions are not satisfied claim against insurance company cannot be enforced. 8. The Hon'ble Apex Court in the case of Mamtaj Bi Bapusab Nadaf and Others Vs. United India Insurance CO. and Others, was examining the correctness of the judgment of this court whereunder appeal filed by the insurance company had been allowed and liability of the insurance company had been set aside. It was held by the Hon'ble Apex Court that use of the vehicle was not even claimed as being a ground on which the liability was sought to be fastened on the insurance company and the cause of death was not proximate to the actual use of the vehicle. However, the judgment of this court directing insurance company to pay and recover came to be affirmed. 9. The Hon'ble Apex Court in the case of Malikarjuna G. Hiremath Vs. The Branch Manager, The Oriental Insurance Co. Ltd. and Another, has held that causal connection between death of workman and his employment has to be established under section 3(1) of the W.C. Act, to fasten the liability on the insurer. 10. A Division Bench of this court in the case of The Branch Manager, New India Assurance Co. Ltd. Vs. The Branch Manager, The Oriental Insurance Co. Ltd. and Another, has held that causal connection between death of workman and his employment has to be established under section 3(1) of the W.C. Act, to fasten the liability on the insurer. 10. A Division Bench of this court in the case of The Branch Manager, New India Assurance Co. Ltd. Vs. Smt. Mallamma, Puttamallaiah and Shahabuddheen, has held that the expression 'being carried in the vehicle' found in proviso to sub-section (1) of section 147 need not be construed rigidly and strictly and held that loading and unloading forms an integral and dominant purpose of transport activity and as such in the facts and circumstances of the said case, it came to be held that a workman is entitled to be indemnified by the insurance company. 11. Yet again, a Division Bench of this court in the case of National Insurance Co. Ltd. Vs. Balawwa, has held that a driver of the tractor who suffered heart attack on account of loading of stones on the truck would amount to the use of the vehicle and death has been caused by the user of the vehicle and as such there is a causal connection between the death of the employee and use of the vehicle and as such insurer is liable to indemnify the claim. 12. In the light of the contours laid down in the above referred judgments, when the facts on hand are examined it would clearly indicate that a claim petition was filed by the husband and the children of Rangamma contending inter alia that she had been working under Siddaramaiah, respondent No. 4 herein, on the tractor-trailer belonging to him for two years and on 27.6.2006 as per the directions of her employer she was discharging her duty as a loader. While loading jelly on the tractor-trailer, a heavy rock rolled down from Jalagiri hill and broke into two pieces, one of which fell on said Rangamma due to which she sustained grievous injuries and died at the spot. The said contention came to be denied by the insurer by filing detailed statement of objections. An F.I.R. came to be registered which has been marked as Exh. P1. The said contention came to be denied by the insurer by filing detailed statement of objections. An F.I.R. came to be registered which has been marked as Exh. P1. A perusal of the same would clearly indicate that deceased Rangamma was engaged in loading jelly on the tractor-trailer and at that point of time, a boulder rolled down from the top of the hill where the quarrying work was going on and after it broke into two pieces, it fell on said Rangamma and she was crushed under the stone and succumbed to the injuries at the spot. 13. The employer, namely, Siddaramaiah, respondent No. 4 herein, though served before CWC, did not appear and contest the claim petition. Insurer was fully aware of this fact. Insurer having denied that deceased Rangamma was not an employee working under said Siddaramaiah has not proved this plea. Burden was cast on the insurer to prove that deceased was not an employee either by summoning the insured, namely, the employer or by any other evidence. Such an exercise was not undertaken by the insurer. The contents of F.I.R., Exh. P1, are not disputed by the insurer. The testimony of the claimant, namely, the husband of the deceased who deposed before the CWC is not shaken in the cross-examination. In that view of the matter, I am of the considered view that CWC was justified in coming to a conclusion that relationship of 'employer' and 'employee' existed between deceased Rangamma and Siddaramaiah, respondent No. 4. 14. Now, turning my attention as to whether by virtue of the policy, Exh. R2(1), issued to the offending vehicle, the appellant insurer is liable to indemnify the claim or not has to be examined from two angles; firstly, as to whether the policy would cover the risk of an employee; and secondly, if it is so covered, whether the insurer would be liable to indemnify the claim on account of there being nexus to the cause of death and use of the vehicle. In view of the evidence available on record, namely, the contents of F.I.R., Exh. In view of the evidence available on record, namely, the contents of F.I.R., Exh. P1, indicating that deceased Rangamma had been working as loader/unloader on the tractor-trailer in question for the past two years and the evidence of the claimant (husband of deceased Rangamma) not having been rebutted by the insurer in any manner, it has to be necessarily held that deceased Rangamma had sustained fatal injuries in the course of employment and the accident arose out of the employment. It requires to be further noticed that CWC has noticed that deceased had been carried in the offending vehicle to the spot of the accident and as such insurer is liable to indemnify the claim. The words 'being carried in the vehicle' found in proviso (i) to sub-section (1) of section 147 though in literal sense would mean travelling in the vehicle, the social beneficial legislations should be read so as to achieve the laudable object for which it has been enacted and not to frustrate the same, as otherwise, it would become redundant or nugatory. As held by the Division Bench in The Branch Manager, New India Assurance Co. Ltd. Vs. Smt. Mallamma, Puttamallaiah and Shahabuddheen, referred to supra, the expression 'being carried in the vehicle' need not be construed rigidly and strictly and the process of loading and unloading forming an integral and dominant purpose of transport activity, the risk of workman who attends to the loading and unloading activity cannot be excluded by strict interpretation. When there is a causal connection between the cause of death of the employee and use of the vehicle, it would suffice for fastening the liability on the insurer. Hence, for the aforestated reasons, the substantial questions of law are answered in favour of the claimants. Accordingly, I proceed to pass the following order: (i) Appeal is hereby dismissed. (ii) Order and award passed by Workmen's Compensation Commissioner, Tum-kur in WCA/CR. No. 70 of 2007 dated 17.4.2008 is hereby affirmed. (iii) Amount in deposit along with the original records are ordered to be transferred to jurisdictional Commissioner for Workmen's Compensation. (iv) No order as to costs.