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2014 DIGILAW 532 (GUJ)

Pravinbhai S. Khambhayata v. Ramesh Lalmani Yadav

2014-04-16

HARSHA DEVANI

body2014
JUDGMENT : HARSHA DEVANI, J. 1. This appeal under section 30 of the Workmen's Compensation Act, 1923 (now Employees' Compensation Act, 1923) (hereinafter referred to as "the Act"), is directed against the judgment and award dated 11th November, 2013 passed by the Commissioner, Workmen's Compensation, Labour Court, No.1, Rajkot (hereinafter referred to as "the Commissioner") in W.C. Fatal Case No.29 of 2005, whereby the Tribunal has exonerated the respondent No.5 - Insurance Company from the liability to pay compensation and has held the appellant and the respondent No.4 jointly and severally liable to pay the compensation of Rs.3,25,365/- to the respondents No.1 to 3 - original claimants. 2. The facts giving rise to the present appeal are that the respondents No.1 to 3 filed a claim petition before the Commissioner stating that the respondent No.1 herein was the father of the deceased, the respondent No.2 was the mother of the deceased and the respondent No.3 was the wife of deceased Ramesh Lalmani Yadav. It was the case of the claimants that the deceased was working as a cleaner in the employment of the respondents No.1 and 2. That on 20.05.2002, the deceased was working as a cleaner in respect of the vehicle bearing No.GJ-3-V-7785. At about 12:30 hours in the afternoon, he had opened the radiator and was filling water in it, when suddenly the bonnet fell down and the deceased sustained serious injuries on his head and fell down and died. The postmortem was carried out at the Government Hospital. It was the case of the claimants that the deceased was earning Rs.3,000/- per month and was also provided with the meals and residence. In all, the deceased was earning salary of Rs.3,800/- per month. According to the claimants, the deceased sustained injuries in the course of his employment and had succumbed to them and as such, all the opponents, namely, the appellant as well as the respondents No.4 and 5 were liable to pay the compensation to the claimants despite which, they have not paid such compensation. It was the case of the claimants that at the time of the accident, the deceased was aged 24 years and keeping in view his monthly salary of Rs.3,800/-, they were entitled to compensation of Rs.4,15,093/-. It was the case of the claimants that at the time of the accident, the deceased was aged 24 years and keeping in view his monthly salary of Rs.3,800/-, they were entitled to compensation of Rs.4,15,093/-. Since the same was not paid within the prescribed period, 50% penalty was required to be imposed in addition to the compensation with interest at the rate of 18% per annum. 3. The Commissioner, after appreciating the evidence on record, took note of the fact that a first information report Exhibit-24 had been lodged by the driver of dumper bearing No.GJ-3-V-7785 on 20.05.2002, wherein he had stated that on that day in the afternoon, at around twelve o'clock, he was reversing the dumper at Sothvad Quarry, at that time, his cleaner Ramesh was filling water in the radiator of another dumper which was lying in a stationary condition. At that time, while filling the water, his leg slipped on account of which, the bonnet fell on his head and he fell down. Thus, the deceased had not died while discharging duties in relation to dumper bearing No.GJ-3-V-7785, but truck bearing No.GJ-3U-5391. The Commissioner, accordingly, found that since the insurance policy produced on record was in relation to the vehicle bearing No.GJ-3-V-7785, which was not involved in the vehicular accident, the Insurance Company cannot be held liable and accordingly, held that in these circumstances, the original opponents No.1 and 2, namely, the appellant and the respondent No.4, in their capacity as owners of the offending vehicle were jointly and severally liable to pay the compensation. The Commissioner further took note of the fact that no evidence had been brought on record to show that the other vehicle, namely, vehicle bearing No.GJ-3U-5391 was insured with the original opponent No.3 - Insurance Company. Being aggrieved, the appellant - original opponent No.2 is in appeal. 4. Mr. M. N. Devnani, learned advocate for the appellant vehemently assailed the impugned judgment and award by submitting that the Commissioner has erred in relying upon the fact that the deceased was filling water in the radiator of another vehicle when the bonnet fell on him. Being aggrieved, the appellant - original opponent No.2 is in appeal. 4. Mr. M. N. Devnani, learned advocate for the appellant vehemently assailed the impugned judgment and award by submitting that the Commissioner has erred in relying upon the fact that the deceased was filling water in the radiator of another vehicle when the bonnet fell on him. It was submitted that the deceased was an employee of the appellant and had died during the course of discharge of his duties and as such, the fact that he was employed on another vehicle has no nexus with the liability of the insurance company to indemnify the insured. It was submitted that ultimately, the deceased was an employee and had died during the course of discharge of his duties and hence, the Insurance Company ought to have been held liable to satisfy the award under the Workmen's Compensation Act which applies when employer-employee relationship is established and that, for the purposes of the said Act, it was immaterial as to whether the deceased was discharging duties on another vehicle. 5. It was further submitted that the other vehicle, namely, the dumper bearing No.GJ-3U-5391 was also insured and permission was sought to bring the said insurance policy on the record of the appeal. It was submitted that since the other vehicle was also insured, the Commissioner was not justified in exonerating the Insurance Company from the liability to pay compensation. It was, accordingly, urged that the present appeal does give rise to substantial questions of law and as such, requires consideration and deserves to be admitted. 6. At the outset, it may be noted that the appellant has raised the following questions stated to be substantial questions of law : "(1) Whether the Ld. Commissioner was right in closing the right of the appellant to lead evidence which was in fact necessary for adjudication of the issues raised in the fatal case referred to above (2) Whether the Ld. Commissioner could have come to the conclusion that the vehicle involved in the accident was not insured in absence of any evidence led by the appellant? (3) Whether the Ld. Commissioner was justified in exonerating the insurance company without asserting the said fact from the owner of the vehicle viz., the appellant before this Hon'ble Court? (4) Whether the Ld. Commissioner could have come to the conclusion that the vehicle involved in the accident was not insured in absence of any evidence led by the appellant? (3) Whether the Ld. Commissioner was justified in exonerating the insurance company without asserting the said fact from the owner of the vehicle viz., the appellant before this Hon'ble Court? (4) Whether the Ld. Commissioner could have come to any conclusion in absence of any evidence led by the owner, which was closed by the Ld. Commissioner? (5) Whether the Ld. Commissioner was justified in permitting reliance of Judgments of Motor Vehicle Act in a claim petition under the Workmen's Compensation Act and thereby, giving findings on the same? (6) Whether the findings of the Ld. Commissioner can be said to be justified under the Workmen's Compensation Act? (7) Whether the insurance of a particular vehicle is required under the provisions of Workmen's Compensation Act, once it is established that the accident has occurred during the course of employment? (8) Whether the provisions of the Motor Vehicle Act would apply in a claim petition which is filed under the Workmen's Compensation Act before the Ld. Commissioner?" 7. A perusal of the record of the case reveals that the respondents No.1 to 3 - claimants had filed a claim petition against the appellant, respondent No.4 and respondent No.5 - Insurance Company, claiming that the deceased was working as a cleaner in the vehicle of the respondents No.1 and 2. On 20.05.2002, the deceased was working as a cleaner on the vehicle bearing No.GJ-3-V-7785. At about 13:30 hours in the afternoon, he had opened the bonnet and was filling water in the radiator, when suddenly the bonnet fell on him, as a result whereof the deceased sustained serious injuries on his head and he fell down and died. It was the case of the claimants that the accident had occurred during the course of his employment and therefore, all the opponents were liable to pay compensation in relation to the death of the deceased. 8. Before the Commissioner, the insurance policy of the vehicle bearing No.GJ-3-V-7785 being a Tata dumper was produced on record. It was the case of the claimants that the accident had occurred during the course of his employment and therefore, all the opponents were liable to pay compensation in relation to the death of the deceased. 8. Before the Commissioner, the insurance policy of the vehicle bearing No.GJ-3-V-7785 being a Tata dumper was produced on record. The claimants in support of their case, had produced a list of documents which included the first information report lodged by the driver of the vehicle bearing No.GJ-3-V-7785 - Ramlallu D. Patel, with the Balasinor police; a copy of the panchnama drawn by the police; copy of the inquest panchnama and the report of the Civil Surgeon and the death certificate issued by the Medical Officer etc. A copy of the post mortem was also placed on record. It may be noted that the appellant and the respondent No.4 did not remain present in the proceedings before the Commissioner and did not lead any evidence in their defence. A perusal of the statement of Ramlallu D. Patel, the driver of vehicle No.GJ-3-V-7785, reveals that he had stated that in the afternoon at about twelve o'clock, he was reversing the dumper at the plant of Othavad quarry, at that time, his cleaner was filling water in the radiator of another dumper which was lying in a closed condition, at which point of time, Ramesh was standing on the bumper of the dumper and while he was filling water in the radiator, his leg slipped, hence, the bonnet fell on his head and blood started oozing out of his mouth and nose. At that time, the driver of another dumper came there. He and others took Ramesh to the Civil Hospital, where he was declared to be dead. Thus, the version given by the driver of the dumper bearing No.GJ-3-V-7785 before the police is to the effect that the deceased was filling water in the radiator of another dumper and not the dumper which was insured with the Insurance Company. The panchnama of the scene of offence also bears out the version given by the driver. 9. A perusal of the affidavit of examination-in-chief of the respondent No.1 - original claimant No.1, shows that according to him, his son was filling the water in the radiator of the vehicle bearing No.GJ-3-V-7785. The panchnama of the scene of offence also bears out the version given by the driver. 9. A perusal of the affidavit of examination-in-chief of the respondent No.1 - original claimant No.1, shows that according to him, his son was filling the water in the radiator of the vehicle bearing No.GJ-3-V-7785. In support of the case of the claimants, the said witness has produced on record a list of documents whereby the statement given by Rambhai, driver of the vehicle bearing No.GJ-3-V-7785 before the police, panchnama drawn by the police, the inquest panchnama as well as the report of the Civil Surgeon, the death certificate and postmortem report have been produced on record. In his cross-examination by the learned advocate for the Insurance Company, the witness has stated that at the time of the accident, his son was filling water in the radiator of a vehicle, however and that he is not aware as to who was the owner of the vehicle in which he was filling the water. 10. Thus, in support of their claim, the claimants have placed reliance upon the statement of the driver of the vehicle bearing No.GJ-3-V-7785 recorded by the police. As noticed earlier, in the said statement, the driver has stated that the deceased sustained accidental injuries and died as he slipped from the bumper of the stationary truck bearing No.GJ-3U-5391 in which he was filling in the water in the factory premises of L & T Company. 11. A perusal of the written statement (Exhibit-13) filed by the respondent No.4 - Viraj Krishna Techtonics Pvt. Ltd. reveals that the deceased was employed as a cleaner with the vehicle bearing No.GJ-3-V-7785. In the written statement, the said respondent has also admitted that the deceased had expired while filling water in the radiator of the vehicle owned by them. It has further been stated that the Tata Dumper bearing No.GJ- 3-V-7785 has been insured with the United India Insurance Company. Thus, it is the case of the claimants as well as of the owners of the vehicle bearing No.GJ-3-V-7785, that the deceased was employed as a cleaner in the said vehicle. It has further been stated that the Tata Dumper bearing No.GJ- 3-V-7785 has been insured with the United India Insurance Company. Thus, it is the case of the claimants as well as of the owners of the vehicle bearing No.GJ-3-V-7785, that the deceased was employed as a cleaner in the said vehicle. However, from the police statement of the driver of the said vehicle, who was a witness to the incident in question, it is apparent that the deceased has died while filling water in the radiator of another vehicle and not the vehicle insured with the respondent No.3 - Insurance Company. While it is true that there might be an "employer-employee" relationship between the appellant and the deceased; however, that by itself would not cast a burden upon the Insurance Company to indemnify the insured for an accident in relation to another vehicle. A perusal of the insurance policy in question shows that it is issued under the Motor Vehicles Act, 1988 and is in the nature of an 'A' Policy (Act only) policy. Therefore, the coverage of the said policy is limited to statutory risks. At this juncture reference may be made to section 147 of the Motor Vehicles Act, 1988 which provides for "Requirements of policies and limits of liability". Sub-section (1) thereof lays down that for complying with the requirements of Chapter XI, a policy of insurance must be issued by a person who is an authorised insurer, and such policy should insure the person or persons specified in the policy to the extent specified in sub-section (2) thereof (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage caused to a third party by or arising out of the use of the vehicle in a public place, (ii) against the death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. The proviso thereto says that a policy shall not be required (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of person insured by the policy or in respect of bodily injury sustained by such employee arising out of or in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 in respect of the death of, or bodily injury to, any such employee - (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. The question as to whether or not the risk of a cleaner is covered under the policy is not required to be gone into, for the reason that on a plain reading of the policy it is clear that the same has been issued in relation to TATA Dumper bearing No. GJ JV 7785. Therefore, even if the policy is assumed to cover the risk of a cleaner, the coverage is in respect of an accident involving the said vehicle. This is a policy issued under the Motor Vehicles Act and not under the Workmen's Compensation Act. But having regard to the provisions of section 147 of the Act, the policy is deemed to cover an employee engaged in the said vehicle, provided he falls within the ambit of the proviso thereto. However, such coverage is limited to the liability arising under the Workmen's Compensation Act. Under the circumstances, had the deceased died in an accident involving the vehicle insured with the respondent No.3-Insurance Company, viz., the vehicle bearing No.GJ-3-V-7785, in that case, the matter would be different and the Insurance Company may have been liable to satisfy the award if the risk of cleaner was covered under the insurance policy. However, from the evidence which has come on record, it is amply clear that the deceased, though employed as a cleaner with the insured vehicle bearing No.GJ- 3-V-7785, had sustained fatal injuries while filling water in the radiator of another vehicle being a truck bearing No.GJ 3U 5391. However, from the evidence which has come on record, it is amply clear that the deceased, though employed as a cleaner with the insured vehicle bearing No.GJ- 3-V-7785, had sustained fatal injuries while filling water in the radiator of another vehicle being a truck bearing No.GJ 3U 5391. For the reasons stated hereinabove, in the opinion of this court where by insurance policy is one under the Motor Vehicles Act, and covers employees of the owner only to the extent provided under section 147 of the said Act, the Insurance Company can be held liable only in respect of any injury sustained in an accident involving the vehicle which is insured by it and not in respect of any accident involving an employee of the insured. In the present case, the vehicle which was insured with the respondent No.3 - Insurance Company not being involved in the vehicular accident in question, the Insurance Company has rightly not been saddled with the liability of payment of compensation to the heirs of the deceased. No infirmity can, therefore, be found in the impugned judgment and award passed by the Commissioner in exonerating the Insurance Company. 12. On behalf of the appellant, it has further been sought to be submitted that the other vehicle which was involved in the accident was also insured with the very same Insurance Company and its insurance policy is sought to be brought on the record of the present appeal. In this regard, it may be noted that the claim petition is filed under the Workmen's Compensation Act. Therefore, the deceased should be an employee in relation to the vehicle which is involved in the accident. In the present case, the facts reveal that the deceased was employed with the vehicle bearing No.GJ-3-V- 7785 and was not engaged as a cleaner in respect of the offending vehicle. Under the circumstances, the deceased not being a cleaner of the offending vehicle, apart from the fact that such insurance policy in respect of the offending vehicle was never brought on record before the Commissioner, the Insurance Company could not be held liable in respect of the death of the deceased in the accident. Under the circumstances, the deceased not being a cleaner of the offending vehicle, apart from the fact that such insurance policy in respect of the offending vehicle was never brought on record before the Commissioner, the Insurance Company could not be held liable in respect of the death of the deceased in the accident. For the above stated reasons, this court does not find any infirmity in the impugned judgment and award passed by the Commissioner in exonerating the Insurance Company from the liability to pay compensation in view of the fact that the deceased had not died in an accident involving the insured vehicle where he was working as a cleaner, but in an accident involving some other vehicle. 13. For the foregoing reasons, the appeal fails and is, accordingly, dismissed. 14. The Registry shall forthwith send back the record and proceedings of the case. Appeal dismissed.