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2017 DIGILAW 978 (KAR)

ORIENTAL INSURANCE CO. LTD. v. MUTTAPA @ MUTTANNAGOUDA S/O MADEGOUDA PATIL

2017-07-01

K.SOMASHEKAR

body2017
JUDGMENT : 1. Heard the learned counsel for the appellant and respondents. 2. The appellant-insurer in W.C.N.F. No. 284/2007 on the file of Labour Officer and Commissioner for Workmen’s Compensation, Bagalkot, (herein after referred to as ‘Commissioner’ for short) has come up in this appeal impugning the judgment and award dated 30.09.2008. 3. The status of the parties will be referred to as per their status before the Court below. 4. The facts of the case are that: The injured-claimant, namely Muttappa was working as coolie under the respondent No. 1 – Ashok S/o Timmanna Narappanavar in the tractor and trailer bearing registration Nos. KA-29/T-5454/T-5456 and was getting wages of Rs. 4,000/- per month and bhatta of Rs. 50/- per day and he was aged about 35 years at the time of the accident. 5. On 23.05.2007, the petitioner as per the directions of the 1st respondent was loading sugarcane in the land of Basanagouda. When loading the sugarcane into the tractor and trailer, all of a sudden, the driver of the said vehicle drove the vehicle in a rash and negligent manner and the said vehicle met with accident at about 11:00 a.m. As a result of which, the petitioner sustained grievous injuries. Immediately he was admitted to Kerudi Hospital and Research Center, Bagalkot and treated by Dr. M. Narayan (Consult Surgeon) and after conducting operation, rod and nails were affixed to the fracture portion and still he has not recovered and he is under medical treatment and he has become permanently disable and has spent Rs. 70,000/- for medical expenses. In view of the injuries sustained by the claimant during his employment, he filed a claim petition under Section 22 of the Workmen’s Compensation Act, claiming compensation of Rs. 4,00,000/- along with interest at the rate of 18% per annum from the respondents. 6. After service of notice, the 2nd respondent-insurer has filed statement of objections and contested the claim petition, whereas, the 1st respondent appeared but did not file his objections. 7. In support of his claim, the injured-workman, apart from filing his affidavit evidence got marked the FIR, complaint, spot panchanama, IMV report, wound certificate, charge sheet, out patient slip, disability certificate, x-ray report and driving license, as at Exs.P-1 to P-10 respectively. On behalf of the 2nd respondent-insurer, except marking the insurance policy, no evidence was let in. 8. 7. In support of his claim, the injured-workman, apart from filing his affidavit evidence got marked the FIR, complaint, spot panchanama, IMV report, wound certificate, charge sheet, out patient slip, disability certificate, x-ray report and driving license, as at Exs.P-1 to P-10 respectively. On behalf of the 2nd respondent-insurer, except marking the insurance policy, no evidence was let in. 8. On the basis of the pleadings of the respective parties, the Commissioner has framed as many as 5 issues and on evaluation of the oral and documentary evidence, was pleased to held that the ‘Workman’ had sustained the injuries during the course of his employment and consequently allowed the claim petition, awarding compensation of Rs. 1,31,241/- with interest at 12% per annum from one month after the date of award till its deposit. It is this award which is under challenge in this appeal by the insurer. 9. Shri K.L. Patil, learned counsel for the appellant – insurer vehemently contended that the impugned judgment and award is illegal, arbitrary, excessive, contrary to the evidence on record and not sustainable in law. Further he contended that the petitioner claimant was a gratuitous passenger and hence he is not entitled to claim compensation, as the accident did not occur during the course of his employment. It is further contended that the claimant has not produced any iota of evidence to establish that he is having salary of Rs. 4,000/- and batta of Rs. 50/- per day. In the absence of proof of evidence the Tribunal has erroneously passed an order by determining the income of the injured at Rs. 3,000/- per month and awarded the compensation in a sum of Rs. 1,31,241/-. On these grounds, he prays for setting aside the impugned judgment and award passed by the Commissioner. 10. Per contra, Shri Siddappa Sajjan, learned counsel for the Workman, placing reliance on the Division Bench judgment of this Court in the case of National Insurance Company Limited vs. Shri Maruthi and Others, ILR 2011 Kar. 4139, vehemently contended that the Commissioner, on considering the evidence on record, was justified in awarding compensation and prays for dismissal of the appeal filed by the insurer. 11. 4139, vehemently contended that the Commissioner, on considering the evidence on record, was justified in awarding compensation and prays for dismissal of the appeal filed by the insurer. 11. On careful scrutiny of the evidence on record, it is seen that during the enquiry before the Commissioner, the workman has established the jural relationship of employer- employee and that the injuries sustained by him are during the course of his employment. Admittedly, the vehicle involved in the present case is a tractor and trailer which was used for agricultural operation and the petitioner claimant sustained injuries while working as coolie in the tractor and trailer belonged to the insured, while loading the sugarcane in the land of Basangouda. 12. The Division Bench of this Court in Maruthi’s case referred supra, while dealing with an identical case was pleased to held that the combination of tractor-trailer is nothing short of a goods carriage and when once it is held as goods carriage vehicle, by virtue of Section II-1(1) of fully worded policy and also the provisions of Section 147, the claim of the claimants was covered. Further, while negativing the contention of the insurer that Rule 100(6) read with Rule 226 of the Karnataka Motor Vehicles Rules is relevant, was pleased to held thus: “34. As of now, there are only two types of policies envisaged under the Standard Forms as contemplated under Section 6 of the Indian Motor Tariff. Their liability under the liability only policy and package policy reads as under: (i) Liability Only Policy: This cover Third Party Liability for bodily injury and/or death and Property Damage Personal Accident cover for Owner Driver is also included. (ii) Package Policy: This covers loss or damage to the vehicle insured in addition to (i) above. 35. By reading the above two types of polices, it is clear package policy is nothing short of comprehensive policy with all the contents almost similar to the comprehensive policy which was in vogue earlier to the introduction of this policy. 36. The fully worded now produced refers to limits of liability as envisaged in commercial Vehicles 'B' Policy (Misc. and Special type of vehicles). Section 1 refers to loss of damage to the insured vehicle, tractor trailer combination. Section-II refers to liability to third parties and Section III refers to towing disabled vehilce. 36. The fully worded now produced refers to limits of liability as envisaged in commercial Vehicles 'B' Policy (Misc. and Special type of vehicles). Section 1 refers to loss of damage to the insured vehicle, tractor trailer combination. Section-II refers to liability to third parties and Section III refers to towing disabled vehilce. We are concerned with sub-section (i) of Section II which reads as under: Subject to the limits of liability as laid down in the schedule herein, the company with indemnify the insured against all sums including the claimants costs and expenses which the insured shall become legally liable to pay in respect of death of or bodily injury to any person (including the loading and/or unloading) of the Mother Vehicle.” 37. The wordings of the fully worded policy makes it clear that the vehicle in question is a good vehicle. Therefore, the respondents were justified in saying appellant cannot plead other than what is stated in the policy. If the general exception in the policy were to exclude the liability of the insurer to cover the coolies employed for loading and unloading then the argument of the appellants was justified. Though the fully worded policy refers to the terms of contract between the parties, IMT 7, 21, 24, 36 and 48, and perusal of the same except IMT 36 none of the other IMTs are relevant. As a matter of fact IMT 7 and 48 do not find a place in the fully worded policy. IMT 21 refers to exclusion of riots, strikes and terrorism coverage. IMT 24 refers to replacement of parts. When the very policy is referred to as a special package policy, unless the insured was fully made known the exact terms of contract by including them in the terms of policy, it is nothing but with-holding necessary and important information from the insured. Depending upon the user of the Vehicle whether for agricultural purpose or for commercial purpose, the liability of the insurer would be decided. When the intention of the Legislation was to cover compulsorily all the risk arising out of the use of the motor vehicle and that the liability of the insurer is co-extensive with that of the insured subject to Section 147(1) (b), coolies or employees are compulsorily covered. When the intention of the Legislation was to cover compulsorily all the risk arising out of the use of the motor vehicle and that the liability of the insurer is co-extensive with that of the insured subject to Section 147(1) (b), coolies or employees are compulsorily covered. Therefore, the argument that Rule 100(6) r/w Rule 226 of the Karnataka Motor Vehicles Rules is relevant is rejected and the same will not authorise or permit the insurer to avoid the liability.” 13. Whereas the combination of tractor-trailer in nothing short of a goods carriage. Therefore, when once it is held as goods carriage vehicle, by virtue of Section 11-1(1) of fully worded policy and also provisions of Section 147, the claim of the claimant on hand is covered. The claimant in the present case has rightly approached the Commissioner and the Commissioner was justified in holding that the injured claimant was coolie under the owner viz. the insured. It is further held that the claimant was carrying work in the sugarcane field in the land of Basangouda. Whereas the tractor and trailer which belonged to him was insured by the appellant insurance company. The claimant, while cutting the sugar cane as well as loading the same in the sugarcane field of Basanagouda, he met with an accident and suffered grievous injuries like fracture of his left ribs as well as little finger. Therefore, looking to the avocation of the claimant as coolie in the sugarcane field of Basanagouda, the computation of the compensation by the Commissioner for Workmen’s Compensation is just and proper. Viewed from any angle, I do not find any good grounds to interfere with the award passed by the Commissioner i.e. a sum of Rs. 1,31,241/- and it cannot be termed as exorbitant or excessive. The ratio of the aforesaid reliance is aptly applicable to the facts and circumstance of the case on hand in respect of the claimant. 14. In the case on hand, the tractor and trailer was being used for agricultural operation i.e., for loading of sugarcane and the petitioner claimant had sustained grievous injuries arising out of and during the course of his employment. 14. In the case on hand, the tractor and trailer was being used for agricultural operation i.e., for loading of sugarcane and the petitioner claimant had sustained grievous injuries arising out of and during the course of his employment. Thus, in view of the dictum laid down by the Division Bench of this Court in Maruthi’s case referred supra, the contention of the learned counsel for the appellant-insurer that provisions of Rules 100(6) read with Rule 226 of the Karnataka Motor Vehicles Rules has no leg to stand and the same is hereby rejected. 15. As regards the quantum of compensation is concerned, as could be seen from the Ex.P-8, the disability certificate issued by the Doctor, coupled with the evidence of the Doctor (PW-2), the injured claimant has sustained functional disability of 35 to 40% as against which the Commissioner has assessed the disability at 37%. The accident is of the year 2007, the Commissioner has rightly took the income of the petitioner claimant at Rs. 3,000/- per month and applied the factor 197.06 and assessed the permanent functional disability at 37% and determined the compensation payable at Rs. 1,31,241/- (3,000/- x 60% x 197.06 x 37%). The compensation awarded by the Commissioner cannot be termed as exorbitant or excessive. 16. In view of the discussion made above and in view of the dictum laid down by this Court in the case cited supra, there is no substance in the contention urged by the learned counsel for the appellant. No good grounds are made out to interfere with the well reasoned order passed by the learned Commissioner. Consequently, the appeal is liable to be dismissed, inasmuch as, the same is devoid of merit. 17. Accordingly, the appeal is dismissed. 18. The amount in deposit before this Court if any shall be transmitted to the concerned jurisdictional Court forthwith.