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2019 DIGILAW 1501 (KAR)

United India Insurance Co. Ltd. v. Jayarama

2019-07-01

P.G.M.PATIL

body2019
JUDGMENT : P. G. M. PATIL, J. 1. The insurer being aggrieved by the common judgment and award passed in WCA Nos.513/2008, 514/2008, 515/2008, 516/2008 and 517/2008 by the Labour Officer and Commissioner for Workmen's Compensation (for short 'Commissioner'), Sub-Division- I, Bellary has filed these appeals. 2. It is the case of the claimants before the Commissioner that the claimant in WCA No.513/2008 was working as a driver in tractor-trailer bearing No.KA7 34/T-7137-7138 belonging to respondent No.1 and the claimants in other claim petitions as Hamalis in the said tractor and trailer. All the claimants were employees under respondent No.1 in the said tractor and trailer. It is further stated that on 09.04.2007 on the instructions of respondent No.1 himself, all the claimants were traveling in the said tractor and trailer on Bangalore-Ballari Road at about 3.00p.m, the driver of the tractor lost control over the vehicle and dashed against the motorcycle causing accident. 3. Immediately after the accident, the claimants were shifted to Primary Health Centre, Shidaginamole and thereafter taken treatment with other private doctors. All the claimants have stated that they sustained injuries in the said accident. Due to the accident, they have become permanently disabled and they cannot do the work as they were doing before. Therefore, they filed claim petitions before the Commissioner. 4. In pursuance of service of notice, respondent No.1 remained absent and has placed ex parte. 5. Respondent No.2 filed objections stating that he has not issued any insurance policy in respect of the offending vehicle namely tractor and trailer, in case it is proved that the said vehicle was insured with him, his liability is subject to the terms and conditions of the policy. It is denied that the claimants have sustained injuries in the alleged accident and that they are suffering from permanent disability. He has also contended that the claimants are not entitled for compensation from the insurer as risk of the coolies of tractor and trailer is not covered under the policy and the driver of the vehicle is responsible for causing the accident due to his rash and negligent driving. 6. On the basis of the pleadings of the parties, the Commissioner framed issues. 7. The claimants got examined 5 witnesses as PW1 to PW5 and got marked one witness as PW6 in order to prove the disability and got marked 17 documents at Ex.P1 to P17. 6. On the basis of the pleadings of the parties, the Commissioner framed issues. 7. The claimants got examined 5 witnesses as PW1 to PW5 and got marked one witness as PW6 in order to prove the disability and got marked 17 documents at Ex.P1 to P17. Respondent No.2 has not produced any original evidence but has produced the insurance policy as Ex.R1. 8. The learned Commissioner after hearing both the parties passed the impugned judgment awarding compensation of Rs.1,74,703/-, Rs.1,39,463/-, Rs.1,171131/-, Rs.1,37,636/- and Rs.1,35,626/- in favour of the respective claim petitioners with interest at 12% p.a. Respondent No.2 insurer was directed to deposit the compensation amount before the commissioner. 9. Insurer being aggrieved by the common judgment has filed these appeals on the ground that the commissioner erred in awarding the claim petition of the driver though the accident took place due to his own negligence and therefore he is not entitled to seek compensation against the insurer. 10. The Commissioner erred allowing the claim petitions filed by other claimants/Hamalis, as the risk of the hamalis traveling in the tractor trailer is not covered under the insurance policy. 11. It is further contended that the commissioner has not noticed the statement of the complainant which shows that no injuries were caused to the first claimant driver who ran away from the spot after the accident. 12. It is further contended that the claimants have not proved that they are suffering from permanent disability as stated by PW2-Doctor. 13. Heard the learned counsel for the appellant/ insurer in all the appeals. 14. The respondents/claimants served unrepresented. 15. A short question which arise for consideration in these appeals is as to whether the insurer has made out grounds for setting aside the liability saddled against him. 16. The first contention of the insurer is that the claimant in the first case who is the driver of the offending vehicle is not entitled to claim compensation against the insurer on the ground that because of his own negligence, the accident occurred, cannot be accepted in view of the judgment of the Hon'ble Supreme Court in the case of Jaya Bisal and Others V. Branch Manager, IFFCO TOKIO General Insurance Company Limited and Another, (2016) 11 SCC 201 . The Hon'ble Supreme Court in paragraph 22 and 23 has held as follows: "22. The Hon'ble Supreme Court in paragraph 22 and 23 has held as follows: "22. Section 3 of the EC Act provides for employer's liability for compensation and reads as: "3.Employer's liability for compensation.-(10 If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter." 23. The liability of the employer, thus, arises, when the workman sustains injuries in an accident which arises out of and in the course of his employment. In ESI Corpn. V.Francis De Costa, a three-Judge Bench of this Court held as under: (SCC p.13, paras 28-29) "28. In Dover Navigation Co. Ltd. v.Isabella Craig, it was observed by Lord Wright that: (ACCIDENT p.199) "... Nothing could be simpler than the words "arising out of and in the course of the employment". It is clear that there are two conditions to be fulfilled. What arises "In the course" of the employment is to be distinguished from what arises "out of employment". The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment, that is, directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless is also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.'." 17. Therefore the contention of the insurer that the workman by his own negligence caused the accident in question therefore he is not entitled to claim compensation against the insurer, has no merit and the same cannot be accepted. 18. So far as the other contention of the insurer that claimants in other cases have claimed that they were traveling in the tractor trailer as hamalis and therefore their risk is not covered under the said policy cannot be acceptable, in view of the judgment of Division Bench of this Court in the case of National Insurance Company Limited v. Sri Maruthi in MFA Nos.6556, 6557, 6558, 6559 of 2006 decided on 27.12.2010. Division Bench of this Court in paragraph 31 in the above case has held as follows: "31. Division Bench of this Court in paragraph 31 in the above case has held as follows: "31. By reading Sections 147 and 149, it is clear that the Legislative intent was that the insurer has to compulsorily cover all the risks arising out of and use of motor vehicle and the liability of the insurer is co-extensive with that of insured. However, this is subject to the limitations envisaged under Section 147(1)(b). It is also clear that the coolies who are employees carried in a goods vehicle are to be compulsorily covered under Section 147(1)(b)." 19. Therefore this contention of the insurer is also not tenable and is liable to be rejected. 20. The learned counsel for the insurer submitted that the claimants have not proved that they are suffering from permanent disability as held by the commissioner and that PW2 is not the treated doctor. Further as per the averments made in the complaint itself, the claimant in the first petition- the driver of the vehicle ran away from the spot after the accident. In case he is suffering from the injuries as mentioned in wound certificate Ex.P8, he would not have ran away from the spot, it appears since the Police had registered the case against the driver of the said vehicle, injuries sustained by the driver was not recorded in the statement of the complainant. 21. However the claimant/driver by production of EX.P8-wound certificate and disability certificate at Ex.P9 and by examination of PW2-the doctor, is able to prove that he had suffered injuries in the said accident. There is no reason to discard evidence of PW2 and the disability certificate issued by him. Similarly in the case of other claimants, the wound certificate and disability certificates issued by PW2, cannot be discarded. 22. Pw-2 has denied the suggestion made in the cross examination that he has not examined the claimants and he has not examined the X-ray and that he has issued the disability certificates only in order to claim the compensation. On other hand, the insurer has not produced any evidence in support of his contention. 23. Under these circumstances, the arguments of the insurer that the claimants have not proved that they are suffering from permanent disability as held by the Commissioner cannot be accepted. 24. Under these circumstance, the point for consideration is answered accordingly. On other hand, the insurer has not produced any evidence in support of his contention. 23. Under these circumstances, the arguments of the insurer that the claimants have not proved that they are suffering from permanent disability as held by the Commissioner cannot be accepted. 24. Under these circumstance, the point for consideration is answered accordingly. In the result, this Court proceed to pass the following:- ORDER All the appeals are dismissed. The compensation amounts deposited in the appeals shall be transmitted to the jurisdictional Court.