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2019 DIGILAW 65 (KAR)

Murtuja Khadri v. Narmada

2019-01-07

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. PATIL, J. 1. Heard the learned counsel for the appellant and respondents. 2. This appeal is directed against the judgment and award dated 30.03.2007 passed by the Workmen's Compensation Commissioner, Sub Division No.2, Bijapur in WC No.132/2005. 3. The claimant filed a claim petition before the Commissioner for Workmen's Compensation claiming compensation for the injuries sustained in the course of his employment. He has stated in the claim petition that he was working as Hamal in Minidor goods vehicle belonging to respondent No.1 bearing Registration No. KA-28/5806 on 23.05.2005 as per the instructions of his employer first respondent, he was on duty of loading and unloading and when the said vehicle was passing near the garden land of Manohar Indi, on Ukkali-Vijapur road, a tractor trailer bearing No.KA-22-2772-71 came from opposite direction and dashed to the Minidor goods vehicle. Due to the said accident the claimant sustained grievous injuries viz., fracture of Patella and fracture of right knee and also other injuries. He was getting salary of Rs.4,500/- per month and Bhatta of Rs.100/- per day from his employer. He was hale and healthy. Now due to accidental injuries, he is not in a position to do any hard work. Therefore, he claimed compensation of Rs.3,25,000/-. 4. Respondent Nos.1 and 3 appeared before the Commissioner. However, respondent No.2 remained absent and he was placed ex-parte. Respondent No.1 filed written statement admitting that the claimant was under his employment and he is the employer and that he was working as Hamali in his Minidor vehicle on a salary of Rs.2,500/- per month. 5. Respondent No.3 filed written statement denying the averments made in the claim petition. He contended that the claimant was not working as Hamali in the goods vehicle and that he was travelling as unauthorized passenger. The claimant is not an employee of respondent No.1. There is also breach of policy conditions. Further, it is specifically contended that respondent No.3 has not issued insurance policy in the name of respondent No.1 in respect of the offending vehicle. Therefore, the claim petition be dismissed. 6. On the basis of the pleadings of the parties, the Commissioner for Workmen's Compensation has framed issues. The claimant got examined himself as PW.1, and one witness on his behalf as PW.2 and got marked eight documents. Therefore, the claim petition be dismissed. 6. On the basis of the pleadings of the parties, the Commissioner for Workmen's Compensation has framed issues. The claimant got examined himself as PW.1, and one witness on his behalf as PW.2 and got marked eight documents. Respondent No.3 got examined one witness as RW.1 and got marked the insurance policy as Ex.R.3A. The learned Commissioner after hearing both the parties, passed the impugned judgment awarding compensation of Rs.81,341/- together with interest at 12% p.a. and directed the respondent No.1 to pay the said compensation. The insurer was exonerated. 7. The claimant has filed this appeal challenging the impugned judgment and award on the ground that the Commissioner has awarded meager compensation, he ought to have considered his income at Rs.4,500/- per month as per the Minimum Wages fixed in the Government notification. A coolie or loader and un-loader is permitted to travel in the goods vehicle and therefore, the insurance company is liable to pay the compensation. The interest awarded by the Commissioner is also on the lower side. 8. The learned counsel for the appellant submitted that the issue of policy in respect of the offending vehicle is admitted by the insurer. Therefore, the insurance company is liable to pay the compensation. He further submitted that a Hamali or loader and un-loader is permitted to travel in the goods vehicle and there is a statutory coverage of the risk of two persons in a mini lorry. Therefore, liability may be saddled on the insurer. 9. Per contra, the learned counsel for the insurer respondent No.3 herein submitted that the claimant cannot make a third party claim under WC Act. It is necessary for the claimant to prove the jural relationship of employee and employer. The learned counsel further submitted that, the respondent No.2 is the owner of the vehicle and policy was issued in the name of respondent No.2. Therefore, the claimant cannot be held as employee under the owner of the vehicle since the claimant has contended that he was under the employment of respondent No.1. 10. The learned Commissioner has passed the impugned order saddling the liability on respondent No.1 holding that the claimant was working under respondent No.1 and that claimant is not entitled to claim compensation against the insurer as a third party. 10. The learned Commissioner has passed the impugned order saddling the liability on respondent No.1 holding that the claimant was working under respondent No.1 and that claimant is not entitled to claim compensation against the insurer as a third party. The learned counsel for the appellant has relied on a decision in the case of Oriental Insurance Company Ltd. Vs. Hanumantappa and Others reported in, (1992) ACJ 1083. In this case, this Court has held as follows: "(1) The insurance company with which a tractor and a trailer attached thereto are insured is liable to pay compensation in respect of death of or bodily injury to employees travelling in the trailer. (2) The liability is limited to six employees and the extent of liability is limited tot he amount of compensation payable under the provisions of the Workmen's Compensation Act, unless in a given case, the owner concerned has taken extra coverage by paying an extra amount of premium." 11. Therefore, this Court has held liability of the insurance company is limited to six employees engaged in a tractor and trailer where the vehicle was used for transportation and it is held that the tractor-trailer is a goods vehicle. This decision will not come to the aid of claimant in the present case in order to claim that his risk is covered under the policy issued in respect of the goods vehicle. The insurer has contended in specific terms that the policy was issued in the name of respondent No.2 and that the respondent No.2 is the owner of the said vehicle. In case, this contention of the insurer is accepted, the claim of the claimant that he was working as employee under respondent No.1, the owner of the vehicle cannot be accepted. 12. The insurer has produced insurance policy at Ex.R.3A, which is issued in the name of Mr. R.R. Hiremath who is respondent No.2 in the claim petition. The vehicle number is mentioned as KA-28-5806, which is the offending vehicle in the case. This policy was issued for the period from 4.11.2004 to 3.11.2005. The accident occurred on 23.05.2005. Therefore, the policy was issued in the name of respondent No.2 for the relevant period as owner of the said vehicle. The vehicle number is mentioned as KA-28-5806, which is the offending vehicle in the case. This policy was issued for the period from 4.11.2004 to 3.11.2005. The accident occurred on 23.05.2005. Therefore, the policy was issued in the name of respondent No.2 for the relevant period as owner of the said vehicle. When this is established before the Court, the contention of the claimant that he was working under respondent No.1 and that the respondent No.1 was the owner of the said vehicle during the relevant period cannot be accepted. Therefore, the question of policy covering the risk of the loader and un-loader does not arise. Under these circumstances, the insurer cannot be made liable to pay the compensation to the claimant since respondent No.1 is not the insured and the policy was not issued in her name. Therefore, the learned Commissioner has come to a proper conclusion and has saddled the liability on respondent No.1 for the reason that the respondent No.1 has filed written statement admitting the claim of the claimant that he was working under her and that he was paying salary of Rs.2,500/- per month to him. 13. The learned counsel for the claimant submitted that monthly income of the claimant should have been taken at Rs.4, 500/- per month for the purpose of assessing the loss of future income due to disability. The learned Commissioner has referred to the contents of the written statement filed by the respondent No.1. Respondent No.1 has stated in his written statement that the claimant was working under him on a salary of Rs.2,500/- per month. The same is accepted by the Commissioner, as the claimant failed to prove his income by producing necessary evidence. Therefore, the contention of the claimant that his income should have been taken as Rs.4,500/- per month as per the Minimum Wages fixed in the notification issued by the Government cannot be accepted. 14. The Commissioner has awarded interest on the compensation amount from 11.07.2006. This is against the provisions of Workmen's Compensation Act. The interest ought to have been awarded after one month from the date of accident. The accident in question occurred on 23.05.2005 and interest should have been awarded from 23.06.2005. 15. With the above observations, I hold that the appeal being devoid of merits is liable to be dismissed. Accordingly, it is dismissed.