Sunita W/O Rachayya Hiremath v. Managing Director, Eco Cane Sugar Energy Ltd.
2019-03-19
BELLUNKE A.S., G.NARENDAR
body2019
DigiLaw.ai
ORDER : G.NARENDAR, J. Heard the learned counsel for the claimants in MFA No.102389/2017. 2. The short point on which the appeal is canvassed is that the Commissioner under Employees’ Compensation Act, has failed to take cognizance of the amendment of the Minimum Wages Act and that the income of the deceased ought to be calculated in terms of the amended provisions of sub-section (1)(b) of Section 4 and that the wages ought to have been calculated at the rate as stipulated under the Employees Compensation Act, 1923. The issue should not detain us for long. 3. We have perused the judgment and award passed by the Court of I Addl. Senior Civil Judge and Commissioner under the Employees Compensation Act, Belagavi. The Court below has placed reliance on Ex.P10 -salary slip and thereafter proceeded to assess the compensation. The question of application of the Minimum Wages Act would not arise where the person is paid a fixed salary and if his salary so paid is lesser than the minimum wages, then it was for the appellants or the workmen to have agitated the same before the appropriate forum. Having failed, no illegality or error can be attached to the Court below for placing reliance on Ex.P10 -the salary slip. 4. In that view of the matter, no substantial question of law arises. Hence MFA No.102389/2017 is dismissed without being admitted. 5. MFA No.100903/2017 is by the insurer. 6. The learned counsel for the insurer would vehemently contend that the Court below and the Commissioner under the Employees Compensation Act erred in awarding compensation in the absence of there being either a statutory or contractual liability, cast on the appellant-insurer. It is contended that the motorcycle was handed over to the deceased by its owner, who is none other than his employer arrayed as third respondent before the Court below. Hence he would submit that the deceased having stepped into the shoes of the owner is not a third party and is not entitled to any compensation. 7. The learned counsel would also alternatively argue that the deceased was not appointed as a driver of the motorcycle or under any other capacity in connection with the motorcycle. That being the case and no separate premium having been collected, the insurer is not liable to indemnify the claim against the employer, i.e., the insured.
7. The learned counsel would also alternatively argue that the deceased was not appointed as a driver of the motorcycle or under any other capacity in connection with the motorcycle. That being the case and no separate premium having been collected, the insurer is not liable to indemnify the claim against the employer, i.e., the insured. He would also further contend that the accident has not occurred in the course of employment. 8. The contention requires to be rejected as the Court below has rejected the said contention and has rendered a finding of facts after appreciating the evidence and material on record. The appellant is unable to demonstrate any perversity in the appreciation of the evidence or any illegality in the reasoning set out by the trial Court to hold otherwise. The only contention which requires to be addressed is as to whether the deceased was employed in connection with the motorcycle. 9. The undisputed fact of the case is that, the deceased was employed as a Field Assistant by the 3rd respondent company. The 3rd respondent company is the registered owner of the motorcycle. The scope of a Field Assistant involves visiting the various fields where the sugar cane is being grown and to inspect the same and ensure that the crop grown is ready for harvest and also to issue permission for harvesting and transportation of the harvested cane to the factory premises by the farmers. This involves traveling to various villages where the cane is grown. It is not denied that the motorcycle is purchased by the company and utilized for the purpose of facilitating the company’s work of inspecting the sugarcane grown and the person who executes this job and hence the argument that the deceased was not employed in connection with motorcycle requires to be rejected. It must be held that the purchase of the motorcycle and the employment of the deceased was in connection with the post of the Field Assistant and consequently in connection with motorcycle. 10. The learned counsel for the appellant has placed reliance on the ruling of this Court reported in II (2007) ACC 192 in the case of United India Insurance Co. Ltd., Vs.
10. The learned counsel for the appellant has placed reliance on the ruling of this Court reported in II (2007) ACC 192 in the case of United India Insurance Co. Ltd., Vs. Hanamanthappa & Ors., wherein the learned Single Judge was dealing with a case involving the death of persons, who were traveling in a tractor-trailer and who were not employed as employees in connection with the use of the tractor and trailer, was pleased to hold that they were mere passengers and hence they being passengers and the same being contrary to the policy conditions and after placing reliance on the rulings of the Apex Court in National Insurance Company Ltd., Vs. V. Chinnamma, was pleased to reject the same. 11. The learned counsel has also placed reliance on one more ruling rendered by the learned Single Judge of this Court reported in IV (2007) ACC 65 in the case of National Insurance Co. Ltd., Vs. Mumtaz & Ors., wherein the learned Single Judge after appreciating the facts and material on record, concluded that the use of the motorcycle to visit his wife at her parental house could not be construed as a trip in the course of employment. The Court held that it is not possible to construe the visit to the parental house of the wife as part of his employment and use of the motorcycle in the course of its employment and was pleased to absolve the insurer on the said basis. 12. In the instant case, no evidence is let in by the appellant-insurer to demonstrate that the motorcycle was not being used in the course of employment. Admittedly, the material on record includes the admission by the representative of the employer admitting the fact that the motorcycle has been handed over to the deceased for the purpose and execution of the work of a Field Assistant i.e., including visiting his fields in various villages. This Court can also take a judicial note of the fact that the cane growing areas are reserved under the Cane Control Order in favour of the Sugar Factory. The area so reserved many a time consists of several villages and the farmers who grow cane within those villages are required to supply the same to the factory in favour of whom the area is reserved.
The area so reserved many a time consists of several villages and the farmers who grow cane within those villages are required to supply the same to the factory in favour of whom the area is reserved. One of the duties of the Field Assistant is to ensure the time for supply of the cane to the factory during the crushing season. The crushing season commences in the month of August-September and continue till March-April. The accident has occurred on 02.01.2014, thereby it can be safely inferred that the accident has occurred during the crushing season and in the absence of any evidence to controvert the assertion by the wife of the deceased employee, we do not find any ground which controverts the finding of fact rendered by the Tribunal holding that the accident occurred in the course of his employment. 13. Coming to the other contention, that is the other limb of argument that in the absence of personal accident cover for the owner and the driver, no liability can be fastened on the appellant-insurer, the said contention requires to be rejected in the light of GR.36 which deals with applicability of Personal Accident Cover under the Motor Policy GR.36. GR.36 reads as under: “GR.36. Personal Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Sections E, F and G of Tariff for Commercial Vehicles) A. Compulsory Personal Accident Cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package policies. The owner of insured vehicle holding an “effective” driving license is termed as Owner-Driver for the purposes of this section. Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/ dismounting from or traveling in the insured vehicle as a co–driver. NB. This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/she holds an effective driving license. Hence compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner-driver does not hold an effective driving license. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner -driver should not be charged and the compulsory P. A. cover provision in the policy should also be deleted.
In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner -driver should not be charged and the compulsory P. A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her.” 14. On perusal of the note appended to GR.36, it is clear that the said compulsory PA Cover is not applicable when the registered owner of the motorcycle is a partnership firm or corporate body, or where the owner does not hold an effective driving licence. In the instant case, there is no dispute to the fact that the registered owner of the motorcycle is the 3rd respondent – factory. 15. The learned counsel for the appellant-insurer would also contend that the award passed by the Court below is contrary to the terms of IMT -29. He would content that, to cover the liability of the insured and to indemnify the insured, the insurer ought to have paid a separate premium of Rs.60/-and that only if such a premium is paid, the insurer is liable to indemnify the insured in respect of the claims by the employees of the insured, who are neither the driver nor the cleaner of the two wheeler. In the instant case, though such contention with regard to legal liability as per IMT 29 is raised, no issues have been framed. The only issue framed is as follows: “1.Whether petitioners prove that when deceased Rachayya was under the course of employment and as per direction of R-1 on 20.01.2014, when he was returning on motorcycle from Sambra towards Marihal, at about 23.30 hours near Balekundri on Belagavi-Bagalkot road deceased fell down from the motorcycle bearing No.KA-22-EA-1123 and sustained fatal injuries? 2. Whether petitioners are entitled for compensation? 3. What order?” 16. Be that as it may. As stated supra, in view of GR.36, we are unable to appreciate the reliance on IMT-29. No substantial question of law arises for consideration in the appeal. Accordingly MFA No. 100903/2017 stands rejected.