Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 1269 (KAR)

United India Insurance Co. , Ltd. v. Rahamatbi

2022-09-23

H.P.SANDESH

body2022
JUDGMENT 1. These three appeals are filed by the Insurance Company challenging the liability in respect of award passed in CWA/F/24+25+64/2009 dtd. 30/3/2011 on the file of Labour Officer, Commissioner for Workmen's Compensation, Gadag District, Gadag (for short, 'Commissioner'). 2. Factual matrix of the case of the claimants who are claiming compensation as legal representatives of three deceased persons is that all the deceased persons were travelling in a tipper bearing Reg.No.KA-26/5901 belonging to respondent No.1-insured with appellant herein. One Prameshwarappa Betageri gave statement before the Mundaragi police stating that 15-20 persons were being carried in the said vehicle and after completing their road construction work near Kookanur accident took place. 3. The claimants in order to substantiate their claim, examined PWs.1 to 3 in respective claim petitions. On the other hand, appellant-Insurance Company examined one witness as RW.1 and got marked document as Ex.R.1-copy of policy. The Commissioner after considering both the oral and documentary evidence on record, allowed the claim petitions by awarding compensation. Hence, Insurance Company has prayed in all these appeals to set aside the judgement and award passed by the Commissioner. 4. Insurance Company raised substantiate questions of law that whether the Commissioner acted contrary to law in making the appellant liable to pay the compensation to the workman of one D.S.Hanchinal, the contractor who had not obtained any policy from the appellant and there was no any employer and employee relationship between the owner of the vehicle and the deceased persons. The Commissioner has acted lawfully in ignoring that the deceased persons were not workmen under the owner of the lorry and failed to take note contents of Ex.P.2. 5. Counsel for appellant in her argument vehemently contended that when there was no relationship of employer an employee and there was no policy coverage and work is also not in connection with vehicle and they have traveled as unauthorized passengers in the said vehicle, Insurance Company is not liable to pay the compensation. 6. 5. Counsel for appellant in her argument vehemently contended that when there was no relationship of employer an employee and there was no policy coverage and work is also not in connection with vehicle and they have traveled as unauthorized passengers in the said vehicle, Insurance Company is not liable to pay the compensation. 6. Counsel also relied upon judgement of Apex Court reported in 2007 AIR SCW 3591 in the case of Oriental Insurance Company Limited vs. Premlata Shukla and Others , wherein it is held that once part of contents are admitted in evidence and party brings same on record cannot be permitted to contend that other contents contained in rest part thereof had not been proved and Apex Court set aside the finding of the High Court holding the driver guilty by ignoring FIR on the ground that FIR has not been legally proved. Counsel referring to this judgement, contends that Ex.P.2 has not been considered by the Commissioner. 7. Counsel also relied upon judgement reported in 2005-LAWS (KAR)-7-8 in the case of United India Insurance Company Limited, Gulbarga vs. Hanamanthappa , wherein also specific defence was taken that they are unauthorized passengers in the tractor-trailer and Tribunal directed to pay compensation and held that transportation of passengers in tractor-trailer is totally prohibited and there is no liability of insurer to pay the compensation. Counsel referring to this judgement, contends that in the case on hand also the deceased were travelling as unauthorized passengers and hence, the Insurance Company is not liable to pay any compensation. 8. Per contra, learned counsel for respondents-claimants vehemently contends that respondent No.1 before the Commissioner has categorically admitted that the deceased persons were employees of him and they were also carried for road construction work and police have also recorded the further statement and all of them were working in the lorry and the judgements quoted by the Insurance Company are not applicable to the facts of the case on hand, wherein it is proved that they are unauthorized passengers and in the case on hand the Insurance Company has not proved that the deceased persons were unauthorized passengers. Hence, the judgement and award passed by the Commissioner are sustainable and cannot be interfered with. 9. Hence, the judgement and award passed by the Commissioner are sustainable and cannot be interfered with. 9. Having heard the respective counsel and also on perusal of the material available on record and the grounds urged in the appeal, the following points would arise for consideration: i. Whether the Insurance Company has proved that the deceased persons were travelling as unauthorized passengers in the said vehicle? ii. Whether the Commissioner has committed an error in fastening liability on the Insurance Company? iii. What order? 10. Regarding Point Nos.1 and 2: Having heard the learned counsel for the parties and on perusal of the material on record, the claimants before the Commissioner have contended that the deceased persons were working as hamalies in the said lorry and also one among them was a cleaner in the said lorry. No doubt, the Insurance Company denied the said contention in the written statement but the owner who filed the written statement categorically admitted that they were hamalies and cleaner, but denied that they were getting salary of Rs.4, 000.00 p.m. and Rs.50.00 as bhatta per day and contended that if there is any liability, the same has to be indemnified by the Insurance Company. 11. The claimants have examined PWs.1 to 3 and all of them have reiterated the contents of their claim. P.W.1 was cross-examined, wherein a suggestion was made that the deceased persons travelled as an unauthorized passengers and the same was categorically denied by P.W.1, but admitted that no documents are produced that they were working with respondent No.1 as hamalies. It is suggested that the deceased were not working as hamalies and only working as mason and the said suggestion was denied. It is suggested that in order to claim compensation, he is falsely deposing that the deceased were working as hamalies and the said suggestion was denied, but admits that he has not given any statement before the police. 12. P.W.2 was also cross-examined in line with P.W.1 and he has also denied that the deceased were proceeding as an unauthorized passengers in the said vehicle. P.W.3 also reiterated the evidence of PWs.1 and 2 and in the cross-examination all of them have admitted that they have not given any statement before the police. 12. P.W.2 was also cross-examined in line with P.W.1 and he has also denied that the deceased were proceeding as an unauthorized passengers in the said vehicle. P.W.3 also reiterated the evidence of PWs.1 and 2 and in the cross-examination all of them have admitted that they have not given any statement before the police. It is suggested to P.W.3 that all of them were travelling as an unauthorized passengers in connection with work of Sri.D.S.Hanchinal and the same was denied. 13. On the other hand, Insurance Company examined Manager of the company as RW.1 and separate affidavits are filed in respect of all the claims, but common cross-examination was made, wherein he admits that in terms of policy Ex.R.2 it was a package policy and further admits that in a goods vehicle labourers are necessary and also admits that policy was covered for three persons and also admits that in terms of the policy, the policy was issued for driver and also owner. It is suggested that in spite of all of them were travelling in the vehicle as hamalies and cleaner, he is deposing falsely before the Court as they were proceeding as an unauthorized passengers and the said suggestion was denied. 14. Having considered both oral and documentary evidence, based on the complaint of one Sri.Parameshwarappa, case was registered and FIR was registered in terms of Ex.P.1. No doubt, in the complaint, it is stated stated that all of them were travelling in the said tipper, but nowhere it is mentioned that all of them were proceeding as unauthorized passengers. But it is stated that on that date in connection with work of one D.S.Hanchinal all of them went and worked and they were all returning and at that time accident had taken place. Further statement of complainant was also recorded with regard to death of three persons in the said accident. The police have investigated the matter and filed charge sheet and while filing the charge sheet in column No.17 it is stated that in the said vehicle all of them were carried for coolie work and as a result of accident some persons were died and some of them have sustained injuries. The police have investigated the matter and filed charge sheet and while filing the charge sheet in column No.17 it is stated that in the said vehicle all of them were carried for coolie work and as a result of accident some persons were died and some of them have sustained injuries. In order to prove the fact that they were proceeding as unauthorized passengers, nothing is elicited in the cross-examination of PWs.1 to 3 and RW.1 also categorically admits that in goods vehicle they have to carry labourers. 15. No doubt, in Ex.P.2 there was reference that all of them travelled in connection with work of one D.S.Hanchinal and though took the said contention by the Insurance Company, not proved, but respondent No.1 categorically admits that all of them were his employees and in order to rebut the admission of respondent No.1 also, he was also not summoned before the Commissioner except examining the branch manager who was not having any personal knowledge. Whether they were travelling as unauthorized passengers or they were not the employees of respondent No.1, has not been proved. It is important to note that respondent No.1- owner admitted that they were the employees and the same has not been rebutted by leading any cogent evidence before the Court and also not summoned the Investigating Officer and Investigating Officer while filing the charge sheet in terms of column No17 categorically stated that all of them were carried as labourers of respondent No.1. 16. No doubt, the Apex Court in Premlata, supra case held that contents of documents cannot be denied when the same are relied upon by the claimant. No doubt, claimants have relied upon FIR and charge sheet, but when the Insurance Company took specific defence that they travelled as unauthorized passengers, none of the witnesses were examined and it is not their case that they were carried by collecting money. But in the cross- examination, respondent No.1 categorically admits that when the vehicle was insured and taken the package policy and when labourers were travelled, they are also covered and perusal of Ex.R.1, it is also clear that premium was collected on 1/2/2009 and policy is a package policy. When such being the case, the very contention of Insurance Company cannot be accepted. When such being the case, the very contention of Insurance Company cannot be accepted. In order to prove the fact that they were working with D.S.Hanchinal and not with respondent has also not been proved and respondent No.1 categorically admitted that they are employees and when such admission is available and when same is not rebutted, the very contention of the Insurance Company that the claimants have not proved the relationship of employer and employee cannot be accepted. Hence, I do not find any force in the contention of appellant's counsel and judgment in the case of Hanamanthappa, supra does not comes to the aid of Insurance Company unless it is proved that they are unauthorized passengers. 17. Even at the first instance, in the complaint itself it is stated that all of them were returning after attending the road construction work and also it is not their case that the vehicle has not met with an accident and was not used for the purpose of road construction work. Under such circumstances, I do not find any merit in the appeal. Hence, point Nos.1 and 2 are answered in negative. 18. Regarding point No.3: In view of the discussions made above, I pass the following: ORDER Appeals are dismissed. Amount in deposit, if any, is ordered to be transferred to the concerned Court forthwith. The registry is directed to transmit the trial court records forthwith.