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National Insurance Co. Ltd. Hassan Branch Rep. by its Assistant Administrative Officer T. Mahendran v/s Abhi @ Abhilash & Another

    Misc. First Appeal No. 4419 of 2009 (WC)

    Decided On, 08 January 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MRS. JUSTICE RATHNAKALA

    For the Appellant: K.S. Lakshmi Narasappa, B.C. Seetharama Rao, Advocates. For the Respondents: -----



Judgment Text

(Prayer: This M.F.A. is filed under Section 30(1) of WC Act against the Order dt.6.5.2009 passed in Case No.WCA/NF/SR/103/2004 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Hassan, awarding a compensation of Rs.1,18,241/- with interest @ 12% p.a.)

1. It is an insurer’s appeal challenging its liability to comply the award passed by the Labour Officer and Commissioner for Workmen’s Compensation, Hassan Sub-Division, Hassan (for brevity ‘the Commissioner’) in a proceedings initiated by respondent No.1/claimant under Section 3 of the Workmen’s Compensation Act, 1923. By the impugned award, the Commissioner while allowing the claim petition awarde

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d compensation of Rs.1,18,241/- with interest payable by the appellant/insurer.

2. Briefly stated, the claimant filed a claim petition contending that, he is a loader in the lorry bearing registration No.KA-08/U-1157. During the course of his employment on 4.2.2003, the vehicle met with an accident and he suffered grievous injury. The vehicle belonged to first respondent and was insured by the second respondent herein. The first respondent/owner in his objection statement admitted the relationship of employer and employee. The Insurance Company contested the claim. Among others, the insurer disputed the employer and employee relationship. After enquiry, the learned Commissioner allowed the petition and awarded the compensation as above.

3. The appeal is admitted to adjudicate the following substantial question of law:

“Whether the finding of the Commissioner for Workmen’s Compensation holding that the Insurance Company is liable to make good the compensation as the injured claimant was traveling in the lorry as loader is legally sustainable in the light of evidence on record and whether the Insurance Company was liable to reimburse the compensation in the absence of any premium collected in that regard?”

4. Sri.K.S.Lakshmi Narasappa, learned Counsel appearing for the appellant submits that, in fact, the claimant was a gratuitous passenger in the lorry. In respect of the said accident, FIR was registered by the jurisdictional Police. The claimant/first respondent herein was arrayed as CW-2 in the charge sheet and his profession was mentioned as businessman. Admittedly, the vehicle was plying from Hassan Railway Station to Mangalore for unloading cement sleepers for railway broad-gauge work. No workmen will be carried in such lorries carrying goods on long distance routes. That is against Rule 100 of the Karnataka Motor Vehicles Rules, 1989 (‘the Rules’ for brevity). The employer did not enter the witness box to support the case of the claimant. The policy issued in favour of the owner covers the risk of only one person i.e., owner-cum-driver. The insurer examined its Development Officer as RW-1 and brought on record that the claimant was not a loader in the insured vehicle; because of the rash and negligent driving of the lorry, it dashed against a rock on the roadside and was capsized; one passenger viz., Siddaraju expired and two others sustained grievous injuries. The claimant and other injured were gratuitous passengers in the lorry and the insurer is not entitled to cover the risk of owner in respect of the claim of gratuitous passengers.

5. The respondents though served through paper publication are not represented. Perused the impugned award and also the lower court records.

6. There is no much dispute to the fact that the claimant suffered injury in an accident involving lorry bearing No.KA-08/U-1157 on 4.2.2003. The first respondent/owner in his objection statement admitted the employer and employee relationship. During enquiry, the claimant got himself examined as PW-1 and the Doctor as PW-2 to demonstrate the percentage of functional disability suffered by him. In his claim petition, the claimant pleaded that he is a loader in the lorry involved in the accident for the last four years and was sitting in the cabin at the time of accident and the vehicle was transporting cement railway sleepers.

7. Rule 100(1) of the Rules, which prohibits any persons to be carried in a goods vehicle, reads thus:

“100. Carriage of persons in goods vehicle.- (1) Subject to the provisions of this rule, no person shall be carried in a goods vehicle:

Provided that the owner or the hirer or a bona fide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform traveling on duty may be carried in a goods vehicle, the total number of persons so carried,-

(i) in light transport goods vehicle having registered laden weight less than 990 kgs. not more than one;

(ii) in any other light transport goods vehicle not more than three; and

(iii) in any goods vehicle not more than seven:

Provided that the provisions of sub-clauses (ii) and (iii) of the above proviso shall not be applicable to the vehicles plying on inter-State routes or the vehicles carrying goods from one city to another city.”

In view of the above, it is clear that, it is not permissible for any loader to travel in a vehicle carrying goods from one city to another city.

8. The insurance policy, which is marked as Ex.R2, contemplates the coverage of risk of only one person and Rs.100/- is collected towards premium. There is no documentary proof with regard to the employer and employee relationship between the claimant and first respondent. The Insurance Company had produced the judgment and award passed by the jurisdictional M.A.C.T. pertaining to death of one Siddaraju in the very same accident. In the said case, it was projected that the deceased and 58 others were employed by one Gopala Raju, a Contractor for the purpose of Kempuhole Mini Hydro Project (Electrical) and the deceased therein was also one of the employees. The defence taken by the insurer in the said case was also similar to the one taken in this case. The Tribunal allowed the claim as against the owner and driver of the vehicle and absolved the Insurance Company of its liability.

9. In the absence of any material to demonstrate that the said finding was challenged further and modified, it is probable that the claim petition is tailor-made to make illegal gain. The very fact that the owner of the vehicle/employer and the claimant have not appeared before this Court to contest the appeal probabalises the above observation.

10. In that view of the matter, the finding of the Commissioner fastening liability against the appellant/Insurance Company to comply the award cannot be sustained. Accordingly, the substantial question of law is answered in negative.

Hence, the appeal is allowed. The award passed by the Commissioner in No.WCA:NF:CR-103/2004 dated 6.5.2009 is modified to the extent that the claimant is entitled for the compensation with interest from the first respondent/owner. The appellant/insurer is exonerated from its liability under its contract/insurance policy with the owner of the insured vehicle.

No order as to cost.

The amount deposited by the appellant/insurer shall be returned.
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