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New India Assurance Co. Ltd., Hassan Vsersus Kamalamma & Another

    M.F.A. No. 1139 of 2011

    Decided On, 28 May 2021

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE H.P. SANDESH

    For the Appellant: B.C. Seetharama Rao, Advocate. For the Respondents: Girish B. Baladare, Advocate.



Judgment Text

1. This appeal is filed by the appellant-Insurance Company challenging the judgment and award dated 22.05.2006 passed in M.V.C.No.239/2003 on the file of Additional Civil Judge (Sr.Dn.) and Additional Motor Accident Claims Tribunal at Hassan ( the Tribunal for short) and set aside the modified award dated 28.08.2010 carried out on 15.09.2010.

2. The parties are referred to as per their original ranking before the Tribunal in order to avoid the confusion and for the convenience of the Court.

3. The factual matrix of the case is that the first respondent has filed a claim petition claiming the compensation for the death of her son-Harisha in an accident, which took place on 14.09.1998 stating that her son was traveling in a Tractor- Trailor bearing registration No.KA-13, T-729 and 730 (in short the tractor ), was driven in a rash and negligent manner by its driver and dashed against the KEB pole and skidded to the Paddy field. As a result of which one Purushothama and the deceased sustained injuries; wherein the deceased died at the hospital. The deceased was hale and healthy before the accident, doing Supervisory work in the Tractor earning Rs.4,000/- per month and maintaining the claimant. Due to the sudden demise of her son, she has suffered irreparable loss. The first respondent is the owner and the second respondent is the Insurer of the Tractor. The second respondent opposed the claim petition by filing objection statement contending that the deceased was traveling as a passenger contrary to the terms and conditions of the policy and permit. Therefore, the Insurance Company is not liable to pay any compensation.

4. The claimant in order to substantiate her claim, she examined herself as P.W.1 and also examined P.W.2 and got marked the documents as Exs.P1 to P4. Respondent No.2- Insurance Company though objected the claim petition did not choose to examine any of the witnesses, however, got marked the document as Ex.D1 Insurance Policy.

5. The Tribunal, after considering both oral and documentary evidence and on appreciation of the material available on record, allowed the claim petition of this petitioner in part granting compensation of Rs.3,39,000/- with 6% interest per annum from the date of petition till deposit and directed the first respondent-owner alone held liable to pay the compensation. The owner had filed Misc.No.60/2006 challenging the liability fastened on him and the notice has been ordered against the claimant as well as the Insurance Company and the Insurance Company was represented through its counsel. The Tribunal in Misc.No.60/2006 modified the Judgment and award passed in M.V.C.No.239/2003 dated 22.05.2006 on the file of Tribunal is reviewed to the extent recalling the dismissal of the claim against the insurer and allowed the claim petition against the Insurer and directed to pay the compensation amount, modifying the quantum of compensation awarded by the Tribunal. Hence, the present appeal is filed by the Insurance Company.

6. The main contention of the appellant-Insurance Company in this appeal is that the learned member of the Tribunal has committed an error in modifying the award dated 22.05.2006 made in MVC No.239/2003 by his order dated 28.08.2010 fastening the liability on the Insurance Company. The Tribunal earlier had rightly absolved the liability of the appellant on the ground that there is no coverage to the Supervisor traveling in an agricultural Tractor-Trailer, had no reason to change that view in view of the review petition. Even though, there was an order modifying the liability by its order dated 21.04.2007 there was no direction to modify the award. Therefore, the office of that Tribunal had been directed to amend the award by order dated 28.08.2010 and on that basis the award has been modified on 15.09.2010. Hence, it requires to be set aside.

7. The learned member of the Tribunal had no basis to make the appellant liable to pay the compensation for the death of the alleged Supervisor of the Tractor-Trailer. The fact that the deceased is the son of the claimant and the second respondent and that he was traveling in the Tractor along with his friend Chi.Purushothama, a minor boy aged 12 years and the same is not noticed by the Tribunal before fastening the liability on the Insurance Company. The deceased boy and his friend Purushothama, aged 12 years, studying in VII Standard also died in the same accident while traveling in on the Tractor of the engine and the parents of the said Purushothama had filed W.C.No.1/2007 before the WCC, Hassan, which had been allowed on 08.05.2007 and the same has been questioned by the Insurance Company in MFA No.10076/2007 (WC) and the same was allowed on 24.08.2009 to absolve the liability of the Insurance Company. All these aspects had been suppressed by the Insurance Company while pursuing the claim petition before the Tribunal. Hence, it requires an interference of this Court.

8. The learned counsel for the appellant/Insurance Company in his oral arguments has vehemently contended that this Court also in MFA No.10076/2007 set aside the award passed by the Commissioner and when this Court came to a conclusion that even in respect of the third party, Insurance Company is not liable to pay the compensation. The question of making the Insurance Company to pay the compensation to the son of the insured does not arise. The learned counsel also vehemently contended that the policy not covers the supervisor as the claimant contends that the deceased was supervisor and supervising the Tractor-Trailer. The learned counsel also would vehemently contend that it is not in dispute that the deceased is also the son of the owner of the tractor.

9. The learned counsel also brought to the notice of this Court Section 147 of the Motor Vehicles Act, 1988 ( MV Act for short) and referring to Section 147 of the MV Act would vehemently contend that the Insurance Company is not liable to pay any compensation to the Supervisor and he cannot be termed as either the loader or coolie and also as workman. Hence, it requires an interference of this Court.

10. Per contra, learned counsel for respondent No.1/claimant would vehemently contend that the Tribunal found mistake, which is apparent on the face of the record. Having considered the principles laid down in the Judgments referred before the Tribunal rightly came to the conclusion that the policy, which has been marked as Ex.D1 is a comprehensive policy. The premium is collected for third parties and when the policy is not an act policy and the same is a comprehensive policy. The Tribunal while reviewing the earlier order in detail discussed in paragraph Nos.7 to 11. Having discussed in detail came to the conclusion that the Tractor-Trailer was covered by a comprehensive policy. When a tractor and trailer was covered under a comprehensive policy there is an in built cover for 6 workmen irrespective of payment of additional premium, wherein, the deceased is a workmen within the meaning of The Workmen s Compensation Act covers the risk of the deceased as he was working as Supervisor and looking after the supervisory work of the Tractor and he was traveling as Supervisor of the Tractor at the time of the accident. Hence, the contention of the Insurance Company cannot be accepted.

11. Having heard the arguments of learned counsel for the appellant-Insurance Company and the learned counsel for respondent No.1/claimant and on perusal of the material available on record, the points that would arise for consideration of this Court are:

(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and it requires an interference of this Court

(ii) What order

POINT NOS.(I) & (II):

12. Having heard the respective counsel and also on perusal of the claim petition and also the objection statement, it is contended that the deceased was working as a Supervisor and he was travelled in the tractor as Supervisor. The very contention of the Insurance Company is that the Supervisor is not covered under the policy.

13. Having perused the claim petition, in column No.22, a specific pleading was made that the deceased-Harisha was supervising the tractor work. When the tractor was returning by unloading the bricks, the driver of the said tractor trailer lost control of the tractor and dashed against the KEB Pole. It is not in dispute that the deceased was returning in the tractor. The respondent also in the objection statement categorically contended that the Insurance Company shall be liable only as per the terms and conditions of the policy and contended that the deceased was travelling in the tractor as a gratuitous passenger. Hence, the Insurance Company is not liable to pay any compensation.

14. Having perused the pleading of both the claimant as well as the Insurance Company and also the evidence of P.W.1, the P.W.1 claimant has reiterated the averments made in the claim petition. In the cross-examination, a suggestion was made that he was not working as Supervisor and the said suggestion was denied. However, admits that there are no documents in this regard. It is suggested that he was traveling as passenger and not proceeding as Supervisor and the said suggestion was denied. The Insurance Company has not led any evidence before the Tribunal in order to prove the fact that he was travelled as a passenger and the very contention of the Insurance Company is that he was proceeding as a gratuitous passenger. In the cross-examination of P.W.1, nothing is elicited that he was travelled as a passenger. It is also not in dispute that the deceased was the son of the insured. The policy is also marked as Ex.D1 and on perusal of the premium paid; third party insurance covers the risks of the tractor-trailer apart from the driver. Hence, it is clear that the policy placed before the Tribunal is a comprehensive policy and not an act policy as observed by the Tribunal.

15. The main contention of the claimant before the Tribunal is that the son of the claimant was working as a Supervisor. On perusal of the document Ex.P1, a specific averment was made in the complaint that the deceased was returning in the tractor-trailer after unloading the bricks as pleaded in column No.22 of the claim petition. The document Ex.P1 is not disputed during the course of the cross-examination of P.W.1 by the Insurance Company. It is also important to note that when the Insurance Company has not disputed the fact that they were returning after unloading the bricks, it is clear that the deceased was also travelling on the tractor while returning after unloading the bricks. It is the contention that he was working as Supervisor and in the cross-examination of P.W.1, though suggestion was made that he was not working as Supervisor, nothing is elicited to dispute the same. The pleading is very clear that he was a Supervisor of the tractor. The Insurance Company also not disputed the same except making the suggestion and not led any evidence rebutting the evidence of P.W.1. It is also important to note that it is not in dispute that he was a son of the insured but the claimant is the mother of the deceased and the insured has not joined along with the claimant claiming the compensation.

16. It is also important to note that when the policy is a comprehensive policy, which covers the third party including the loader and unloader and when the tractor was returning after unloading the bricks as narrated in the claim petition and also in the pleadings. The very contention of the Insurance Company is that the Insurance Company is not liable to pay the compensation as the same not covers the liability of the Supervisor cannot be accepted. When he was returning after unloading the bricks and when the premium is collected for third parties on the tractor-trailer as indicated in the policy, which is marked as Ex.D1, mere taking of the defense that he was a gratuitous passenger, nothing is placed on record and the Insurance Company failed to prove the fact that he was a gratuitous passenger as contended in the written statement by examining any of the witnesses. I have already pointed out that no evidence has been adduced before the Court and the case of the claimant has not been rebutted by placing any material before the Tribunal. The Insurance Company already collected the premium for the third parties also and the Tribunal had rightly come to the conclusion that the policy is a comprehensive policy and not an Act Policy, the premium paid covers the risk of the deceased.

17. The learned counsel for the appellant referring to Section 147 of the MV Act would vehemently contend that the Insurance Company is not liable to pay any compensation to the Supervisor and he cannot be termed as either the loader or coolie and also as workman.

18. This Court would like to refer to the judgment of the Apex Court in the case of National Insurance Company Limited v. Balakrishnan and another, (2013) 1 SCC 731, wherein, the Apex Court held that the Insurer liable to pay compensation in case of comprehensive/package policy but not in case of Act policy . In the said case, it is observed that the owner or gratuitous passenger travelling in motor vehicle meeting with accident and discussed with regard to liability of the Insurer. Further, the Apex Court held that, as the Insurance Regulatory and Development Authority (IRDA), which is presently the statutory regulatory authority, has commanded the insurance companies that a comprehensive/package policy covers the liability of the insurer for payment of compensation to the occupant in a motor vehicle, there cannot be any dispute in that regard. Further, it is observed that if the policy is a comprehensive/package policy , the liability would be covered. IRDA has clarified the position by issuing Circulars dated 16.11.2009 and 03.12.2009. Therefore, a comprehensive/package policy would cover the liability of the insurer for payment of compensation for the occupant in a car. The Apex Court in this judgment also extracted Section 147 of the MV Act in paragraph No.10 and discussed several judgments and the scope of comprehensive policy and also the act policy. In paragraph No.17 of the judgment, the Apex Court discussed the similar circumstances as reflected in the case on hand, in the case of New India Assurance Co. Ltd v. Sadanand Mukhi, wherein the son of the owner of the insured while driving the motorcycle met with an accident and died. In paragraph No.19 of the judgment, the Apex Court held that, the policy in question is a package policy. The contract of insurance if given its face value covers the risk not only of a third party but also of persons traveling in the car including the owner thereof. The question is as to whether the policy in question is a comprehensive policy or only an Act policy.

19. I have already pointed out that the policy, which is involved in this case, which is marked as Ex.D1 is a comprehensive policy. Hence, I do not find any error committed by the Tribunal in reviewing the order fastening the liability on the Insurance Company.

20. This Court also would like to refer to the Judgment of the Apex Court in the case of New India Assurance Company v. Satpal Singh and Others, (2000) 1 SCC 237, wherein, the Apex Court discussed Section 147 of the MV Act and held that it covers death or bodily injury even to a gratuitous passenger - Policy should cover injury to any person including owner of the goods or his authorized representative carried in the vehicle Motor vehicles Act, 1939 Section 95(1) proviso (ii) Compared with new Act. It is further held that under Section 147(2) of the New Act there is no upper limit for the insurer regarding the amount of compensation to be awarded in respect of death or bodily injury of a victim of the accident. It is, therefore, apparent that the limit contained in the old Act has been removed and the policy should insure the liability incurred and cover injury to any person including owner of the goods or his authorized representative carried in the vehicle. In the case on hand also, it has to be noted that the deceased is the son of the owner and even the Apex Court held that under the new Act an Insurance Policy covering third-party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class.

21. This Court also would like to refer to the judgment of the Apex Court in the case of Shivawwa and another v. Branch Manager, National India Insurance Co. Ltd., and another, (2018) AIR SC 1640, the Apex Court held that, there was no challenge as to fact that deceased loaded his agricultural produce on tractor and accompanied tractor for unloading same and while returning met with accident. The Apex Court held that the Insurance Company is liable to pay compensation.

22. This Court also would like to refer to the Judgment of this Court in the case of The Oriental Insurance Company Limited v. Hanumant & Another, (2005) 4 KCCR 2320 and discussed the provisions of Section 2(1)(m) of the Act and taken note of the relationship between the parties as father and son. In paragraph No.2 of the judgment, this Court held that the fact that the first respondent and second respondent are father and son, is not a ground in law to infer the absence of the relationship of employer and employee under the Workmen s Compensation Act.

23. This Court also would like to refer to the Judgment of this Court in the case of Manohar Bhimappa More v. Mahadev Bhimappa More, (2006) ACJ 850. In paragraph No.3 of the Judgment, this Court had discussed with regard to the employment of the family itself and the fact that the injured is the brother and the guarantor for repayment of the loan is not a valid reason to hold that he was not a workman employed in connection with the tractor-trailer. This Court also observed that there is no inhibition in law for employment of member of the family in connection with the tractor-trailer. Further observed that, in view of the peculiar family relationship it is absurd to insist on documentary proof of appointment and the payment of wages by cash as the only mode of consideration for proof of employment.

24. This Court also would like to rely upon the judgment of this Court passed in Miscellaneous First Appeal No.6823/2016 (WC) dated 04.09.2019 and this Court relying upon the above two decisions of this Court and in paragraph Nos.24 to 28 discussed the similar circumstances, which was arisen and in paragraph No.29 comes to the conclusion that the Commissioner for Employee s Compensation/Tribunal is not justified in dismissing the claim petition on the ground that there is no employer and employee relationship between the appellant and second respondent by ignoring both oral and documentary evidence on record.

25. This Court in this Judgment held that the relationship regarding employer and employee and the relationship between brothers, between father and son would not take away the liability of the Insurance Company.

26. In keeping the principles laid down in the judgments referred supra and also the contention of the learned counsel for the appellant, I have already pointed out that it is not in dispute that the deceased was travelled in the tractor and returning after unloading the bricks and the learned counsel for the appellant also not dispute the fact that the policy covers the risk of loader and unloader. The learned counsel also not dispute the fact that the policy, which is marked as Ex.D1 is a comprehensive policy, wherein, the premium is collected for T.P. for tractor-trailer other than the driver and when the Insurance Company not disputed the fact that by adducing any rebuttal evidence that he was proceeded as Supervisor of the tractor as pleaded in the claim petition and also in the evidence and other than the insured, the premium is collected for others also. The contention of the learned counsel for the appellant-Insurance Company that the Supervisor was not covered, cannot be accepted. The other contention is that the policy not covers the risk of the Supervisor also cannot be accepted as the policy involved in the case on hand is a comprehensive policy and the premium was collected and the same has

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been observed by the Tribunal while reviewing the order passed earlier in the Miscellaneous Petition. The Tribunal while modifying the earlier order assigned the reason that no evidence has been adduced before the Tribunal by the respondent-Insurance Company to rebut the case of the claimant. The Tribunal had also assigned the reasons that the Insurance Company has already collected the premium for the third parties and the policy is a comprehensive policy and not an Act policy. The premium paid covers the risk of the deceased, who travelled on the tractor as Supervisor. Merely because he was the son of the insured the liability of the Insurance Company cannot be exonerated as contended by the learned counsel for the appellant. The risk covers other than the insured and the deceased, who proceeded on the tractor in order to unload the bricks and he was returning after unloading the bricks, which has not been disputed before the Tribunal. 27. The learned counsel appearing for the appellant would vehemently contend that this Court has allowed MFA No.10076/2007 (WC) vide order dated 24.08.2009 absolving the liability of the Insurance Company in respect of the other claim. The said judgment will not come to the aid of the Insurance Company and in that case, a minor boy was travelled in the Tractor though he was claimed that he was a workman and the same has been disbelieved by this Court as he was a minor boy and the law envisages barring of minor children for any employment. Hence, the observation made in the said order will not come to the aid of the appellant. 28. On perusal of the judgment and award, the learned member of the Tribunal while reviewing the order, reduced the compensation while re-calculating the loss of dependency taking the age of the mother and now it is settled law that the age of the deceased has to be taken. But no appeal is filed by the claimant before this Court. In the absence of any appeal, the findings of the Tribunal cannot be modified or interfered with even though the lesser compensation was awarded while calculating the loss of dependency taking note of the age of the mother. 29. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.
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