IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL No.1732/2016 C/W MISCELLANEOUS FIRST APPEAL Nos.1733/2016, 1731/2016, 7500/2015, 7501/2015 AND 7502/2015 (WC) IN MFA No.1732/2016 BETWEEN:
1 . KUMAR S/O. KUNJAPPA, AGED ABOUT 52 YEARS, 2 . SMT. SHANTHAMMA W/O. KUMAR, AGED ABOUT 50 YEARS, ALL ARE RESIDING AT RANGANATHAPURA, H.K. JUNCTION, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT-577 201.
...APPELLANTS (BY SRI M. V. MAHESWARAPPA, ADVOCATE) IN MFA No.1733/2016 BETWEEN:
NAVEENA S/O JAYANNA, AGED ABOUT 21 YEARS, RESIDING AT RANGANATHAPURA, H.K. JUNCTION, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT-577201.
...APPELLANT (BY SRI M. V. MAHESWARAPPA, ADVOCATE) IN MFA No.1731/2016 BETWEEN:
1. SMT. NETHRA, W/O LATE GOVINDA AGED ABOUT 22 YEARS, 2. KUM. SANJAN D/O LATE GOVINDA AGED ABOUT 4 YEARS, 3. SMT. SANNAMMA, W/O LATE NANJUNDA AGED ABOUT 52 YEARS, ALL ARE RESIDING AT RANGANATHAPURA, H.K. JUNCTION, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT-577201.
...APPELLANTS (BY SRI M. V. MAHESWARAPPA, ADVOCATE) IN MFA Nos.7500,7501,7502/2015 BETWEEN:
THE REGIONAL MANAGER ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, REGISTERED OFFICE-21- PATULLOS ROAD, CHENNAI-600 002.
BY ROYAL SUNDARAM ALLIANCE COMPANY LIMITED, SUBRAMANIAM BUILDING, 2ND FLOOR, No.11, CLUB HOUSE ROAD, ANNA SALAI, CHENNAI-600002. BY ITS MANAGER.
...APPELLANT (BY SRI O MAHESH, ADVOCATE) IN MFA Nos. 1732, 1733 & 1731/2016 AND:
1 . HANUMANTHAPPA, S/O. SHETTYA BHOVI, OWNER OF THE TRACTOR AND TRAILER, BEARING REG. NO.KA-14/T-895-96, AGRICULTURIST, R/O. HUNASEKATTE, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT-577 201.
2 . H.R. MANJUNATHA S/O. LATE RAMACHANDRA, TRACTOR DRIVER BEARING REG. NO. KA-14/T-895-96, AGRICULTURIST, R/O. HAGALAMANE, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT-577 201.
3 . THE MANAGER ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD., REGISTERED OFFICE-21- PATULLOS ROAD, CHENNAI-600 002.
…RESPONDENTS (BY SRI MALLIKARJUN C. BASAREDDY, ADV., FOR R1 & R2;
SRI O MAHESH, ADVOCATE FOR R3) IN MFA 7500/2015 AND:
1. NETHRA, W/O LATE GOVINDA AGED 21 YEARS, 2. SANJANA D/O LATE GOVINDA MINOR, AGED 3 YEARS, 3. SANNAMMA, W/O LATE NANJUNDA AGED 51 YEARS, ALL R/O AT RANGANATHAPURA, H.K. JUNCTION, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT-577301 SHIMOGA DISTRICT.
4. HANUMANTHAPPA, MAJOR, S/O SHETTYA BHOVI, R/O HUNASEKATTE, BHADRAVATHI TALUK-577301. SHIMOGA DISTRICT.
…RESPONDENTS (BY SRI M. V. MAHESWARAPPA, ADVOCATE FOR R1 TO R3;
SRI MALLIKARJUN C. BASAREDDY, ADVOCATE FOR C/R4) IN MFA 7501/2015 AND:
1. KUMAR, AGED 51 YEARS, S/O KUNJAPPA, 2. SHANTHAMMA, AGED 49 YEARS W/O KUMAR, BOTH ARE R/O RANGANATHAPURA, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT-577301 SHIMOGA DISTRICT.
3. HANUMANTHAPPA, MAJOR, S/O SHETTYA BHOVI, R/O HUNASEKATTE, BHADRAVATHI TALUK-577301. SHIMOGA DISTRICT.
…RESPONDENTS (BY SRI M. V. MAHESWARAPPA, ADVOCATE FOR R1 & R2 SRI MALLIKARJUN C. BASAREDDY, ADVOCATE FOR C/R3) IN MFA 7502/2015 AND:
1. NAVEEN AGED 20 YEARS, S/O LATE JAYANNA, R/O RANGANATHAPURA, H.K. JUNCTION, BHADRAVATHI TALUK, 577301. SHIMOGA DISTRICT.
2. HANUMANTHAPPA, MAJOR, S/O SHETTYA BHOVI, R/O HUNASEKATTE, BHADRAVATHI TALUK-577301. SHIMOGA DISTRICT.
…RESPONDENTS (BY SRI M. V. MAHESWARAPPA, ADVOCATE FOR R1; SRI MALLIKARJUN C. BASAREDDY, ADVOCATE FOR C/R2) …..
MISCELLANEOUS FIRST APPEAL Nos. 1732, 1733 & 1731/2016 ARE FILED UNDER SECTION 30(1) OF EMPLOYEES COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED: 15.07.2015 PASSED IN ECA Nos.12,13,14/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC, ADDITIONAL MACT- 11, BHADRAVATHI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MISCELLANEOUS FIRST APPEAL No. 7500/2015 IS FILED UNDER SECTION 30(1) OF WORKMEN COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED 15.07.2015 PASSED IN ECA No.12/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, JMFC, ADDITIONAL MACT-11, BHADRAVATHI, AWARDING A COMPENSATION OF Rs.6,45,840,/- WITH INTEREST OF 6% P.A. FROM THE DATE OF PETITION TILL ITS COMPLETE PAYMENT.
MISCELLANEOUS FIRST APPEAL No.7501/2015 IS FILED UNDER SECTION 30(1) OF EMPLOYEES COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED:15.07.2015 PASSED IN ECA No.13/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, JMFC, ADDITIONAL MACT-11, BHADRAVATHI, AWARDING A COMPENSATION OF Rs.6,59,850,/- WITH INTEREST OF 6% P.A. FROM THE DATE OF PETITION TILL ITS COMPLETE PAYMENT.
MISCELLANEOUS FIRST APPEAL No.7502/2015 IS FILED UNDER SECTION 30(1) OF EMPLOYEES COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED:15.07.2015 PASSED IN ECA No.14/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, JMFC, ADDITIONAL MACT-11, BHADRAVATHI, AWARDING A COMPENSATION OF Rs.35,000,/- WITH INTEREST OF 6% P.A. FROM THE DATE OF PETITION TILL ITS COMPLETE PAYMENT.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Since common judgment and award has been passed by the Tribunal after recording common evidence, all these six Miscellaneous First Appeals are taken up together and disposed off by this common judgment. MFA Nos.1731/2016, 1732/2016 and 1733/2016 are filed by the claimants seeking enhancement of compensation and MFA Nos. 7500/2015, 7501/2015 and 7502/2015 are filed by the insurance company challenging the liability against the judgment and award dated 15.07.2015 passed by the Senior Civil Judge and JMFC and Addl. MACT-11, Bhadravathi, in ECA Nos.12/2014, 13/2014 and 14/2014, respectively. ECA Nos.12/2014 and 13/2014 were filed by the family members of deceased Govinda and deceased Vijayakumar. ECA No.14/2014 was filed Naveen, who was injured in the accident.
2. The wife, daughter and mother of late Govinda preferred ECA No.12/2014. The parents of late Vijayakumar preferred ECA No.13/2014 and Naveen, the injured, preferred ECA No.14/2014. In the said claim petitions, it is contended by the claimants that, on 09.08.2009, late Govinda, late Vijayakumar and Naveen along with other labourers were returning from work spot to their village in the tractor-trailer bearing registration No.KA-14/T-895-896. At that time, the tractor met with an accident due to rash and negligent driving of its driver. Govinda and Vijayakumar sustained grievous injuries and died while shifting to the hospital. The claimants contended that they are completely depending on the earnings of the deceased persons and sought for compensation. Sri Naveen, sustained grievous injuries and took treatment in the hospital for 1½ months. He contended that he has become permanently disabled and is not in a position to work by using his full strength. His income has become less and he is put to great loss. The claimants in all the three claim petitions contended that the accident has occurred during the course of and arising out of the employment and therefore, the respondents are jointly and severally liable to pay the compensation.
3. The respondent Nos.1 and 2, the owner and driver of the tractor filed common objections, denied the averments made in the claim petitions and contended that the tractor trailer bearing registration No.KA-14/T- 895-896 was duly insured with the 3rd respondent and, the 2nd respondent-driver was having valid driving licence as on the date of the accident to drive the said vehicle. The accident took place due to the negligence act on the part of the deceased and injured persons. There was no negligence on the part of the 2nd respondent. The deceased and injured were working in the agricultural lands on that particular day on daily wages of `100/-, and therefore, sought to dismiss the claim petitions.
4. The respondent No.3/insurance company filed common objections and contended that the tractor- trailer was registered as a non-transport vehicle and is to be used only for the personal use of the owner to carry his agricultural products. The package policy does not cover the risk of the employees of the owner. The deceased and injured were not the employees under the respondent No.1. The driver-respondent No.2 had no valid driving licence to drive the vehicle in question. The respondent No.1 has committed breach of the policy conditions, and therefore, sought to dismiss the claim petitions.
5. The Tribunal, clubbed all the three claim petitions and framed the common issues as under:
(1) CfðzÁgÀgÀÄ PÁ«ÄðPÀ £ÀµÀÖ ¥ÀjºÁgÀ PÁAiÉÄÝ 1923gÀ PÀ®A 2(1)(J£ï)gÀ£ÀéAiÀÄ PÁ«ÄðPÀ JA§ ¥ÀzÀzÀ CxÀðzÉƼÀUÉ §gÀÄvÁÛgÉAiÉÄà JA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
(2) C¥ÀWÁvÀzÀ ¢£ÀzÀA¢UÉ CfðzÁgÀgÀÄ ªÀÄvÀÄÛ 1£Éà JzÀÄgÀÄzÁgÀgÀÄ EªÀgÀ £ÀqÀÄªÉ PÁ«ÄðPÀ ªÀÄvÀÄÛ ªÀiÁ°ÃPÀ JA§ ¸ÀA§AzsÀ«vÀÄÛ JA§ÄzÀ£ÀÄß CfðzÁgÀgÀÄUÀ¼ÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
(3) CfðzÁgÀgÀÄ 1£Éà JzÀÄgÀÄzÁgÀgÀ ¤zÉÃð±À£ÀzÀ ªÉÄÃgÉUÉ PÀvÀðªÀå ¤gÀvÀgÁVzÁÝUÀ ¸ÀA¨sÀ«9zÀ C¥ÀWÁvÀ¢AzÁV UÁAiÀÄUÉÆArgÀÄvÁÛgÉA §ÄzÀ£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
(4) CfðzÁgÀgÀÄ C¥ÀWÁvÀ ¢£ÀzÀA¢UÉ 1£Éà JzÀÄgÀÄzÁgÀgÀ°è JµÀÄÖ ªÉÃvÀ£À ¥ÀqÉAiÀÄÄwÛzÀÝgÀÄ ªÀÄvÀÄÛ CªÀgÀÄUÀ¼À ªÀAiÀĸÀÄì JµÀÄÖ E¢ÝvÀÄÛ JA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
(5) C¥ÀWÁvÀ¢AzÀ CfðzÁgÀgÀÄ ¸ÀA¥ÁzÀ£Á ¸ÁªÀÄxÀåð ±ÉÃPÀqÁ JµÀÄÖ PÀÄA¢zÉ?
(6) ºÁVzÀÝ°è CfðzÁgÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ ªÀÄvÀÄÛ AiÀiÁjAzÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÀÄ?
(7) DzÉñÀªÉãÀÄ?
6. In order to establish their case, the petitioner No.1 in ECA Nos.12/2014 and 13/2014 and the petitioner in ECA No.14/2014 were examined as P.Ws.1 to 3. In ECA Nos.12/2014 and 13/2014, documents were marked as Exs.P.1 to P.28. In ECA No.14/2014 documents were marked as Exs.P. 1 to P6. The driver- respondent No.2 was examined as RW-1. The executive officer of the respondent No.3 was examined as RW-2 and documents were marked as Exs.R.1 to R.6.
7. The Tribunal, considering the entire material on record, recorded a common finding that, the claimants have proved that the deceased persons and the injured were the employees under the respondent No.1; the accident occurred during the course and arising out of the employment; the deceased Govinda and Vijayakumar were earning wages of `3,000/- per month and also proved their respective age and disability. Accordingly, the Tribunal, by the common judgment and award, awarded total compensation of `6,45,840/- in ECA No.12/2014, `6,59,850/- in ECA No.13/2014 and global compensation of `35,000/- in ECA No.14/2014, along with interest at the rate of 6% per annum from the date of the petition till its complete payment.
8. Aggrieved by the said common judgment and award passed by the Tribunal, MFA Nos.1731/2016, 1732/2016 and 1733/2016 are filed by the claimants seeking enhancement of compensation and MFA Nos. 7500/2015, 7501/2015 and 7502/2015 are filed by the insurance company challenging the liability.
9. This Court, on 06.11.2019, while admitting the MFA Nos.1731/2016, 1732/2016, 1733/2016 filed by the claimants framed the following substantial questions of law:
(i) Whether the Tribunal/Commissioner for Workmen Compensation is justified in taking the monthly wages of the deceased persons and injured at `3,000/-, when the accident occurred on 2009, in view of the provisions of Section 4 of the Employees Compensation Act, 1923?
(ii) Whether the Tribunal is justified in awarding interest at 6% on the compensation amount, when the accident occurred in the year 2009, in view of the provisions of Section 4A(3)(a) of the Employees Compensation Act, 1923?
While admitting MFA Nos.7500/2015, 7501/2015 and 7502/2015 filed by the insurance company, the following substantial questions of law were framed:
(i) Whether the Tribunal is justified in proceeding to award compensation accepting the evidence adduced in the examination-in- chief of the parties by way of affidavit under Order XVIII Rule 4 of the Code of Civil Procedure?
(ii) Whether the Tribunal is justified in fastening the liability on the Insurance Company when no premium was collected to cover the risk of the employees (coolies) of the owner of the tractor and trailer?
10. I have heard the learned counsel for the parties to the lis.
11. Sri M.V.Maheswarappa, learned counsel for the claimants contended that, the Tribunal erred in taking the monthly wages of the deceased Govinda and Vijayakumar and the injured Naveen at `3,000/- per month, ignoring the evidence of P.Ws.1 to 3, though they were earning more than `4,500/- per month plus batta. The Tribunal, instead of awarding interest at 12%, has awarded only 6%, contrary to the provisions of Section 4A(3)(a) of the Employee’s Compensation Act, 1923, and therefore, sought to allow the Miscellaneous First Appeal Nos.1731/2016, 1732/2016 and 1733/2016.
12. Sri Mallikarjun C. Basareddy, learned counsel for the owner-respondent No.1, has not disputed the fact that the deceased Govinda and Vijayakumar and injured Naveen were working under the respondent No.1 as loader-unloaders (coolies). He denied the wages claimed by the claimants and fairly submits that since the accident occurred on 09.08.2009, the Tribunal ought to have awarded interest at 12%.
13. Per contra, Sri O. Mahesh, learned counsel for the insurance company contended that the Tribunal was not justified in passing the impugned judgment and award, by accepting the recorded examination-in-chief of the parties by way of affidavit as contemplated under Order XVIII Rule 4 of the Code of Civil Procedure, 1908, which was not available under the scheme of the Employee’s Compensation Act, 1923. Learned counsel further contended that in the tractor trailer, there is no carrying capacity of any other passenger except the driver. Therefore, package policy does not cover the risk of any other coolies or labourers, as alleged by the claimants in the claim petitions. Though the Tribunal specifically observed that no premium was collected to cover the risk of the alleged employees of insured in respect of agricultural tractor-trailer on the premise that it should have collected premium for such risk, the Tribunal was not justified in holding that the insurance company is liable to pay the compensation.
14. He further contended that, in the absence of any material documents produced, the Tribunal is not justified in taking the wages of the deceased persons and the injured at `3,000/- per month and while calculating the compensation, the Tribunal has not followed the procedure contemplated under Section 4(1)(a) of the Act in case of deceased persons; and Section 4(1)(b) of the Act in case of the injured. He further contended that the accident occurred on 09.08.2009 and therefore, the Tribunal was justified in taking `3,000/- as monthly wages and awarding 6% interest.
15. Having heard the learned counsel for the parties, it is the specific case of the claimants that they were working as coolies under the respondent No.1. When they were returning home from agricultural work, on 09.08.2009, in the tractor-trailer bearing registration No.KA-14/T-895-896, the unfortunate accident occurred. Due to the accident, Govinda and Vijayakumara succumbed to the injuries and Naveen sustained fracture of tibia and fibula and other grievous injuries. It is the specific case of the claimants that the accident occurred due to rash and negligent driving of respondent No.2 and the accident occurred during the course of and arising out of the employment. The owner-respondent No.1 filed the objections and denied that the deceased persons and injured were working under him as coolies and contended that he was not paying wages as claimed by the claimants. It is also contended that the insurance policy was in force as on the date of the accident and the rash and negligent driving of the vehicle has been clearly evidenced by the material documents Exs.P.2 to P.12.
16. Admittedly, the accident occurred on 09.08.2009.
The Tribunal proceeded to take the wages of the deceased as well as the injured at `3,000/- per month ignoring the provisions of Explanation II to Section 4 of the Act which clearly indicates that the wages has to be taken at `4,000/- and also proceeded to award interest at 6% ignoring the provisions of Section 4A(3)(a) of the Act, which contemplates that interest at 12% has to be awarded.
17. It is well settled that the Employee’s Compensation Act, is a piece of social security and welfare legislation. Its dominant purpose is to protect the workman and therefore, the provisions of the Act should not be interpreted too narrowly so as to debar the workman from compensation which the Parliament thought they ought to have. The intention of the Legislature was to make the employer and insurer of the workman responsible against the loss caused by the injuries or death, which ought to have happened, while the workman was engaged in his work.
18. In view of the above, taking income of the deceased Govinda at `4,000/- per month, deducting 50% as contemplated under Section 4(1)(a) of the Act, applying the relevant factor 215.28, since the deceased was aged 26 years as on the date of the accident, the claimants in ECA No.12/2014 are entitled to (`2,000/- x 215.28 =`4,30,560/-). Similarly, taking income of deceased Vijayakumar at `4,000/- per month, deducting 50% as contemplated under Section 4(1)(a) of the Act, applying the relevant factor 219.95, since the deceased was aged 23 years as on the date of the accident, the claimants in ECA No.13/2014 are entitled to compensation of (`2,000/- x 219.95 =`4,39,900/-).
19. The claimant in ECA No.14/2014 who is injured in the accident has sustained five injuries, out of which, injury Nos.2 and 4 are grievous in nature. Though the learned counsel contended that, because of the injuries sustained in the accident, the claimant has become permanently disabled, and therefore, the compensation has to be enhanced, admittedly, the claimant has not been examined by a qualified doctor to prove the percentage of disability. Though wound certificate has been produced as per Ex.P.5, the doctor has not been examined. Therefore, the Tribunal is justified in awarding global compensation of `35,000/-.
20. Though the insurance company contended that the Tribunal has not considered the question of liability to pay compensation and the interest, it is not in dispute that Ex.R.2 is the insurance policy and Ex.R.6 is the details of the policy pertaining to the offending vehicle which clearly depicts that the respondent No.1 has taken package policy and respondent No.3 has collected premium of `6,359/-. The same is evident from the cross-examination of respondent No.3, wherein, he has clearly admitted that the respondent No.1 has insured the offending vehicle with package policy and insurance company has collected the premium of `6,359/- from the respondent No.1.
21. The Tribunal has recorded the finding that, 'the respondent No.3 has stated that, the company has not collected extra premium covering the risk of the inmates. The insurance policy discloses that the respondent No.1 has taken the package policy and respondent No.3 has collected `6,359/- as premium. During the cross-examination, the respondent No.3 has clearly admitted that the respondent No.1 has insured the offending vehicle under package policy and the insurance company has collected premium of `6,359/- from the 1st respondent. It is true that, under Exs.P.2 and 6, the insurance company has not collected the premium in respect of the employees. But it is the duty of the company to collect the premium under all the heads, since it is a package policy. If at all the insurance company has failed to collect the premium under any head, it is the lapse on the part of the company. They cannot blame the customer that he has not paid the premium. Admittedly, the 3rd respondent has collected the premium pertaining to the offending vehicle from the 1st respondent under the package policy. The insurance was valid from 04.08.2009 to 03.08.2010, which means, the policy was valid at the time of the accident. The 3rd respondent is not permitted to escape from liability’. The said finding recorded by the Tribunal cannot be interfered with.
22. In view of the above, the Tribunal, considering the entire material on record, has come to the conclusion that the accident occurred arising out of and during the course of employment when all the three coolies/ workmen were working under the 1st respondent and traveling in the offending vehicle to return to the village from the work spot. The insurance policy was in force as on the date of the accident. Therefore, the claimants are entitled to compensation as per the provisions of Section 3 of the Employee’s Compensation Act, 1923.
23. My view is fortified by the dictum of the Division Bench of this Court in the case of National Insurance Company Limited vs. Sri Maruthi and others, reported in ILR 2011 KAR 4139, para 31, 37 and 40, reads as under:
“31. By reading Sections 147 and 149, it is clear that the Legislative intent was that the insurer has to compulsorily cover all the risks arising out of and use of motor vehicle and the liability of the insurer is co-extensive with that of insured. However, this is subject to the limitations envisaged under Section 147(1)(b). It is also clear that the coolies who are employees carried in a goods vehicle are to be compulsorily covered under Section 147(1)(b).
37. The wordings of the fully worded policy makes it clear that the vehicle in question is a goods vehicle. Therefore, the respondents were justified in saying appellant cannot plead other than what is stated in the policy. If the general exception in the policy were to exclude the liability of the insurer to cover the coolies employed for loading and unloading then the argument of the appellants was justified Though the fully worded policy refers to the terms of contract between the parties, IMT 7, 21, 24, 36 and 48, on perusal of the same except IMT 36 none of the other IMTs. are relevant. As a matter of fact IMT 7 & 48 do not find a place in the fully worded policy. IMT 21 refers to exclusion of riots, strikes and terrorism coverage. IMT 24 refers to replacement of parts. When the very policy is referred to as a special package policy, unless the insured was fully made known the exact terms of contract by including them in the terms of policy, it is nothing but with-holding necessary and important information from the insured. Depending upon the user of the vehicle whether for agricultural purpose or for commercial purpose, the liability of the insurer would be decided. When the intention of the Legislation was to cover compulsorily all the risk arising out of the use of the motor vehicle and that the liability of the insurer is co-extensive with that of the insured subject to Section 147 (1)(b), coolies or employees are compulsorily covered. Therefore, the argument that Rule 100(6) r/w Rule 226 of the Karnataka Motor Vehicles Rules is relevant is rejected and the same will not authorise or permit the insurer to avoid the liability.
40. The combination of tractor-trailer is nothing short of a goods carriage. Therefore, when once it is held as goods carriage vehicle, by virtue of Section-II-1(1) of fully worded policy and also provisions of Section 147, the claim of the claimants on hand is covered The claimants in the present case have rightly approached the Workmen's Commissioner and the Commissioner was justified in holding that the injured claimants were coolies under the owner viz., the insured. In the present case, they were carrying stones for constructing a ridge in the land belonging to the insured so as to store the water. This is nothing but part and parcel of agricultural operations. The Claimants were neither gratuitous passengers nor persons who were travelling in the tractor-trailer for the purpose other than agricultural operations. Looking to the avocation of the claimants, the computation of the compensation by the Commissioner is just and proper. Viewed from any angle, we do not find any good ground to interfere with the awards of the Commissioner. Therefore the claimants in the present case were rightly held as covered under Ex.R-2 policy.”
24. The Division Bench of this Court, in the case of The Oriental Insurance Company Limited, Bellary vs. Sri Mallikethi Basappa and others reported in ILR 2012 KAR 2572 at paragraph-7, has held as under:
“7. We would have appreciated the arguments of Mr. Seetharama Rao, provided the policy issued by the Company was only in respect of the engine of the Tractor but not the Trailer. The seating capacity of an engine is only one and only Driver can sit and drive the vehicle. The policy issued is not only for the Tractor, but also for the Trailer. It is known to the whole world that the loaders as employees of the owner can always sit in the Trailer either for loading purpose or unloading purpose. On considering the policy, we are of the opinion the appellant has undertaken to cover the risk of one Employee or a Driver. In the instant case, the deceased was an Employee who died in the accident during the course of his employment.”
25. In view of the aforesaid reasons, the substantial questions of law framed in the appeals filed by the claimants has be answered in the negative holding that the Tribunal is not justified in taking the monthly wages of the deceased persons i.e., Govinda and Vijayakumar at `3,000/-, in view of the fact that the accident has occurred on 09.08.2009 and under the provisions of Section 4 Explanation II of the Act, the monthly wages of the deceased has to be taken at `4,000/-, as stated supra. The Tribunal is not justified in awarding interest at 6%, when the accident has occurred in the year 2009, in view of the provisions of Section 4A(3)(a) of the Act, the claimants are entitled to 12% interest.
26. The provisions of Section 23 of the Act reads as under:
23.Powers and procedure of Commissioners:
The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects, [and the Commissioner shall be deemed to be a Civil Court for all the purposes of [section 195 and of Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)]].
27. Therefore, the substantial questions of law framed in the appeals filed by the insurance company have to be answered in affirmative holding that, the Tribunal shall be deemed to be a Civil Court and therefore, the Tribunal was justified in accepting the evidence adduced in examination-in-chief of all parties by way of evidence as contemplated under Order XVIII Rule 14 of the Code of Civil Procedure and also justified in fastening the liability of paying compensation on the insurance company in view of Exs.R.2 and R.6, insurance policy and details of the policy produced by the owner of the offending vehicle.
28. For the reasons stated above, MFA Nos.1731/2016 and 1732/2016 filed by the claimants are allowed in part. The impugned judgment and award is modified and the claimants in ECA No.12/2014 are entitled to compensation of `4,30,560/- and the claimants in ECA No.13/2014 are entitled to compensation of `4,39,900/-, both with interest at 12% per annum after one month from the date of the accident, till the date of payment. MFA No.1733/2016 filed by the injured against ECA No.14/2014 wherein global compensation of `35,000/- has been awarded by the Tribunal, is dismissed as devoid of merits.
29. MFA Nos. 7500/2015, 7501/2015 and 7502/2015 filed by the insurance company are allowed in part, to the extent that the Tribunal was not justified in taking the monthly wages of `3,000/- for calculation of compensation. After fixing `4,000/- as monthly wages, the Tribunal ought to have deducted 50% as contemplated under Section 4(1)(a) of the Act in case of death. To that extent, the impugned judgment and award passed by the Tribunal is modified.
30. The amount in deposit made by the Insurance Company in MFA Nos. 7500/2015, 7501/2015 and 7502/2015 are ordered to be transferred to the concerned Tribunal, forthwith.
Ordered accordingly.
Sd/- JUDGE kcm