IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL No.3408/2016(WC) BETWEEN:
THE BRANCH MANAGER BAJAJ ALLIANZ GIC LTD, BRANCH OFFICE:
SRI HARI COMPLEX, SEETA VILAS ROAD, MYSORE NOW REP BY ITS M/S. BAJAJ ALLIANZ GIC LTD., GOLDEN HEIGHTS, 4TH FLOOR, NO.1/2, 59TH C CROSS, RAJAJINAGAR, BANGALORE-560 010.
...APPELLANT (BY SRI PRADEEP B., ADVOCATE) AND:
1 . SMT. KALAMMA W/O MAHALINGEGOWDA, NOW AGED ABOUT 62 YEARS, R/O MAHADEVANAHALLI VILLAGE, GANDASI HOBLI, ARASIKERE TALUK, HASSAN TALUK-23 2 . CHANDREGOWDA S/O MAHALINGEGOWDA, NOW AGED ABOUT 42 YEARS, R/O MAHADEVANAHALLI VILLAGE, GANDASI HOBLI, ARASIKERE TALUK, HASSAN TALUK-23.
…RESPONDENTS (R1 AND R2 ARE SERVED BUT UNREPRESENTED) ...
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN’S COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 01.01.2016 PASSED ON ECA No.4/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, ARSIKERE, PARTLY ALLOWING THE PETITION FILED UINDER SECTION 3 OF WORKMEN’S COMPENSATION ACT.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The Insurance Company has filed the present appeal against the judgment and award dated 1st day of January, 2016 made in E.C.A.No.4/2014 by the Senior Civil Judge and MACT., Arasikere awarding total compensation of Rs.4,91,560/- with interest at 9% per annum from the date of petition till the date of deposit mainly on the ground that the sitting capacity of the tractor is only one person i.e., driver and except driver, no other person is permitted to be carried in the tractor as per Regulation 28 of the Rules of the Road Regulations and therefore, it is not liable to pay compensation.
2. It is the claim of the 1st respondent- Smt.
Kalamma, who is aged about 62 years that her son – deceased Yogesha was working under the 2nd respondent as loader to the Tractor bearing Reg. No. KA.13/TA-6343 and on the direction issued by the 2nd respondent, Sri Yogesha had been to Manjenahalli to load Ragi fodder in the Tractor and while he was returning to Mahadevarahalli village, near Manjenahalli Village, the driver of the tractor drove the vehicle in a rash and negligent manner, as a result, the vehicle toppled down and thereby Yogesha sustained grievous injuries and died on the spot.
3. It is the further case of the claimant that the deceased was earning the salary of Rs.6,000/- per month and Rs.50/- as batta per day and the accident has arisen during the course of employment. The 2nd respondent-employer of the deceased and the appellant being the insurance company are jointly liable to pay compensation to the claimant.
4. In response to the notices issued, the appellant and 2nd respondent appeared and filed their separate written statements/objections. The 2nd respondent- employer in his objections has admitted the death of his employee-Yogesha in the accident that occurred on 27.2.2011. He has further admitted that the deceased Yogesha, who was his employee was working under him and was being paid a sum of Rs.6,000/- per month as salary and Rs.50/- per day as batta. He has further contended that on the date of the accident, the driver of the tractor was having license and the vehicle was insured with the insurance company and therefore, the appellant-insurance company is liable to pay compensation and sought for dismissal of the claim petition.
5. In the claim petition before the MACT., the appellant-insurance company by filing the written statement has denied the entire averments made in the claim petition and contended that the insurance company has denied the existence of insurance policy as on the date of the accident. It has further contended that the deceased is the brother of the employer-2nd respondent and the 1st respondent-claimant is the mother of the deceased. The deceased was never employed by the 2nd respondent and the 2nd respondent in collusion with the 1st respondent-claimant in order to obtain compensation, has filed the false claim petition. It has further contended that the driver of the Tractor and Trailer did not possess valid driving licence as on the date of the accident. There was no relationship between the deceased and the 2nd respondent-employer as employer and employee and therefore, the claim petitioner was not maintainable. It was further contended that the provision provided for sitting in the tractor is only for one seat and there is no provision for any other person other than the driver to travel in the tractor including the loader or cleaner and therefore, sought to dismiss the claim petition.
6. The Commissioner for Employees Compensation based on the aforesaid pleadings framed the following issues:
“i) Whether the petitioner proves that her son Yogish was employee under 1st respondent as loader?
ii) Whether petitioner proves that on 27.2.2011 at about 5.00 p.m. her son Yogish died due to rash and negligent act of driver of the vehicle bearing Reg.No.KA 13/TA-6343?
iii) Whether the 2nd respondent proves that 1st respondent has manipulated cover note of the policy?
iv) Whether the petitioner is entitled for compensation? From whom? At what extent?
v) What order?”
7. In order to establish her claim, the 1st respondent-claimant examined herself as P.W.1 and got marked the documents as Exs.P.1 to 7 and on the other hand, the appellant-insurance company examined its Executive as R.W.1 and got marked the documents as Exs.R.1 to R.3.
8. The Commissioner for Employees Compensation/Tribunal considering the entire oral and documentary evidence on record has recorded a finding that the claimant-1st respondent has proved that her son-Yogesh was the employee under the 2nd respondent as loader and died in the accident arising out of and during the course of employment due to rash and negligent driving of the driver of the tractor on 27.2.2011. Accordingly, the Tribunal has passed the impugned order awarding total compensation of Rs.4,91,560/- with interest at 9% per annum to be deposited jointly and severally by the insurance company- appellant and the 2nd respondent-employer from the date of petition till the date of deposit. Hence, the present Miscellaneous First Appeal is filed by the insurance company.
9. The claimant-respondent No.1 has not filed any appeal for enhancement.
10. This Court while admitting the appeal on 26.6.2019 has framed the following substantial questions of law:
“(i) Whether the Tribunal is justified in awarding compensation of `4,91,560/- with 9% interest, when the claimant failed to prove the relationship of master and servant, in view of the dictum of the Hon’ble Supreme Court in the case of Gottumukkala Appala Narasimha Raju and others vs. National Insurance Co. Ltd. and another reported in (2007)2 TAC 385 S.C.?
(ii) Whether the Tribunal is justified in passing the impugned judgment and decree in the facts and circumstances of the case?”
11. I have heard the learned Counsel for the appellant.
12. Sri B. Pradeep, learned Counsel for the appellant-insurance company contended that the impugned judgment and award passed by the Tribunal awarding total compensation of Rs.4,91,560/- with interest at 9% per annum from the date of the claim petition till deposit is without any basis and the same is liable to be set aside. He would further contend that the Tribunal erred in fastening the liability on the Insurance Company, when the claimant-1st respondent has failed to prove the relationship of master and servant as employer and employee. He would further contend that the appellant/Insurance Company is not liable to pay any compensation in view of the fact that the sitting capacity in the tractor is only for one person i.e., for the driver and except driver, no other person is permitted to be carried as per Regulation 28 of the Rules of the Road Regulations, 1989.
13. In support of his arguments, he relied upon the following judgments:
i) Divisional Manager, I.C.I.C.I. Lombard General Insurance Company Ltd., -vs- Mudiyappa and Another reported in 2014 ACJ 268; and ii) National Insurance Co. Ltd., -vs- Bramaranbike reported in LAWS (KAR) 2005 7 30.
Therefore, he sought to allow the miscellaneous first appeal.
14. The claimant-1st respondent as well as the employer-2nd respondent though served, remain unrepresented.
15. Having heard the learned Counsel for the appellant-Insurance Company, it is an undisputed fact that the deceased-Yogesha died in the road accident on 27.2.2011 arising out of and during the course of the employment. As admitted by the 2nd respondent- employer, who has filed the objections before the Tribunal, the deceased-Yogesha was working under him as loader and he was paying a sum of Rs.6,000/- per month as wages and Rs.50/- per day as batta. He has further contended that as on the date of the accident, the tractor-trailer was insured with the appellant- insurance company and hence, the Tribunal has held that the appellant-insurance company is liable to pay the compensation. It is also not in dispute that the deceased Yogesha died in the accident arising out of and during the course of employment on 27.2.2011 due to rash and negligent driving of the driver of the tractor bearing Reg.No.KA.13/TA-6343 and the same is evidenced by the material documents produced by the claimant – Exs.P. 1 to 84.
16. In order to prove her case, the claimant got examined herself as P.W.1 and she has produced the material documents as Exs.P.1 to 7. It is also not in dispute that the charge sheet also has been filed against the driver of the tractor. The postmortem report also reveals that the deceased Yogesha died in the accident that occurred on 27.2.2011 due to the rash and negligent driving of the driver of the tractor. It is also not in dispute that as on the date of the accident, the insurance policy of the tractor of the 2nd respondent- employer was in force.
17. Though the accident occurred on 27.2.2011 i.e., after amendment of the provisions of Section 4 (1B) of the Employee’s Compensation Act, 1923, the Central Government by the Notification dated 31.5.2010 has specified that the monthly wages with regard to the employee has to be taken at Rs.8,000/-. P.W.1-1st respondent in her evidence has stated on oath that the deceased was earning a sum of Rs.6,000/- as monthly wages which was admitted by the 2nd respondent-owner of the vehicle, but the Tribunal erred in taking the monthly wages of the deceased at Rs.5,000/- and after deducting 50% of the salary under Section 4(1)(a) of the Act, it has taken the monthly wages at Rs.2,250/-. Taking into consideration the age of the deceased as 24 years and having taken the relevant factor as 218.47, the Tribunal has come to the conclusion that the claimant is entitled to the total compensation of Rs.4,91,560/-. Though Sri B. Pradeep, learned Counsel for the appellant contended that there is no relationship of master and servant as employer and employee between the 2nd respondent and deceased, but the fact remains that the accident has arisen out of and during the course of employment as admitted by the owner of the tractor-2nd respondent. In view of the provisions of Section 3 of the Employee’s Compensation Act, 1923, the contention of the learned Counsel for the appellant- insurance company that there is no relationship of employer and employee between the 2nd respondent and the deceased cannot be accepted. Therefore, the employer is liable to pay the compensation, when personal injury is caused in an accident arising out of and during the course of employment and employer shall pay the compensation from the date of the accident. Admittedly, the tractor was insured with the appellant-insurance company and the insurance policy issued in respect of the tractor for agricultural operations was in force as on the date of the accident.
18. It is well settled that the Employee’s Compensation Act, 1923 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 an 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. The Tribunal considering the dictum of the Madras High Court in the case of Oriental Insurance Company –vs- Meenakshi has held that though the seating capacity in the Tractor is only one, when the vehicle which was used for agricultural purpose and deceased who was employed as a coolie or loader of the vehicle, met with an accident, his legal heirs are entitled for compensation.
19. The Tribunal has further recorded a finding that the 2nd respondent, who is appellant herein has examined its Executive as R.W.1, who has stated on oath that as on the date of the accident, the driver of the offending vehicle did not possess driving license and the vehicle involved in the accident had no insurance, but in the cross-examination, he has specifically admitted that ‘C¥ÀWÁvÀªÁzÀ ¸ÀªÀÄAiÀÄzÀ°è mÁåçPÀÖgïUÉ «ªÉÄ EvÀÄÛ JAzÀgÉ ¸Àj’ (as on the date of the accident, the tractor was covered with the insurance). He has further submitted that ‘ªÀåªÀ¸ÁAiÀÄ GzÉÝñÀPÁÌV mÁåçPÀÖgÀ£ÀÄß vÉUÉzÀÄPÉÆArgÀÄvÁÛgÉ CAzÀgÉ ¸Àj.’ The tractor was taken only for the purpose of agriculture’.
20. In view of the admitted facts that the relationship between the 2nd respondent - the owner of the vehicle and the deceased was master and servant is proved, the Tribunal ought to have taken the monthly wages of the deceased at Rs.8,000/- instead of Rs.6,000/- as the accident has taken place after amendment of the provisions of Sub-Section (1B) of Section 4 of the Employee’s Compensation Act and has awarded only 9% interest instead of 12% on the amount of compensation as contemplated under the provisions of Section 4A(3)(a) of the Act. Accordingly, the judgments relied upon by the learned Counsel for the appellant has no application to the facts and circumstances of the present case.
21. The Hon’ble Supreme Court in the case of Shivaraj –vs- Rajendra and Another reported in AIR 2018 SC 4252 while considering the provisions of Section 147 of the Mother Vehicles Act, (59 of 1988) at paragraphs-9, 10 and 13 has held as under:
“9. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case.
10. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors.1, Mangla Ram Vs. Oriental Insurance Co. Ltd.2, Rani & Ors. Vs. National Insurance Co. Ltd. & Ors.3 and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others.4 In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the 1 (2004) 3 SCC 297 2 (2018) 5 SCC 656 3 2018 (9) SCALE 310 4 (2017) 4 SCC 796 appellant with liberty to recover the same from the tractor owner (respondent No.1).
13. In view of the above, the appeals are partly allowed to the extent of directing the respondent No.2 (Oriental Insurance Company Ltd.) to pay the compensation amount determined by the tribunal and affirmed by the High Court to the appellant in the first place and with liberty to recover the same from the owner of the offending tractor (respondent No.1) in accordance with law.”
22. In the facts and circumstances of the present case, the Tribunal was justified in awarding the total compensation of Rs.4,91,560/- with interest at 9% per annum from the date of claim petition till the date of deposit to the claimant but it ought to have directed the appellant –Insurance Company to pay the compensation amount to the claimant with liberty to recover the same from the owner of the tractor as the deceased was traveling in the tractor as passenger even though the tractor could accommodate only one person namely the driver. As a result, the insurance Company-appellant was not liable for the loss or injuries suffered by the claimant and the Tribunal ought to have directed the insurance company to pay the compensation to the claimant with liberty to recover the same from the owner of the tractor as held by the Hon’ble Supreme Court in the case Shivaraj –vs- Rajendra and Another stated supra.
23. For the reasons stated above, the appeal filed by the insurance company is allowed in part. The impugned judgment and award passed by the Tribunal awarding total compensation of Rs.4,91,560/- with interest at 9% per annum is confirmed with liberty to the Insurance Company to recover the same from the owner of the vehicle in accordance with law.
Ordered accordingly.
Sd/- Judge Nsu/-