IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA MISCELLANEOUS FIRST APPEAL NO.2545/2016 (WC) C/W.
MISCELLANEOUS FIRST APPEAL NO.2546/2016 (WC) MISCELLANEOUS FIRST APPEAL NO.2544/2016 (WC) BETWEEN:
BRANCH MANAGER ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE SHARADA COMPLEX OPP. K.S.R.T.C. BUS STAND CHITRADURGA NOW REPRESENTED BY THE ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE TP HUB SUMANGALA COMPLEX LAMINGTON ROAD HUBLI – 580 020 ... COMMON APPELLANT (BY SRI H.C.VRUSHABHENDRAIAH, ADV.) AND:
IN MFA.NO.2545/2016 1. THAREGOWDA S/O. T. KARIYANNA AGED ABOUT 26 YEARS R/O. UPPALAGERE VILLAGE HIRIYUR TALUK – 572143 2. RANGAPPA S/O. GALI VEERAPPA MAJOR OWNER OF TRACTOR BEARING REG. NO. KA-16/TA-746-747 R/O. HEGGERE VILLAGE SANIKERE POST CHALLEKERE TALUK – 577 522 IN MFA.NO.2546/2016 1. E. MANJUNATHA S/O. ERANNA AGED ABOUT 42 YEARS R/O. UPPALAGERE VILLAGE HIRIYUR TALUK – 572143 2. RANGAPPA S/O. GALI VEERAPPA MAJOR OWNER OF TRACTOR BEARING REG. NO. KA-16/TA-746-747 R/O. HEGGERE VILLAGE SANIKERE POST CHALLEKERE TALUK – 577 522 IN MFA.NO.2544/2016 1. SMT. LOKAMMA W/O. LATE RAMACHANDRAPPA AGED ABOUT 49 YEARS R/O. KASAVNAHALLI VILLAGE HIRIYUR TALUK – 572143 2. RANGAPPA S/O. GALI VEERAPPA MAJOR OWNER OF TRACTOR BEARING REG. NO. KA-16/TA-746-747 R/O. HEGGERE VILLAGE SANIKERE POST CHALLEKERE TALUK – 577 522 ... RESPONDENTS ... RESPONDENTS ... RESPONDENTS (BY SRI N.R.RANGE GOWDA, ADV. FOR R1 IN ALL APPEALS NOTICE TO R2 IS SERVED AND UNREPRESENTED) MFA NO.2545/2016 IS FILED UNDER SECTION U/S.30(1) OF THE WORKMEN COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DT.30.09.2015 PASSED ON ECA NO.158/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL CFEC, HIRIYUR, AWARDING COMPENSATION OF RS.53,100/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT ETC.
MFA NO.2546/2016 IS FILED UNDER SECTION U/S.30(1) OF THE WORKMEN COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DT.30.09.2015 PASSED ON ECA NO.159/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL CFEC, HIRIYUR, AWARDING COMPENSATION OF RS.36,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT ETC.
MFA NO.2544/2016 IS FILED UNDER SECTION U/S.30(1) OF THE WORKMEN COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DT.30.09.2015 PASSED ON ECA NO.157/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL CFEC, HIRIYUR, AWARDING COMPENSATION OF RS.2,34,800/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT ETC.
THESE MFAs’ COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT The appellant – insurance company has filed the present miscellaneous first appeals against the common judgment and award dated 30.09.2015 made in ECA.Nos.158/2014, 159/2014 and 157/2014 respectively on the file of the Senior Civil Judge and Additional CFEC, Hiriyur, (hereinafter referred to as ‘the Tribunal’ for brevity) awarding total compensation of Rs.53,100/-, Rs.36,000/- and Rs.2,34,800/- with interest at 9% per annum from the date of petition till deposit in favour of the claimants.
2. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.
3. The claimants before the tribunal filed three separate claim petitions claiming compensation under Section 22 of the Employee’s Compensation Act, 1923, (hereinafter referred to as ‘the Act’) contending that the deceased Ramachandrappa @ Chandrappa in ECA.No.157/2014 and two injured claimants in ECA Nos.158/2014 and 159/2014 were working as Coolies under the first respondent who is the owner of the tractor trailer bearing registration No.KA-16/TA-746-747 and they were earning Rs.6,000/- per month and Rs.100/- as Batta per day respectively. They further contended that on 04.08.2012, at about 06.00 p.m., as per the instructions of the owner / employer, the deceased and other claimants being coolies were moving in the Tractor Trailer from Gayathripura village towards the land of respondent No.2 herein - the employer situated at Heggere village. When the said Tractor - Trailer was proceeding near K.R.Halli, U-turn, Hiriyur Taluk, the driver of the said Tractor - Trailer drove the same in a rash and negligent manner and toppled down the said Tractor - Trailer and occurred accident. As a result, the deceased Ramachandrappa @ Chandrappa sustained grievous injuries to his head, abdomen, legs and all over the body and other two claimants sustained injuries on their left knee, LS spine and both foots, left wrist, supra fubic region and right calcaneum etc. All the injured persons were shifted to the Government Hospital, Hiriyur, but deceased Ramachandrappa died after twenty days from the date of the accident, when he was inpatient in the Basaveshwara Hospital, Chitradurga, inspite of better treatment due to accidental injuries. After the post mortem, the body was handed over to his dependants.
4. It is further contended that the legal representative of the deceased has spent about Rs.30,000/- each towards medical expenses and funeral expenses. With regard to the petitioner – claimant in ECA.No.158/2014, he suffered injuries, X-ray was taken and confirmed fracture of T-12 vertebra. He was treated by applying belt to the fracture portion for the period of one month as inpatient. He has spent Rs.2,00,000/- along with attendant charges of Rs.10,000/-. He has also taken out-patient treatment with orthopedic surgeons. Due to the fracture sustained by him, he is suffering from disability and he lost his earning capacity and he is not in a possession to bear weight, cannot sit with crossed leg and he cannot walk properly. The petitioner – claimant in ECA.No.159/2014 also suffered various injuries and was subjected to X-ray and confirmed fracture of right knew, right calcaneum and also supra pubic region. He was treated applying POP and belt to the fracture portion for the period of one month as inpatient. He has incurred medical expenses of Rs.1,00,000/- along with attendant charges of Rs.10,000/-. He has also taken out-patient treatment with orthopedic surgeons. Due to the fractures sustained by the petitioner in the incident, he is suffering from disability and he lost his earning capacity. He is not in a possession to bear weight, he cannot sit with crossed leg and he cannot walk properly. As such, he cannot attend his coolie work as prior to the date of the accident due to permanent disability.
5. It is further contended that accident occurred due to rash and negligent driving of the tractor - trailer and respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. The insurance policy was in force at the time of the accident. Therefore, respondent Nos.1 and 2 are jointly and severally liable to pay the compensation in all the three petitions.
6. In response to the notice issued, respondent No.1 remained absent and he was placed exparte. Respondent No.2 – insurance company appeared through its counsel and filed objections denying the averments made in the claim petitions and also denied the death of the deceased Ramachandrappa @ Chandrappa for injuries sustained in the said accident and also the injuries sustained by other two claimants – petitioners therein. It is also contended that the claim petitions are not maintainable. The claim petitions are created one with the collusion of police and respondent No.1. The compensation claimed by the petitioners is exorbitant and they are not entitled for interest at the rate of 6% p.a. Further, it has contended that the insurance policy is issued to respondent No.1 and if any liability is fastened on respondent No.2, it is only as per the terms and conditions of the insurance policy. The policy covers only one driver, but does not cover coolies, employees, loader or un-loader. Therefore, respondent No.2 therein, the insurance company is not liable to pay compensation and hence, he sought for dismissal of the claim petitions.
7. Based on the pleadings, the Tribunal framed common issues for its consideration, which is as under :
“1. Whether the petitioners prove that, deceased Ramachandrappa @ Chandrappa S/o. Sanna Thimmappa died on 02.09.2012 for the injuries sustained in the RTA and petitioners in ECA 158/2014 and 159/2014 had sustained inujuries in the RTA occurred on 04.08.2012 at 6.00 P.M. near K.R.Hali U-turn, Hiriyur Taluk, during the course of their employment under respondent No.1 while working as coolies of Tractor Trailer bearing Reg.No.KA-16/TA-746-747?”
2. Whether the petitioners are entitled for compensation, If so, how much and from whom?
3. What order or award?”
8. In order to prove their respective cases, petitioner – claimant in ECA.No.157/2015 examined as PW.1 and marked 8 documents as per Exs.P.1 to P.8. Petitioner – claimant in ECA.No.158/2014 is examined as PW.1 along with one doctor as PW.2 and marked three documents as Exs.P.1 to P.3. The petitioner – claimant in ECA.No.159/2014 is examined as PW.1 and one doctor who treated him as PW.2 and marked three documents as Exs.P.1 to P.3. On the other side, the insurance company examined its branch manager as RW.1 and marked the insurance policy as Ex.R.1.
9. The Tribunal after considering both oral and documentary evidence on record has recorded the finding that the claimant in ECA.No.157/2014 has proved that the deceased died on 02.09.2012 due to the injuries sustained in road traffic accident and the claimants in ECA.Nos.158/2014 and 159/2014 have sustained accidental injuries which occurred on 04.08.2012, due to rash and negligent driving by the driver of the Tractor - Trailer bearing registration No.KA- 16/TA-746-747, arising out of and during the course of employment under respondent No.1 and thus, the claimants are entitled for compensation. Accordingly, the tribunal by the impugned judgment and award dated 30.09.2015 awarded total compensation of Rs.2,34,800/- in ECA.No.157/2014, Rs.53,100/- in ECA.No.158/2014 and Rs.36,000/- in ECA.No.159/2014, with interest at the rate of 9% per annum from the date of the petition till the date of deposit. Being aggrieved by the same, the insurance company – common appellant has filed these present appeals mainly contending that the insurance policy covers only one coolie and other persons are not entitled as they are not covered under the terms and conditions of the insurance policy.
10. The claimants have not filed any appeal against the impugned common judgment and award passed by the tribunal.
11. I have heard the learned counsel for the parties to the lis.
12. Sri Vrushabhendraiah, learned counsel for the appellant – insurance company contended with vehemence that the impugned judgment and awards are erroneous, contrary to material on record and the same cannot be sustained. He would further contend that the tribunal failed to notice that the vehicle being the tractor and trailer, which is meant exclusively for agricultural purpose and no persons are allowed to travel in the said vehicle. The tribunal has also failed to notice that the policy issued by the appellant is a Kissan Package Policy and the risk of coolies is not covered under the policy and the liability of the insurer would not arise in the instant case. Therefore, the same cannot be sustained. He would further contend that the tribunal failed to appreciate that the liability of the insurance company has to be determined as per the coverage under the policy. The same has not been done and therefore, he sought to allow the miscellaneous first appeals by setting aside the impugned common judgment and awards.
13. Per contra, Sri N.R.Range Gowda, learned counsel for respondent No.1 – claimants sought to justify the impugned common judgment and awards passed by the tribunal and contended that as on the date of the accident, the deceased and the injured persons were working under the first respondent - the owner of the tractor and trailer and the accident occurred arising out of and during the course of employment. On account of rash and negligent manner of the driving of the driver of the said vehicle, the deceased died and the other claimants sustained grievous injuries. The same is admitted by the owner of the offending vehicle. Admittedly, the offending vehicle was insured as on the date of the accident.
14. He would further contend that the tribunal considering the entire material on record has come to the conclusion that the claimants proved the accident occurred arising out of and during the course of employment and as on the date of the accident, the deceased and the injured persons were traveling in tractor and trailer as they were working under respondent No.2 – the employer and owner of the said vehicle. Therefore, the provisions of Section 3 of Act would attract and the tribunal is justified in awarding the compensation. He would further contend that in an identical circumstance, 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 has held that 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 Sections 147 of Motor Vehicles Act, claimants are covered under the insurance policy. The claimants in the present case have rightly approached the tribunal and the tribunal was justified in holding that the deceased and injured claimants are workmen under the owner viz., the insured. All the three were coolies / employees traveling in the said vehicle for agricultural purpose in the land of the insured – owner, the same is nothing, but part and parcel of agricultural operations and the accident has arisen out of and during the course of employment. Hence, he sought to dismiss the miscellaneous first appeals preferred by the insurance company.
15. This Court while admitting the appeals on 26.06.2019, framed the following substantial questions for its consideration:
(i). Whether the Commissioner for Employee’s Compensation - Tribunal is justified in holding that the accident occurred during the course of employment resulting in injuries to claimants and death, in the facts and circumstances of the present cases?
(ii). Whether the Commissioner for Employee’s Compensation - Tribunal is justified in directing the appellant to pay compensation to claimants who are coolies in tractor and trailer for the injuries sustained by them, despite the coolies were not covered under the policy of insurance?
(iii) Whether the Commissioner for Employee’s Compensation / Tribunal is justified in awarding compensation to the claimants in the facts and circumstances of the present case?
16. Having heard the learned counsel for the parties, it is undisputed fact that the deceased and injured claimants who were working under respondent No.2 - owner as coolies were traveling in the tractor – trailer bearing registration No.KA-16/TA-746-747 for agricultural purpose in the land belonging to respondent No.2 sustained injuries in the accident that occurred on 04.08.2012, arising out of and during the course of employment. In the accident, one injured coolie by name Ramachandrappa @ Chandrappa died on 02.09.2012 due to accidental injuries and two other coolies sustained injuries. The same is evidenced from the material documents Exs.P.1 to P.8 in ECA.No.157/2014, Exs.P.1 to 3 each in ECA.Nos.158/2014 and 159/2014 respectively. The relationship between the parties is not in dispute. In view of the provisions of Section 3 of the Employee’s Compensation Act, 1923, clearly depicts that the accident has occurred and coolies sustained injuries are arising out of and during the course of employment. The employer – second respondent herein is liable to pay the compensation and as on the date of the accident, the insurance policy was in force and covered all the coolies.
17. 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. Admittedly, in the present case, the accident occurred on account of the rash and negligent driving of the driver of the tractor- trailer. The deceased Ramachandrappa @ Chandrappa aged 60 years as on the date of the accident died due to accidental injuries sustained by him in the said accident. Though the wife of the deceased, the legal representative of the deceased claimed that he was earning Rs.6,000/- p.m., and Rs.100/- as Batta, the same was seriously disputed by taking note of the date of the accident as 04.08.2012. The tribunal was of the opinion that if notional income of Rs.4,000/- would suffice in the case of ECA.No.157/2014 and deducted 50% in view of the provision of Section 4(1)(a) of the Act. The tribunal proceeded after taking relevant factor and awarded Rs.2,34,820/- which is rounded off to Rs.2,34,800/-.
18. In ECA.No.158/2014, the claimant suffered multiple graged abrasion on left knee and tenderness over LS region as per Exs.P.1 to 3 and as per X-ray which reveal fracture of T-12 vertebra compression as seen. The doctor who was examined as PW.2 has opined that the claimant has suffered 20% permanent disability. In ECA.No.159/2014, the claimant suffered multiple graged abrasion right foot, multiple graged abrasion left foot, graged abrasion left wrist, graged abrasion right foot and tenderness supra pubic region and as per X-ray, he has suffered fracture of right calcaneum and fracture of supra public seen. The doctor who treated this claimant has deposed that even he has suffered 15 to 20% disability. The insurance company has not produced any document except the insurance policy, which was in force and the evidence of RW.1, the branch manager.
19. Unfortunately, the claimants have not filed any appeal seeking enhancement.
20. The tribunal considering the entire material on record and oral and documentary evidence, proceeded to pass the award. Though the learned counsel for insurance company persuaded this Court that the insurance policy covers only one coolie and not other persons, this Court cannot accept the same. The reason is that, as stated supra, the owner of the vehicle who has stated on oath that all the three coolies were working under him and were traveling in the tractor-trailer to work in the land belonging to him for agricultural operations and the accident has occurred arising out of and during the course of employment. The insurance policy was also in force and thus, the claimants are entitled for compensation as per the provisions of Section 3 of the Act.
21. The Division Bench in the case of National Insurance Company Limited Vs. Sri Maruthi and Others reported in ILR 2011 KAR 4139, at paragraph Nos.31, 37 and 40 has held 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.”
22. In view of the aforesaid reasons, the substantial questions of law framed by this Court has to be answered in the affirmative holding that the tribunal is justified in holding that accident has occurred during the course of employment, resulting in death of one coolie and injuries to other two claimants – coolies and also awarding just and proper compensation according to the facts and circumstances of the case.
23. For the aforesaid reasons, the appellant has not made out any good ground to interfere the impugned judgment and award by exercising power under Section 30(1) of the Act. Accordingly, the miscellaneous first appeals are dismissed as devoid of merits.
24. It is significant to mention that the interest awarded by the tribunal at the rate of 9% p.a. from the date of petition till the date of deposit is contrary to the provisions of the Act. Hence, the same is modified and the interest at the rate of 12% p.a. shall be paid after one month from the date of the accident till the date of deposit.
25. The disbursement of compensation made by the Tribunal shall remain intact. The amount in deposit made by the insurance company is directed to be transferred to the tribunal forthwith along with original records if any, so as to enable the claimants to withdraw the amount.
Ordered Accordingly.
SD/- JUDGE nvj