* THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY
+ Civil Miscellaneous Appeal No.477 of 2005
% Dated 24th September, 2014 Between:
#The Divisional Manager, New India Assurance Company Ltd., Nizamabad …Appellant And Kalaagadda Bhoomaiah and another …Respondents ! Counsel for the appellant: Smt.I.Maamu Vani ^ Counsel for the respondent: Sri Venkateshwar Varanasi <GIST:
>HEAD NOTE:
? Cases cited:
NIL THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY
Civil Miscellaneous Appeal No.477 of 2005
Between:
Dated 24th September, 2014
The Divisional Manager, New India Assurance Company Ltd., Nizamabad …Appellant And Kalaagadda Bhoomaiah and another …Respondents Counsel for the appellant: Smt.I.Maamu Vani Counsel for the respondent: Sri Venkateshwar Varanasi The Court made the following:
JUDGMENT:
This Civil Miscellaneous Appeal is filed by the Insurance Company against award, dated 27.01.2004, in W.C.No.77 of 1999 (NF) on the file of the learned Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Nizamabad (for short ‘the Commissioner’) feeling aggrieved by award of Rs.93,705/- towards compensation in favour of respondent No.1- Kalaagadda Bhoomaiah.
The facts leading to the filing of W.C.No.77 of 1999 are, briefly, stated as under:
Respondent No.2 is the owner of the tractor and trailor bearing Nos.AP 25 B 9957 and AP 25 B 9958, respectively. It is the case of respondent No.1 that he was engaged by respondent No.2 on a monthly salary of Rs.3,000/- and daily batta of Rs.50/-. It is his further pleaded case that on 18.01.1998, while he was travelling as a labourer for loading and unloading in the said trailor and when the tractor has reached the limits of Lingampally Kalan, at about 8.00 am., the driver of the tractor drove the same in a rash and negligent manner at a high speed and in a zigzag manner, resulting in the tractor and trailor falling in a ditch, on account of which, respondent No.1 has fallen down from the trailor and sustained fracture of right upper arm, ribs, right leg, multiple and grievous head injuries and other multiple and grievous injuries on various parts of his body. Therefore, he has claimed Rs.3 lakhs in lumpsum as compensation.
Respondent No.2 filed a counter-affidavit, wherein he has supported the case of respondent No.1.
On behalf of the appellant, a duly Constituted Attorney filed a counter affidavit, wherein while denying the liability of the appellant, it was specifically stated that the tractor and trailor alleged to have been involved in the accident was used only for agricultural purpose, that it was not used for carrying labourers and that, therefore, the appellant was not liable to pay the compensation.
Based on the respective pleadings, the Commissioner has framed the following issues:
“1. Whether the Applicant is workman within the meaning of the Act and whether the accident occurred during the course of employment under Opposite Party No.1?
2. If so, to what relief the Applicant is entitled and against which of the Opposite parties?”
In support of the claim of respondent No.1, he has examined himself as P.W.1 and examined one Dr.L.Ramulu as P.W.2 and got Exs.A1 to A5 marked. On behalf of the appellant, it has examined one Mr.D.Padma Rao, Senior Assistant, as R.W.1 and got Exs.B1 and B2 marked.
In his award, the Commissioner has mainly relied upon the evidence of P.W.2, Ex.A3-Injury Certificate and Ex.A5-Disability Certificate.
Before undertaking further discussion, it is to be noted that the Commissioner has not framed an issue on the liability of the appellant with reference to the policy obtained by respondent No.2.
Be that as it may, the evidence on record is sufficient for this Court to decide the said issue which was specifically raised in the counter affidavit and also in the present appeal by the appellant.
Point:
The only point arising for consideration in this case is:
“Whether the appellant is liable to pay compensation awarded by the Tribunal in favour of respondent No.1 ?”
The appellant, in the counter affidavit, has specifically averred that the tractor and trailor were insured for agricultural use only. Ex.B1 is the insurance policy, wherein it is clearly mentioned against the column “LIMITATIONS AS TO USE” as “Agriculture use only”. While giving break up of the sum of Rs.372/-, the policy mentioned a sum of Rs.120/- towards the liability of tractor; Rs.87/- towards the liability of trailor, Rs.150/- towards unlimited property damage (ULPD) and Rs.15/- towards LL to driver.
Under Section 147(1) of the Motor Vehicles Act, 1988 (for short ‘the Act’) the risk of the driver of any vehicle, the conductor of a public service vehicle or the person examining the tickets of such vehicle and a person being carried in goods carriage vehicle is alone covered.
Admittedly, the insurance policy permitted the tractor and trailor to be used only for agricultural purpose. Therefore, no person other than driver is covered under the Act liability. If the tractor was used for loading and unloading of any goods other than the agricultural products, the said use is contrary to the policy itself. Moreover, the labourers are not covered by Ex.B1, insurance policy, issued by the appellant as no separate premium has been paid for such labourers. The appellant is, therefore, not liable to pay compensation awarded by the Commissioner in favour of respondent No.1. The Commissioner has committed a serious error in not dealing with this aspect and proceeding on a completely erroneous premise that the appellant is liable to pay the compensation.
This point is accordingly answered in favour of the appellant.
Conclusion:
It is represented that the appellant has deposited the entire compensation amount awarded by the Commissioner, out of which, respondent No.1 was permitted to withdraw 50%. Therefore, the appellant is permitted to withdraw the remaining 50% amount lying with the Commissioner. Considering the fact that respondent No.1 is a labourer, I deem it appropriate that the appellant will not recover the amount already withdrawn by respondent No.1.
C.M.A. is, accordingly, allowed As a sequel to disposal of the civil miscellaneous appeal, the interlocutory applications, pending if any, shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 24th September, 2014 Note:
LR copies B/o lur