IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 4969 OF 2013 (WC) BETWEEN THE NEW INDIA INSURANCE CO. LTD., 1ST FLOOR, KIADB COMPLEX HOSUR MAIN ROAD BOMMASANDRA BENGALURU – 560 099 REP. BY REGIONAL OFFICE NO.2-B, UNITY BUILDING ANNEX MISSION ROAD BENGALURU – 560 027 BY ITS DULY CONSTITUTED ATTORNEY.
... APPELLANT (BY SRI. RAVISHANKAR C. R., ADV.) AND 1. SRI. H. K. KRISHNAPPA AGED ABOUT 58 YEARS S/O LATE KARIYELLAPPA 2. SMT. CHIKKA AMMAYYA AGED ABOUT 53 YEARS W/O SRI. H. K. KRISHNAPPA BOTH ARE R/AT HINNAKKI VILLAGE JIGANI HOBLI ANEKAL TALUK – 562 106 BENGALURU DISTRICT 3. SRI. T. RUDRESH, MAJOR S/O SRI. THIMMARAYA REDDY R/AT KIOTHANGANAHALLI ANEKAL TALUK BENGALURU DISTRICT – 562 106 ... RESPONDENTS (BY SRI. N. GOPALAKRISHNA, ADV., FOR R1 & R2; SRI. SHRIPAD V. SHASTHRI, ADV. FOR R3) THIS MFA IS FILED UNDER SECTION 30(1) OF WORKMEN COMPENSATION ACT AGAINST THE JUDGMENT DATED 12.3.2013 PASSED IN WCA NO.FC/CR-07/2012 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB-DIVISION-6, BANNERGHATTA ROAD, BENGALURU 29 AWARDING A COMPENSATION OF RS.4,27,140/- WITH INTEREST AT 12% AFTER ONE MONTH OF ACCIDENT TILL DEPOSIT IN THE COURT.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellant – Insurance Company, the learned counsel for respondent nos.1 and 2 – claimants and the learned counsel for respondent no.3 – owner of the offending Tempo and perused the records.
2. The insurance company has preferred this appeal, challenging the liability fastened on it and also quantum of compensation of Rs.4,27,140/- awarded by the Labour Officer and Commissioner for Workmen’s Compensation in its impugned judgment dated 12.03.2013 in WCA/FC/CR-07/2012.
3. The factual matrix is that on 25.5.2005 at about 2.00 p.m. when the deceased Srinath @ Srinivasa was driving a tempo bearing Regn.No.KA-05-2268 proceeding on Anekal Chandapur Road near Iggalur Tank, he lost control as a result of which the vehicle fell into the tank and he died due to drowning. He being a bachelor, his parents preferred a claim petition against the respondents seeking compensation.
4. After service of notice, the owner as well as the insurer appeared before the Compensation Commissioner. The Insurer contested the case by obtaining permission under Section 170 of the Motor Vehicles Act. The first respondent got examined himself as PW.1 and got marked nine documents as Exhibits P1 to P9. In turn the Insurer examined its Deputy Manager as RW.1 and marked the Insurance Policy as Exhibit R1.
5. After recording evidence and arguments the court below came to the conclusion that the deceased Srinath was an employee under the owner of the offending Tempo and the accident took place during the course of his employment and thus the petitioners / respondents 1 and 2 herein are entitled to compensation. Thus, the court below passed the impugned judgment holding that the deceased was aged 26 years and fixed his notional income at Rs.4,000/- per month and thereby deducting 50% of his earnings and applying the relevant factor of 213.57, awarded compensation of Rs.4,37,140/- with interest at 12% per annum after 30 days from the date of accident till the date of deposit in court and thereby directed the Insurance Company to deposit the compensation amount. The Insurance Company has filed the present appeal being aggrieved by the said finding of the court below fastening the liability on the Insurer.
6. The learned counsel for the appellant – New India Insurance Co. Ltd. vehemently contends that as per the documentary evidence on record, the Tempo is a commercial vehicle, i.e., transport vehicle and the Insurance Policy has also been issued for commercial vehicle. But however, the deceased who was the driver of the tempo did not hold a licence with transport endorsement but only held the licence to drive a non- transport vehicle. When that being the case, it is the contention of the learned counsel for the Insurer that it is nothing but breach of the terms and conditions of the Insurance Policy and hence the liability ought not to have saddled on the Insurer to pay the compensation. Hence, he prays that the impugned order passed by the court below be set aside and the Insurance Company be absolved from its liability.
7. Per contra, the learned counsel appearing for the Respondent Nos.1 and 2 - claimants contended that the question of not possessing a licence with transport endorsement is no more res integra, in view of the law laid down by the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., ((2017) 14 SCC 663) wherein it is held that the absence of transport endorsement per se cannot be a ground to absolve the insurer from the award liability and the MACT could not have let the insurer go free even in the absence of transport endorsement on the driving license of the driver of the offending vehicle. Therefore, he contends that in this appeal, the court below, on appreciation of the evidence on record has rightly assessed the income of the deceased and awarded just and fair compensation, and so also has rightly fastened the liability of the Insurance Company to pay the compensation, which does not call for interference and prays for dismissal of the appeal.
8. Having heard the learned counsel for the parties, as stated by the learned counsel for Respondents 1 and 2, it is relevant to refer to the judgment rendered in MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663 wherein Hon’ble Apex Court has answered the question against the insurer and in favour of the claimant holding that the insurer cannot avoid liability only on the ground of absence of Transport Endorsement. Therefore, the issue is no more res integra. Hence, I do not find any error in the order of the Tribunal fastening the liability on the Insurance Company to pay the compensation. The order passed by the Tribunal is in line with the said decision, which does not call for any interference in this appeal.
Hence, the appeal is rejected.
Office to draw the decree accordingly.
Sd/- JUDGE KS