IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.4609/2013 [MV] C/W M.F.A.No.5441/2013 [MV] M.F.A.No.4609/2013 BETWEEN:
MANAGER LEGAL ICICI LOMBARDO GENEAL INSURANCE CO.LTD., SVR COMPLEX, II FLOOR 89 HOSUR ROAD BANGALORE-560068.
(BY SRI. A N KRISHNA SWAMY, ADV.) AND:
1. SMT. GOWRAMMA W/O LATE MUNIRAJU NOW AGED ABOUT 31 YEARS 2. MASTER ROHITH S/O LATE MUNIRAJU NOW AGED ABOUT 12 YEARS 3. KUMARI DURGASHREE D/O LATE MUNIRAJU AGED ABOUT 10 YEARS RESPONDENTS NOS.2 & 3 SINCE MINORS REPRESENTED ...APPELLANT BY THEIR NATURAL GUARDIAN MOTHER/THE 1ST RESPONDENT HEREIN.
ALL ARE R/O MOSQUE ROAD ATHIBELE, ANEKAL TALUK BANGALORE RURAL DISTRICT-560068.
4. ALTAFULLA KHAN S/O PYAREJAN MAJOR # 292, NEAR CHANNAKESHWARA TEMPLE ATHIBELE, ANEKAL TALUK BANGALORE RURAL DISTRICT-560068.
…RESPONDENTS (R1 & 4 ARE SERVED) THIS M.F.A. IS FILED UNDER SECTION 30(1) OF WC MV ACT AGAINST THE ORDER DATED 18.03.2013 PASSED IN WCA/EC/CR.NO.8/2010 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN’S COMPENSATION, SUB DIVISION-6, BANGALORE, AWARDING A COMPENSATION OF RS.3,98,800/- WITH INTEREST @ 12% P.A.
M.F.A.No.5441/2013 BETWEEN:
1. SMT. GOWRAMMA AGED ABOUT 31 YEARS W/O LATE MUNIRAJU 2. MASTER ROHIT AGED ABOUT 13 YEARS S/O LATE MUNIRAJU 3. KUMARI DURGASRI AGED ABOUT 11 YEARS D/O LATE MUNIRAJU APPELLANT NOS.2 & 3 ARE MINORS REPRESENTED BY NATURAL MOTHER SMT. GOWRAMMA ALL ARE R/AT MASJID ROAD ATTIBELE, ANEKAL TALUK-560107 BANGALORE RURAL DISTRICT.
...APPELLANTS (BY SRI.BHADRINATH R, ADV.) AND:
1. SRI. ALTAFULLAH KHAN AGED ABOUT 38 YEARS S/O PYAREJAN RESIDING AT NO.292 NEAR CHANNAKESHAWARA TEMPLE ATTIBELE, ANEKAL TALUK-560107 BANGALORE DISTRICT.
2. ICICI GENERAL INSURANCE COMPANY LTD., SVR COMPLEX, 2ND FLOOR, NO.89 HOSUR MAIN ROAD BANGALORE-560086.
…RESPONDENTS (BY SRI. M RAVINDRANATH, ADV. FOR R1 SRI A N KRISHNASWAMY, ADV. FOR R2) THIS M.F.A. IS FILED UNDER SECTION 30(1) OF WC MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.03.2013 PASSED IN WCA.NO./F.C/C.R-08/2010 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISION-6, BANNERGHATTA ROAD, BANGALORE, ALLOWING THE CLAIM PETITION FOR COMPENSATION.
THESE M.F.A.s COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The insurer is in appeal in MFA No.4609/2013 before this Court under Section 30(1) of the Workmen’s Compensation Act, 1923, (for short ‘the Act’) aggrieved by the judgment and award dated 18.03.2013 in WCA- FC-CR-08-10 by the Labour Officer and Commissioner for Workmen’s Compensation, Sub Division-6, Bannerghatta Road, Bangalore.
2. The claimants are in appeal in MFA No.5441/2013 before this Court under Section 30(1) of the Workmen’s Compensation Act, 1923, (for short ‘the Act’) seeking to allow their appeal by enhancing compensation awarded under the judgment and award dated 18.03.2013 in WCA-FC-CR-08-10 by the Labour Officer and Commissioner for Workmen’s Compensation, Sub Division-6, Bannerghatta Road, Bangalore.
3. Brief facts of the case are that respondents Nos.1 to 3/claimants, who are the legal representatives of one late Muniraju, filed claim petition under Section 22 of the Employees Compensation Act, 1923 seeking compensation for the death of one Muniraju. Claimants are the wife and children of late Muniraju. It is stated that late Muniraju was working as driver in a Lorry bearing No.KA-51-7387 belonging to the 4th respondent. It is also stated that the deceased was aged 36 years and was earning Rs.6,000/- per month and Rs.30/- per day as daily bata. Claimants stated that on 06.10.2010 when the deceased while transporting the load from Shimoga to Attibele had stopped the Lorry at Prince Hotel on NH.4 – Nelamangala for having lunch along with the cleaner. After lunch quarrel had taken place between the deceased and the cleaner. As the cleaner had attacked the deceased with iron rod, the deceased suffered grievous injuries and succumbed to the injuries in the lorry cabin. The body was taken to Nelamangala Government Hospital for post mortem. Claim petition was filed seeking compensation for the death of Muniraju stating that the death had taken place during the course of his employment and while using the lorry.
4. On issuance of notice to respondents 1 and 2, owner of the lorry and insurer of the lorry appeared before the Commissioner and filed their objections. First respondent in his objection denied the claim petition averments and further contended that deceased was not at all working as a permanent employee under him as driver of the lorry. Further it is stated that the death had not occurred on account of accident and it is a murder committed by the cleaner, as there was personal vengeance between the driver and the cleaner.
5. The 2nd respondent – Insurer in its statement admitted the issuance of policy, but denied the other averments of the claim petition. The insurer contended that the deceased was not working as driver with the 1st respondent and also contended that the death had not taken place during the course of employment. Based on the pleadings of the parties, the Commissioner framed the following points for his consideration :-
“1. 1£Éà CfðzÁgÀgÀÄ ªÀÄÈvÀ£À ¥ÀwßAiÉÄAzÀÄ, 2 & 3£Éà CfðzÁgÀgÀÄ ªÀÄÈvÀ£À ªÀÄPÀ̼ÉAzÀÄ ªÀÄvÀÄÛ CªÀ®A©vÀgÉAzÀÄ PÁAiÉÄÝAiÀÄ£ÀéAiÀÄ “CªÀ®A©vÀgÀÀÄ” JA§ ¥ÀzÀzÀ CxÀðzÀ ªÁåSÁå£ÀzÀrAiÀÄ°è §gÀÄvÁÛgÉAzÀÆ, ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
2. CfðzÁgÀgÀÄ, ªÀÄÈvÀ£ÀÄ 1£Éà ¥ÀæwªÁ¢UÀ¼À §½ ZÁ®PÀ£ÁV ªÁºÀ£À ¸ÀASÉå PÉJ 51 7387gÀ°è PÉ®¸ÀUÁgÀ£ÁVzÀÝ£ÉAzÀÄ ¢£ÁAPÀ 06-01-2010 gÀAzÀÄ vÀ£Àß PÀvÀðªÀå¢AzÀ ªÀÄvÀÄÛ PÀvÀðªÀå ¤gÀvÀ£ÁVzÁÝUÀ C¥ÀWÁvÀQÌÃqÁV ªÀÄÈvÀ¥ÀnÖgÀÄvÁÛ£ÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
3. CfðzÁgÀgÀÄ, ªÀÄÈvÀ£ÀÄ vÁ£ÀÄ vÀ£Àß C¥ÀWÁvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è 30 ªÀµÀðUÀ¼À ªÀAiÀĸÀÌ£ÁVzÀÝ£ÉAzÀÄ ºÁUÀÆ ªÀiÁ¹PÀ gÀÆ.6,000/- UÀ¼À ªÉÃvÀ£À ªÀÄvÀÄÛ gÀÆ.30/- ¢£ÀUÀÆ°AiÀÄ£ÀÄß 1£Éà ¥ÀæwªÁ¢UÀ½AzÀ ¥ÀqÉAiÀÄÄwÛzÀÝ£ÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀªÀgÉÃ?
4. CfðzÁgÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ ¥ÀgÀºÁgÀ ªÉÄð£À §rØUÉ, ºÁUÀÆ AiÀiÁªÀ ¥ÀæwªÁ¢UÀ½AzÀ F J¯Áè ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÀÄ?
5. F §UÉÎ AiÀiÁªÀ DzÉñÀ?”
6. The claimant examined herself as PW.1 and also examined three other witnesses as PWs.2 to 4. Claimants marked Exs.P1 to P6. Respondent No.4 – owner examined himself as RW.1 and 2nd respondent – Insurer examined its Officer as RW.2. Based on the material placed on record the Commissioner awarded total compensation of Rs.3,98,800/- with 12% interest from the date of expiry of one month from the date of accident till its deposit holding that the death has occurred during the course of employment and the insurer is liable to pay compensation and indemnify respondent No.1 – owner of the lorry in question. Aggrieved by the said judgment and award, the insurer is in appeal under Section 30(1) of the Workmen’s Compensation Act.
7. Heard the learned counsel for the appellant – Insurer and the learned counsel for the respondents – claimants. Perused the entire material on record.
8. Having heard the learned counsel for the parties and on perusal of the records including the lower court records, the only substantial question of law which arise for consideration is as to “Whether the Commissioner was justified in saddling the liability on the 2nd respondent – Insurer, even after noticing that the murder took place because of vengeance between the driver and the cleaner.” Answer to the said question would be in the negative and the insurer would not be liable to pay compensation as ordered by the Commissioner.
9. The learned counsel for the appellant submits that the death of Muniraju – the driver of the lorry bearing No.KA-51-7387 had not taken place due to the use of the Motor vehicle or the same has arisen out of and during the course of employment. As such the insurer is not liable to pay compensation. It is his submission that the deceased was murdered by the cleaner of the lorry as there was vengeance between the driver and cleaner of the lorry. It is on record that the lorry was stopped for taking food at Prince Hotel on NH-4 at Nelamangala and after taking food there was tussle between the driver and the cleaner. The cleaner had attacked the driver with iron rod on his head, which resulted in death of the driver in the cabin of the lorry. He invites attention of this Court to Ex.P.1 – the complaint and Ex.P.5 – the charge sheet which is filed under Section 302 of IPC against the cleaner of the lorry. Further the learned counsel submits that the evidence and material on record would establish that the death has not arisen out of or in the course of the employment, nor due to the use of motor vehicle in question. Hence he submits that the insurer would not be liable to pay any compensation under Section 3 of the Act nor under Section 147 of the Motor Vehicles Act, 1988. Further he relies upon the decision in SMT. RITA DEVI AND OTHERS Vs. NEW INDIA ASSURANCE CO. LTD., AND ANOTHER reported in AIR 2000 Supreme Court 1930, to contend that if it is a murder simplicitor the death would not be during the course and cut of employment.
10. Per contra, the learned for the respondents – claimants would submit that the death had taken place during the course of employment and as such the insurer is liable to indemnify the 4th respondent – the owner of the lorry. Further he submits that the cleaner and driver after finishing their food quarreled and the death of the driver of the lorry had taken place, but the cleaner had no intention to cause the death of the driver and as such it is not a murder and death had taken place out of and during the course of employment. Thus prays for dismissing the appeal of the insurer.
11. The claimants are wife and children of late Muniraju, who was alleged to be working as driver with the 4th respondent – owner of Lorry bearing No.KA-51- 7387. On 06.10.2010 when the lorry bearing Reg.No.KA-51-7387 was driven by the deceased along with the cleaner, was coming from Shimoga, had stopped near the Prince Hotel on NH-4 at Nelamangala for having food. After having the food quarrel between the cleaner and the driver arose in the cabin of the lorry and cleaner hit the driver with an iron rod on the head, due to which the deceased suffered grievous head injury and died in the cabin of the lorry itself. Ex.P1 is the FIR. One Mohammed Shafiulla lodged a complaint with the Thyamagondala Police. In the complaint, it is stated that in the stationed lorry two persons were quarreling and there was rod in one persons hand and the said person had hit on the head of the other person with the rod. On seeing the complaint, it indicates that the person, who had attacked the driver with the rod had thrown the rod and had left the place. Ex.P.5 is the charge sheet filed against the cleaner, under Section 302 of IPC. PW.1 is the claimant No.1/wife of the deceased. PWs.2 to 4 are panch witnesses. In their evidence they stated that Muniraju was killed by someone in the lorry. PW.1 is the 1st respondent – owner of lorry. In his evidence, he states that the deceased was not permanent employee of 1st respondent. Further he states that he was murdered and the death had not occurred on account of the accident. PW.1 in his cross-examination has deposed that the murder had not taken place while the deceased was working as driver. RW.2 – the Officer of the Insurance Company also stated that late Muniraju died due to the murder and not by accidental injuries. The death had not occurred while the deceased was discharging the duties as driver. As there was enmity between the driver and the cleaner, the cleaner had murdered Muniraju - the driver of the lorry. Thus the evidence would clearly indicate that the death of Muniraju had taken place due to murder by the cleaner, it is not due to the accident or accidental injuries while the deceased was driving the lorry bearing Reg.No.KA.51 7387. The employers liability to pay compensation under Section 3 of the Workmen’s Compensation Act, 1923, would arise if personal injury is caused to a workman by accident arising out of and in the course of employment, in accordance with Chapter II of the Act. Further if the, death or bodily injury caused by and arising out of use of the motor, then the question of awarding compensation to the claimant would arise under Section 147 of the Motor Vehicles Act, 1988. In the instant case, the death has not taken place due to the accident during the course of employment nor by use of the lorry. The evidence of PWs.2, RW.1 and RW.2 along with Exs.P1 and P.5 would conclusively demonstrate that the driver Muniraju was murdered by the cleaner Sandeep by hitting him with iron rod on the head. Hence, it is a murder simplicitor as the death is not by accident but the cleaner with intention and motive attacked the deceased driver with iron road and caused death. Whether it is a murder simplicitor or is an accidental murder entirely depends on the facts and circumstances of each case. The Hon’ble Apex Court in Smt. Rita Devi and others vs. New India Assurance Co.Ltd. and another reported in AIR 2000 SC 1930 at Para-10 has observed thus:
“10. The question, therefore, is can a murder be an accident in any given case? There is no doubt that murder, as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a murder which is not an accident and a murder which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominent intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.”
12. The Commissioner while dealing with point No.2 has observed that the death of Muniraju had taken place due to murder as there was enmity between the driver and the cleaner. Having noticed that the death had taken place due to murder by the cleaner because of enmity, the Commissioner committed an error in awarding compensation, holding that the death had arisen during and in the course of employment. In the facts and circumstances of the present case, I am of the view, that the death had not arisen out of and during the course of employment and not due to use of the motor vehicle. Therefore the claimants would not be entitled for compensation. Accordingly, the judgment and award dated 18.03.2013 passed in WCA/EC/CR.No.8/2010 by the Commissioner for Workmen’s Compensation, Sub-Division No.6, Bangalore, is set aside. The claim petition is dismissed. The appeal filed by the Insurer is allowed. The appeal filed by the claimants for enhancement of compensation would not survive for consideration, it is accordingly dismissed.
The amount in deposit shall be refunded to the appellant – Insurer in MFA No.4609/2013.
Sd/- JUDGE NG*CT:bms