IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2018 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT M.F.A. NO. 2497 OF 2010 (WC) C/W M.F.A. NO. 2498 OF 2010 (WC) IN M.F.A. NO. 2497 OF 2010:
BETWEEN:
M/S NATIONAL INSURANCE COMPANY LIMITED HASSAN NOW REP. BY ITS REGIONAL OFFICE NO.144, SHUBHARAM COMPLEX M.G.ROAD, BANGALORE-560001 (BY SRI. A M VENKATESH, ADVOCATE) AND:
1. SRI SREENIVAS S/O MOODALAGIRIYAYYA AGE: MAJOR R/AT KARAGUNDA VILLAGE JAVAGAL HOBLI, ARASIKERE TALUK 2. SMT. LALITHAMMA W/O K M RUDREGOWDA R/AT KARAGUNDA VILLAGE JAVAGAL HOBLI ARASIKERE TALUK (BY SRI. S V PRAKASH, ADVOCATE FOR R1) ...APPELLANT ...RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 15.09.2009 PASSED IN WCA./NF/SR-52/2004 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, HASSAN-SUB DIVISION, HASSAN, AWARDING A COMPENSATION OF Rs.65,197/- WITH INTEREST @ 12% FROM AFTER 30 DAYS OF ACCIDENT TILL DEPOSIT IN COURT.
IN M.F.A. NO. 2498 OF 2010:
BETWEEN:
M/S NATIONAL INSURANCE COMPANY LIMITED HASSAN NOW REP. BY ITS REGIONAL OFFICE NO.144, SHUBHARAM COMPLEX M.G.ROAD, BANGALORE-560001 (BY SRI. A M VENKATESH, ADVOCATE) AND:
1. SRI CHANDRAIAH S/O MOODALAGIRYAYYA AGE: MAJOR R/AT KARAGUNDA VILLAGE JAVAGAL HOBLI, ARASIKERE TALUK 2. SMT. SIDDAGANGAMMA W/O SRI. CHANDRAIAH AGE: MAJOR R/AT KARAGUNDA VILLAGE JAVAGAL HOBLI, ARASIKERE TALUK 3. SMT. LALITHAMMA W/O K M RUDREGOWDA R/AT KARAGUNDA VILLAGE JAVAGAL HOBLI ARASIKERE TALUK ...APPELLANT ...RESPONDENTS (BY SRI. S V PRAKASH, ADVOCATE FOR R1 & R2; NOTICE TO R3 HELD SUFFICIENT) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 19.8.2009 PASSED IN WCA.F.SR.NO.25/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, HASSAN SUBDIVISION, HASSAN, AWARDING A COMPENSATION OF RS.3,28,875/- WITH INTEREST @ 12% P.A.
THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T These two appeals by the insurer though arise from two separate judgments and orders dated 19.08.2009 passed in WCA.F.SR.No.25/2007 and dated 15.09.2009 in WCA.F.SR.No.52/2004, since common questions of law and facts are involved, they are heard together with the consent of the counsel appearing for the parties.
2. The brief facts started are that: in a vehicular accident that happened on 18.09.2003 because of rash and negligent driving of the offending tractor-trailer bearing Registration No. KA 13 TR 1329, one Mr. Prakash sustained fatal injuries and succumbed thereto, in a short while and another Mr. Srinivas the claimant in WCA.F.SR.No.52/2004 sustained grievous injuries. In the respective claim petitions, the appellant-insurer had filed Statement of Objections resisting the claim.
3. To prove the claim, the father of the deceased was examined as PW1 in WCA.F.SR.No.25/2007 and in his evidence, eight documents came to be got marked as per Exhibits P1 to P8 which, inter alia, comprised of Police Papers, Post Mortem Report and IMV Report. In WCA.F.SR.No.52/2004, the claimant himself got examined as PW1 and got marked Exhibits P1 to P7 which again included Police Papers and Medical Records. The doctor who had treated the injuries of the claimant was examined as PW2. In both these matters, none was examined from the appellant-insurer, although the Insurance Policy came to be marked consensually as Exhibit R1.
4. The Commissioner for Workmen’s Compensation after looking to the pleadings of the parties and after appreciating the evidence tendered by them, has made these separate judgments and orders; in WCA.F.SR.No.25/2007, the award is for a sum of Rs.3,28,875/-; and in WCA.F.SR.No.52/2004, it is of Rs.65,197/-. In both the awards there is a stipulation as to 12% statutory interest. The same are put in challenge by the insurer.
5. These appeals, the appellant has formulated at the following substantial questions of law:
a) Whether the Commissioner was justified in holding that Appellant/Insurance Company is liable to pay compensation without there being any relationship of employer and employee between the owner of the tractor- trailor and the deceased?
b) Whether the Commissioner was justified in holding that the deceased was an employee of the insured without proper proof?
c) Whether the Commissioner was justified in holding that deceased was proceeding in the vehicle as a coolie without there being any cogent evidence?
d) Whether the Commissioner was justified in holding appellant/Insurance Company is liable to pay compensation in a policy which does not cover risk of any coolies i.e., Farmer’s Package Policy?
e) Whether the Commissioner was justified in holding that the vehicle covered under Farmer’s Package Policy meant to be used for agricultural purposes of the insured used for non-agricultural purposes covers risk of unauthorized occupants?
f) Whether the policy of insurance being a Farmer’s Package Policy covers risk of an unauthorized passenger?
g) Whether the Commissioner was justified in taking income of the deceased at Rs.3,000/- without any proof?
h) Whether the Commissioner was justified in awarding interest at the rate of 12% from one month after the date of accident in view of the Apex Court Judgment?”
6. These two appeals are filed under Section 30(1) of the Workmen’s Compensation Act W.C. Act, 1923 (’Act’ for short hereafter) as it then was and the same came to be admitted by this Court on 07.01.2015 although without framing any substantial question of law. Be that as it may.
7. Learned counsel for the appellant-insurer framed in these challenges the impugned judgment and orders on the following three questions:
a) Whether any reasonable person trained in the armchair of the Commissioner, on the basis of the evidentiary material on record, could have recorded a finding as to the ‘employer-employee relationship’ between the deceased in WCA.F.SR.No.25/2007 and the claimant in WCA.F.SR.No.52/2004 on the one hand and the respondent-owner of the insured offending tractor- trailer?
b) Whether Farmer’s Package Policy of Insurance at Exhibit R1 could be invoked by the claimants when the offending vehicle was put to use for non- agricultural purpose?; and c) In the absence of employer-employee relationship the injured and the deceased become the unauthorized passengers and therefore, whether the insurer could have been fastened with the award liability?
8. The learned counsel for the claimants per contra submits that the first question as to employer-
employee relationship is a mixed question of law and facts which cannot be a subject matter of statutory appeal under Section 30(1) of the Act inasmuch as, the appeal under this Section can be founded only on the substantial question of law; he further submits that the answer to the said question depends upon the record of evidence and not on the statute book and therefore, in any circumstance, it would not be a substantial question of law.
9. So far as the other question as to, the deceased and the injured being unauthorized passengers, he again reasons out on the same principle and states that the question raised is not of law and much less a substantial question of law. So far as the other question as to liability of the insurer under Farmer’s Package Policy of Insurance when the vehicle was put to non-agricultural user: Learned counsel for the claimants submits that the question is more of academic value inasmuch, in any circumstance, the insurer becomes liable on the ‘principle of pay and recover’, whatever be the answer to the question.
10. I have heard the learned counsel for the appellant-insurer and the learned counsel for the claimants. I have perused the appeal papers.
11. The contention founded on the plea of employer-employee relationship is ordinarily a mixed question of law and facts which may not be a subject matter of appeal under Section 30(1) of the Act as submitted by the learned counsel for the claimants, has force. This Court in a catena of decisions has taken the view that where the question raised can be answered after opening the record of evidence, and there is no need to open the pages of the statute book, the same does not qualify to be a substantial question of law, subject to just exceptions. In the instant case, no exceptional circumstances are cited qualifying the said proposition and therefore, no indulgence is justifiable. Since the first question of law as the employer-employee is answered in favour of the claimants, the other concomitant question as to the claimant and the deceased being the unauthorized passengers would pale into significance.
12. The second question as to liability of the insurer under Farmers Package Policy of Insurance when the insured vehicle is put to nonagricultural user, again is more a question of facts and not of law inasmuch whether the vehicle was used for a particular purpose is only to be ascertained from the evidentiary material. Ordinarily, the breach of terms of Policy is a matter for the insurer subject to exceptions. Nothing is indicated as to how the finding in this regard would alter the ultimate outcome of the case, if the liability is fastened on the insurer on the ‘Principle of Pay and Recover’ as evolved by the Apex Court from a catena of decisions.
13. In the above circumstances, no other ground having been urged these appeals being devoid of merits, stand dismissed.
The respondent-claimants are entitled for the release of award amount deposited in the Registry of this Court. The Registry shall take all necessary steps to ensure that the said amount whether in Bank Deposit or otherwise, is released in favour of the respondent-claimants at the earliest.
It is open to the appellant-insurer to take-up appropriate proceedings for the recovery/contribution from the insured or the concerned, in accordance with law and that no opinion is expressed as to the tenability or merits of such a proceeding in contemplation.
Sd/- JUDGE Bsv