IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.744 OF 2010 [WC] BETWEEN R. SIDDESHI, S/O. REVANNA, AGED ABOUT 21 YEARS, HAMALI WORK, LABOUR COLONY, DAVANGERE, DAVANGERE DISTRICT. ... APPELLANT [BY SRI. HARISH N.R., ADVOCATE FOR SRI. B.M. SIDDAPPA, ADVOCATE] AND 1. M.T. SHIVANANDA, S/O. MOOLE THIMMANNA, AGED ABOUT 57 YEARS, OWNER OF TRACTOR-TRAILER, BEARING NO.KA-16/930-T-373, RESIDING AT GOLLARAHATTI, CHIKKABENNUR POST, CHITRADURGA TALUK AND DISTRICT.
2. THE BRANCH MANAGER, THE NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, LAKSHMI BAZAAR, CHITRADURGA. ... RESPONDENTS [BY SRI. T. BASAVARAJ, ADVOCATE FOR R-1.
SRI. M. NARAYANAPPA, ADVOCATE FOR R-2] * * * THIS MFA FILED UNDER SECTION 30(1) OF WC ACT AGAINST THE ORDER DATED 01.09.2009 PASSED IN KAA ACHI/KANAPA/N.F/CR-379/2004 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, CHITRADURGA DISTRICT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant has preferred this appeal against the Order dated 01.09.2009, passed by the Labour Officer and Commissioner for Workmen’s Compensation [‘Commissioner’ for brevity], Chitradurga, in Case No.KAA ACHI/KANAPA/N.F/CR/379/2004 dated 01.09.2009, whereby a sum of Rs.1,41,120/- was awarded as compensation for the injuries sustained by him and liability was fastened on the 1st respondent i.e., the owner of the tractor and trailer bearing reg. No.KA-16/930-T-373.
2. I have heard the learned counsel for the appellant and the learned counsel appearing for respondent Nos.1 and 2.
3. The brief facts leading to filing of the present appeal are that;
The 1st respondent is the owner of the tractor and trailer bearing reg. No.KA-16/930-T-373. One G.R.Kiran is the driver of the said tractor and trailer and he was employed under the 1st respondent. The appellant herein claims to be a coolie working under the 1st respondent. He was being paid a sum of Rs.4,500/- p.m. as salary and Rs.30/- p.d. as batta. On 05.11.2003, at about 2.30 p.m., the appellant was proceeding in the said tractor and trailer for the purpose of loading onion. When the tractor and trailer reached near Chikkagondanahalli in Chitradurga Taluk, it met with an accident. On account of which, both the driver as well as the appellant sustained injuries. In the said accident, the appellant sustained injuries to his left leg, left forearm, left ankle, etc. and sustained fracture to the 5th metatarsal bone, left ankle, lateral malleoli bone and fracture of radius bone of the left hand and fracture of ulna of the left forearm. The appellant was admitted at Hiriyur Government Hospital as an inpatient and he was treated by one Dr. Venkatashivareddy.
The appellant sustained permanent disability on account of the said accident.
The appellant filed a claim petition before the Commissioner, Chitradurga. He got himself examined as P.W.2 and the doctor was examined as P.W.3. On behalf of the respondent/Insurance Company, the Officer of the Insurance Company was examined as R.W.1.
Considering the evidence and material on record, the Commissioner passed an order granting a total compensation of Rs.1,41,120/- with interest at 12% p.a. The Commissioner while computing the compensation, opined that the injured suffered 35% functional disability to the whole body as against 50% assessed by the doctor. The salary of the claimant was taken at Rs.3,000/- p.m. The liability was fixed on the owner holding that there was no policy coverage for Hamalies. Aggrieved by the same, the claimant has preferred this appeal seeking enhancement of compensation.
4. This court while admitting the appeal, framed the following substantial questions of law for consideration:
i) Whether it is the Insurer of the vehicle, that is liable to pay the compensation?
ii) Whether Commissioner for Workmen’s Compensation erred in computing the compensation by holding functional disability at 35% as against 55%, assessed by the doctor.
5. Assailing the aforesaid order, learned counsel for the appellant has contended that the compensation awarded is meagre and on the lower side. The Commissioner has failed to properly consider the evidence of the doctor and thereby erroneously taken 35% as the functional disability though the doctor has deposed that the disability sustained by the appellant on account of the accident is 65% and the functional disability sustained by him is 35%. Further, he contends that, the Commissioner has wrongly come to the conclusion that there is no Insurance Policy to cover the appellant in the Policy marked at Ex.R1. He would contend that the Policy being Act Policy, even though no additional premium is paid, the appellant being the workman under respondent No.1, the Insurance Company is liable to pay the compensation and therefore, he contends that the Commissioner has grossly erred in fixing the liability on the owner of the vehicle. He contends that, the finding of the Commissioner that the Insurance Policy is not covered for hamali is erroneous. Even the hamali/coolie is covered under the Insurance Policy. In support of his contention, learned counsel for the appellant placed reliance on the following decisions:
1) ILR 2012 KAR 2572; The Oriental Insurance Company Limited, Bellary Vs. Sri Mallikethi Basappa and Others.
2) ILR 2011 KAR 4139; National Insurance Company Limited Vs. Sri Maruthi and Others.
3) Unreported Judgment published in LAWS [KAR] 2010 6 45; Mounesh Vs. Thimmanna.
Accordingly, he sought to allow the appeal.
Per contra, learned counsel appearing for respondent No.2 vehemently contended that the seating capacity in a tractor is only one. However, the appellant was sitting by the side of the driver. Therefore, it is in violation of the Policy condition and his risk is not covered under the Policy. He further contended that, there is no extra premium collected in so far as hamali is concerned and therefore, the Commissioner is right in holding that there is no insurance coverage for the appellant herein. He further contended that the doctor who treated the appellant has not been examined. The injuries sustained by the appellant are non-scheduled injuries and the percentage of the disability assessed by the doctor is exaggerated and accordingly, he seeks to dismiss the appeal.
6. It is the case of the appellant/claimant that he was working as hamali/coolie under the 1st respondent and on 05.11.2003 at about 2.30 p.m., when he was proceeding in the tractor and trailer bearing reg. No.KA-16/930-T-373 to load onion and at that time, the said tractor and trailer met with an accident and on account of it, he sustained grievous injuries. He was admitted to Hiriyur Government Hospital and took treatment as an inpatient. So far as the appellant working under respondent No.1 is concerned, it is not seriously disputed. It is the case of the claimant that he was earning a sum of Rs.4,500/- p.m. and another sum of Rs.30/-
p.d. as batta from respondent No.1. The Commissioner has come to the conclusion that there is no specific evidence with regard to the earning of the appellant and there is no satisfactory document produced to substantiate the income of the appellant. The statement of objections filed by the employer goes to show that he was paying a sum of Rs.80/-
p.d to the appellant and another sum of Rs.20/- p.d. as batta.
Taking into consideration the same, this Court is of the view that the income of the appellant taken by the Commissioner at Rs.3,000/- p.m. is just and proper.
7. It is the contention of the learned counsel for the appellant that the Commissioner has erroneously come to the conclusion that there is no Policy in so far as hamali/coolie is concerned and therefore, erred in not fixing the liability on the Insurance Company. In support of his contention, he has placed reliance on the Judgment reported in THE ORIENTAL INSURANCE COMPANY LIMITED, BELLARY VS. SRI MALLIKETHI BASAPPA AND OTHERS [supra], wherein at para 7 it is held that;
“7. … the loaders as employees of the owner can always sit in the Trailer either for loading purpose or unloading purpose.”
The contention of the learned counsel for the Insurance Company in the aforesaid case that the Policy issued only covers the risk of the driver but, not any employee was rejected.
8. In the case of NATIONAL INSURANCE COMPANY LIMITED VS. SRI MARUTHI AND OTHERS [supra], the Division Bench of this Court at paras 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 authorize 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 traveling 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.”
In the case of MOUNESH Vs. THIMMANNA [supra] this Hon’ble Court has held that;
“The tractor with a trailer for transportation of agricultural produce and other goods would be very much a goods vehicle. Besides such a tractor and trailer would be a goods carriage within the meaning of Section 2(14) of the M.V. Act, in which event the risk of workmen/loaders of the trailer is necessarily to be covered under Section 147 as an Act Policy without collecting any additional premium.”
In view of the law laid-down in the aforesaid decisions, I am of the view that the insurer in this case is liable to pay the entire compensation in terms of the Workmen’s Compensation Act.
9. It is the contention of the learned counsel for the appellant that according to the doctor, the appellant sustained 65% functional disability and in view of the disability sustained by the appellant, now he is unable to work and therefore, the Commissioner erred in calculating and taking the functional disability at 35%. Considering the nature of the injuries sustained and the avocation of the appellant, I am of the view that the functional disability at 35% taken by the Commissioner is on the lower side. Accordingly, the functional disability of the appellant herein is taken at 50%.
10. The appellant was aged about 20 years at the time of the accident. Considering that he was earning a sum of Rs.3,000/- p.m. and sustained functional disability at 50%, taking 60% of the income of the appellant, which comes to Rs.1,800/- and 50% of the same would be Rs.900/- and the relevant factor is 224. Hence, the appellant is entitled for a total compensation of Rs.2,01,600/- [Rs.900 X 224].
For the foregoing reasons, the appeal is allowed in part. The order dated 01.09.2009, passed by the Commissioner for Workmen’s Compensation, Chitradurga in Case No.KAA ACHI/KANAPA/N.F/CR/379/2004 is modified as under:
The appellant is entitled for a total compensation of Rs.2,01,600/- as against Rs.1,41,120/- awarded by the Commissioner.
Respondent No.2/Insurance Company is liable to pay the compensation which will carry interest at 12% p.a. from one month of the date of the accident. The compensation awarded shall be deposited by respondent No.2/Insurance Company, within a period of four weeks from the date of receipt of a copy of this Judgment.
Sd/- JUDGE.
Ksm*