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Judgment
B. Manohar, J.—Owner of the vehicle as well as the claimant being aggrieved by the judgement and order dated 30.01.2010, made in W.C. No. 303/2008, passed by the Labour Officer and Commissioner for Workmen''s Compensation, Sub Division, Belgaum (herein after referred as WCC for short) have filed the appeal and cross-objection.
Respondent No. 2 in the appeal and the Cross-objector in MFA Crob. No. 839/2011, had filed the claim petition before WCC, contending that, her husband deceased - Hanumanthappa, was working as a loader in tractor and trailer bearing registration No.KA-17-TA-6959-6960, belonging to the appellant. On 26.3.2008, the deceased-Hanumanthappa, as a loader, was travelling in the above tractor and trailer, which was proceeding towards Nandiveburu village to bring the cement. After loading the cement, the tractor and trailer was proceeding towards Harapanahalli. When the said vehicle was near Kanavihalli, due to the rash and negligent driving of the tractor and trailer by its driver, accident occurred and the deceased - Hanumanthappa sustained injuries. Thereafter, he was taken to the Harapanahalli Government Hospital, where he succumbed to the injuries. A case was registered against the driver of the tractor and trailer in Cr. No. 52/2008 under Section 279, 337, 338 r/w 304(A) of IPC.
In the claim petition, it was contended that at the time of accident, the deceased was aged about 56 years and he was getting a salary of Rs. 5,700/- per month. Since the death occurred during the course and out of employment and as she is the wife of the deceased, she was entitled for compensation.
Pursuant to the notice issued by W.C.C., the owner of the vehicle entered appearance and filed his written statement contending that, the deceased was working as a loader in the tractor and trailer belonging to him. He was paying salary of Rs. 150/- per day. Since the tractor and trailer was covered by the insurance policy, the insurer has to compensate the claimant and sought for dismissal of the appeal as against the owner of the tractor and trailer.
The 1st respondent herein - insurance company filed its written statement and contended that, no document had been produced to show that the deceased succumbed to the injuries sustained by him in the road traffic accident occurred on 26.3.2008. There is no master and servant relationship between the owner of the vehicle and the deceased-Hanumanthappa. Since the tractor and trailer was not covered by insurance policy, the insurance company was not liable to pay compensation and sought for dismissal of the appeal.
On the basis of the pleadings of the parties, W.C.C. framed necessary issues. The claimant in order to prove her case examined herself as PW. 1 and got marked the documents as Exs.P1 to P9. On behalf of the respondents, owner of the vehicle was examined as RW. 1. On behalf of insurance company - officer of the insurance company was examined as RW. 2 and insurance policy was marked as R1.
On the basis of the oral and documentary evidence adduced by the prates and the police record i.e., IMV report, spot panchanama and copy of the FIR, WCC held that, due to the rash and negligent driving of the tractor and trailer by its driver, the accident had occurred. The claimant was dependent upon the deceased and since the accident occurred during the course and out of employment, the claimant is entitled for compensation.
With regard to quantum of compensation, the claimant claimed that her husband - deceased Hanumanthappa was earning a sum of Rs. 5,700/- per month. But she had not produced any document to substantiate the same. Though the owner of the vehicle in his evidence admitted that, he was paying a salary of Rs. 150/- per day, even he has also not produced any document in this regard.
WCC, assessed the income of the deceased at Rs. 3,600/- per month, deducting 50% towards personal expenses and by applying relevant factor i.e., 131.95 awarded a sum of Rs. 2,37,510/- with 12% interest towards compensation, payable within 30 days from the date of the impugned order. The liability was fixed on the owner of the vehicle, since, the insurance policy does not cover the loader as well as coolie working in tractor and trailer also. The WCC dismissed the claim petition as against the insurance company.
Being aggrieved by the judgment and order passed by W.C.C., the owner of the vehicle has filed MFA No. 23419/2010. Being dissatisfied with the quantum of compensation awarded by W.C.C., insofar as the assessment of income of the deceased at Rs. 3,600/- per month is concerned, the claimant has preferred MFA Crob. No. 839/2011, seeking for enhancement of compensation.
Sri. Y.V. Lakshmikantha Reddy, Advocate appearing for the appellant/owner of the vehicle contended that the judgement and order passed by W.C.C. is contrary to law. The tractor and trailer is having a commercial policy. In view of the law laid down by this Court reported in National Insurance Company Limited Vs. Sri Maruthi and Others , the insurance company cannot escape from the liability of payment of compensation. The Division Bench of this Court has clearly held that tractor and trailer put together it become goods vehicle. Hence, the loader and the coolie, are also covered by the policy. Therefore, the insurance company is liable to pay the compensation and sought for setting aside the order fastening the liability on the owner.
Sri. T. Hanuma Reddy, appearing for the cross-objector contended that though the owner of the vehicle admitted in his evidence that he was paying a salary of Rs. 150/- per day, W.C.C., has taken the income of the deceased at Rs. 120/- per day i.e., 3,600/- per month which is contrary to law. Hence, sought for enhancement of compensation.
Sri. R.R. Mane, advocate appearing for the insurance company argued in support of the judgment and order passed by W.C.C., contending that, the insurance company is not liable to pay compensation. No document has been produced to show that loader and coolie are covered by policy. Since the vehicle is covered under commercial policy and sought for dismissal of the appeal.
I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgement and order and the oral and documentary evidence adduced by the parties.
The records clearly disclose that, due to the rash and negligent driving of the tractor and trailer by its driver, accident had occurred and the deceased - Hanumanthappa, who was working as a loader in the said tractor and trailer, died on 26.03.2008 in the said accident. The owner of the vehicle admitted that deceased - Hanumanthappa, was working as a loader in the tractor and trailer and he died during the course and out of employment. The claimant has produced necessary documents to show that she is the dependant of the deceased. Therefore, she is entitled to claim compensation. Though, the insurance company denied the liability to pay compensation, contending that the commercial insurance policy of the tractor and trailer will not cover the risk of loader as well as coolie, working in tractor and trailer, the said contention is no longer res-integra. The Division Bench of this Court in a judgement reported in National Insurance Company Limited Vs. Sri Maruthi and Others , laid down the law that the tractor and trailer put together becomes goods vehicle the policy covers the said goods vehicle. Paragraph. 36 of the judgment reads as under:
"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 11-1'' (i) of the 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 travelling in tractor-trailer for the purpose other than agricultural operations. Looking to the avocations of the claimants, the computation of 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 under covered under policy, Exh.R2."
Hence, judgement and order passed by W.CC fastening the liability on the owner of the tractor and trailer is contrary to law. The Commissioner without considering the insurance policy of the tractor and trailer and without taking into consideration the law laid down by this Court, fastened the liability on the owner of the vehicle. Hence, the judgement and order passed by the W.CC cannot be sustained in law.
Though, the claimants claimed that the deceased was earning salary of Rs. 5,700/-, no document was produced in this regard. The Commissioner taking into consideration minimum wages being paid to the loaders and coolie in the year 2008, assessed the income of the deceased at Rs. 3,600/-, taken the age of the deceased as 56 years and applying the relevant factor, awarded a sum of Rs. 2,37,510/- with 12% interest per annum, within one month from the date of the impugned order.
I find there is no infirmity or irregularity in the quantum of compensation awarded. The cross-objector has not made out a case to interfere with the judgment and order passed by W.C.C. However, in view of the judgment of the Supreme Court reported in The Oriental Insurance Company Ltd. Vs. Siby George and Others, (2012) ACJ 2126 : AIR 2012 SC 3144 : (2012) 134 FLR 1064 : (2012) 7 JT 301 : (2013) LabIC 350 : (2012) 3 LLJ 609 : (2012) LLR 897 : (2012) 4 PLR 598 : (2012) 4 RCR(Civil) 617 : (2012) 7 SCALE 86 : (2012) 12 SCC 540 : (2012) 4 TAC 5 : (2012) AIRSCW 4384 : (2012) 5 Supreme 254 , the claimant is entitled to interest at the rate of 12% for one month after the accident.
Accordingly, I pass the following:
ORDER
MFA No. 23419/2010 is allowed.
MFA Crob. 839/2011 is partly allowed.
The judgment and order dated 30.1.2010 is modified with regard to fastening the liability on respondent No. 1 - insurance company. The insurance company to compensate the claimants. The claimant is entitled for the interest from one moth after the accident at the rate of 12% p.a. The owner is absolved of his liability.
The 1st respondent - insurance company is directed to deposit the entire amount with interest within a period of three months from today.
The amount deposited by the owner of the vehicle may be returned to him.