Ashwini and Others vs Ramachandra and Others

B. Manohar, J.—1. These appeals are filed by the claimants as well as the insurance company, challenging the legality and correctness of the judgment and order dated 10.07.2013 passed in WCA/SR Nos. 17/2012 and 18/2012 by the Labour Officer and Commissioner for Workmen''s Compensation, Sub-Division No. 2, Bijapur (hereinafter referred to as ''WCC'').

MFA Nos. 31997/2013 and 31998/2013 are filed by the claimants, being not satisfied with the quantum of compensation awarded by the WCC, whereas MFA Nos. 32187/2013 and 32188/2013 are filed by the ICICI Lombard General Insurance Company, being aggrieved by fastening the liability on the insurance company to compensate the claimants.

Since the common order passed by the WCC has been challenged, all the appeals are clubbed together and disposed of by this common judgment.

The facts leading to filing of these appeals are as under:

"The appellants in MFA Nos. 31997/2013 and 31998/2013 had filed the claim petitions before the WCC contending that deceased Dasharath Lokande who is the husband of the first appellant and father of appellant Nos. 2 and 3 in MFA No. 31997/2013, whereas, Amol who is the son of appellant Nos. 1 and 2 in MFA No. 31998/2013 were working as coolies in a truck bearing Reg. No. MH-13/G-2067 belonged to the first respondent therein. On 21.05.2010, as per instructions of owner of the vehicle, while they were proceeding for loading the goods, due to the rash and negligent driving of the said truck, it met with an accident and the truck turned turtle, due to which the coolies working in the said truck sustained grievous injuries and subsequently, they succumbed to the injuries. At the time of the accident, deceased Dasharath Lokande was aged about 30 years and deceased Amol was aged about 17 years. They were getting wages of Rs. 8,000/- per month. In view of their death, their families have lost the bread earner and hence, sought for compensation of Rs. 10,00,000/- each with interest at 18%p.a."

In Pursuance of the notice issued by the WCC, respondent No. 1 - the owner of the vehicle entered appearance and filed the written statement admitting that the deceased persons were working as coolies in the truck belonging to him and in the accident occurred on 21.05.2010, they sustained injuries and subsequently succumbed to the same. The accident had occurred during the course and out of employment. The claimants are the dependents of the deceased persons and they are entitled for compensation. Since the truck is covered by the insurance policy, respondent No. 2 has to compensate the claimants.

The second respondent - insurance company filed written statement denying the entire averments made in the claim petitions and contended that there is no relationship of master and servant between the deceased as well as the owner of the vehicle. No document has been produced in this regard. Further, as on the date of the accident, the deceased persons were travelling as unauthorised passengers in a goods vehicle. Apart from the deceased, other 10-15 persons were travelling the said truck. Hence, there is a violation of conditions of the policy. Therefore, the insurer is not liable to compensate the claimants due to the death of deceased persons and sought for dismissal of the claim petitions.

On the basis of the pleadings of the parties, the WCC framed necessary issues.

The claimants in order to prove their case, the first claimant in WCA/SR No. 17/2012 was examined as PW.1 and the first claimant in WCA/SR No. 18/2012 was examined as PW.2 and got marked the documents as Exs.P1 to P8. On behalf of the respondents, none of the witnesses have been examined. However, with the consent of the parties, the insurance policy was marked as Ex.R1(1).

The WCC after considering the oral and documentary evidence let in by the parties and taking into consideration the spot panchanama, IMV report, charge sheet and copy of the complaint, held that due to the rash and negligent driving of the truck by its driver, it met with an accident. The deceased persons who were working in the said truck had sustained grievous injuries and succumbed to the same during the course and out of employment. The deceased persons were the workmen, falling within the meaning of Section 2(1)(n) of the Workmen''s Compensation Act. Hence, the claimants are entitled for compensation.

With regard to quantum of compensation is concerned, though the claimants claimed that deceased persons were getting the wages of Rs. 8,000/- per month, no document has been produced to substantiate the same. The WCC, taking into consideration the minimum wages being paid to the coolies working in the lorry has considered the income of the deceased persons at Rs. 4,000/- p.m. Considering the income of deceased Dashrath at Rs. 4,000/- p.m. and taking 50% thereof, applying the relevant factor of 207.98, as he was aged about 30 years, the WCC has awarded a sum of Rs. 4,15,960/- and also considering the income of deceased Amol at Rs. 4,000/- p.m. and taking 50% thereof and applying the relevant factor of 227.49, as he was aged about 17 years, awarded a sum of Rs. 4,54,980/- with interest at 12% p.a. from 30 days after the date of accident. Since the insurance policy of the offending vehicle is in operation as on the date of the accident, liability has been fastened on the insurance company to compensate the claimants. The claimants in both the claim petitions being not satisfied with the quantum of compensation awarded by the WCC, have filed MFA Nos. 31997/2013 and 31998/2013, whereas, the insurance company, being aggrieved by the judgment and award of the WCC fastening the liability on the insurer to compensate the claimants, have filed MFA Nos. 32187/2013 and 32188/2013.

Sri C.S. Kalburagi, the advocate appearing for the appellant - insurance company in MFA Nos. 32187/2013 and 32188/2013 contended that the order passed by the WCC fastening the liability on the insurance company to compensate the claimants is contrary to law. The claimants have not produced any document to show that the deceased persons were working as coolies in a truck bearing Reg. No. MH-13/G-2067 and the accident had occurred during the course and out of employment and they died. The complaint clearly discloses that on the date of accident, the deceased persons and other 10 - 15 persons were travelling in the truck. Admittedly, the offending vehicle is a goods vehicle. The gratuitous passengers travelling in a goods vehicle are not covered by the insurance policy. In spite of specific contention raised in the statement of objections, the WCC without considering the objections, granted the compensation to the claimants. Hence, sought for allowing the appeals filed by the insurance company by dismissing the claim petitions.

On the other hand, Sri C.L. Koujalagi, the advocate appearing for the appellants/claimants in MFA Nos. 31997/2013 and 31998/2013 contended that deceased Dasharath Lokande and Amol were working as coolies in a truck belonging to the first respondent herein. On 21.05.2010 while they were proceeding for the purpose of loading the goods, due to the rash and negligent driving of the said truck by its driver, the vehicle met with an accident; due to which they have sustained grievous injuries and subsequently died. The accident had occurred during the course and out of employment. The owner of the vehicle also admitted the said fact. Hence, the claimants are entitled for compensation. However, while determining compensation, the WCC has taken income of the deceased persons as Rs. 4,000/- p.m. which is contrary to law. The accident had occurred in the year 2010. The WCC ought to have taken the income of the deceased as Rs. 8,000/- p.m. and awarded compensation. Hence, sought for modification of the order and enhancement of compensation.

I have carefully considered the arguments addressed by the advocates appearing for the parties and perused the judgment and order passed by the WCC and oral and documentary evidence adduced by the parties.

The points that arise for consideration in these appeals are,

"1) Whether the compensation awarded by the WCC to the claimants for the death of Dasharath and Amol is in accordance with law?

2) Whether the WCC is justified in fastening the liability on the insurance company to compensate the claimants?"

The record clearly discloses that the deceased persons have died in the road traffic accident that occurred on 21.05.2010. The claimants contended that the deceased were working as coolies in a truck belonging to the first respondent therein. They were paying wages of Rs. 8,000/- p.m. On the instruction of the owner of the vehicle while they were proceeding for the purpose of loading the goods, the vehicle met with an accident; due to which they have sustained injuries and subsequently succumbed to the same. The accident had occurred during the course and out of employment. Hence, they are entitled for compensation. Whereas, the advocate appearing for the insurance company contended that no document has been produced to show that the deceased persons were working as coolies in the truck belonging to the first respondent therein. Except oral assertion, the claimants have not proved that the deceased fall within the definition of "workman" under Section 2(1)(n) of the Workmen''s Compensation Act. In the complaint, it was clearly mentioned that the truck was being used for transportation of the marriage party and deceased were not the workmen; they were travelling as a gratuitous passengers in a goods vehicle. The insurance policy does not cover the risk of gratuitous passengers in the goods vehicle. Hence, the insurer is not liable to compensate the claimants. The insurance company also not produced any document to substantiate their contention. That apart, except filing the written statement to the claim petitions, the insurance company has not stepped into the witness box and proved their contention by leading evidence. The averments made in the written statement without stepping into the witness box to defend their stand cannot be treated as evidence. In the instant case, the insurance company has not stepped into the witness box. On the other hand, the owner of the vehicle admitted that the deceased were working as coolies in the truck belonging to him. The vehicle met with an accident on 21.05.2010 and they died due to the injuries sustained. The accident had occurred during the course and out of employment. As on the date of the accident, the insurance policy covers the risk of the coolies working in the goods vehicle. Hence, the claimants are entitled for compensation. The insurance policy produced before the WCC clearly discloses that the insurance policy covers the risk of coolies from 30.12.2009 to 29.12.2010. The accident had occurred on 21.05.2010. Apart from that, the insurance policy covers the risk of two coolies working in the said truck. The additional premium had also been paid by the insured. Apart from that, except two coolies working in a truck, no other persons were injured. If the truck was transporting the marriage party, the other persons must also have been injured. The mahazar clearly discloses that except two persons, none of the other persons were in the lorry nor they were injured. Hence, the contention of the insurance company cannot be accepted. I find that there is no infirmity or irregularity in the judgment and order passed by the WCC, fastening the liability on the insurance company to compensate the claimants.

With regard to quantum of compensation is concerned, though the claimants claimed that the deceased were getting wages of Rs. 8,000/- p.m., working as coolies in the truck, no document has been produced to substantiate the same. The owner of the vehicle has also not supported the case with regard to the monthly wages being paid to the coolies. In the absence of necessary documents, the wages being paid to the coolies working in a lorry as per the Government Notification, the WCC has taken the income as Rs. 4,000/- p.m. and taking into consideration the age of the deceased has awarded the compensation. I find no infirmity or irregularity in the judgment and order of the WCC, considering the income of the deceased persons as Rs. 4,000/- p.m. and awarding the compensation. Even in these appeals, no documents have been produced by the claimants to substantiate their case that the deceased persons were getting Rs. 8,000/- p.m. In the absence of necessary documents, the order passed by the WCC taking into consideration the income of the deceased as Rs. 4,000/- p.m. is upheld. The appellants/claimants have not made out a case for enhancement of compensation.

Accordingly, I pass the following:

"ORDER

All the appeals are dismissed.

The amount in deposit in MFA Nos. 32187/2013 and 32188/2013 be transferred to the Civil Judge (Sr. Dn.), Bijapur along with records."