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Judgment
B. Manohar, J.
The appellant Insurance Company filed this appeal challenging the judgment and order dated 20.12.2006 made in W.C.A. No. 31/2006 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Hubli (hereinafter referred to as W.C.C''), filed this appeal.
The respondent Nos. 1 to 4 herein filed claim petition contending that they are the legal representatives of Jagadevappa who died in the road traffic accident occurred on 05.05.2005. Deceased was working as a Cleaner in the goods auto rickshaw bearing No. KA-27/6831 and getting salary of Rs. 4,000/- per month and batta of Rs. 20/- per day. On 05.05.2005 as per the instructions of the owner of the vehicle he was carrying the family members towards KB. Timmapur village to attend the marriage of the daughter of one Gowrawa. Due to the rash and negligent driving of the driver of the goods auto the accident occurred. The cleaner of the goods auto sustained grievous injuries. He was shifted to Savanur hospital. During the course of treatment he succumbed to the injuries. Police have registered the case in Crime No. 46/2005. The accident occurred during the course and out of employment. Hence, the claimants sought for compensation of Rs. 8,00,000/-.
Owner of the vehicle entered appearance and filed written statement contending that deceased was working as a Cleaner in the goods auto rickshaw and he was paid salary of Rs. 3,500/- per month and batta of Rs. 40/- per day. Since the goods vehicle covered by the insurance policy, the insurer has to compensate the claim amount. He sought for dismissal of the claim petition as against the owner.
Insurance Company has filed statement of objections denying the entire averments made in the plaint and contended that no documents whatsoever are produced to show that there is relationship of master and servant between the deceased and the owner of the vehicle. On the other hand, deceased along with nine other passengers were travelling in the goods vehicle to attend the marriage of the daughter of one Smt. Gourawa. In the complaint lodged it was specifically mentioned that all the ten persons were travelling in the goods vehicle to attend the marriage. They were unauthorized passengers. Hence, the Insurer is not liable to pay compensation and sought for dismissal of the claim petition against the insurer.
On the basis of the pleadings of the parties the W.C.C. framed necessary issues. Wife of the deceased examined herself as P.W.1 and got marked documents as per Ex. P.1 to Ex. P.10. On behalf of the Insurance Company, its Administrative Officer is examined as R.W.1 and one of the witness is examined as R.W.2.
The W.C.C. after considering the oral and documentary evidence adduced by the parties held that due to the rash and negligent of the goods auto the accident occurred. The owner of the goods auto himself admitted that the deceased was working as Cleaner in the goods vehicle and he was paid salary of Rs. 3,500/-per month and batta of Rs. 40/- per day. The accident occurred during the course of employment and the claimant is entitled for compensation. The Tribunal taking into consideration the income as Rs. 4,000/- per month, as on the date of accident the deceased was aged 52 years and applied the relevant factor 146.20 and awarded a sum of Rs. 2,92,400/- and interest from 06.05.2005 to 19.06.2005 at the rate of 12%. In all a sum of Rs. 3,47,956/-has been awarded. Since the vehicle is covered by the Insurance Policy the W.C.C. directed the appellant Insurance Company to compensate the claimants. Being aggrieved by the judgment and order passed by the W.C.C. the appellant Insurance Company filed this appeal.
Sri P.H. Pawar, learned counsel appearing for the appellant contended that the judgment and award passed by the Commissioner is contrary to law. The deceased and eight other passengers were travelling in the goods auto to attend the marriage of daughter of one Gourawa. No document has been produced to show that the deceased was working as a cleaner in the goods auto. Immediately after the accident complaint was lodged before the jurisdictional Police. In the complaint it was clearly admitted that deceased and other nine persons were travelling in the goods vehicle to attend a wedding. Admittedly, the deceased and other nine persons were unauthorized passengers travelling in the goods vehicle. Hence, the insurer is not liable to compensate the claimants. The order passed by the W.C.C. without taking into consideration the objections filed and evidence let in by the appellant as well as the witnesses of the appellant, cannot be sustained.
On the other hand, Sri V.S. Kalasurmath, learned counsel appearing on behalf of Sri Suresh P. Hudedagaddi, for claimants argued in support of the judgment and award passed by the W.C.C. and contended that the deceased was working as a Cleaner in the goods vehicle as per the instructions of the owner of the vehicle on 05.05.2005 he was proceeding towards KB. Timmapur village due to the rash and negligent driving of the goods auto the accident occurred. Jagadevappa, died while taking treatment in the hospital. The owner of the vehicle admitted in the objection that the deceased was working as a Cleaner in the goods vehicle and he was paid salary of Rs. 3,500/- per month and batta of Rs. 40/- per day. Hence, he sought for dismissal of the appeal.
Though the owner of the vehicle represented by the Advocate, none appeared when the appeal is taken up for hearing. I have carefully considered the arguments addressed by the learned counsel appearing for the parties and perused the judgment and order, oral and documentary evidence adduced by the parties.
The records clearly disclose that the husband of the 1st respondent, father of the respondents 2 to 4 - Sri. Jagadevappa died in the road traffic accident on 05.05.2005 due to the rash and negligent driving of the goods Auto Rickshaw. The claimants claim that the deceased Jagadevappa was working as a cleaner in the said goods Auto and accident occurred during the course of employment and the claimant is entitled for the compensation.
On the other hand, the appellant-Insurance Company contended that the deceased was not working as a cleaner in the said goods Auto. The cleaner of the goods Auto is not covered by the policy since the sitting capacity is only one in the goods Auto. Apart from that, immediately after the accident, complaint has been lodged before the jurisdictional police stating that, while they are proceeding from Yalavatti village to K.B. Timmapur to attend a marriage of the daughter of Gowramma, the accident occurred. The said Jagadevappa died on the spot and other persons travelling in the goods Auto were injured. It was contended that the deceased was travelling as an unauthorized passenger in the goods Auto and hence the insurer is not liable to compensate the claimants.
The appellant in support of their contention examined the Administrative Officer of the appellant - Insurance Company and also one Fayazkhan S/o Nazarkhan Soudagar to show that, on the date of accident, the claimant along with 9 other persons are travelling in the goods Auto to attend the marriage at K.B. Timmapur. Copy of the FIR and the complaint clearly disclose that, on the date of accident, 10 persons were travelling in the goods Auto. As per the condition of the policy, in the goods Auto, no unauthorized passenger can be carried except the owner of the goods Auto. In the instant case, 10 persons were travelling in the goods Auto to attend the marriage. Out of 10 persons, Jagadevappa died in the accident. Except the assertion of the owner of the goods Auto that the deceased was working as a cleaner in the goods Auto and he was getting a salary of Rs. 3,500/- p.m. with batta of Rs. 40/- per day, no document has been produced to that effect. The Commissioner without taking into consideration all these aspects and without examining the oral and documentary evidence produced by the appellant, in a mechanical manner held that the deceased was working as a cleaner in the goods Auto Rickshaw. In the accident, he died and the claimant is entitled for compensation. The records produced by the appellant clearly disclose that the deceased along with other 9 persons were travelling in the goods Auto as an unauthorized passenger. The unauthorized passengers travelling in the goods vehicle are not covered under the Insurance Policy. Hence the appellant is not liable to compensate the claimant. The order passed by the WCC fastening the liability on the appellant -Insurance Company to compensate the claimant is contrary to law. On the other hand, the owner of the vehicle admitted that the deceased was working as a coolie in the goods vehicle. It is the responsibility of the owner of the vehicle to compensate the claimant. Registration certificate of the goods vehicle clearly discloses that, only one person can travel in the goods Auto. In the instant case, the Insurance Policy has not covered any of the person except the driver. Hence the liability cannot be fastened on the appellant - Insurance Company to compensate the claimant. Accordingly, I pass the following order:
The appeal is allowed. The judgment and order passed by the WCC fastening the liability on the Insurance Company is set aside. The 5th respondent - owner of the vehicle has to compensate the claimant. The amount in deposit be returned to the appellant - Insurance Company.