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Judgment
A.N. Venugopala Gowda, J.—Appellant issued certificate of ''miscellaneous and special type of vehicles package policy'' to tractor and trailer bearing registration No. KA-26/T-4262 and T-105 for the period from 23.8.05 to 22.8.06. The said vehicles were owned by the 2nd Respondent. Respondent No. 1 (Workmen) in each of these appeals were employed as loaders and unloaders in the said vehicles by the 2nd Respondent. On 19.2.06, injury was caused to the workmen by an accident arising out of and in the course of their employment on account of the rash and negligent driving of the said vehicle by its driver. Claim petitions were filed against the employer and the Insurance Company under the provisions of Workmen''s Compensation Act, 1923, contending that, the injuries sustained due to the accident has resulted in permanent disability and loss of earning capacity. The employer despite service of notice of the claim petitions, did not appear before the Commissioner for Workmen''s Compensation (for short, CWC) and was placed exparte. The Appellant which was the 2nd Respondent in the claim petitions filed separate statements and opposed the claim petitions. Issues, were framed. During enquiry, the claimants deposed and examined a qualified medical practitioner. No evidence was adduced on behalf of the Respondent in the claim petitions. The CWC by a common order, dated 6.8.07, allowed the claim petitions and directed the Appellant to deposit the compensation amount within 30 days and in case of default, to pay interest at 12% p.a. The said order and consequential Awards have been questioned in these appeals.
Sri A.N. Krishnaswamy, learned Counsel appearing for the Appellant contended that, the workmen were loaders and unloaders in the tractor and trailer which was transporting cement and steel without a permit being. taken to use the vehicle as a transport vehicle. Learned Counsel submitted that, the statement of complaint / FIR and the charge-sheet would indicate that the tractor and trailer was being used for transporting materials for construction of building of a mutt and there being breach of terms and conditions, of the policy, which was an agricultural policy, the fastening of the liability on the Appellant to deposit the determined compensation amount is illegal. Learned Counsel submitted that, the material evidence on record has been omitted from consideration by the CWC and the finding against the Appellant is perverse.
Learned counsel appearing for the Respondents, on the other hand, submitted that, from the evidence on record it is clear that injuries were caused to the workman by an accident arising out of and in the course of employment and at the time of accident, the vehicle was transporting steel and cement for construction of agricultural products storage godown and tank for storage of water in the mutt premises at Mailadihaili and since the vehicles had valid insurance coverage, the fastening. of liability on the Appellant, by the CWC, to deposit, the assessed compensation amount is justified. Learned Counsel submitted that, the material evidence placed on record has been correctly appreciated and that the findings being neither arbitrary nor perverse, no interference in the matter is called for.
Keeping in view the rival contentions and the record of the case, which I have perused, the substantial questions of law for determination are:
(a) Whether the CWC has omitted from consideration material evidence placed on record of the case?
(b) Whether the CWC is justified in fastening the liability on the Appellant to deposit the assessed compensation amount?
Indisputedly, an accident involving the said tractor and trailer occurred on 19.2.06 and the workmen sustained injuries. Police registered a case on 19.2.06 and the claimant in WCA/CR-284/06 / 1st Respondent in MFA 14367/07, gave statement before the police which has been marked as Ex.P1. Perusal of the said statement would indicate that the tractor and trailer was used at the time of accident for transporting materials for construction of a building of the mutt. Police, after investigation of the case, filed the charge-sheet - Ex.P2 which shows that the materials required for construction of a building of the mutt were being transported in the said tractor and trailer on 19.2.06, when the accident occurred.
There is change of stand in the claim petitions filed before the CWC, wherein, it was stated that, on the instructions of the mutt, after loading the materials for the purpose of construction of agricultural products storage godown and tank for storage of water, the claimants were travelling In the tractor and trailer and the accident-occurred. The said stand was reiterated in the affidavit evidence filed. However, there is no explanation of whatsoever nature offered to the contents of Exs.P1 and P2 i.e., FIR and the charge-sheet.
Ex.R1 is the ''miscellaneous and special type of vehicles package policy'' with a condition that the insured will not be indemnified, if the vehicle is used or driven otherwise in accordance with the schedule. The tractor and trailer was meant for agricultural related activities only. The vehicle has been used for non agricultural purpose i.e., for transportation of building materials for construction of a mutt building, There were more than 100 cement bags, which cannot be meant for construction of a godown or storage tank, as alleged. The employer has not appeared in the proceedings before the CWC and has not placed any evidence to show that the tractor and trailer was used for the purpose of construction of agricultural products storage godown and tank for storage of water in its land at Malladihalli.
Exs.P1 and P2 brought on record and admitted in evidence by the claimants clearly show that the vehicle at the time of accident was put to use for transportation of steel and cement for construction, of a mutt building. The tractor-trailer was used for commercial purpose and in violation of conditions of Ex.R1 insurance policy. CWC has not appreciated Exs.P1 and P2. The claimants who brought Exs.P1 and P2 on record cannot be permitted to turn around and plead anything contrary. CWC without noticing the exhibited documents police record, has passed the impugned order/Awards and thus, has mechanically fastened liability on the Appellant to deposit the determined compensation amount.
Since there is breach of policy conditions by the insured, the fastening of liability on the Appellant to deposit the determined compensation amount for payment to the claimants cannot be sustained. The order passed by the CWC as against the Appellant, impugned herein, being illegal on account of the breach of terms and conditions of the policy by the insured, has to be set aside.
In the result, the appeals are allowed and the. impugned order / Awards to the extent of fastening of liability on the Appellant to deposit the determined compensation amount Is set aside.
The claim petitions filed against the Appellant being untenable, shall stand dismissed. However, it is made clear that, the employer who has not questioned the impugned order / Awards has to deposit the determined compensation amount with interest before the CWC.
The Claimants are entitled to realise the Award amounts from the employer/Respondent No. 2 herein.
In the circumstances, parties are directed to bear their respective costs.
The amount in deposit in these appeals be refunded to the Appellant.