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Judgment
The Hon''ble Mr. Justice A.N. Venugopala Gowda
Appellant issued Certificate of Insurance of Miscellaneous and Special Type of Vehicles Policy Farmer''s Package Policy, in respect of a tractor bearing registration No. KA-13-T-376 to be valid upto 18.04.2003. V. Manjunath, the registered owner, sold the said vehicle to Snivashankar, S/o. Rangegowda i.e., the 3rd Respondent herein, on 23.12.2002. The registration certificate of the vehicle was transferred on 10.01.2003. An accident involving the said vehicle occurred on 06.02.2003 and one Manjunath @ Manjunath Gowda, son of Respondents 1 and 2 sustained fatal injuries and died. 3rcl Respondent is another son of Respondents 1 and 2 and brother of deceased Manjunath. Respondents 1 and 2 filed a claim petition against 3rd Respondent and the Appellant to pay compensation for the death of Manjunath @ Manjunath Gowda on account of the fatal injuries sustained in the said accident.
Appellant, which was the 2nd Respondent filed counter statement dated 01.12.2004, wherein, it denied the deceased having been employed by Shivashankar, the 1st Respondent, in the tractor-trailer and also the obtaining of a motor insurance policy. It was stated that, on 06.02.2003 the 1st Respondent did not possess a valid motor insurance policy to the said tractor-trailer and thus, there was no privity of contract and it is not liable to pay the compensation. The 1st Respondent/Shivashankar in the claim petition, did not file any written statement.
The Commissioner for Workmen''s Compensation (''CWC'' for short) raised 6 issues. The 1st claimant deposed and Exs. P-1 to P-10 were marked. However, the earlier owner of the tractor-trailer, V. Manjunath was examined as a witness for the 1st Respondent Shivashankar, For the insurance company, its Administrative Officer deposed. The CWC has passed an order/award directing the Appellant to deposit compensation of Rs. 3,36,000/- within 30 days and in case of default, to pay interest at 12%. Feeling aggrieved, the insurance company has filed this appeal.
Sri A.M. Venkatesh, learned advocate appearing for the Appellant, firstly contended that, the CWC has erred in holding that there existed relationship of employer and employee between the deceased and Shivashankar. Learned Counsel pointed out that, the CWC has failed to notice that the deceased was none other than the brother of 1st Respondent-Shivashankar and there cannot be any relationship of employer and employee between the brothers, that too as a coolie/loader. Secondly, Shivashankar was not the owner of the vehicle on the date the accident occurred and even otherwise, the insurance policy was not transferred from the name of V. Manjunath to Shivashankar. Thirdly, the insurance policy having been issued for agricultural purpose and the vehicle having been used for a purpose other than agriculture, there being breach of terms and conditions of the policy, fastening of liability to pay the compensation is illegal. Fourthly, the deceased having travelled by sitting on the mudguard of the tractor and having fallen as a result of his own negligence, the fastening of liability on the Appellant to pay the compensation is illegal. Learned Counsel submitted that, the evidence on record has not been correctly appreciated and the findings are perverse.
Smt. A.R. Sharadamba, Learned Counsel appearing for the Respondents 1 and 2/claimants, on the other hand submitted that, the vehicle which belonged to V. Manjunath was insured by the Appellant and was sold to Shivashankar on 23.12.2002 and the registration certificate of the vehicle was transferred on 10.01.2003 and thereafter the accident occurred on 06.02.2003, She submitted that, the policy issued being valid as on the date of occurrence of the accident, the fastening of liability on the Appellant i.e., to pay the compensation, is justified. Learned Counsel submitted that, the evidence on record has been correctly appreciated and no interference in the matter is called for.
Sri D.R. Nagaraja, Learned Counsel appearing for the 3rd Respondent, made submissions in support of the findings and conclusion of CWC in the impugned order.
I have perused the record of the case. Keeping in view the rival contentions, the substantial question for determination is:
Whether the CWC is justified in fastening the liability on the Appellant to pay the determined compensation amount?
No doubt Appellant issued the insurance policy to the tractor in question, which was held by one V. Manjunath. The vehicle was sold to Shivashankar on 23.12.2002. The registration certificate of the vehicle was transferred on 10.01.2003. Accident involving the said vehicle occurred on 06.02.2003 and Manjunath @ Manjunath Gowda sustained fatal injuries and died. The owner of the vehicle/Shivashankar, as on the date of accident, is none other than the brother of the deceased and son of claimants in the case. Ex. P-10 is the family tree of the claimants and the 1st Respondent. The owner of the vehicle did not file any written statement before the CWC.
P.W. 1 was not an eyewitness. Former owner of the. vehicle, V. Manjunath has deposed on 27.12.2005. He drove the tractor-trailer on 06.02.2003 as a badli driver. He has deposed that, on 06.02,2003 when he was driving the vehicle, the tractor spindle broke and Manjunath fell down. He has stated that, at the time of occurrence of the accident, Manjunath was sitting on the mudguard, He has admitted that, in a tractor only the driver can sit. He has also admitted that, deceased Manjunath and the owner of the vehicle/Shivashankar are related to him.
The CWC without noticing the admission in the evidence of V. Manjunath, merely taking note of the insurance policy being valid, has held that, the Appellant is liable to pay the compensation.
Regulation 28 in Appendix II pertaining to the Rules of the Road Regulations, 1989, formulated under Motor Vehicles Act, declares mat the driver when driving a tractor shall not carry or allow any person to be carried on the mudguard of a tractor. Thus, travelling of a person in a tractor apart from the driver is illegal. The policy of insurance does not cover the risk of any inmate of a tractor. The permitted seating capacity of a tractor is only that of a driver, as has also been admitted by V. Manjunath. Since the deceased has travelled by sitting on the mudguard of the tractor, there being breach of terms of insurance policy, the fastening of liability on the Appellant to pay compensation to the legal representatives of deceased Manjunath @ Manjunath Gowda, is not justified, The order and award passed by the CWC against the Appellant is illegal.
In the result, the appeal is allowed and the impugned order/award to the extent of fastening the liability on the Appellant to deposit the determined compensation amount is set-aside.
The claim petition as against the Appellant being untenable shall stand dismissed i.e., insofar as the Appellant is concerned.
However the parties are directed to bear their respective costs.
The amount in deposit be refunded to the Appellant.