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Judgment
N. Ananda
In this appeal filed by the insurance company, following substantial questions of law are raised:
1) Whether the Commissioner is justified in holding that the appellant insurance company is liable to pay compensation even though there existed no relationship of employer and employee between the deceased and 4th respondent ?
2) Whether the Commissioner is justified in fastening the liability on the appellant insurance company even though it is established that the vehicle in question is used for non agricultural purposes i.e., for commercial purposes other than the owners ?
3) Whether the Commissioner is justified in fastening the liability on the appellant insurance company even though the policy of insurance does not cover the risk of coolies since the policy of insurance issued is a farmers package policy ?
4) Whether the Commissioner is justified in awarding compensation of Rs. 2,39,700/- by taking Rs. 3,000/- as income of the deceased without any proof ?
I have heard learned counsel for appellant and learned counsel for claimants.
The learned counsel for appellant would submit that at the time of accident, the insured vehicle viz., Tractor Trailer bearing No. KA-17/TA 4060-4061 was being used for transporting s and to the land of one Marikunte Pampanna. Therefore, the Tractor Trailor was being used for other than agricultural purpose of the insured. In the circumstances, the insurance company is not liable to pay compensation.
In order to substantiate this contention, the learned counsel for insurance company has relied on the first information lodged by the second claimant (son of the deceased)
The insurance company had not raised this objection before the Commissioner for Workmen''s compensation. On the other hand, the insurance company had contended that at the time of accident, deceased was not under the employment of insured.
As the insurance company had not raised this objection before the Commissioner for Workmen''s Compensation, the insurance company cannot be permitted to raise this objection for the first time before this court. Even otherwise, the second claimant was not present at the time of accident and he was not an eyewitness to the accident. In the circumstances, the first information lodged by him looses significance. The II-claimant had lodged the first information to set the law into motion to investigate the offence alleged therein.
Therefore, the contents of first information report that deceased was travelling as a Loader and Tractor was used for transporting sand to the land of one Marikunte Pmapanna cannot be relied upon by the insurance company.
The deceased was aged about 48 years and he was a Loader by occupation. The Commissioner for Workmen''s Compensation has determined the wages of deceased at Rs. 3,000/- per month, which cannot be termed as excessive. There are no grounds to interfere with the impugned award. The appeal is accordingly dismissed.
The amount deposited by the insurance company shall be transferred to the Commissioner for Workmen''s Compensation.