Nagamma and Others vs R. Chandramma and Others

K. Ramanna, J.—All these 3 appeals are filed by the L.Rs. of late Puttaiah and other injured claimants against respondent Nos. 1 to 3

challenging the liability fixed on the owner of the vehicle by the Commissioner for Workmen''s Compensation in its judgment and award dated

27.11.2002 whereby, Commissioner for Workmen''s Compensation, Tumkur, allowed the claim petitions in all the three cases and directed the

respondent Nos. 1 and 2 to pay the compensation.

The appellants in M.F.A. No. 647 of 2003 are the wife and children of late Puttaiah who is stated to be the coolie working under the

respondent as loader and unloader, died on account of rash and negligent driving of the tractor and trailer by respondent No. 2 resulting in accident

that occurred on 4.7.1998. The appellants in M.F.A. Nos. 645 and 646 of 2003 suffered various type of injuries in the said accident. Admittedly,

respondent No. 1 is the owner of the tractor and trailer bearing registration Nos. KA 02-833 and 834 which was duly insured with the insurance

company, respondent No. 3 and the same was in force as on the date of accident. But on the fateful day the deceased Puttaiah and the appellants

in M.F.A. Nos. 645 and 646 of 2003 as loaders and unloaders were sitting in the tractor and trailer bearing registration No. KA 02-T 601 but the

tractor No. KA 02-833 belongs to the respondent No. 1. Respondent No. 1 being the owner used the trailer No. KA 02-T 601 which was not

insured, therefore, the Commissioner for Workmen''s Compensation after recording the oral and documentary evidence placed on record by the

insurance company, respondent No. 3 fixed the liability on the respondent Nos. 1 and 2 who are the owner and driver of the vehicle on the ground

that the policy obtained from the respondent No. 3 is to cover the risk of the driver as well as coolies in respect of the tractor and trailer bearing

registration Nos. KA 02-833 and 834 respectively and that the trailer bearing registration No. KA 02-T 601 is not insured with the respondent

No. 3 or any other insurer.

The contention of learned Counsel for the appellant is that late Puttaiah as well as the appellants in M.F.A. Nos. 645 and 646 are poor coolies

and they should not suffer since the tractor and trailer Nos. KA 02-833 and 834 are duly insured and the policy was in force as on the date of the

accident, that without the use of the tractor, trailer cannot be moved. Even if another trailer was used to transport the agricultural produce or

agricultural implements by the owner and once the policy was taken for the tractor, the insurer is liable to indemnify the owner. Therefore, the claim

petition be allowed by fixing the joint liability on the owner and insurer of the vehicle. It is argued that contract, if any, entered into between the

owner and the insurer and if either party violates the conditions, the victim of the accidents should not suffer and, therefore, the order under

challenge is liable to be quashed.

In support of his contention, learned Counsel for the appellants relied on a Division Bench decision reported in case of The General Manager,

Karnataka State Road Transport Corporation, Bangalore Vs. Ashok Kumar Bansal and Others, wherein it has been held thus:

An insurer can avoid its liability to pay compensation only when the legal requirements, viz., (i) that the statutory defense/ground provided u/s

149(2)(a)(i)(a) was specifically included in the policy as it is, as a condition of the policy. And (ii) that the insured vehicle had no valid permit under

the Act for its use for hire or reward as on the date of contract.

He also relied upon another decision rendered by this Court in case of Oriental Insurance Co. Ltd. Vs. Hazira Begum and Others, wherein, it

has been held thus:

Purport and intent-Compensation payable to ''workman'' under the Act for accident arising out of and in the course of employment-Designation of

workman immaterial-Violation of condition of agreement between employer and insurance company not germane-Unless clear terms in contract of

insurance excluding liability, plea of insurance company based on interpretation of Motor Vehicles Act not acceptable- ''Philosophy of court'': to

do justice to aggrieved party-Insurance companies vie with employers and owners to challenge award in every case ignoring the object of

enactment.

Learned Counsel for the insurance company, respondent No. 3, submitted that the respondent No. 1 being the owner of tractor and trailer Nos.

KA 02-833 and 834 has obtained policy to cover the risk of the driver as well as its labourers. It is further argued that as on the date of the

accident, the policy in respect of the vehicles were in force but the insurer is not liable to indemnify the owner of the vehicle as the respondent No.

1 was using the tractor No. KA 02-833, which was insured under him but it was attached to the trailer No. KA 02-T 601, which was not at all

insured and that the owner has violated the terms and conditions of the policy. It is also contended that the persons stated to be the coolies injured

who were sitting in the trailer but not the tractor. The driver alone who sits and drives the tractor is only insured. Therefore, the trailer in which the

injured and the deceased were sitting was not insured. Therefore, the trial court is right in fixing the liability on the owner and driver of the vehicle

and has rightly absolved the insurer to indemnify the owner. Therefore, the appeals are liable to be dismissed.

In support of his contention, learned Counsel for insurance company, respondent No. 3 relied upon a Division Bench decision of this Court in

case of The Oriental Insurance Co. Ltd. Vs. Sri D. Laxman and Others, wherein, it has been held that the trailer which was attached to the tractor

was not insured and the owner of the tractor was not the owner of the trailer and, therefore, the law laid down by the Division Bench of this Court

is aptly applicable to the facts of the case and the appeals are liable to be dismissed.

I have carefully examined the documents placed on record.

It is a fact that respondent Nos. 1 and 2 remained ex parte before the Commissioner for Workmen''s Compensation and even before this Court.

Respondent No. 3 was only contesting party before the Commissioner for Workmen''s Compensation who examined its officer. According to the

evidence of the official of the insurer which clearly indicates that though the tractor No. KA 02-833 and the trailer No. KA 02-834 belongs to

respondent No. 1 and the insurance policy in respect of the same was in force but respondent No. 1 violated the condition by using some other

trailer, i.e., KA 02-T 601 which was not insured. Therefore, it is clear that though tractor involved in the accident is insured with the respondent

No. 3 but trailer involved in the accident is not insured. The appellants in M.F.A. Nos. 645 and 646 of 2003 being the coolies working under the

respondent No. 1 and travelling in the trailer sustained various type of injuries on account of rash and negligent driving of the vehicle by the

respondent No. 2. But the respondent No. 3 being the insurer of the vehicle is expected to indemnify the owner of the vehicle in respect of claims

arising out of accident of vehicle which is insured under him and not otherwise. In the instant case, the tractor is only insured as such the insurer is

expected to indemnify the owner in respect of claims arising out of accident involving the said tractor, but in a tractor the permitted seating capacity

is only one, i.e., the driver alone and nobody else. In the instant case, no claim petition has been filed by the driver of the tractor as such, no claims

arise out of the accident involving the said tractor and thus, there is no liability on the insurer, respondent No. 3 to indemnify the owner. As regards

trailer is concerned, though trailer bearing No. KA 02-834 is insured by the owner of the vehicle, he used trailer bearing No. KA 02-T 601, which

was not insured with the respondent No. 3 or any other insurer. Therefore, the respondent No. 3 is not liable to indemnify the owner of the vehicle

in respect of the claims arising out of involvement of the said trailer. In the instant case, coolies/claimants were travelling in the trailer which met with

the accident and the same was not insured. Merely because the tractor to which the said trailer was attached was insured with the respondent No.

3, it does not mean that the respondent No. 3 should indemnify the owner in respect of the claims arising out of accident involving the said trailer.

The liability of the insurer arises only when he has collected the premium from the owner in respect of the said trailer. Therefore, the insurer,

respondent No. 3 is not at all liable to indemnify the owner, when the owner himself has violated the terms and conditions of the policy by using

some other trailer to carry the workers/coolies. The law laid down by the Division Bench of this Court in case of The Oriental Insurance Co. Ltd.

Vs. Sri D. Laxman and Others, is aptly applicable to the facts of this case. Therefore, I do not find any illegality or incorrectness in the order

passed by the Commissioner for Workmen''s Compensation fixing the liability on the owner and driver of the vehicle, i.e., respondent Nos. 1 and 2

and, therefore, these appeals are liable to be dismissed.

Accordingly, all these appeals are dismissed.