National Insurance Co. Ltd. vs Bhanudas and Others

B. Manohar, J.—1. The National Insurance Company limited has filed this appeal challenging the judgment and order dated 14-10-2008 made in WCA No. 100/2007 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Sub-Division-I, Bijapur (hereinafter referred to as ''Commissioner'' for short), wherein the Commissioner has fastened the liability on the Insurance Company to compensate the claimants.

Respondent Nos. 1 and 2 herein had filed a claim petition contending that son of the claimants one Mahadeva Bhanudas was working as a coolie in the Tractor and Trailer bearing registration No. MF-10/S-167 (Tractor and Trailer No. 1020 - 1021) belonging to the 3rd respondent herein. As per instructions of the owner of the vehicle, on 10-09-2006, after loading the stones at Somanala village, while he was proceeding towards his village, due to the rash and negligent driving of the said Tractor and Trailer, the tractor met with an accident. Due to the said impact, the son of the claimants travelling along with stones fell down from the Tractor and Trailer and sustained grievous injuries. Subsequently, he died. At the time of death, the deceased was aged about 28 years, earning a sum of Rs. 4,000/- p.m. The accident occurred during the course and out of employment. Hence, the claimants are entitled to compensation of Rs. 7,00,000/-.

In pursuance of the notice issued by the Commissioner, owner of the vehicle entered appearance and admitted the occurrence of the accident and relationship of master and servant. However, he contended that he was paying salary of Rs. 3,000/- p.m. to the deceased. He further contended that the vehicle is insured with the Insurance Company, and hence, the insurer has to compensate the claimants and sought for dismissal of the claim petition as against him.

The second respondent-Insurance Company filed statement of objections contending that there is no relationship of master and servant between the owner of the vehicle and the deceased. The deceased was travelling a gratuitous passenger in the goods vehicle. The insurance policy does not cover the risk of a coolie or passenger travelling in the Tractor and Trailer. Hence, even though the deceased died during the course and out of employment, the Insurance Company is not liable to compensate the claimants and sought for dismissal of the claim petition as against the Insurance Company.

On the basis of the pleadings of the parties, the Commissioner for Workmen''s Compensation framed the necessary issues. The claimants, in order to prove their case, examined the second claimant as P.W. 1 and got marked the documents as Ex.P1 to Ex.P4. On behalf of the Insurance Company, Sri. Sangouda Basagouda Patil, an officer of the Insurance Company was examined as R.W. 1 and got marked the insurance policy of the offending vehicle as Ex.R1.

The Commissioner on appreciating the oral and documentary evidence let in by the parties and taking into consideration the relevant records held that the deceased died due to the rash and negligent driving of the Tractor and Trailer by its driver. The deceased fell down from the Tractor and Trailer and rear wheel of the vehicle ran over him and he died due to the said injuries. The accident occurred during the course and arising out of employment. Hence, the claimants are entitled for compensation.

With regard to quantum of compensation is concerned, though the claimants claim that the deceased was getting salary of Rs. 4,000/- p.m., no document has been produced to substantiate the same. Taking into consideration the minimum wages being paid to the workers at the relevant point of time i.e. Rs. 3,000/- p.m. deducting 50% thereof and applying the relevant factor 211.79, the Commissioner awarded a sum of Rs. 3,17,685/- with interest at the rate of 12% from one month after the date of accident. The appellant-Insurance Company being aggrieved by the judgment and order passed by the Commissioner filed this appeal.

Sri. Sanjay M. Joshi, learned counsel appearing for the appellant contended that the judgment and order passed by the Commissioner is contrary to law. The deceased was travelling on the mud-guard of the tractor. The insurance policy is a miscellaneous special type of vehicle policy, which covers the risk of owner of the vehicle and third party, and it will not cover the risk of a person travelling in the Tractor and Trailer or a coolie working in the Tractor and Trailer. Further, the Tractor and Trailer is being used for transportation of stones for construction of the temple, which is in violation of conditions of the policy. The deceased was travelling as a gratuitous passenger in the Tractor and Trailer and the insurance policy does not cover the risk of the gratuitous passenger. Hence, the insurer is not liable to compensate the claimants. In support of his contention, learned counsel for the appellant relied upon a decision of the Hon''ble Supreme Court reported in , 2009 ACC 269 (SC) in the case of NEW INDIA ASSURANCE CO. LTD. v/s DARSHANA DEVI AND OTHERS and also in the case of ORIENTAL INSURANCE CO. LTD. v/s BRIJ MOHAN AND OTHERS reported in , (2007) 7 SCC 56 and sought for setting aside the judgment and order passed by the Commissioner.

On the other hand, Sri. Sanganagouda V. Biradar, learned counsel appearing for Respondent No. 2 and Sri. Bapugouda Siddappa, learned counsel appearing for R3(a) to (d) argued in support of the judgment and order passed by the Commissioner and contended that the deceased was working as a coolie in the Tractor and Trailer. As per instructions of the owner of the vehicle, on 10-09-2006, after loading the stones at Somanala village, while proceeding towards his village, the driver of the Tractor and Trailer drove the vehicle in a rash and negligent manner, due to which, the deceased fell down and died on the spot. The Tractor and Trailer was not used for any commercial purposes, it was used within the limits of village and they were transporting stones for construction of a temple. It will not amount to using the vehicle for commercial purposes. The accident occurred during the course and out of employment. Since the vehicle is covered by insurance policy, the Insurance Company has to compensate the claimants. Hence, the judgment and order passed by the Commissioner is in accordance with law and sought for dismissal of the appeal. In support of their contentions, learned counsel relied upon a decision of the Madras High Court in the case of A. SAMPATH v/s PACHAIPPAN AND OTHERS reported in , 2002 ACJ 1519; ILR 2010 KAR 4139 in the case of NATIONAL INSURANCE COMPANY LIMITED v/s. SRI. MARUTHI. They also relied upon an unreported judgment in MFA No. 7837/2007 disposed of on 17-7-2013 and in MFA No. 30140/2009 disposed of on 13-7-2011.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and order and oral and documentary evidence.

The records clearly disclose that son of claimants one Mahadeva Bhanudas working as a coolie in the Tractor and Trailer belonging to the 3rd respondent died due to the rash and negligent driving the said vehicle on 10-09-2006. After loading the stones at Somanala village, while the deceased was proceeding towards his Village, due to the negligent driving of the Tractor and Trailer, he fell down and died on the spot. The accident occurred during the course and out of employment. Hence, the claimants are entitled for compensation. Since the vehicle is covered by the insurance policy, the liability was fastened on the Insurance Company to compensate the claimants. However, the appellant-Insurance Company contended that the Tractor and Trailer is insured under the Farmers'' package policy and it will not cover the risk of the coolies and gratuitous passenger travelling in the Tractor and Trailer. The insurance policy covers the risk of the own damage and third party. Apart from that the tractor is being used for transportation of stones for construction of temple which is in violation of the conditions of policy. Hence, the coolie or gratuitous passenger is not covered by the insurance policy. During the course of evidence, the claimants have stated that the deceased was working as a coolie in the Tractor and Trailer and the owner of the vehicle also does not dispute the said fact. The issue is only with regard to liability to compensate the claimants.

As per the proviso to Section 147(1)(b) of the Motor Vehicles Act, coolies being employees are compulsorily covered by the insurance policy. The Tractor and Trailer put together has become goods vehicle. Rule 100 of the Karnataka Motor Vehicle Rules provides that seating capacity of any light transport vehicle not more than 3 persons and in any goods vehicle, not more than 7 persons are statutorily covered by the insurance policies. From the reading of the insurance policy of the offending vehicle, it is clear that it is a farmers'' package policy nothing short of comprehensive policy which covers the risk of a coolie travelling in the Tractor and Trailer and if any coolies travelling in the Tractor and Trailer sustain any injuries, they could be covered by the insurance policy.

In the instant case, as on the date of the accident, at one stage, it was mentioned that the stones were transported for construction of Farm House of the owner of the vehicle and at another stage, it was mentioned that the stones were transported for construction of the temple in the said village. One thing is very clear that the Tractor and Trailer was not being used for any commercial purposes i.e. for hire or reward. It was used for transportation of stones either for construction of the Farm house of the owner or for temple within the village. The accident occurred within the Somanala village. It cannot be termed that Tractor and Trailer is being used for commercial purposes, in violation of conditions of the policy. As stated earlier, the Tractor and Trailer put together becomes a goods vehicle. Hence, three persons travelling in the goods vehicle are statutorily covered by insurance policy.

The issue raised by the appellant is answered in the judgment reported in ILR 2010 KAR 4139 in the case of NATIONAL INSURANCE COMPANY LIMITED v/s. SRI. MARUTHI, at paragraphs 33 and 34, which reads as under:

"33. As per the table agricultural tractor and power tiller are shown in the non-transport classification, but power tiller and tractors using public roads are shown as transport vehicle. The tractor-tiller is a non-transporting vehicle but when used on roads, is considered as a transport vehicle from the gist of the judgments referred to above. It is crystal clear when the tractor-trailer combined would constitute a goods carnage, therefore permits are necessary for its use on the roads. Under Motor Vehicles Act, by Sections 2(44) and 2(46) the definitions of tractor-trailer would definitely indicate when the trailer drawn or intended to be drawn by a motor vehicle, it becomes a goods vehicle.

As of now, there are only two types of policies envisaged under the Standard Forms as contemplated under Section 6 of the Indian Motor Tariff. Their liability under the liability only policy and package policy reads as under:

(i) Liability Only Policy: This cover Third Party Liability for bodily injury and/or death and Property Damage Personal Accident cover for Owner Driver is also included.

(ii) Package Policy: This covers loss or damage to the vehicle insured in addition to (I) above.

The judgments relied upon by Sri. Sanjay M. Joshi in the case of Brij Mohan case (supra) as well as in Darshana Devi case (supra) are not applicable to the facts of the present case. In Brij Mohan case, the person was travelling in a goods vehicle whereas in Darshana Devi case, relying upon Brij Mohan case, the court has granted some relief. The said judgment was passed invoking extraordinary jurisdiction under Article 142 of the Constitution of India. In view of the judgment of the Division Bench of this Court in Maruthi case referred to above, the claimants are entitled for the relief sought for by them in the claim petition.

I do not find any infirmity or irregularity in the order passed by the Commissioner fastening the liability on the appellant-Insurance Company. The appellant has not made out a case to interfere with the judgment and order passed by the Commissioner. Accordingly, the appeal is dismissed.

The amount in deposit be transferred to the Civil Judge (Sr.Dn.) Bijapur.

The registry is directed to send the records to the Civil Judge (Sr.Dn.), Bijapur.