National Insurance Co Ltd. vs P. Usha and Others

D. Hari Paranthaman, J—The appellant herein is the Insurance Company. All these cases relate to a same accident and hence the same are taken up together for disposal. Since the issue involved is a common one, CMA No. 684 of 2005 is discussed in detail.

The respondents 1 to 4 are the claimants who filed W.C. No. 120 of 2004 on the file of the Commissioner for Workmen''s Compensation (Deputy Commissioner of Labour), Dindigul. The claim was made claiming compensation for the death of the husband of the first respondent. The deceased person is the father of the respondents 2 and 3 born through the first respondent. The respondents 2 and 3 are minors. The fourth respondent is the mother of the deceased.

According to the first respondent, her husband was working as a loadman in a lorry bearing Registration No. TN-69-Z-5063. The lorry was owned by the fifth respondent. Admittedly, the lorry carried the vegetable bags on 12.01.2004 and many people accompanied with vegetable bags in the lorry along with the husband of the first respondent. Those persons were loadmen. The lorry involved in an accident on 12.01.2004. The details of the same are not necessary for the purpose of this case.

In the accident, 4 persons died and 16 persons injured. The husband of the first respondent is one among the persons died in the accident. The fifth respondent herein remained ex-parte before the Deputy Commissioner of Labour. The appellant took a plea that the husband of the first respondent was not employed as loadman, but he was a gratuitous passenger.

Before the Commissioner, the first respondent got examined as P.W.1 and Exs. A1 to A6 were marked. Ex. A1 is the First Information Report. The other documents are not relevant for the purpose of deciding this appeal. Ex. A1 states that many persons travelled in the lorry along with vegetable bags and 6 persons accompanied those vegetable bags. As per the evidence, those persons were loadmen for unloading those vegetables in the market.

The first respondent categorically deposed that her husband was a loadman employed in the lorry by the lorry owner to unload the bags that was loaded by the owners of the vegetable bags. He was employed under the lorry owner for loading and unloading purposes. There is no contra evidence to refute the same. Ex. A1 is the First Information Report.

The appellant Insurance Company examined one official and marked the Investigation Report. But the person who did the investigation was not produced before the Commissioner for cross-examination. One M/s. Amman Associates did investigation on behalf of the Insurance Company. According to the Investigation Report that was filed, the persons who travelled in the lorry were the owners of the bags that were carried in the lorry. The investigation report does not state that the persons travelled in the lorry were gratuitous passengers. But the case of the Insurance Company is that those persons are gratuitous passengers. If those persons are the owners of the bags or loadmen, the Insurance Company is certainly liable to pay the compensation as per the policy conditions. Of course, if those persons were owners of the goods, they could make a claim before the Motor Accidents Claims Tribunal under the Motor Vehicles Act and not under the Workmen''s Compensation Act. But the case of the Insurance Company is that they are gratuitous passengers. But the claim of the Insurance Company was rejected by the Commissioner by order dated 02.03.2005 and the Commissioner held that the deceased and injured persons were loadmen and directed the appellant Insurance Company to pay a sum of Rs. 3,18,174/- as compensation. Now, the Insurance Company has filed this appeal raising the following substantial questions of law:

"1. Whether the injured or deceased who had travelled in a goods vehicle as unauthorised passenger or gratuitous passenger can be termed to be passenger covered by the policy of insurance so as to avail the benefits of indemnification by the insurer?

Whether a gratuitous passenger or unauthorised passenger can be construed to be a person covered under the policy of insurance and is covered by Sec.147 of the Motor Vehicles Act?"

The learned counsel for the appellant Insurance Company has vehemently contended that the deceased person was a gratuitous passenger and he was not a workman travelled in the lorry.

The learned counsel for the claimants has submitted that the Deputy Commissioner of Labour has recorded a factual finding that the deceased was a loadman, after going through the evidence of the first respondent as well as the other materials on record. Since it is a factual finding, no question of law arises for consideration. In paragraph-8 of the counter, they have stated that the persons travelled as unauthorised passengers. The learned counsel for the claimants has submitted that Ex. R2 states that persons travelled were the owners of the goods.

I have heard the learned counsel on either side.

As rightly submitted by the counsel for the claimants, the Commissioner has recorded a factual finding that the husband of the first respondent was employed as loadman in the lorry owned by the fifth respondent. The factual finding was rendered on the basis of evidence of the first respondent before the Commissioner. There is no contra evidence produced by the appellant Insurance Company. The official examined on behalf of the Insurance Company was not aware of the facts. The Insurance Company did not choose to examine the person who prepared the investigation report that was marked. That is, the report could not be taken as admissible evidence as the author was not produced for cross-examination on the report. In these circumstances, I am of the view that the factual finding rendered by the Commissioner cannot be interfered with under Section 30 of the Workmen Compensation Act. This Court can interfere only if there is substantial question of law involved. In my view, there is no substantial question of law involved. It is only a factual finding that the deceased was employed as loadman under the lorry owner and during the course of employment, he died due to the accident.

In my view, the Insurance Company was not categorical in its pleadings as well as the evidence as to whether the deceased was a gratuitous passenger or not. As submitted by the counsel for the claimants, paragraph-4 of the counter statement also suggests that the husband of the claimant died not during the course of employment under the fifth respondent, but however, it has been impliedly admitted that the husband of the first respondent was employed under the lorry owner. Even otherwise, the case of the appellant as stated in paragraph-7 of the counter is that the persons who travelled in the lorry were the owners of the vegetable goods, ie., farmers who took the vegetable bags to the market and they died. If the farmers carried the goods in the lorry, then they could not be termed as gratuitous passengers. But in paragraph-8, the appellant pleaded in the counter that persons travelled in the lorry were the gratuitous passengers. Thus, the appellant took three different inconsistent stands. But no evidence was let in before the Commissioner to establish their case that the husband of the first respondent was an unauthorised passenger. The investigation report suggests that the persons travelled in the lorry along with their bags. Therefore, even the report does not state that the persons were gratuitous passengers.

Taking into account all the aforesaid facts, I am of the view that there is no infirmity in the order of the Commissioner in coming to the conclusion that the husband of the first respondent was only a loadman under the lorry owner for loading and unloading some of the vegetable bags carried in the lorry.

In view of the aforesaid reasons, and the issue involved is common in all these appeals, all the appeals are dismissed. No costs. Consequently, the connected miscellaneous petition is closed.

Since the entire compensation in these appeals have already been deposited, the major claimants are permitted to withdraw their entire respective shares with interest from the respective deposits. The shares in respect of the minor claimants are directed to be deposited in any one of the Nationalised Banks which shall be renewed periodically till they attain majority. The interest accrued shall be withdrawn by the respective guardians, once in three months from the bank directly, which shall be utilised for the benefit and welfare of the respective minors.