The Deputy Manager,United India Insurance Co. Ltd. vs Thangavva Bhimappa Chikkanavar

Ravi V. Malimath, J.—The case of the claimants is that the deceased was working as a coolie under the employment of the 3rd respondent before the lower Court in the tractor trailer bearing No. KA-29/T-2496 and 2497. The said tractor was owned by the 3rd respondent and was being used by the 2nd respondent for road work. That the deceased was discharging the work under the 3rd respondent. That on 7.11.1998 for transporting the mud from the filed and in the course of the said work there was an accident as a result of the caving in of the mud and as a consequence, the deceased Hanumantha died. The applicants being the wife and son of the deceased filed a claim petition u/s 22 of Workmen''s Compensation Act. On contest, the Commissioner by the impugned order granted compensation of Rs. 2,01,600/- along with interest. Questioning its liability to satisfy the award, the insurer of the vehicle has filed the present appeal.

Learned counsel for the appellant contends that the accident did not occur during the course of employment and that the death did not occur as a result of the accident of the motor vehicle. It is only when the death is directly relatable to a motor vehicle in question, that the insurer could be held liable to satisfy the award. Admittedly there was no accident so far as the vehicle is concerned. The case made out is that mud fell on the deceased as a result of which he died. The cause of death is undisputed. Therefore, he pleads that there was no nexus with the accident and the motor vehicle. Since he is the insurer of the vehicle, he is not liable to satisfy the award.

By the order dated 8.10.2003 the appeal was admitted. However, no substantial question of law was framed.

I have heard learned counsel with regard to the same and consequently the following the substantial question of law arise for consideration in the appeal.

"Whether the order of the Commissioner is perverse in misreading the material and evidence on record in holding that the accident occurred during the course of employment?"

In support of his case learned counsel for the appellant-insurer relies on the judgment reported in Mamtaj Bi Bapusab Nadaf and Others Vs. United India Insurance CO. and Others, . Therein the workmen were engaged in unloading maize from a tractor-trailer to an underground storage. They climbed the grocery pit in order to clean the same for storing maize and while cleaning, they fell into the pit and died of asphyxia. The Commissioner awarded compensation. Aggrieved by the same, an appeal was filed before the Hon''ble High Court of Karnataka at Bangalore. The High Court allowed the appeals and modified the order passed by the Commissioner and the liability of the insurance company was set aside. However, the appellants namely the claimants were at liberty to recover the amount of compensation from the employer. Aggrieved by the same a SLP was filed before the Hon''ble Supreme Court. On considering the contentions the Hon''ble Supreme Court dismissed the appeal of the claimants while confirming the order of the Hon''ble High Court. In so holding, no law was laid down. The entire case was disposed off, on the facts and circumstances of the case. In para-14 the Hon''ble Supreme Court has held as follows:

In our considered opinion, on the facts of this case, the view taken by the learned single Judge of Karnataka High Court seems to be justified and correct. Therefore, no interference is called for. This appeal being devoid of any merit is accordingly dismissed. However, in the facts and circumstances of this case, the parties to bear their own costs.

Therefore, there was no declaration of law. The facts of that case are different from the facts of the present case.

The Division Bench of this Hon''ble High Court in the judgment reported in The New India Assurance Co. Ltd. Vs. Smt. Channamma and Others, were also concerned with an identical question of fact therein. The workman, while excavating sand in a sand pit, died as the walls of the sand pit caved in on him burying him completely in sand. The contention of the insurer therein was that the accident did not occur in the course of his employment. However, the Division Bench held that the same was relatable to motor vehicle accident and hence, the insurer was liable to satisfy the award. In so holding the Division Bench in para 7 of the judgment held as under:

Considering these aspects, in our view, to find out whether a given accident arose out of the employment, it is necessary to apply formula that-if a particular accident would not have happened to a workman, had he not been employed to work in a particular place and condition, then it would be an accident arising out of employment.

In the facts of this case also, if the deceased was not employed, the accident would not have occurred. The accident occurred in the course of his employment since admittedly he was employed and was performing duty as assigned to him by his employer. Therefore, in view of the judgment of the Hon''ble Division Bench, I have no hesitation to hold that the accident in the instant case arose in the course of employment, hence the insurer is necessarily liable to satisfy the award. Consequently, the substantial question of law is answered by holding that there was no perversity in the order of the Commissioner for Workmen''s Compensation in holding that the accident occurred during the course of employment. The substantial question of law is accordingly answered and the appeal is consequently dismissed.

The amount in deposit be transmitted to the concerned Court for necessary orders.