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Judgment
B. Manohar, J.—The appellants in these two appeals are challenging the judgment and order dated 26.07.2008 in WCA/F. 67/2007 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Haven (hereinafter referred to as ''Commissioner'', for short).
M.F.A. No. 21054/2008 is filed by the National Insurance Company Limited challenging the liability as well as the quantum of compensation awarded by Commissioner. M.F.A. No. 24561/2010 is filed by the claimants being dissatisfied with the quantum of compensation.
Claimants 1 to 3 are the wife and children and claimant Nos. 4 and 5 are the father and mother of the deceased Mahesh. They had filed claim petition before the Commissioner contending that on 06.10.2005, as per the instructions of the 1st respondent, the deceased-Mahesh after loading the cattle-feed into the tractor-trailor bearing registration No. KA27/T-6251-6252 proceeded to Amaravathi, after unloading the cattle feed and while returning, near Karur cross, due to the rash and negligent driving of the tractor-trailor the driver applied brake, as a result of which, Mahesh fell down from the tractor-trailor and the wheel of the said tractor-trailor ran over him resulting in his death and that the death had occurred during the course and out of the employment. In the claim petition, the claimants had contended that, at the time of death, deceased was aged about 30 years, he was getting salary of Rs. 4,500/- per month and batta of Rs. 50/- per day as a loader and unloader of the tractor-trailor. He was the only bread earner of the family and due to his untimely death the family had become destitute and as such sought for grant of compensation.
Pursuant to the notice issued by the Commissioner, the 1st respondent entered appearance and filed written statement admitting the occurrence of the accident and that he was paying the deceased salary of Rs. 4,000/- per month. He contended that since the vehicle was covered by the insurance policy, the 2nd respondent was liable to compensate the claimants and sought for dismissal of the claim petition as against him. The 2nd respondent insurer filed written statement denying the entire averments made in the claim petition and also contended that no material had been produced to prove the relationship of master and servant between the deceased Mahesh and the 1st respondent and no material had also been produced to show that the claimants are the dependants of the deceased. Further, the deceased Mahesh was travelling in the vehicle in question as an unauthorised passenger and the insurance policy issued in respect of the vehicle in question did not cover the risk of an unauthorised passenger and therefore, sought for dismissal of the claim petition.
On the basis of the pleadings of the parties, the Commissioner framed necessary issued. The 1st claimant-wife of the deceased Mahesh examined herself as P.W. 1 and got marked the documents as Exs. P. 1 to P. 9. An Officer of the 2nd respondent examined as R.W. 1 and got marked the insurance policy as Ex. R1. Taking into consideration the oral and documentary evidence adduced by the parties, the Commissioner held that due to the rash and negligent driving of the tractor-trailor and because of applying of sudden brake, the deceased Mahesh fell down from the tatctor-trailor and was ran over by the wheels of the said vehicle resulting in his death on the spot, during the course and out of employment, and that the claimants being the dependants of the deceased were entitled for compensation. With regard to the quantum of compensation, though the claimants claimed that the deceased was getting salary of Rs. 4,500/- per month and batta of Rs. 50/- per day, no documents were produced. Though the owner of the vehicle filed written statement admitting that he was paying Rs. 4,000/- per month to the deceased Mahesh, no document had been produced to that effect. In the absence of any material with regard to the income, the income of the deceased was taken as Rs. 3,500/- per month since the accident had occurred in the year 2005. Taking into consideration the age of the deceased as 30 years, applying the relevant factor of 207.98 awarded a sum of Rs. 3,63,965/- with 12% interest from the date of the award.
Being aggrieved by the judgment and order passed by the Commissioner, the National Insurance Company Limited has filed the appeal contending that a coolie/hamal working in a tractor-trailor was not covered under the insurance policy and the Commissioner, ignoring the said aspect, has fastened the liability on the appellant which is contrary to the law.
On the other hand, the claimants have filed the appeal being not satisfied with the quantum of compensation, contending that though the deceased was getting salary of Rs. 4,500/- per month and daily batta of Rs. 50/- and even though the 1st respondent admitted that he was paying salary of Rs. 4,000/- per month, the Commissioner has taken the income as Rs. 3,500/- per month, which is on the lower side. Further, the interest awarded from one month after the date of passing the award is also contrary to the law and sought for enhancement of the compensation.
I have carefully considered the arguments addressed by the advocates appearing for the parties and perused the judgment and order and other relevant records.
The records clearly disclose that the claimant succumbed to the employment injury in the accident that on 06.10.2005 on P.B. Road at Karur cross due to rash and negligent driving of the tractor-trailor. The deceased was working as a loader and unloader of the tractor-trailor. On the unfortunate day, after unloading the cattle feeds, while returning, the accident occurred the claimant died during the course and out of employment. Sufficient material has been produced to show that the 1st claimant is the wife of the deceased, claimant Nos. 2 and 3 are the minor children and claimant Nos. 4 and 5 are the parents of the deceased Mahesh. They are the dependent on the deceased and are entitled for the compensation. Though the contention raised by the insurance company that the policy did not cover the risk of coolie/hamal working in a tractor-trailor and hence the insurance company is not liable to pay the compensation, the said issue is no longer a res integra in view of the Division Bench decision of this Court in the case of National Insurance Company Limited, Belgaum, Vs. Maruthi and Others [2011(1) MACR 163 (Kar.) (DB)], wherein it was held that the tractor-trailor involved in the accident was a goods vehicle meant for carrying agricultural operations and all the claimants being coolies under the owner of the tractor-trailor, and that the driver of the tractor-trailor being in possession of a valid driving licence as on the date of the accident, the insurer was liable to indemnify the owner of the tractor-trailor. Hence, the insurance company is liable to pay the compensation.
With regard to the appeal filed by the claimant, though the claimants claimed that the deceased was getting salary of Rs. 4,500/- per month and daily batta of Rs. 50/-, no documents have been produced. In the absence of necessary documents, the Commissioner considering the year of the accident i.e., 2005 and the minimum wages that was payable to a coolie during the relevant time, reckoned the income of the deceased at Rs. 3,500/- per month and took 50% of the same, taking into consideration the age of the deceased as 30 years and applying the relevant factor of 207.98 awarded compensation of Rs. 3,63,965/-. I find there is no infirmity or illegality so as to interfere with the same.
The Commissioner has awarded the interest on the compensation payable from one month after the date of the order and the same is contrary to law laid down by the Supreme Court in The Oriental Insurance Company Ltd. Vs. Siby George and Others, (2012) ACJ 2126 : AIR 2012 SC 3144 : (2012) 134 FLR 1064 : (2012) 7 JT 301 : (2013) LabIC 350 : (2012) 3 LLJ 609 : (2012) LLR 897 : (2012) 4 PLR 598 : (2012) 4 RCR(Civil) 617 : (2012) 7 SCALE 86 : (2012) 12 SCC 540 : (2012) 4 TAC 5 : (2012) AIRSCW 4384 : (2012) 5 Supreme 254 . As per the decision cited supra, a claimant claiming compensation under Workmen''s Compensation Act, is entitled to interest on the compensation from one month after the date of the accident and not from one month after the date of passing the order. Hence, the claimant, in the instant case, is entitled to interest at the rate of 12% from one month after the date of the accident. In the result, I pass the following:
ORDER
M.F.A. No. 21054/2008 filed by the National Insurance Company Ltd., is dismissed.
M.F.A. No. 24561/2010 filed by the claimants is allowed in part in terms of the judgment referred to above.