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Judgment
Budihal R.B., J.—Since the common questions of law and facts are involved in all these appeals and these appeals are arising out of the common judgment and award passed by the Commissioner under the Workmen Compensation Act and they are in respect of the same accident, all these appeals are taken together to dispose off them by this common judgment in order to avoid the repetition of discussion.
All these appeals are preferred by the insurance company challenging the judgment and award passed by the Commissioner under the Workmen Compensation Act, fastening the liability on the part of the insurance company. The appellant -insurance company challenged the judgment and award passed by the Commissioner on the grounds as mentioned in the appeal memorandums.
The brief facts of the case of the respondents/claimants before the Commissioner is that they were working as coolie/loader under the respondent No. 2 herein on the Tipper bearing Regn. No. KA-03-D-0512 and drawing wages of Rs. 150/- per day at the time of the accident. On 14-02-2010 deceased and the injured were travelling in the above said Tipper along with other labourers for loading and unloading Kankar and the said vehicle was driven by its driver in rash and negligent manner, due to which, the said vehicle met with accident and deceased who were proceeding in the said Tipper fell down and sustained grievous injuries. The injured also sustained the injuries and two persons died in the said accident and the legal representatives of the said deceased also filed the claim petitions in W.C. No. 95/2010 and W.C. No. 96/2010 and the three claim petitions were filed by the injured. Hence, they have claimed the compensation.
The respondent No. 2 herein, the owner of the said vehicle remained ex-parte in the proceedings and the appellant-herein, the insurance company appeared through its counsel and filed the written statement and denied its liability to pay the compensation on the ground that owner of the said vehicle has violated the terms and conditions of the insurance policy certificate, limitation as to use and there is no relationship of master and servant between the deceased and the injured on the one side and the insured on the other hand. Hence, the appellant insurance company claimed that all the claim petitions are to be dismissed as there is no liability on the part of the insurance company to pay the compensation awarded in the said cases.
On the basis of the said pleadings by the respective claimants in all the five petitions, so also considering the objection statements by the appellant-insurance company and the oral and documentary evidence adduced in the case, ultimately the Commissioner allowed the claim petitions in part and awarded the compensation amount as mentioned in the judgment and order and directed the respondent-insurance company to pay the interest at 12% on the award amount.
Being aggrieved by the judgment and award of the Commissioner, fastening the liability, the appellant-insurance company is before this court.
Heard the arguments of the learned counsel appearing for the appellant - insurance company in all the appeals and also the arguments of the learned counsel appearing for the respondents - claimants in respect of all the five appeals.
Learned counsel appearing for the appellant -insurance company made the submission that, in these cases, the claimant in claim petition bearing W.C. No. 99/2010 is the complainant. He submitted that, looking to the averments made in the complaint, it clearly goes to show that the complainant, other injured and the two deceased were not at all doing the work of loading and unloading. They were going to attend the work at the work spot for construction of the bridge and after completing the construction work at the site, they used to travel in the offending vehicle to the villages. Therefore, it is the submission made by the learned counsel that they were travelling as passengers in the goods vehicle. Therefore, the owner of the vehicle violated the terms and conditions of the policy. The policy is also not covering the risk of the injured as well as the deceased and it covers only one person i.e. the driver of the said vehicle. It is also his submission that, when the claimants relied upon the complaint as well as the charge sheet filed in the case as a part of their claim, now they cannot contend against the contents of the said documents that they were travelling as loader and un-loader in the said vehicle. It is his submission that when they were travelling in the said vehicle as passengers to go to their villages, the relationship of themselves with the owner of the said vehicle was not that of employer and employee. Hence even on that ground also, the risk will not be covered and there is no liability on the part of the insurance company. In support of his contention, learned counsel appearing for the appellant -insurance company relied upon the decisions reported in:--
"i) National Insurance Co. Ltd. Vs. Rattani and Others, (2009) ACJ 925 : AIR 2009 SC 1499 : (2009) 154 PLR 517 : (2009) 1 SCALE 379 : (2009) 2 SCC 75 : (2009) 12 Vat Reporter 2510 : (2009) AIRSCW 992
ii) Oriental Insurance Co. Ltd. Vs. Premlata Shukla and Others, (2007) 8 JT 575 : (2007) 148 PLR 93 : (2007) 7 SCALE 725 : (2007) 13 SCC 476 : (2007) 6 SCR 780
iii) The Oriental Insurance Co. Ltd. Vs. Kullegowda and Chaluvegowda, (2008) ACJ 2219 : (2008) ILR (Kar) 1746 : (2008) 6 KarLJ 383 : (2008) 1 KCCR 421
iv) New India Assurance Co. Ltd. Vs. Vedwati and Others, (2007) 1 ACC 924 : AIR 2007 SC 1334 : (2007) 2 CTC 664 : (2007) 4 JT 28 : (2007) 3 SCALE 397 : (2007) 9 SCC 486 : (2007) 2 SCR 918 : (2007) AIRSCW 1505
v) National Insurance Co. Ltd. Vs. Cholleti Bharatamma and Others, (2008) ACJ 268 : AIR 2008 SC 484 : (2008) 2 CLT 2 : (2007) 12 JT 319 : (2008) 149 PLR 315 : (2008) 1 SCC 423 : (2007) 11 SCR 531
Per contra, learned counsel appearing for the respondents - claimants during the course of his argument, made the submission that the pleading of the claimants is very clear that they were working as loader and un-loader and to attend the said work, they used to travel in the said vehicle to work spot. Hence it is his submission that when they are working as loader and un-loader and in order to attend the said work, when the vehicle used to carry them from their place to work place and again carrying them after completion of the work to their villages. This period will be considered as during the course of employment and hence when the incident has taken place, when they were taken to their villages and on the way when the vehicle met with the accident, they are entitled to claim the compensation as there is relationship of employer and employee between themselves and owner of the vehicle. Learned counsel made the submission that even though in the FIR it is mentioned that after completing their work in the work place and when they were travelling in the said vehicle to go to their native villages, even then, it is covered during the course of employment because till they reach their native place, it is considered during the course of employment only. It is the submission by the learned counsel that the vehicle is a heavy goods vehicle and as per Sec. 147 of the M.V. Act and also Rule 100 of the Motor Vehicle Rules, there is a statutory liability on the part of the insurance company and upto seven persons, the risk is covered. Therefore, even on that ground also, there is a liability on the part of the insurance company. It is also his submission that, though it is contended by the appellant - insurance company that the claimants were not working as loader and un-loader, to substantiate this contention, they have not produced any satisfactory material and looking to the evidence of the claimant''s side and even during the course of their cross examination also they have denied the suggestion made by the leaned counsel for the insurance company that they were not working as loader and un-loader and hence the Commissioner has rightly appreciated the material placed on record, both oral and documentary and rightly allowed the claim petitions, fastening the liability on the part of the insurance company. Hence, it is his submission that no illegality has been committed by the Commissioner and there are no grounds to interfere into the judgment and award passed by the Commissioner so as to reverse the findings and to say that there is no liability on the part of the insurance company to pay the compensation amount.
In support of his contention also, the learned counsel appearing for the respondents - claimants relied upon the following decisions:--
i) Judgment passed by this Court dated : 8-6-2010 in MFA No. 2079/2001(WC) c/w MFA No. 2081/2001 (WC) to MFA No. 2084/2001(WC).
ii) Division Bench Judgment passed by this Court Dated : 8-2-2010 in MFA No. 6624/2007(MV)
iii) Judgment passed by this Court dated : 6-3-2013 in MFA No. 31420/2009 C/w MFA Nos. 31423/2009, 31419/2009, 31421/2009 and 31422/2009(WC)."
I have perused the grounds urged in the appeal memorandum in all the five appeals, judgment and award passed by the Commissioner, oral evidence of the parties on both sides, documents produced in the said cases and so also the principles enunciated in the decisions relied upon by the learned counsels appearing for both sides, which are referred above.
Perusing the complaint lodged by the claimant in W.C. No. 99/2010, it is no doubt true that, in the said complaint, it is mentioned that on 14-2-2010, as usual morning 8-00 a.m., they came to the work spot in the Tipper. Like the complainant the other persons of his village also came and after attending the construction of the bridge work at Typass road. In the evening at 7-00 p.m., again the vehicle came and carried them towards their villages and at that time the driver of the said vehicle drove it in a rash and negligent manner and because of his negligence, there was a jump and they told the driver of said vehicle to proceed slowly and the driver raised the hydraulic jack and the persons sitting in the Tipper fell down at that time and they sustained injuries. Looking to the contents of this complaint marked at Ex. P-2, no doubt, it is mentioned that, after completing the work they have attended at the work place, they were travelling in the Tipper vehicle so as to go their native place as submitted by the learned counsel appearing for the insurance company. As per another document Ex. P-3 charge sheet filed in this case also, goes to show that the said persons who were sitting in the vehicle after attending the work at the site, in order to go to Merched village and on the way as the driver of the vehicle drove it in a rash and negligent manner and he started the Hydraulic jack, the front portion of the tipper raised to the height and because of that reason, the persons sitting were fell down and they sustained the injuries. But, looking to the materials placed in the case, these are not the only two documents produced as per Ex. P-2 and Ex. P-3. So far as the incident is concerned, the parties have also led their oral evidence in the case and looking to the oral evidence of the parties, it clearly goes to show that they have clearly stated in their evidence that they were working as loader and unloader and used to travel from their place to the work place in the Tipper and in the evening they were going back after attending the said work. It is no doubt true as per the decisions relied upon by the learned counsel appearing for the insurance company that when the parties have relied upon their documents, the contents mentioned in that document are binding on the parties and they cannot go back by the contents mentioned in the said documents. But, even if the contents of the said documents are taken into consideration, the parties have explained in the claim petitions as well as in their oral evidence on oath and they were also subjected to the cross examination by the learned counsel appearing for the insurance company also, wherein, they have consistently maintained that they were working as loader and un-loader and in that connection, they used to travel in the tipper and after attending the work, they used to go back to their native places. I have also perused the cross examination portion of the witnesses, wherein, on the side of the insurance company, the suggestions were made that they were not at all working as loader and un-loader and there was no relationship of employer and employee. All these suggestions were consistently denied by the claimants in their oral evidence before the Commissioner under the Workmen Compensation. Therefore, the contention of the learned counsel appearing for the insurance company that the materials will not go to establish that they worked as loader and un-loader and there was no any sort of relationship of employer and employee between themselves and the owner of the said tipper cannot be accepted at all. I have also perused the principles enunciated in the decisions in this regard relied by the learned counsels for the parties, but, when the material placed on record, both oral and documentary clearly goes to show and supports the case of the claimants that they were working as a loader and un-loader and in that connection they were travelling, the decisions relied by learned counsel appearing for the insurance company are not coming to the aid and assistance of its contention.
Regarding the contention of the learned counsel appearing for the insurance company in the appeals that the policy will not cover the risk and Ex. R-1 is produced in the case would clearly goes to show that risk covered is of only one person, i.e. the driver. In this connection, it is no doubt true, if Ex. R-1 is perused and in the schedule of premium and the liability, it is mentioned in the document Ex. R-1 as WC to employee one. But, perusing the decisions relied upon by the learned counsel appearing for the respondents - claimants, they goes to show that when the persons are travelling in the heavy goods vehicle, as per Sec. 147 of M.V. Act and so also under Rule 100 of the Motor Vehicle Rules, there is a statutory liability on the part of the insurance company to cover the risk of seven persons in the heavy goods vehicle. In that regard, I have also perused the decisions submitted by the learned counsel for the claimants - respondents. Looking to these material on record and also the evidence placed in the case by the claimants, it clearly goes to show that there is a statutory liability on the part of the insurance company to pay the compensation amount to the respondents - claimants in the case. Therefore, the Commissioner has considered all these aspects and rightly fastened the liability on the part of the insurance company to pay the compensation amount to the respondents - claimants. No illegality has been committed by the Commissioner and there are no good grounds for this Court to interfere into the judgment and award passed by the Commissioner so as to reverse the findings and to say that there is no liability on the part of the insurance company to pay the compensation amount.
In view of my above discussion, all the five appeals are hereby dismissed.
The amount deposited before this court be transferred to the concerned Senior Civil Judge Court at Raichur.