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Judgment
A.N. Venugopala Gowda, J.—The facts, as found by the Commissioner for Workmen''s Compensation, Sub-Division II, Mangalore, are as under:
5th Respondent was the owner of an autorickshaw bearing registration No. KA-21-8378. The Appellant had issued the insurance policy covering the risk of the said vehicle for the period 16.1.2006 to 15.1.2007. One Vinay Kumar was the driver of the said autorickshaw. The autorickshaw was plying for hire. On 15.10.2006, the driver/Vinay Kumar, went to the house of a passenger one Fakir Sab, to pick him. The autorickshaw having been parked inside the compound of Fakir Sab and when Vinay Kumar was waiting in the autorickshaw for the passenger, Fakir Sab and his son brought a bag from the house and were about to put the same into the autorickshaw, a blast occurred, Vinay Kumar sustained fatal injuries and succumbed at the spot. The autorickshaw was completely damaged. The jurisdictional police registered a case and conducted investigation. Parents of the deceased Vinay Kumar filed an application u/s 10 of the Workmen''s Compensation Act, 1923 against the insured and the insurer of the autorickshaw. In response to the notice received from the Commissioner for Workmen''s Compensation, the insured appeared and filed written statement and admitted that, the autorickshaw belonged to him, Vinay Kumar being driver in the autorickshaw, the occurrence of the accident on 15.10.2006 and the sustaining of fatal injuries resulting in the death of Vinay Kumar and the vehicle having been completely damaged. He stated that, he does not know the exact reason for the blast/accident, but came to know that, the deceased was called upon to go to the house of Mr. Fakir Sab, who had hired the autorickshaw at fateful time and date. The insurer filed written statement and opposed the claim and denied its liability to pay the compensation.
The Commissioner for Workmen''s Compensation, based on the pleadings, raised the issues. The, 1st applicant deposed as AW.1. One Gangadhara Gowda was examined as AW.2. Exs.A1 to A8 were marked. The Commissioner for Workmen''s Compensation held that, the deceased was a workman, injury was caused to the workman by the accident arising out of and in the course of his employment and awarded compensation of Rs. 4,48,000/- with interest at 12% p.a.
Aggrieved, the Insurance Company has preferred this appeal contending that, the accident occurred when explosive items loaded in gunny bag was dumped in the autorickshaw and such explosion killed the driver Vijay Kumar and hence, it is not liable to indemnify the insured and that the liability has been wrongfully fastened on it.
Sri B.C. Seetharama Rao, learned Counsel for the Appellant contended that, the claim petition ought to have been dismissed by the Commissioner for Workmen''s Compensation on the sole ground that, No. accident causing the death of the driver had occurred while using the insured vehicle for the permitted usage. Learned Counsel submitted that, the passenger vehicle was allowed to be used by its driver for loading crackers by a manufacturer of crackers. According to the learned Counsel, the driver taken care to avoid using the passenger autorickshaw for carrying crackers, the accident could have been avoided and in the circumstances, the Commissioner for Workmen''s Compensation is not justified in fastening the liability on the Appellant to pay the compensation amount.
Sri P. Karunakar, learned Counsel for the claimant, on the other hand contended that, the evidence on record would clearly show that, the vehicle was used for carrying passengers and when a passenger was about to board the vehicle along with a bag, blast took place which resulted in the driver sustaining fatal injuries and his death. Learned Counsel submitted that, neither the insured nor the Appellant/insurer have adduced any evidence attributing knowledge of the driver with regard to explosive materials being loaded and carried in the autorickshaw. Learned Counsel further submitted that, the Commissioner for Workmen''s Compensation has correctly appreciated the evidence on record and findings in the impugned order are justified.
Keeping in view the rival contentions and the record of the case, questions for determination are:
(a) Whether the impugned order/award is perverse?
(b) Whether the Commissioner is justified in fastening the liability on the Appellant to pay compensation amount?
Employer has admitted that the autorickshaw in question belonged to him and Vinay Kumar was working as a driver. On the fateful day,. Vinay Kumar was driving the autorickshaw and on account of the accidental blast, the vehicle was completely damaged and Vinay Kumar, who was sitting in the autorickshaw, having sustained fatal injuries, succumbed. There is No. dispute that the Appellant had issued the insurance policy to the vehicle in question which was valid from 16.1.06 to 15.1.07. The accidental blast occurred on 12.10.06. Vinay Kumar possessed a valid and effective driving licence as is evident from Ex.P7. Vinay Kumar sustained fatal injuries by accident arising out of and in the course of his employment which is evident from Ex.P5, the charge-sheet filed by the police. PW-1, father of the deceased was not present at the scene of occurrence and is not an eye witness. However, he has deposed about the age and employment of the deceased and the wages earned by him. PW-2 -Gangadhara Gowda, a clerk in a finance company has deposed about the request received from Fakir Sab to send an autorickshaw and thereafter, he having sent the autorickshaw driven by Vinay Kumar to the house of Fakir Sab. In the cross-examination, nothing material has been elicited to disbelieve his statement, It is clear from the evidence of PW2 that the deceased took the vehicle to carry a passenger and not to carry any goods.
8 Neither the employer nor the insurer have adduced any evidence. The insurer has not brought on record any material showing that the deceased had the knowledge of the crackers being loaded to his vehicle. Deceased had gone along with his autorickshaw to pickup passenger - Fakir Sab. As such, the deceased had No. knowledge of any crackers being loaded into his autorickshaw. A person who uses an auto rickshaw can carry a small quantity of luggage and hence, the deceased could not have objected for a certain amount of luggage being carried by the passenger - Fakir Sab, along with him while travelling in the autorickshaw. In the circumstances, the contention of Sri Seetharama Rao that, the deceased did not take care to avoid the using of the autorickshaw by the passenger for carrying crackers is without any evidentiary support. The insurer has failed to place any material on record to infer that the deceased had the knowledge that Fakir Sao was loading the crackers into the autorickshaw. In the circumstances, the appreciation of the evidence by the Commissioner is neither perverse nor illegal. The Commissioner having considered the facts and circumstances of the case and having correctly appreciated the evidence brought on record, is justified in holding that the driver of the autorickshaw sustained injuries in the accident arising out of and in the course of his employment and hence, the employer and the insurer are liable to pay the compensation.
The jural relationship between the insurer and the deceased being not in dispute and the insurance policy/Ex.R1 being valid as on the date of the occurrence of the accident, the Commissioner is justified in fastening the liability on the Appellant to pay the compensation amount. The CWC has not committed any error in directing the Appellant to pay/deposit the compensation amount.
In the result, the appeal being devoid of merit is dismissed.
The amount in deposit be sent to the Office of the Commissioner for Workmen''s Compensation for payment to the claimants.
No costs.