United India Insurance Co. Ltd. vs Suresha and Marigowda

A.N. Venugopala Gowda, J.—The Appellant issued a Farmers'' Package Insurance Policy in favour of the 2nd Respondent-owner of tractor-trailer bearing registration No. KA-13-r-1238 & 1239. The 1st Respondent instituted a claim petition before the Commissioner for Workmen''s Compensation, Hassan Sub-Division, Hassan, against the 2nd Respondent and the Appellant, contending that, he was a loader in the said vehicle and in the course of employment, the vehicle met with an accident on 11.01.2004, he sustained injury which is a partial permanent injury, resulting in loss of earning capacity and hence both the employer and the insurer should pay the compensation.

The Appellant, who is the 2nd Respondent in the claim petition, contested the claim by filing statement of objections, interalia contending that, the Petitioner was not a loader in the tractor-trailer and also denied the age, income and relationship with the 1st Respondent-owner of the tractor. However, it admitted the issuance of insurance cover to the vehicle in question covering the period of accident and contended that, the liability as per the terms and conditions of the policy is subject to validity of driving licence, permit regulations and policy conditions. It also contended that, the vehicle being a tractor, cannot be used for carrying passengers and that the owner of the vehicle had used the vehicle for carrying passengers and that there is clear violation of terms and conditions of the policy and that the petition against the insurance company is not maintainable.

Based on the pleadings of the parties, issues were raised by the Commissioner on 28.09.2005. During the enquiry, the Petitioner deposed as PW-1 and Dr. K. Shankar, deposed as PW-2. Exs.P-1 to P-13 were marked. For the Appellant, RW-1 deposed, through whom Exs.R-1 to R-3 were marked. The Commissioner by answering the issues in the affirmative has passed the award for Rs. 1,26,860/- with interest. Aggrieved, the insurance company has filed this appeal.

Sri A.N. Krishna Swamy, learned Counsel appearing for the Appellant, firstly contended that, the Commissioner has not taken into consideration the evidence on record and the findings in the impugned judgment are perverse and illegal. He contended that, the finding recorded with regard to relationship of Petitioner and the owner of tractor-trailer is wholly erroneous and so also the percentage of physical disability/functional disability as well as in the matter of assessing the loss of earning capacity. Secondly, in saddling the liability on the Appellant, there is material error and illegality. Thirdly, the date from which the interest has been awarded on the award amount is contrary to the decision in the case of National Insurance Co. Ltd. Vs. Mubasir Ahmed and Another, .

Smt. H.C. Kavitha, learned Counsel appearing for the 1st Respondent, on the other hand contended that, the findings of the Commissioner with regard to Petitioner being a loader in the vehicle, the age of Petitioner, wages earned, the injury sustained and the resultant effect of loss of earning capacity are well-founded, since they are supported by the evidence of PW-1 & PW-2. Learned Counsel pointed out that, the owner of the tractor-trailer did not contest the proceedings. The Appellant having issued insurance cover in respect of the vehicle in question and there being no breach of conditions of the policy, the liability to satisfy the award being on the Appellant, the award directing the Appellant to deposit the compensation amount is justified. Learned Counsel submits that, the date from which the interest is payable has been decided in the decision reported at Shri Aleemuddin and Others Vs. The Divisional Manager, New India Assurance Company Limited, and in the circumstances, the findings recorded by the Commissioner being with reference to the facts and evidence on record, there is no substantial question of law for decision and hence the appeal is untenable.

I have perused the record. The question for consideration is:

Whether the Commissioner was justified in saddling the liability on the Appellant to deposit the award amount with interest?

The claim petition was contested by the insurance company. The Petitioner has deposed as PW-1. In the cross-examination, the Petitioner-PW.1 has admitted that, or the date of accident, paddy was loaded to the vehicle and was taken to the mill at Gorur and that the load in the tractor belonged to 5 - 6 persons including 2 persons from his village and that 5 bags of paddy belonged to him. He has specifically admitted that, in the tractor of the 1st Respondent, he had loaded his paddy bags for the purpose of taking to the same to the mill and that he has no record to show the payment of wages by the 1st Respondent. He has also admitted that, every time when the paddy was taken to the mill, the vehicle of the 1st Respondent was made use of. There is an admission to the effect that, others had also brought their paddy to the mill, out of whom, few wanted to sell the rice.

B.M. Anand-RW.2, in the affidavit evidence has stated that, the tractor was used for carrying passengers and the claimant transported goods and travelled along with the goods in the tractor, in view of which, there is violation of terms & conditions of the policy and permit regulations and hence, the insurance company is not liable to pay the compensation. He has also stated that, the claimant was not an employee of the 1st Respondent at the time of accident. In the cross-examination, it was suggested that the tractor had a Farmers'' Package Insurance Policy. It has been admitted that the policy covered the risk of only driver and has no coverage for the loader. The suggestion made that the policy covers the risk of loader has been denied. The Commissioner having noticed the stand taken by the insurance company in its statement of objections, has held that the contention has not been substantiated with credible evidence and hence the insurance company is liable to pay the compensation to the Petitioner. It is evident that the Commissioner has not considered the admissions of the Petitioner in his cross-examination and also the evidence of RW-1, which has not been discredited in any manner in the cross-examination. From the evidence of PW-1 and RW-1, it is evident that the tractor-trailer had insurance policy which was a Farmers'' Package Policy. However, on the date of accident, tractor was not used for agricultural purpose and was used for transporting of paddy to a mill. It is also evident that the tractor had been loaded with paddy bags of different persons including that of Petitioner and he travelled with the paddy bags. There is no credible evidence showing that the Petitioner was a loader, employed by the owner of the tractor-trailer at the time of accident. Ex.R-3/certificate of insurance also does not show coverage for a loader.

The saddling of liability on the Appellant to deposit the award amount, in the facts and circumstances of the case, is contrary to the evidence on record. There is omission on the part of the Commissioner to notice the material evidence placed on record of the case, which has resulted in the award being erroneously passed against the Appellant. The impugned judgment to the extend of the findings recorded against the Appellant is perverse.

In the result, the appeal is allowed and the impugned judgment/award to the extent of saddling of the liability on the Appellant is set-aside. The claim petition instituted against the Appellant before the Commissioner stands dismissed.

The amount in deposit be refunded to the Appellant. However, in the circumstances of the case, parties are directed to bear their respective costs.