Partly allowed

Divisional Manager v. Tukaram

Karnataka HC10 Jul 2013MFA/6127/2008

Case brief

AI extract

What is this about?

High Court allowed miscellaneous first appeal against Commissioner's order awarding compensation. Court held deceased was a gratuitous passenger, not an employee, thus no liability on insurer.

What did the court decide?

Impugned order fastening liability on appellant set aside; claimants directed to recover compensation from owner of goods carriage; amount deposited refunded to appellant.

Divisional Manager Vs Tukaram — Motor Accident Claims | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA

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CIRCUIT BENCH AT GULBARGA

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DATED THIS THE 10^TH DAY OF JULY 2013

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BEFORE

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THE HON’BLE MR.JUSTICE S. ABDUL NAZEER

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MISCELLANEOUS FIRST APPEAL NO.6127/2008 (WC)

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Between:

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Divisional Manager, United India Insurance Co. Ltd., Divisional Office, Sangam Building, S.S.Front Road, Bijapur 586 101.

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…. Appellant.

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(By Sri B.S.Soragaon, Adv.)

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And:

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1 Tukaram, S/o Ishwar Chawan, Now aged about 43 years.

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2 Seethabai, W/o Tukaram Chawan, Now aged about 33 years.

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Both are r/o Jalageri, L.T.No.4, Tq. & Dist. Bijapur.

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3 Amith,

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S/o Srimath Gadave, Aged about 27 years, Occ:Business, R/o Jalageri, Tq. & Dist. Bijapur.

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…. Respondents.

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(By Sri B.K.Patil, Adv. for R1 & R2 Sri M.Mohanraj, Adv. for R3)

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This Miscellaneous First Appeal is filed under Section 30(1) of Workmen’s Compensation Act,1923, against the judgment and order dated 27.3.2008 in WCA/SR-182/2007 on the file of the Commissioner for Workmen’s Compensation, Bijapur, etc.

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This Miscellaneous First Appeal coming on for Further Orders this day, the Court delivered the following:

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JUDGMENT

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This appeal is directed against the judgment and order passed

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by the Commissioner for Workmen’s Compensation, Sub-Division, Bijapur, whereby the Commissioner has awarded total compensation of Rs.3,39,570/-. The Commissioner has further directed the

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Appellant-Insurance Company to deposit the compensation.

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2. Respondent Nos.1 and 2 are the parents of one Sunil. Sunil

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died in a motor vehicle accident occurred on 3.5.2007. The

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contention of the claimants is that their son was travelling in the offending vehicle as a coolie.

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The appellant has opposed the claim petition by contending that the deceased was not travelling as a coolie in the offending vehicle. He has not died in the course of the employment of the first respondent.

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The Commissioner has passed the impugned order holding that deceased has died in the course of the employment of the first respondent. He has directed the appellant to deposit the compensation with interest thereon.

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Learned Counsel for the appellant would contend that the deceased was not travelling as a coolie in the offending vehicle. In the complaint at Ex.P2 lodged immediately after the accident, it is stated that the complainant is running a kirana shop at Chalageri. He had been to Bijapur to bring the provisions to his kirana shop. After purchase of provisions, he was standing near Saraf Bazar, Bijapur,

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on his way back to his native place. At that time, a goods vehicle bearing registration No.KA-28/A-2919 loaded with stones came from the other direction. He boarded the lorry along with Sunil, Tukaram Chawan and others. Thus, the deceased was only a passenger in the goods vehicle. There is no relationship of master and servant between the insured and the deceased. The owner of the vehicle has conveniently accepted the relationship of master and servant in order to avoid his liability to pay compensation.

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On the other hand, learned Advocates appearing for the respondents have sought to justify the impugned order.

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I have carefully considered the arguments made by the learned Counsel at the Bar and perused the materials placed on record.

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Ex.P2 is the complaint lodged before the Police immediately after the accident by one Papu S/o Jemalu Chawan. In the complaint, he has stated that he is running a kirana shop at

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Chalageri. He had been to Bijpaur to bring provisions to his kirana shop. After purchase of the provisions, he was standing near Bijapur Saraf Bazar. A goods lorry bearing No.KA-28/A.2919 loaded with stones came near the Saraf Bazar. He boarded the lorry. Deceased Sunil and Tukaram Chawan of his Thanda also boarded the lorry. From this complaint, it is clear that the complainant, the deceased and Tukaram Chawan were travelling in the lorry as passengers.

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Learned Counsel for respondent Nos.1 and 2 draws my attention to the last para of the complaint, wherein it is stated that Sunil and Tukaram Chawan were sitting inside the lorry. They were working in the lorry. It appears from a copy of the complaint that the words “� � � � � � �� has been subsequently inserted. Even otherwise, this sentence does not indicate that Sunil and Tukaram Chawan were coolies in the lorry. A perusal of Ex.P2 in its entirety and the other materials on record would clearly indicate that the deceased was not working as a coolie in the lorry. He was only a gratuitous passenger in the lorry. Therefore, no liability can be fastened on the insurer of the offending vehicle ( See M/S

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UNITED INDIA INSURANCE COMPANY LTD. VS.

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SALAUDDIN ABDULKHADAR MANIYAR AND ANOTHER –

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ILR 2008 KAR 2580) . Therefore, the appellant is not liable to pay the compensation.

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In the result, the appeal succeeds and it is accordingly allowed in part. The judgment and order passed by the Commissioner dated 27.3.2008 in so far as it relates to fastening the liability on the appellant is set aside. It is needless to state that the claimants are entitled to recover the compensation from the owner of

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the goods carriage. Registry is directed to refund the amount in deposit to the appellant. No costs.

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Sd/JUDGE.

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BMM/-

Divisional Manager v. Tukaram

Case brief

What is this about?

What did the court decide?

Divisional Manager v. Tukaram

Case brief

What is this about?

What did the court decide?

What the court decided

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