A goods-vehicle insurer disputed liability for a deceased loader, alleging that he was a passenger. The Court upheld the finding of employment and the insurer’s liability under the policy, dismissing its appeal against the compensation award.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF OCTOBER, 2015
BEFORE
THE HON’BLE MR. JUSTICE G. NARENDAR
MFA No.30012/2009 (MV)
Between:
Divisional Manager, Oriental Insurance Company Ltd., MCDO 3, #214, Empire House, II Floor, Dr.D.N.Road, Fort, Mumbai. Now represented by its Regional Manager, Oriental Insurance Company Ltd., Regional Office, N.44/45, Leo Shopping Complex, Residency Road Cross, Bangalore-560025.
... Appellant
(By Sri S.S.Aspalli, Advocate)
And:
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Amended as per order Dated 05.01.2015.
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All R/o: Srimali, Tq: Bhalki, Dist: Bidar.
... Respondents
(By Smt. Umadevi S.Babashetty, Adv. for R1 to R3, R5 & R6 Notice to R7 held sufficient V/o: dated 02.09.2015)
This MFA is filed under Order 173(1) of MV act, praying to call for records and set aside the judgment and award dated 31/07/2008 passed in MVC No. 9/2005 by the F.T.C. and Addl. M.A.C.T., Bhalki
This appeal coming on for final hearing this day, the Court delivered the following:
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JUDGMENT
Heard the learned counsel for the parties. The appellant is the second respondent before the tribunal. The first respondent is the insured owner of the offending vehicle. The respondents herein, 1 to 6, are the claimants before the tribunal. The claimants are the wife, minor daughter, father, mother, stepmother and brother of one Moinuddin who had suffered a fatal injury in the accident that occurred on 01.11.2003.
The case of the first claimant is that her deceased husband was employed as a labourer by the first respondent in his lorry bearing registration No.GJ-6/V6849 for the purpose of loading and unloading the goods. There is no dispute that the offending vehicle with the aforesaid registration mark is a registered
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heavy goods vehicle as defined under Section 2 (16) of the Motor Vehicle Act. It is further contended by the claimant that the deceased on 01.11.2003 had accompanied the offending vehicle which was transporting a consignment of acetate from Sahilkot (A.P) to Pune. It is further alleged that one Chanderkanth Shinde S/o: Sunil was at the wheels of the offending vehicle and he was driving in a rash and negligent manner and when the offending vehicle approached the limits of Telagwadi Cross, Mohal village on NH-9, the driver Sunil suddenly applied breaks resulting in the offending vehicle capsizing and turning turtle, whereupon the occupants of the offending vehicle including the deceased were thrown to the ground by the impact and which also resulted in the consignment falling upon the labourers resulting in three deaths and injuries to others.
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wife/claimant No.1 has lost her consort, claimant No.2/minor daughter has lost a loving and doting father, claimant Nos.3, 4 and 5 have lost an obedient and loving son, claimant No.6 has lost an affectionate and supportive brother. On these allegations, the claim petition was founded and a sum of Rs.14,42,000/- was claimed as just and fair compensation to offset and compensate the untimely demise of the said Moinuddin. It is specifically averred that the accident occurred on account of the rash and negligent driving by the driver of the offending vehicle only and hence the respondent No.1 being the owner and the second respondent being its insurer (present appellant) are jointly and severally liable to compensate the claimants.
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claim petition are neither true nor correct. It is further contended in paragraph No.2 that it denied all the allegations and called upon the claimants to prove the same. The second respondent insurer did not admit the relationship of the claimant with the deceased. The claimants were also called upon to prove the fact of the offending vehicle having been insured with the second respondent. It is specifically contended as under;
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the claim petition before the commission workmen’s compensation which is the proper forum and this Tribunal has no jurisdiction.
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b) If so, at what quantum and from whom?
(h) What order?
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lorry……., got marked the complaint/statement of PSI one Kiran Namdev (the copy of the spot panchanama) enclosed panchanama, post mortem report, and the copy of the policy of the vehicle. The driving license of the said driver was also produced. She was crossexamined by the Counsel for the second respondent. She has denied the suggestion that her husband was travelling as a passenger and not as a labourer. She has also denied the further suggestion that her husband was travelling along with eleven other passengers. She has admitted that she has not produced any documents to show that her husband was working as a labourer. The certificate of registration and driving license of the driver of the offending vehicle are enclosed along with the spot panchanama. It is recorded in the statement (before the jurisdictional police) that driver Sunil has stated that he was driving the offending vehicle and that he was accompanied by one Sunil Shinde as a cleaner and that on 29.10.2003,
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the said vehicle was loaded with the consignment of acetic acid bags and to be transported from Sahilkot (A.P) to Bombay and they left Sahilkot at about 6.30 p.m. On 31.10.2003 when they reached Ashta Corss to go to Poona, he had taken the local passengers and out of twelve some were seated in the rear and some in the cabin and that one Truck suddenly swept into his track and he was forced to apply sudden brakes, as a result of which the vehicle turned on its side and cleaner and some of the persons fell down. It is relevant to extract the portion of the translated statement;
“In this accident the back seated persons fell down, cleaner and some persons fell down, three persons dead on the spot due to starring felt on persons. Others have sustained grievous and simple injuries on their body. The names of villagers I do not know. I have sustained injuries on waist loins, cleaner also got waist loins and foot minor injuries on their bodies”.
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sent to mortuary at Rural Hospital, Mohal and the truck was taken custody and the injured were also shifted to the hospital for treatment. It is recorded that two of the dead bodies were identified as Girsappa Gyandev Kasegave and Appa Babu Mane both are R/o: Osmanabad and third dead body is identified as unknown person.
employees/driver.
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to claim compensation in respect of the death occurring
on account of the accident. He would submit that no material has been placed, rather no documentary evidence has been placed before the tribunal to demonstrate that the deceased was employed as a labourer for the purpose of loading and unloading the goods, onto and from the offending vehicle. He would specifically contend that the statement of PSI at Ex.P1 suggest that twelve passengers had boarded the offending vehicle at Ashta Cross and the said statement is attributed to the driver (son of the first respondent owner) and hence it must be presumed as a fact that the deceased Moinuddin was also a passenger and that the said fact has to be inferred because there is no statement by any one more importantly the first respondent that the said Moinuddin was employed as a labourer. He has also vehemently contend that it is not a common practice for the lorry owners to employ a coolie (loader) to accompany the consignment as loading
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and unloading is usually done by the consignor and consignee. It is further contended that loaders accompany consignments only on short routes and
within the limits of cities and towns only.
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the employees of the insurer. The only question that falls for consideration in the present appeal is whether the deceased was employed as a labourer and whether the finding of the tribunal concluding that the deceased is an employee is sustainable on the material on record.
“147 (1) (b) (i); against any liability which may be incurred by him in respect of the death of or bodily1 [injury to any person,
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including owner of the goods or his authorized representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons”.
“IMT 39. Legal Liability to persons employed in connection with the operation and / or maintaining and
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/ or Loading and / or Unloading of Motor Vehicles.
(For goods vehicle)
In consideration of the payment of an additional premium of *……… it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the insurer shall indemnify the insured against his legal liability under the Workmen’s Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this Endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading/unloading but in any case not exceeding seven in number including driver and cleaner) whilst engaged in the service of the insured in such occupation in connection with the…. and not exceeding seven in number and will in addition be responsible for
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all costs and expenses incurred with its written consent.
Provided always that:
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The premium to be calculated at the rate of Rs 25/- per driver and or cleaner or conductor and/ or person employed in loading and / or unloading but not exceeding the number permitted by the Motor Vehicles Act 1988 including driver and cleaner.
Subject otherwise to the terms exceptions conditions and limitations of this Policy except so far as necessary to meet the requirements of the Motor Vehicles Act, 1988”.
is @ Rs.25/- per driver/conductor/cleaner/employee
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and it further elucidates that in any case the liability of the insurer is restricted to 7 persons including the driver and cleaner. The IMT thus casts the liability on the insurer to compensate claims in respect of a particular class of persons i.e. a paid driver or cleaner or conductor or person employed in loading or unloading while engaged in the service of the insured. Thus the IMT is restrictive of the liability of the insurer to that class of persons as detailed therein. Reading of the provisions of Section 147 of M.V.Act would show that it has an expanded ambit and enclosed within its scope not only is the above class of persons but also such persons who is the owner of goods/consignment that is in the vehicle which has suffered the accident caused by the offending vehicle. Thus, a conjoint reading of the provisions of Section 147 of M.V.Act and IMT 39 would clearly demonstrate that the class of persons who are entitled to claim compensation while travelling in a goods vehicle are the driver, the
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conductor, the cleaner, the employee/s (including for loading and unloading). Apart from class of persons defined under the statute under the aforesaid provisions of Section 147 (5) of M.V. Act also states, which reads as under herein
“147 (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons”.
It also stipulates that the insurer issuing a policy of insurance shall be liable to indemnify the person or class of persons specified in the policy i.e. the insurer is bound by the terms of the contract existing between the insurer and the insured.
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statement that the accident occurred on 01.11.2003 and that it was a fatal accident and the complaint was registered against the driver of the vehicle in Crime No.136/2003.
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of the cross-examination only reveals suggestion by the insurer counsel that the deceased was travelling as a passenger and not as a labourer which has been denied. The next suggestion is that her husband was travelling along with eleven other passengers, which has also been denied. She admits that she has not produced any documents to demonstrate that her husband was working as a labourer, in the offending vehicle. Thus, apart from merely suggesting that he was travelling as a passenger, the appellant herein has not made any attempts to elicit an admission contrary to her deposition i.e., her husband was employed as a labourer for the purpose of loading and unloading the goods in the offending vehicle bearing registration No.GJ-6/V6849.
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contrary to the assertion by the claimant regarding the status as an employee in the offending vehicle. The tribunal has rightly concluded that the passengers numbering 12 had boarded the lorry at Ashta cross, whereas the deceased is a resident of Srimali village of Bhalki Taluk, Bidar District. It is concluded as the deceased boarded the lorry in Andhra Pradesh, and if this fact is read in conjunction with the deposition of PW.1, it must be concluded that the deceased was working as a labourer under the respondent No.1 in the offending vehicle for loading and unloading the goods. It is concluded as the deceased did not board the lorry at Ashta cross, he cannot be classified as passenger because the statement clearly reflects to the fact that only the persons who board at Ashta cross have been recorded as passengers by the driver and hence it concluded and has rightly done so that the deceased husband of PW.1 was travelling as an employee in the offending vehicle.
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“101. Burden of proof. – Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person”.
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employment is put in. There are instances galore where persons have been employed on daily wage basis or on temporary basis, even for decades by various establishments including certain organization of the State. Hence, the averment and deposition that the deceased was employed as a daily wage labourer cannot be brushed aside lightly in the absence of any written records. On the contrary it has to be reasonably considered in the light of the fact that the deceased was not only maintaining himself but also maintaining his family, at least his wife and minor daughter, which fact, by itself can be reasonably accepted to demonstrate that he was gainfully employed. Hence, the conclusion of the tribunal, which is based on the averments in the petition and the deposition and the fact that PW.1 withstood and nothing contrary having been elicited in the cross-examination, the finding of the tribunal does not warrant any interference, a high degree of proof like letter of employment, salary slip, bank accounts,
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employment contract, etc., cannot be expected in the cases involving a daily wage labourer, be they employed in the agrarian sector or in the urban sector. They are a class of people whose existence is a reality but not a matter of record. Whose labour is vital but goes unrecognized and hence they are the under privileged section of the society. Hence, expecting a high degree of proof for authenticating the claim of employment from such a class of person is unreasonable and would only aid in defeating the objectives of the benevolent provisions of the Act. Empowering claim of compensation is with the objective of providing succor to the victim or family of the victim. The fact that the objectives are benevolent in nature can be inferred from the very enactment of the provisions of Section 140 and 163(a) of the M.V.Act. The other fact which the Court has to take note of is that the status and stand of the claimants. They are mere individuals and have reasonably discharged the onus cast upon them. They have placed
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all the material on record that were available and the tribunal has rightly concluded that they have prima facie demonstrated that the deceased was employed by the first respondent who is the insured and thus the first respondent as an employer had liability towards the deceased employee.
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Though it is argued that the first respondent has not intimated it about the employment of the deceased, it has not taken any steps to discharge the onus under the contract with the first respondent. The policy clearly envisages the liability of the appellant even in respect of the employees of the insured. A probable case has been made out that the deceased was an employee and prima facie there being a liability on the insurer a burden was cast upon it to adduce such evidence to demonstrate that the respondent had not employed the deceased. This Court holds so in view of the fact that both insured and first respondent/employer are bound by the terms of a contract and the terms of the contract casts liability on the insurer to indemnify (the insured against any claims by his employees) the claims by persons employed by him in the offending vehicle. The insurer having agreed to indemnify under the contract and if the insurer desires to absolve himself then the onus is upon him to demonstrate the fact as specifically
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pleaded by him in the objection statement. Having failed to discharge the burden cast upon it, the finding recorded by the tribunal cannot be inferred with. It is also seen that the insurer has not made any efforts to summon the first respondent/insured employer. In fact the provisions of Civil Procedure Code provides for summoning of persons as witness. More specifically order 16 of CPC clearly applies to the facts of this case.
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for it to demonstrate the conditions of the contract
which in the instance case the insurer has failed to discharge. The insurer ought to have demonstrated the terms of the contract as it existed between the insurer and the insured and also it ought to have taken such step as provided under law to have the party to such document summoned by having the tribunal issue such process as mandated under law. The insurer having failed to demonstrate that the deceased was not an employee under the insured first respondent, it cannot be abjured in the law.
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hired by a wedding party i.e. by the relatives of the bride and it was contended that 30-40 members travelling in the vehicle were travelling as owners of goods i.e. the goods were the gifts alleged to have been received by the bride. The tribunal, rightly concluded that they cannot be termed as owners of goods and the same was confirmed by the Hon’ble Apex Court in view the small size of the vehicle and the huge number of occupants, it was concluded that 30-40 persons could not have been representatives of owner of gift articles and hence it upheld the finding of the tribunal that the said occupants were gratuitous passengers and accordingly exempted the insurer. It was relied upon for another aspect i.e. appreciation of the contents of FIR, Hon’ble Apex Court has held that ordinarily the allegations in the FIR are not admissible as evidence per se but the allegations can be relied upon to demonstrate and corroborate the factum of accident. Even assuming that insurer can rely upon the contents of Ex.P1 then it
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ought to have entered the box and ought to have spoken about the contents or at least it ought to have summoned the authors of the statement. Having failed to do so. It is not open for the respondent insurer to contend otherwise.
“13. However, the factum of an accident could also be proved from the first information report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to
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turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an exhibit as both the parties intended to rely upon it.
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and arrive at the finding. That the deceased did not board along with the other passengers from Ashta cross. The law as laid down in the above judgment that the person who relies upon a document cannot be permitted to turn around and contend that the rest/part thereof cannot be proved against that parity. The said principles are inapplicable to the facts of the case. It is not the case that the claimants have attempted to disown the documents produced by them. It is also relevant to note that though the documents have been marked at the instance of the claimants, there is no elucidation of its contents either by the claimants nor the respondents have elaborated on the contents. That being so, the reliance on the above citation does not aid the case of the appellant and in the opinion of this Court, it is inapplicable to the facts of this case.
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In view of the above reasoning this Court is of the
considered opinion that the appeal is devoid of merits and is accordingly dismissed.
Sd/JUDGE
msr
2 issues framed by the court
Was the finding that the deceased travelled as an employed loader, rather than a passenger, sustainable on the evidence?
Had the insurer discharged its burden of proving that the deceased was not an employee covered by the policy?
Colour shows how this judgement treated each authority
National Insurance Company Ltd., V/s Rattani and OthersDistinguished¶153
2009 ACJ 925 between National Insurance Company Ltd., V/s Rattani and Others
2007 ACJ 1928Distinguished¶163
5 provisions across 5 enactments
Divisional Manager, Oriental Insurance Company Ltd.
Shamsha Bee
Yasmeen
Yakhub Sab
Khatoon Bee
Khairun Bee
G. NARENDAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
