Partly allowed

Sri Kumara v. Vs Sri Nazeer Ahamad

Karnataka HC30 Nov 2022MFA/3042/2018

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal challenged the Tribunal's award under the Workmen Compensation Act. The High Court held that an employee's risk is compulsorily covered under Section 147 of the Motor Vehicles Act, regardless of premium payment. Rule 100 of the KMV Rules did not apply, and the Insurance Company was directed to indemnify the owner.

What did the court decide?

The Insurance Company was directed to indemnify the vehicle owner and pay the awarded compensation to the claimant, while the quantum of compensation was kept in tact.

Sri Kumara v Vs Sri Nazeer Ahamad — Pension and Retirement Benefits | Karnataka HC (2022)

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MFA No. 3042 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.3042 OF 2018 (WC)

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BETWEEN:

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SRI KUMARA .V S/O VENKATESHA, AGED ABOUT 38 YEARS, KOPPA VILLAGE, PIRIYAPATTANA TALUK.

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Digitally signed by PAVITHRA B Location: High Court of Karnataka

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AT PRESENT R/O BASAVANAPATTANA, RAMANATHAPURA HOBLI, ARAKALGUD TALUK, HASSAN DISTRICT.

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…APPELLANT

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(BY SRI SHRIPAD V.SHASTRI, ADVOCATE)

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AND:

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SRI NAZEER AHAMAD, S/O ABDUL SIDDIQ, BEHIND I.B.NES COLONY, PIRIYAPATTANA TOWN, PIRIYAPATTANA TALUK, MYSURU DISTRICT-571107.

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THE MANAGER, UNITED INDIA INSURANCE CO. LTD. NO.2234, 1ST FLOOR,

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MFA No. 3042 of 2018

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NAVYA COMPLEX, B.M.ROAD, PIRIYAPATTANA. REPRESENTED BY THE BRANCH MANAGER, UNITED INDIA INSURANCE CO., LTD., VENKATESHWARA BUILDING, B.M.ROAD, HASSAN.

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…RESPONDENTS

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(BY SRI. L. SREEKANTA RAO., ADVOCATE FOR R2 R1 – NOTICE HELD SUFFICIENT V/O DATED 21.03.2022)

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THIS MFA FILED U/S 30(1) OF WORKMEN COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED 12/02/2018, PASSED IN ECA.NO.02/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., ARKALGUD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present appeal is filed by the appellant/claimant challenging the judgment and award dated 12.02.2018 in ECA.No.02/2016 passed by the Senior Civil Judge and JMFC., Arkalgud, questioning the liability fixed on the owner of the lorry bearing Reg.No.KA-01/C-5303.

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MFA No. 3042 of 2018

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Brief facts of the case are that, on 19.02.2016 in the morning the claimant went to Chamundi Coffee Curing Works, near Ammemadu of Madikeri in lorry bearing Reg.No.KA-01/C-5303 and there loaded the coffee booza in the said lorry and thereafter was returning to Madikeri through Bettageri by sitting in the lorry at 4.30 pm., at Udoth Matte, the driver of the said lorry drove the same in a rash and negligent manner and toppled the same on the left side of the road causing the accident. Consequently, the claimant sustained grievous bleeding injuries to his left hand bone, left leg bone, head and other parts of the body.

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Heard the arguments from both sides and

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perused the records.

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The Tribunal had awarded compensation of Rs.1,97,893/- along with interest at the rate of 12% p.a., fastening liability on respondent No.1-owner of the lorry

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MFA No. 3042 of 2018

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bearing Reg.No.KA-01/C-5303 on the ground that no extra premium is paid covering the risk of the employee. Therefore, fastened the liability on the owner of the said lorry.

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Learned counsel for the claimant submitted that the claim petition is filed under the provisions of Employee’s Compensation Act (hereinafter referred to as “EC Act”) and as per Section 147 of Motor Vehicle’s Act, 1988, (hereinafter referred to as “MV Act”) the risk of employees is compulsory covered irrespective of premium paid or not paid covering the risk of the employees, hence, the Insurance Company is liable to pay compensation by virtue of Section 147 of MV Act. Therefore, submitted that the Tribunal has committed error in exonerating the Insurance Company.

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On the other hand, learned counsel for the Insurance Company submitted that extra premium is not

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MFA No. 3042 of 2018

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paid covering the risk of the employee. Therefore, the Insurance Company is not liable to pay the compensation. Further submitted that as per Rule 100 of Karnataka Motor Vehicle Rules, 1989 (hereinafter referred to as “KMV Rules”) the lorry was moving from one town to another town, therefore, as per proviso to Rule 100 of KMV Rules, the risk of the claimant who is an employee is not covered. Therefore, submitted that the Tribunal is correct in exonerating the Insurance Company and fastening the liability on the owner of the lorry.

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After hearing the arguments and on perusal of

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the records, the following substantial questions of law arise for consideration:

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“(i) Whether, in the facts and circumstances involved in the case, admittedly, the claimant is a cleaner/loader/unloader and his risk is covered under the provisions of Section 147 of MV Act?

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(ii) What order?”

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MFA No. 3042 of 2018

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Ex.P.45 is the copy of the insurance policy in respect of lorry produced by the claimant. Ex.R.2 is the insurance policy in respect of the very same lorry produced by the Insurance Company. In Ex.P.45Insurance Policy, it is mentioned that the extra premium of Rs.50/- is paid in respect of legal liability to WC to employee 1, but in Ex.R2-Insurance policy, it is mentioned that payment of premium of Rs.50/- is paid in respect of legal liability to paid driver.

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The Tribunal in its judgment at Paragraph No.26 has observed that in Ex.P.45, it is written as WC to employee Rs.50/-, but in the same paragraph, the Insurance Company stated that it is in respect of paid driver. Therefore, the Tribunal has observed that premium is paid in respect of driver, but not to the employee/labourer. Therefore, the risk is not covered. Hence, it is ordered that the insurer is not liable to pay the compensation.

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MFA No. 3042 of 2018

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The said observation of the Tribunal is not correct. Admittedly, the claim petition is filed under the provisions of EC Act. It is not in dispute that the claimant was working as a cleaner /loader/un-loader in the lorry bearing Reg.No.KA-01/C-5303. Therefore, the contents of the insurance policy are to be looked into. Section 147 of MV Act stipulates as follows:

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“147. Requirement of policies and limits of liability.-(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which—

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(a) is issued by a person who is an authorised insurer; and

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(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)—

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(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised 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;

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(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

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Provided that a policy shall not be required—

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MFA No. 3042 of 2018

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(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee—

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(a) engaged in driving the vehicle, or

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(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or

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(c) if it is a goods carriage, being carried in the vehicle, or”

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Therefore, as per Section 147 of MV Act, the risk of the employee/workman is compulsorily covered. In the present case, the claimant has traveled not as a owner of goods or authorized representative of owner of the goods, but was traveling as a cleaner/workman in the lorry under the employment of respondent No.1. Therefore, Rule 100 of KMV Rules is not applicable in the present case. Rule 100 of KMV Rules is applicable only in respect of the persons traveling as passengers in the goods carriage vehicle. More so, it is applicable in respect of the

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MFA No. 3042 of 2018

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persons stated in Sub-clause (i) of Clause (b) of SubSection (1) of Section 147 of MV Act. Therefore, as per Section 147 of MV Act, the requirement of policy, legal liability and risk of the workman or employee is compulsorily covered when he is engaged as a

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workman/employee in the lorry.

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Therefore, irrespective of premium is paid or not covering the risk of the workman/ employee, but as per this mandatory provisions regarding requirement of insurance policy and legal liability, the risk of the employee/workman is covered. If the claimant had preferred a claim petition under the MV Act, then the thing would have been different regarding limits of liability of Insurance Company, but in the present case, the claimant has preferred claim petition to make claim under the provisions of Employee’s Compensation Act. Therefore, the risk of the claimant is covered under the insurance policy as the accident is not disputed. Therefore, I do not find

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MFA No. 3042 of 2018

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any merit in the submission made by the learned counsel for the Insurance Company.

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Therefore, for the reasons above stated, the observations made by the Tribunal are not correct. Hence, the Insurance Company shall indemnify respondent No.1 – owner and pay the compensation to the claimant. Accordingly, the substantial question of law is answered that the risk of the claimant who is the workman/employee under the employment of respondent No.1 is covered as per Section 147 of MV Act. Therefore, the appeal is liable to be allowed-in-part.

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Hence, I proceed to pass the following

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ORDER

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The appeal is allowed-in-part .

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The impugned judgment and award dated 12.02.2018 in ECA.No.02/2016 passed by the Senior Civil Judge and JMFC., Arkalgud, is modified.

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MFA No. 3042 of 2018

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Respondent No.2- Insurance Company shall indemnify respondent No.1-owner and pay the compensation to the claimant. Insofar as quantum of compensation and interest is concerned, it is kept in tact.

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No order as to costs.

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Registry is directed to transmit the TCR along with copy of this order.

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Sd/JUDGE

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List No.: 1 Sl No.: 58

Sri Kumara v. Vs Sri Nazeer Ahamad

Case brief

What is this about?

What did the court decide?

Sri Kumara v. Vs Sri Nazeer Ahamad

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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