Partly allowed

Bajaj Allianz General Insurance Co. Ltd., v. Suvarna W/O Anand @ Ajjappa Goravankolla

Karnataka HC16 Aug 2023MFA/21403/2012

Case brief

AI extract

What is this about?

The High Court dismissed an insurer's appeal challenging a compensation award for a driver killed by falling mud while loading a tractor-trailer under employer direction. The Court held the death was in the course of employment and rejected insurer's arguments based on family relations or unrelated precedents.

What did the court decide?

Interest on compensation enhanced from date of accident to date of realization at 12% per annum.

Bajaj Allianz General Insurance Co. Ltd., Vs Suvarna… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:8974 MFA.CROB No. 826 of 2013 C/W MFA No. 21403 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MFA CROSS OBJ NO.826/2013(WC) C/W MISCELLANEOUS FIRST APPEAL NO.21403/2012(WC)

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IN MFA.CROB.NO.826/2013:

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BETWEEN:

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SMT. SUVARNA W/O. ANAND @ AJJAPPA GORAVANKOLLA, AGE: 33 YEARS, OCC: HOUSEHOLD WORK, R/O: SALAPUR VILLAGE, TQ: RAMDURG, DIST: BELGAUM.

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KUMAR KARTIK S/O ANAND @ AJJAPPA GORAVANKOLLA, AGE: 13 YEARS, OCC: STUDENT, R/O: SALAPUR, TQ: RAMDURG, DIST: BELGAGAVI – 591 126

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…CROSS OBJECTORS

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(BY SRI H. M. DHARIGOND, ADVOCATE)

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Digitally signed by BHARATHI H M

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AND:

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SHANTHAPPA KARIYAPPA GORAVANAKOLLA, SINCE DECEASED BY HIS LRS.

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1A. YALLAWWA

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S/O SHANTHAPPA GORAVANAKOLLA, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: SALAPUR, TALUK: RAMDURG, DIST: BELAGAVI – 591 123.

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1B. REVANASIDDAPPA S/O SHANTHAPPA GORAVANAKOLLA, AGE: 30 YEARS, OCC: AGRICULTURE, R/O: SALAPUR, TALUK: RAMDURG, DIST: BELAGAVI – 591 123.

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NC: 2023:KHC-D:8974 MFA.CROB No. 826 of 2013 C/W MFA No. 21403 of 2012

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THE MANAGER,

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THE BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., CLUB ROAD, BELGAUM – 590 001.

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…RESPONDENTS

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[BY SRI R.R.MANE, ADVOCATE FOR R2; R1 IS DECEASED; SRI SANTOSH NARGUND, ADVOCATE FOR PRAPOSED R1(A) AND (B)]

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THIS MFA CROB IS FILED UNDER ORDER 41 RULES 22 OF CIVIL PROCEDURE CODE, PRAYING TO MODIFY THE ORDER DATED 13.01.2012 PASSED IN KA.PA.KA/SR -83/2010 ON THE FILE OF THE LABOUR COMMISSIONER FOR WORKMAN COMPENSATION SUBDIVISION-II BELGAUM, AND AWARD JUST AND REASONABLE COMPENSATION CLAIMED IN THE CLAIM PETITION.

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IN MFA.NO.21403/2012:

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BETWEEN:

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BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., BY ITS MANAGER, CLUB ROAD, BELGAUM, HEREIN REPRESENTED BY BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., 4^TH FLOOR, V.A.KALBURGI MANSION, OPPOSITE MUNICIPAL CORPORATION, LAMINGTON ROAD, HUBLI, REPRESENTED BY ITS AUTHORIZED SIGNATORY.

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…APPEELANT

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(BY SRI RAVINDRA R. MANE, ADVOCATE)

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AND:

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SMT. SUVARNA W/O. ANAND @ AJJAPPA GORAVANKOLLA, AGE: 23 YEARS, OCC: HOUSEHOLD WORK, R/O: SALAPUR, TQ: RAMDURG, DIST: BELGAUM.

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KUMAR KARTIK S/O ANAND @ AJJAPPA GORAVANKOLLA, AGE: 02 YEARS, OCC: NIL, R/O: SALAPUR, TQ: RAMDURG, DIST: BELGAGAVI. (RESPONDENT NO.2 BEING A MINOR, REPRESENTED BY HIS M/G NATURAL MOTHER RESPONDENT NO.1)

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NC: 2023:KHC-D:8974 MFA.CROB No. 826 of 2013 C/W MFA No. 21403 of 2012

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(SRI SHANTHAPPA KARIYAPPA GORAVANAKOLLA) AGE: 62 YEARS, OCCUPATION: AGRICULTURE, R/O: SALAPUR, TAL: RAMDURG, DIST; BELGAUM (OWNER OF THE TRACTOR NO.KA-48/T-4519 AND TRAILER NO.KA-48/T-4520)

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SINCE DECEASED BY LEGAL REPRESENTATIVES.

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3A. YALLAWWA

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S/O SHANTHAPPA GORAVANAKOLLA, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: SALAPUR, TALUK: RAMDURG, DIST: BELAGAVI – 591 123.

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3B. REVANASIDDAPPA S/O SHANTHAPPA GORAVANAKOLLA, AGE: 30 YEARS, OCC: AGRICULTURE, R/O: SALAPUR, TALUK: RAMDURG, DIST: BELAGAVI – 591 123.

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…RESPONDENTS

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[BY H.M.DHARIGOND, ADVOCATE FOR R1 AND R2; SRI SANTOSH NARAGUND, ADVOCATE FOR R3(A), R3(B)]

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THIS MFA IS FILED UNDER SECTION 30(1)(A)(AA) OF WORKMEN’S COMPENSATION ACT, 1923, PRAYING TO CALL FOR THE RECORDS, ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND AWARD DATED 13.01.2012 PASSED BY THE COURT OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN’S COMPENSATION, SUB-DIVISION NO.2, BELGAUM, IN WCA/SR NO.83/2010, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MFA CROB AND APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2023:KHC-D:8974 MFA.CROB No. 826 of 2013 C/W MFA No. 21403 of 2012

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JUDGMENT

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MFA.CROB.No.2826/2013 is filed by the claimants challenging the judgment and award dated 13.01.2012 passed in WCA/SR NO.83/2010 by the learned Labour Commissioner for Workmen’s Compensation, Sub-DivisionII, Belgaum, (for short, hereinafter referred to as ‘the Commissioner’) for seeking enhancement of compensation and award with statutory interest from the date of the accident whereas MFA No.21403/2012 is filed by the Insurance Company on the ground that there is no relationship of employer and employee and the death of the deceased is not out of and in the course of employment.

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The brief factual matrix leading to the case are that the deceased Anand @ Ajjappa Goravankolla, was working as a driver on the tractor and tailor bearing registration No.KA-48/T-4519 and KA-48/T-4520 under the employment of respondent No.1. On 04.05.2010 as per the direction of respondent No.1 the deceased had gone

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driving the said tractor-trailer along with two coolies to bring mud from the mud quarry of one of his relative in order to put the same to his house. At 5.00 p.m. when the coolies were loading the mud in the tractor-trailer and the deceased was standing by the side of the coolies, suddenly the mud heap fell down upon the deceased and deceased died on the spot.

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Heard the arguments on both sides and perused

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the records.

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It is stated that the deceased was working as a driver under the employment of respondent No.1 in the Tractor bearing registration No.KA-48/T-4519 and Trailer bearing registration No.KA-48/T-4520. On 04.05.2010, the deceased has taken the Tractor and Trailer for loading mud from the quarry along with other two coolies and at the place of the quarry and loading mud to the Tractor Trailer, at that time the deceased was standing beside the Tractor and Trailer, the mountain of mud fell on the deceased. Under this circumstance, the deceased died. Therefore,

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the wife and children of the deceased have filed the claim

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petition for seeking compensation.

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The learned Commissioner has awarded

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compensation holding that the deceased was working as a driver under the employment of respondent No.1 and the death of the deceased was out of and in the course of the employment. Accordingly, awarded compensation with statutory interest from the date of the petition.

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Respondent No.1 is the father of the deceased. Just because the deceased is a son of respondent No.1 and by such relationship, it cannot be said that there is no relationship of employer and employee. The father can engage his son on an employment such as driver or to work in the field etc. The mere relationship as father and son is not a bar to say that the son is not working under the employment of his father. Respondent No.1 is the owner of the Tractor and Trailer. It is common experience that in village in vogue male children in the house are engaged either as a driver, coolie or an agriculturist where

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NC: 2023:KHC-D:8974 MFA.CROB No. 826 of 2013 C/W MFA No. 21403 of 2012

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family owns agricultural land. Therefore, just because respondent No.1 is the father and deceased is his son that cannot be a ground to say that there is no relationship of employer and employee. When son attains majority, it is duty of the father to provide him employment. Quite naturally, if a son works as a driver under the employment of respondent No.1, and respondent No.1 is the owner of Tractor and Trailer that cannot be said that the deceased is not an employee under his father and was not driver of the Tractor and Trailer. The family relationship is different and relationship of employer and employee under law is different. It is not uncommon that father claimed his son as an employee for working as a driver of the Tractor Trailer, Lorry or Jeep etc., Therefore, the contention raised by the Insurance Company that just because the deceased is son of respondent No.1 that cannot be a relationship of employer and employee is not accepted. The learned Commissioner in this regard has rightly considered this aspect by appreciating the evidence on record.

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The another contention raised by the Insurance

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Company is that the death of the deceased is not out of and in the course of the employment, as the deceased was digging the mud but actually he was not driving the Tractor and while digging the mud, heap of mud fell on him and died. Therefore, the learned Senior counsel for respondent-Insurance Company submitted that the death of the deceased is not while driving the Tractor Trailer, but it was while digging the mud and heap of mud fell on him and all these circumstances, has occurred resulting in to death of the deceased. Hence, the Insurance policy do not cover the risk. Therefore, submitted as per Section 147 of the Motor Vehicles Act, 1988 and even if the risk of employee-driver is covered, but the deceased was not driving the Tractor and Trailer at the time of the death, but was digging the mud. Hence, it cannot be considered as a death of the deceased is on employment as a driver. Therefore, submitted that the Insurance Company is not liable to indemnify the owner and to pay the compensation. Further submitted that there is no accident

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NC: 2023:KHC-D:8974 MFA.CROB No. 826 of 2013 C/W MFA No. 21403 of 2012

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of the Tractor and Trailer and it is not mentioned that it was on the spot of accident. Therefore, submitted that the learned Commissioner has committed error while granting compensation. Therefore, prays to set aside the order and award passed by the learned Commissioner. The learned counsel for the Insurance Company has placed reliance on the judgments of Hon’ble Supreme Court are as follows:

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i) Mamtaj Bi Bapusab Nadaf and others vs. United India Insurance Company and others¹ . (Mamtaj Bi case)

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ii) Malikarjuna G. Hiremath vs. Branch Manager, Oriental Insurance Co. Ltd.,² (Malikarjuna case)

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While considering the evidence on record, and

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on its appreciation more particularly from the police documents which are complaint, FIR, spot panchanama and charge sheet, the fact is proved that the deceased had taken the Tractor and Trailer for loading mud from quarry

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to one of his relative for the purpose of putting on the

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1 (2010) 10 SCC 536

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2 2009 ACJ 721

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floor of the house. From the complaint, it is proved that the deceased has taken the Tractor and Trailer by driving the same by taking other two coolies. When the deceased and another two coolies were in the process of loading mud on the Tractor and Trailer, this incident was caused. Respondent No.1-owner has lodged complaint. From the complaint, it is revealed that the deceased was digging the mud and other two coolies were in the process of loading the mud to the Tractor and Trailer. Therefore, the deceased was digging the mud in the lorry and the said mud was loading to the Tractor and Trailer and at that moment, heap of mud had fallen down on the deceased and the deceased died on the spot. Even though, the deceased is found to be digging the mud, and actually was not driving the Tractor and Trailer at the time of loading the mud, but for what purpose the deceased had taken the Tractor Trailer by driving the same is the question to be appreciated. From the police records, it is proved that the deceased and another two coolies were loading the mud on the Tractor and Trailer. Even though deceased actually

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NC: 2023:KHC-D:8974 MFA.CROB No. 826 of 2013 C/W MFA No. 21403 of 2012

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was not driving the Tractor and Trailer, but he has taken

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the Tractor and Trailer for loading the mud and digging the mud for loading Tractor Trailer is amounting to out of employment. Section 3 of Employees Compensation Act, 1923, enumerates injury or death shall be occurred out of and in the course of the employment. Section 3 does not stipulate only regarding in the course of employment. Even the death of the employee is out of employment and then the claimant entitled compensation under Section 3 of Employee’s Compensation Act, 1923. Therefore, while attributing Section 3 of the Employee’s Compensation Act, 1923, the Hon’ble Supreme Court and this Court in series of decisions evolved theory of notional extension of employment. This notional extension of employment is because of the wordings used in Section 3 of the Act. Therefore, the death of the deceased while digging the mud and loading mud in the Tractor and Trailer is nothing but notional extension of employment. The work made by the deceased in connection with loading the mud on the Tractor and Trailer and before that the deceased has driven

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the Tractor and Trailer and stationed on the field for the purpose of loading the mud. Therefore, the death of the deceased can be said that it is out of and in the course of the employment by applying notional extension of employment on the principles of law laid down by the Hon’ble Supreme Court and by this Court in various judgments.

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In Mallikarjun case (supra) the facts and

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circumstances are that the deceased went to the Temple and subsequently went to the river and while taking bath at a pit, he slipped and fell down and had drowned and breathed his last. Therefore, the work of deceased as driver is not related to go to temple and river and drowning in the river. Therefore, in this facts and circumstances, it was held that the death of the deceased is not out of and in the course of the employment. The facts and circumstances stated therein are different from the contention of this case and the said judgment does not applicable to the present case.

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NC: 2023:KHC-D:8974 MFA.CROB No. 826 of 2013 C/W MFA No. 21403 of 2012

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In the Mamtaj Bi case (supra), the deceased

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was coolie unloading maize from a Tractor-Trailer to underground storage bin. The said case arose under the presence of motor vehicle Act and it was held that there was no motor vehicle accident. But the death of coolie, while unloading the maize from Tractor-Trailer to underground storage bin and fell into grocery pit and died due to asphyxia. Therefore, under these circumstances, it was held that the death is not due to motor vehicle accident. Hence, in that context there was no proximate or direct connection with the motor vehicle accident. Therefore, the Insurance Company is not liable to pay the compensation, but the owner is made liable to pay compensation. This was because the employees have stepped down in to the grocery pit for cleaning the same and storage maize. While cleaning, they fell into grocery pit and died due to asphyxia. Therefore, the death is due to fell into grocery pit and died while cleaning the storage pit. Therefore, the facts and circumstances involved therein are different from the present case. In the present

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case, the deceased is the driver and has driven the Tractor and Trailer to the field and digging the mud for loading to the Tractor and Trailer. In that process the deceased died. Therefore, the risk of driver is compulsorily covered under Section 147 of the M.V. Act. Therefore, because of difference in factual matrix involved in the above stated cases and in the present case, the above stated judgments are not applicable to the present set of facts and circumstances. Therefore, it is proved that the death of the deceased is in connection with the employment as driver and has taken Tractor Trailer to the field and was in the process of loading the mud to the Tractor Trailer and death occurred. Therefore, the death of the deceased is proved to be out of and in course of the employment. Hence, the learned Commissioner is correct in holding that there is relationship of employer and employee and correctly awarded compensation. Therefore, the appeal filed by the Insurance Company is liable to be dismissed.

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The learned Commissioner while awarding the

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compensation had awarded statutory interest at 12% from the date of the petition but as per Section 4A (3) (a) and as per the judgment of the Hon’ble Supreme Court in the case of Pratap Narain Singh Deo vs. Srinivas Sabata and another³ the rate of interest shall be awarded from the date of the accident. Hence, for these reasons the appeal filed by the Insurance Company is dismissed. Hence, I proceed to pass the following:

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ORDER

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i) MFA No.21403/2013 filed by the Insurance Company is dismissed .

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ii) MFA.CROB.No.826/2013 filed by the claimants

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is allowed in part .

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iii) The judgment and award dated 13.01.2012 passed in WCA/SR NO.83/2010 by the learned Labour Commissioner for Workmen’s Compensation, Sub-Division-II, Belgaum is

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