AI Structured Summary
Not yet generated for this judgment
Judgment
B. Manohar, J. - The Oriental Insurance Company has filed this appeal challenging the judgment and order dated 29-6-2007 made in WCA No. 377/2004 passed by the Labour Officer and Commissioner for Workmen Compensation, Sub-Division-I, Bellary (hereinafter referred to as ''the WCC'' for short) fastening the liability on them to compensate the claimant.
The first respondent herein filed a claim petition contending that he was working as a loader in a goods auto bearing registration No. KA-35/3597 belonging to the second respondent herein. On 2-12-2002, as per the instructions of owner of the vehicle, alter loading groceries at Hospet, while he was proceeding towards Thorangal on Hospet-Bellary Road, a lorry bearing registration No. KA-18/4167 driven by its driver in a rash and negligent manner dashed against the goods auto. In view of that, the claimant sustained grievous injuries. Initially he had taken treatment in the Government Hospital at Hospet and thereafter he took treatment in a Private hospital. The police have registered a case in Crime No. 117/2002 against the driver of the offending lorry. At the time of accident, claimant was aged bout 20 years, the owner was paying him salary of Rs. 150/- per day. In view of the injuries sustained and disability suffered, he cannot work as a loader. The accident occurred during the course and out of employment. The insurance policy of the goods auto was in operation as on the date of accident and hence sought for compensation of Rs. 2,75,000/- with interest.
In pursuance of the notice issued by the WCC, though the owner of the vehicle served with notice, he remained unrepresented. The Insurance Company filed written statement denying the entire averments made in the claim petition and also relationship of master and servant between the owner and the claimant. Further the insurance policy of the goods auto does not cover the risk of a loader and the additional premium is also not paid. Hence the insurer is not liable to compensate the claimant and sought for dismissal of the claim petition as against the Insurance Company.
On the basis of the pleadings of the parties, the WCC framed necessary issues. The claimant in order to prove his case examined himself as RW. 1 and the doctor who issued the disability certificate was examined as P.W. 2, and got marked the documents as Ex.Pl to Ex.P8. On behalf of the respondent-Insurance Company, one of the officials w as examined as R.W. 1 and the insurance policy of the goods auto was marked as Ex.Rl.
The WCC, on appreciating the oral and documentary evidence let in by the parties and taking into consideration the spot panchanama, IMV report, copy of the complaint and charge-sheet held that the claimant has sustained injuries in the road traffic accident occurred on 2-12-2002 at the time of accident, the claimant was working as a loader. The insurance policy covers the risk of vehicle as on the date of accident. Hence the claimant is entitled for compensation. With regard to quantum of compensation is concerned, in the accident, the claimant has sustained abrasion over the right shoulder, over the right hand, abrasion contusion over the lateral part of the eye-brow extending upto temporal bone. The doctor who treated the claimant had assessed the disability to an extent of 20%. Though the claimant claimed that he was getting salary of Rs. 150/- per day, no document has been produced to establish the same. At the time of accident, he was aged about 25 years. Hence, taking into consideration income of the claimant as Rs. 100/- per day and monthly income of Rs. 2,600/- per month, taking 60% thereof, applying the relevant factor of 216.91, since there is no fracture of other bones, considering the disability to an extent of 15%, the WCC awarded a sum of Rs. 50,756/- with interest at the date of 12% p.a. and directed the Insurance Company to compensate the claimant. The appellant-Insurance Company being aggrieved by the judgment and order passed by the WCC filed this appeal.
Sri. G. N. Raichur, learned counsel appearing for the appellant contended that judgment and order passed by the WCC'' is contrary to law. Even though the claimant was a workman under the first respondent, the insurance policy does not cover the risk of a loader working in a goods auto. The insurance policy of the goods auto is for Goods Carrying Commercial Vehicle (three-wheeler). It covers the risk of damages and basic liability, further additional premium has also not been paid. Hence, the insurance policy does not cover the risk of a loader working in a three wheeler goods auto. Hence, it is the liability of owner to compensate the claimant and sought for allowing the appeal by exonerating the appellant from its liability.
On the other hand, learned counsel appearing for the second respondent argued in support of the judgment and order passed by the WCC and contended that as on the date of accident, the vehicle was covered under the insurance policy. Hence, the loader is covered under the insurance policy and sought for dismissal of the appeal.
The only point that arise for consideration in this appeal is -
Whether the appellant-Insurance Company is liable to compensate the claimant, though the insurance policy does not cover the risk of a loader.?
The records clearly disclose that the claimant has sustained injuries in the road traffic accident occurred on 2-12-2002 due to rash and negligent driving of the offending lorry. There is no dispute that the claimant was working as a loader in the commercial goods auto. The insurance policy/Ex.R.l produced by the appellant clearly discloses that insurance policy does not cover the risk of a loader working in a goods auto. Further, additional premium is also not paid. In a judgment, reported in 2010 ACJ 1145 in the case of New India Assurance Company Limited v. Suraya Bee, laid down the law that "Thus unless and until extra premium is paid under contract of insurance, cleaner is not covered under the policy. As held supra, no such extra premium is paid and, therefore, insurer is not liable to pay the compensation. Further, the Hon''ble Supreme Court in a judgment, reported in 2003 ACJ 1150 in the case of Ramashray Singh v. New India Assurance Co. Ltd. clearly laid down a law that at paragraph 8 of the judgment that "Over and above the risks which are covered by this statutory provision, parties may of course enter into a contract by which the insurer agrees to cover additional risks. It is not the appellant''s case that apart from the policy of insurance there was any contract between the appellant and Insurance Company." In the instant case, except paying the premium covering the risk of damages, the owner of the vehicle has not paid any additional premium. Hence, the insurance policy does not cover the risk of the loader working in a goods auto.
In the instant case, the insurance policy does not cover the risk of the loader working in a goods auto. The additional premium is also not paid to cover the risk of the loader. Hence, the insurer is not liable to compensate the claimant. In the absence of coverage of insurance, it is for the owner to compensate the claimant. Accordingly, I pass the following.
ORDER
The appeal is allowed. The judgment and order passed by the WCC is modified. The appellant-Insurance Company is exonerated from its liability. It is open to the claimant to proceed against the owner of the vehicle for recovery of the compensation.
The amount in deposit is directed to be refunded to the appellant-Insurance Company.