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Judgment
A.N. Venugopala Gowda, J.—These appeals by the insurance company is against the common order and the consequential awards passed by the Commissioner for Workmen''s Compensation (''CWC'' for short), Mandya, allowing the claim petitions filed before him in part, whereby and whereunder, the Appellant was fastened with the liability to pay the determined compensation amount with interest.
The factual matrix involved in these cases is as follows:
MFA 10478/2008: The 1st Respondent in this appeal was a loader/unloader in tractor-trailer bearing registration No. KA-11-T-7085, & 7086. The 2nd Respondent was its owner. An accident took place on 29.12.2006, wherein the 1st Respondent suffered injury and filed an application before the CWC for awarding of compensation in terms of the provisions of Workmen''s Compensation Act, 1923 (for short ''the Act''). The said petition was registered with case No. WCA/NFC/CR.68/2007. The Appellant had issued insurance policy in respect of said vehicles.
MFA 10479/2008: The 1st Respondent, in this appeal was a loader/unloader in tractor-trailer bearing registration No. KA-11-T-7085 & 7086. The 2nd Respondent was its owner. An accident took place on 29.12.2006, wherein the 1st Respondent suffered injury and filed an application before the CWC for awarding of compensation in terms of the provisions of Workmen''s Compensation Act, 1923 (for short ''the Act''). The said petition was registered with case No. WCA/NFC/CR.69/2007. The Appellant had issued insurance policy in respect of said vehicles.
MFA 10480/2008: The 1st Respondent in this appeal was a loader/unloader in tractor-trailer bearing registration No.KA-11-T-7085 & 7086. The 2nd Respondent was its owner. An accident took place on 29.12.2006, wherein the 1st Respondent suffered injury and filed an application before the CWC for awarding of compensation in terms of the provisions of Workmen''s Compensation Act, 1923 (for short ''the Act''). The said petition was registered with case No. WCA/NFC/CR.70/2007. The Appellant had issued insurance policy in respect of said vehicles.
MFA 10481/2008: The 1st Respondent in this appeal was a driver in tractor-trailer bearing registration No. KA-11-T-7085 & 7086. The 2nd Respondent was its owner. An accident took place on 29.12.2006, wherein the 1st Respondent suffered injury and filed an application before the CWC for awarding of compensation in terms of the provisions'' of Workmen''s Compensation Act, 1923 (for short ''the Act''). The said petition was registered with case No. WCA/NFC/CR 71/2007. The Appellant had issued insurance policy in respect of said vehicles.
The case pleaded by the Petitioners in each of the said claim petitions was that, they were loaders/unloaders and driver respectively, under Smt. Mariyamma, the 2nd Respondent herein, in her tractor-trailer bearing registration No. KA-11-T-7085 & 7086 and there existed relationship of master and servant. It was pleaded that, on the direction of owner of tractor-trailer, for the purpose of loading and unloading the pit manure from the pit of one mahalingaiah of Nanjegowdana Koppalu to the land of one Boregowda of Bidarkatte, on 29.12.2006, while they were in the vehicles in question, an accident occurred since the vehicles toppled and they fell down and sustained injuries. Thereafter, they took treatment and having sustained permanent disability and loss of earning capacity, compensation was claimed from the owner of the vehicles and the insurer.
The owner of the vehicles appeared through her learned advocate and filed written statement, wherein she admitted the Petitioners being her employees in her tractor-trailer, they being under her employment on 29.12.2006 for the purpose of loading and unloading the pit manure from the pit of one mahalingaiah of Nanjegowdana Koppalu to the land of one Boregowda of Bidarkatte, the occurrence of the accident on account of the vehicles being toppled and sustaining of injuries during the course of employment. She did not admit the other averments made in the claim petitions. However, she pleaded that the vehicles were validly incused by the Appellant and the insurance policy was in force as on the date of occurrence of the accident and hence, the insurer was liable to pay the compensation.
The Appellant, which was Respondent No. 2 in the claim petitions, filed separate but identical written statement/s and opposed the claim petition/s. However, it admitted the insurance coverage of the vehicles, covering risk of third party only and damage caused to the vehicles. It was stated that, No. additional premium was paid to cover the risk of coolies/loaders and it is not liable to pay compensation.
Based on the pleadings of the parties, issues were raised. All the claimants deposed. A qualified medical practitioner was examined by the claimants. Exs.P-1 to P-11 were marked. For the insurance company, its authorized representative deposed, through whom Exs.R-2-1 to R-2-3 were marked. The CWC upon appreciation of the evidence, having found that the claimants have suffered permanent partial disability, assessed the loss of earning capacity, allowed the claim petitions and directed the insurance company to pay the compensation amount determined, With interest. Aggrieved, the insurance company has filed these appeals.
Sri A.M. Venkatesh, learned Counsel appearing for the Appellants, contended that, the CWC has erred in fastening the liability on the Appellant to satisfy the awards despite the insured having committed breach of terms and conditions of the insurance policy - Ex.R-2-3. Learned Counsel submitted that, the tractor-trailer belonging to the owner had been insured by the Appellant, only for her own agricultural purpose and not for hire or any other purpose and in the instant case, the claim petitions, statement of objections of the insured, the evidence of the claimants and Exs.R-2-1 & R-2-2, the FIR & the charge sheet would clearly reveal that, on the date of occurrence of the accident, the tractor-trailer had been sent to transport manure of a third party to another third party and hence, there is breach of terms and conditions of the policy, as the tractor was not on own use of the insured. Learned Counsel submitted that, the CWC without appreciating the record of the case in the correct perspective, by a perverse finding, has illegally fastened the liability on the Appellant to satisfy the awards. Learned Counsel submitted that, in view of the apparent breach of the insurance policy conditions, the fastening of liability to satisfy the awards on the Appellant being arbitrary and illegal, interference is called for. Learned Counsel placed reliance on a Division Bench judgment dated 27.05.2011 passed in MFA No. 682/2006, in support of his contentions.
Sri Neelakantappa K. Pujar, learned Counsel appearing for the claimants, on the other hand contended that, the tractor-trailer was being used for own work of the owner/insured and that too, for the purpose of transportation of manure and the vehicle had been put to use for agricultural purpose only and there being No. evidence adduced by the Appellant with regard to the vehicles having been given on hire basis by the insured to the third parties, the CWC is justified in directing the Appellant to pay the determined compensation amount with interest. Alternatively, learned Counsel submitted that, even if there were to be a case of vehicles having been given on hire, still the vehicles having been put to agricultural use only, there cannot be any breach of policy conditions and the fastening of liability by the CWC on the Appellant is justified. Learned Counsel placed reliance on a decision reported in Malkibai and Others Vs. Badriprasad and Others, Learned Counsel seeks upholding of impugned order/Awards.
Keeping in view the rival contentions and the record of the case which I have perused, the question for determination is:
Whether the CWC is justified in fastening the liability on the Appellant to pay the determined compensation amount?
The averments made in the claim petitions are identical, except with regard to the nature of employment, in which the claimants were working under the owner of tractor-trailer. Three claimants were loaders/unloaders and another was a driver. Para 3 of the claim petitions reads as thus:
That on the direction of the 1st Respondent, for the purpose of loading and unloading the pit-manure from the pit of one Mahalingaiah of Nanjegowdana Koppalu to the land of one Boregowda of Bidarkatte, on 29.12.2006 the Petitioner was driving the tractor and trailer No. KA-11-T/7085 and KA-11-T/7086 belonging to the 1st Respondent in the capacity of its driver. The loaders were travelling in the said vehicle for the purpose of loading the manure to the said vehicle.
The written statement/s filed by the owner of tractor-trailer/insured to the claim petition/s are identical. It has been stated therein as:
The allegations made in para 3 of the petition that on the direction of the 1st Respondent for the purpose of loading and unloading the pit manure from the pit of one Mahalingaiah of Nanjegowdana Koppalu to the land of one Boregowda of Bidarkote, on 29.12.2006 the Petitioner was travelling in the said tractor and trailer along with other loaders, the driver was driving the vehicle on Mandya-Nagamangala Road, at about 7 A.M the driver drove the vehicle at Nanjegowdana Koppalu village bus-stand in a rash and negligent manner and suddenly took turn towards right side to go to village side and on account of this rash driving, the tractor and trailer toppled/turtle and Petitioner and Ors. fell down and sustained injuries during the course of his employment are all true and admitted.
The affidavit evidence filed by the claimants is also identical, wherein it was admitted that, the tractor-trailer was being used on 29.12.2006 for the purpose of transportation of manure to the land of one Boregowda of Bidarkatte. EX.P-1 is the FIR and Ex.P-2 is the charge sheet. The said records also indicate that the vehicles were put to use for the transportation of manure of a third party when the accident in question occurred.
Ex.R-2-3, insurance policy is Miscellaneous and Special Type of Vehicles Policy - ''B'' Package. It was valid from 20.04.2006 to 19.04.2007. No. premium was collected covering the risk of coolies and there is No. coverage in respect of any employees. The premium paid was basic premium for tractor-trailer. It has been made clear that, the policy does not cover use for carrying of passengers for hire or reward.
Indisputedly, the vehicles as on the date of the occurrence of the accident in question was not put to use for the purpose of shifting manure of the insured or to the land of the insured. Manure was loaded in a third party''s pit and was transferred to a third party land, which clearly establishes that, the vehicles were not being used for own use of the insured. The ratio of the judgment on which Sri A.M. Venkatesh placed reliance (supra), squarely applies to the case on hand. The decision on which learned Counsel for the claimants placed reliance, has No. application. Following the judgment dated 27.05.2011 passed in MFA 682/2006, the appeals are liable to be allowed.
The CWC without noticing the averments made in the claim petitions with regard to the user of the vehicles for carrying manure of a third party, the admission made in the written statement of the insured in that regard, evidence of the claimants which also shows that the vehicles were used for the purpose of transporting manure of third party to another third party, which is also evident from Exs.P-1 & P-2, the finding recorded, fastening the liability on the Appellant is perverse and illegal. The CWC without examining the record and ignoring the admissions of the claimants both in their claim statement/s as well as in their evidence and without noticing the terms and conditions of the insurance policy, has wrongly fastened the liability on the Appellant to satisfy the awards.
In the result, the appeals are allowed and the impugned common order and the consequential awards passed by the CWC fastening the liability on the Appellant is set-aside.
The claimants are at liberty to proceed against the owner of the tractor-trailer for recovery of the amount of compensation awarded in favour of each of them by the CWC.
The amount in deposit be refunded to the Appellant-insurance company.
However, the parties are directed to bear their respective costs.