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Judgment
N.K. Patil, J.—These two appeals by the Insurer are directed against the common judgment and award dated 25th February 2006, passed in WCA/NFC-34/2002 and WCA/NFC-34/2002, by the Labour Officer and Commissioner for Workmen''s Compensation, Kolar, (hereinafter referred to as "the Commissioner"), raising the following substantial questions of law:
1) Whether the Commissioner was justified in saddling liability on the Appellant when the Appellant has issued a policy of Insurance to cover the risk of employee of goods vehicle being carried in the vehicle and saddling of liability on the Appellant when 60-70 people who were to go some other place and to do some other work which was unconnected with the lorry.
2) Whether the Commissioner was justified in ignoring the mandatory provisions of Section 4(1)@(ii) of W.C. Act and proceed to grant compensation.
3) The judgment and order passed by the Commissioner is opposed to law, probabilities of the case and evidence on record.
4) No legal proceedings or litigations either past or present concerning any part of the subject matter of the dispute is pending.
The occurrence of accident at about 9:45 A.M. on 31-05-2002 and the resultant injuries sustained by the claimants are not in dispute. Further, it is also not in dispute that the claimants are claiming to be coolies doing loading and unloading work. They met with the said accident during the course of their employment. Therefore, on account of the injuries sustained in the accident, the claimants in these two appeals filed their respective claim petitions before the Commissioner, seeking compensation under the Workmen''s Compensation act. The Commissioner, after, assessing the oral and documentary evidence available on file and other relevant material, taking into consideration the age of the claimants, avocation and the year of accident, has allowed both the petitions in part, awarding reasonable compensation and fastening the liability on the Insurer to satisfy the award. Being aggrieved by the said portion of the judgment and award, the Appellant Insurer has presented these appeals, seeking to set aside the liability fastened on it by the Commissioner.
We have heard learned Counsel appearing for Appellant Insurer and learned Counsel appearing for claimants in both appeals.
Learned Counsel appearing for Appellant Insurer, at the outset submits that the Commissioner is not justified in directing the insurer to satisfy the award, for the reason that the claimants were travelling as gratuitous passengers in a good carriage vehicle, in gross violation of the terms and conditions of the insurance policy. In support of his submission, he submits that, the Hon''ble Supreme Court, in the case of National Insurance Co. Ltd. Vs. Bommithi Subbhayamma and Others, in Review Petition (C) No. 935 of 2003 in SLP (C) No. 5628 of 2003 decided on 21st February 2005, has clearly held that in respect of gratuitous passengers, insurer is not liable to satisfy the award, but the claimants are entitled to recover the same from the owner of the offending vehicle. Therefore, he submits that the impugned judgment and award passed by Commissioner is liable to be sec aside only in so far as It relates to fastening liability on the Appellant insurer.
After hearing the learned Counsel appearing for Appellant Insurer, we are of the view that there is some substance in his submission. After perusal of the aforesaid decision of the Apex Court, it is a well settled law laid down by the Apex Court and this Court in series of judgments that, liability cannot be fastened on the insurer in case of gratuitous passengers, on the ground that there is breach of terms and conditions of the policy and that when the owner of the offending vehicle has not paid the required premium, question of fastening liability on the insurer and the insurer satisfying the award does not arise.
In the light of the submission of the learned Counsel appearing for Appellant Insurer and also the judgment of the Hon''ble Apex Court in the case of National Insurance Co. Ltd. Vs. Bommithi Subbhayamma and Others, these two appeals are liable to be modified, only in so far as it relates to fastening liability on the Appellant Insurer.
Accordingly, in the light of the facts and circumstances stated above, the appeals filed by the Insurer are allowed.
The impugned common judgment and award dated 25th February 2006, passed in WCA/NFC-34/2002 and WCA/NFC-34/2002, by the Labour Officer and Commissioner for Workmen''s Compensation, Kolar, is hereby modified, setting aside the liability fastened on the Insurer, to satisfy the award.
Further, it is held that the claimants herein are entitled to recover the compensation from the owner of the offending vehicle by executing the award, if not already executed.
With this modification, the appeals filed by Appellant Insurer stand disposed of.
The amount in deposit by the Appellant in both the appeals shall be refunded to the authorized representative of the Appellant or through the counsel.
Office to draw the award accordingly.