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Judgment
A.N. Venugopala Gowda, J.—Appellants in MFA 10915/2008 are the Petitioners in WCA/F.C/CR-73/2007 on the file of Commissioner for Workmen''s Compensation, Mysore District, Mysore. MFA 70/2009 is by the 2nd Respondent in the said case. The appeal filed by the Petitioners is for correct assessment and awarding enhanced compensation. The appeal by the insurance company is with regard to its liability to deposit the assessed compensation/award amount. For the sake of convenience, the parties would be referred to with reference to their rank in the claim petition.
The Petitioners are the wife, son and patents of one Chowdaiah. Tractor trailer bearing registration No. KA-11-T-7407 & 7408 belongs to the 1st Respondent/Sri Channegowda @ Puttegowda. The said vehicles were insured by the 2nd Respondent (Appellant in MFA 70/2009). According to the Petitioners, Chowdaiah was employed as a loader in the said tractor-trailer by the 1st Respondent and an accident occurred on 18.04.2007 during the course of employment of Chowdaiah as a loader in the said vehicles. Chowdaiah having sustained fatal injuries, despite being shifted immediately to Government Hospital at Channapatna for treatment, succumbed. Claim petition was filed by the legal heirs of the deceased against the owner and insurer of the said vehicles.
The employer/owner of the vehicles despite service of notice did not appear nor filed any statement of objections before the commissioner. The insurance company filed statement of objections, wherein it admitted the issue of insurance policy to the vehicles, but contended that the policy covered the risk of a driver and has no coverage for loader. It denied the liability to pay the compensation amount.
Based on the pleadings of the parties, issues were raised. Evidence was adduced on behalf of the Petitioners. However, no evidence was adduced on behalf of the Respondents.
Considering the rival contentions and after appreciation of the evidence on record, finding the claim to be meritorious, an award directing deposit of compensation amount of Rs. 2,54,160/- with interest at 12% p.a. was ordered. However, the interest liability was only after expiry of 30 days from the date of the award.
Aggrieved by the judgment and award passed by the Commissioner, the claimants have filed MFA 10915/7.008 and the insurance company has filed MFA70/2009.
Sri H. Pavana Chandra Shetty, learned Counsel appearing for the Petitioners, contended that, in reckoning the wages of the deceased at Rs. 3000/ p.m., the Commissioner has committed an error & illegality and also in not awarding interest after 30 days of the occurrence of the accident i.e.. w.e.f. 18.05.2007 as held in the decision reported in Shri Aleemuddin and Others Vs. The Divisional Manager, New India Assurance Company Limited, Learned Counsel submits that, to the said extent the award calls for modification and enhancement.
Sri A.N. Krishna Swamy, learned Counsel appearing for the insurance company, on the other hand contended that, the learned Commissioner was not justified in saddling the liability on the insurance company when it has issued a Miscellaneous & Special types of vehicles policy, which would not cover the risk of employees of the insured, since additional premium had not been collected by the insurer to cover the risk of the employees and the tractor-trailer being not a goods vehicle within the meaning of Motor Vehicle Act, 1988, the impugned judgment calls for being set-aside insofar as the insurance company is concerned. Learned Counsel alternatively contended that, in view of the decision of the Apex Court in the case of National Insurance Co. Limited v. Mubasir Ahamed and Ors. reported in 2007 ACJ 845 (SC), there is no merit in the contention with regard to the date from which the interest has to be paid on the award amount.
Keeping in view the rival contentions and the record of the case, which I have perused, the points for consideration are:
Whether the Commissioner is justified in reckoning the wages of the deceased at Rs. 3,000/- p.m. the age as 45 years and in applying the relevant factor 169.44 and in assessing the compensation payable at Rs. 2,54,160/-?
Whether the Commissioner is justified in directing the Appellant to deposit the compensation amount as determined?
Whether the Commissioner is justified in directing payment of compensation amount after expiry of 30 days period from the date of passing of the award?
1st Petitioner has deposed as PW-1 and has stated that, her husband Chowdaiah worked as loader/unloader under the 1st Respondent and on 18.04.2007, as per the direction of the employer, when her husband was loading mud to the trailer at Tank Bund of Akkur Hosahalli the driver of the tractor-trailer without any signal moved the vehicle forward in a rash and negligent manner and dashed against Chowdaiah, due to which he fell into the mud pit and mud fell on him, resulting in sustaining fatal injuries and despite being immediately taken to Government Hospital at Channapatna for treatment, the injured having succumbed. She has deposed that, the accident occurred during the course of employment of Chowdaiah with Channegowda, being employed as a loader in the tractor. She has further deposed that, her husband was aged 45 years at the time of accident and was getting salary of Rs. 4,000/- per month, on whom, herself, her son and the parents of the deceased were entirely depending upon for their livelihood, since her husband was the only earning member in the family.
Exs.P-1 to P-9 are the police records relating to the accident and death of Chowdaiah. Ex.P-9 is the insurance policy of the vehicles. 1st Respondent-employer has not opposed the claim. The evidence of PW-1 would show that, deceased was employed as a loader to load mud to the trailer attached to the tractor and during the course of employment, the accident having occurred and Chowdaiah sustaining fatal injuries and succumbing later. The employment, age of the deceased, occurrence of the accident are well established from the evidence. However, with regard to wages earned by the deceased, except the self-serving testimony of PW-1, there is no other credible proof. Being a loader of a trailer attached to the tractor, the accident having taken place on 18.04.2007, the wages assessed by the Commissioner cannot be termed as low. Noticing the age of the deceased to be 45 years, the relevant factor applicable being 169,44 and the accident having resulted in death, the compensation assessed being in accordance with law is justified. However, the Commissioner ought to have included Rs. 2,500/- towards funeral expenses in terms of Section 4(4) of the Act, since the accident resulted in death of the employee and the employer did not deposit the amount towards funeral expenses,
Ex.P-9 is the insurance policy for the period 21.12.2006 to 20.12.2007. The accident occurred on 13.04.2007. The tractor was in use for agricultural activity at the time of accident. Mud was being loaded to the trailer attached to the tractor, at which point of time, the accident occurred resulting in Chowdaiah sustaining fatal injuries and the consequential death. There is no breach of any of the policy conditions.
In the case of National Insurance Co. Ltd., v. Sri Maruthi and Ors. (MFA 5556, 6557, 6558 and 6559 of 2006 dated 27.12.2010) Division Bench has held as follows:
The combination of tractor-trailer is nothing short of a goods carriage. Therefore, when once it is held as goods carriage vehicle, by virtue of Section-II-1(1) of fully worded policy and also provisions of Section 147, the claim of the claimants on hand is covered. The claimants in the present case have rightly approached the Workmen''s Commissioner and the Commissioner was justified in holding that the injured claimants were coolies under the owner viz., the insured. In the present case, they were carrying stones for constructing a ridge in the land belonging to the insured so as to store the water. This is nothing but part and parcel of agricultural operations. The claimants were neither gratuitous passengers nor persons who were travelling in the tractor trailer for the purpose other than agricultural operations. Looking to the avocation of the claimants the computation of the compensation by the Commissioner is just and proper. Viewed from any angle, we do not find any good ground to interfere with the awards of the Commissioner. Therefore the claimants in the present case were rightly held as covered under Ex.R-2 policy.
The ratio of law squarely applies to the case on hand. In the circumstances, the Commissioner is justified in directing the Appellant to deposit the assessed compensation amount.
The liability to pay the compensation arose on the date of accident i.e., on 18.04.2007. The compensation was neither deposited before the commissioner nor was paid to the Petitioners by the employer or the insurer. In view of Section 4A(3) of the Act, the compensation having not been deposited when it fell due, there is liability to pay interest at 12% p.a. on the compensation amount. The date from which the interest has to be paid on the compensation/award has been considered and decided in the case of SHRI ALEEMUDDIN and Ors. (supra). The Commissioner is not justified in directing the deposit of compensation amount after expiry of 30 days from the date of the award. The view taken by the Commissioner being contrary to the decision in SHRI ALEEMUDDIN and Ors. (supra), the impugned order requires to be modified.
In the result, MFA 10915/08 is allowed in part.
The compensation payable stands determined at Rs. 2,56,660/-. The insurance company shall deposit the said amount with interest at 12% p.a. w.e.f. 18.05.2007. Consequently, MFA 70/09 filed by the Insurance company being untenable, shall stand dismissed.
The amount deposited in MFA 70/09 be transferred to the Office of the Commissioner.
In the circumstances of the case, the parties are directed to bear their respective costs.
Draw modified award.