MFA/7818/2006 of BAJAJ ALLIANZ GENERAL INSURANCE CO LTD Vs SHARANAPPA S/O BHIMAPPA KAMATHIGI on 13 November 2008

JUDGMENT

Tnese three appeals are by tne insurer of tne tractor- trailer pearing No.TMP/268/MH 14 against the awards granting compensation to the legal heirs of two individualswho died and to the person who suffered injuries in a motorvenicie accident on 74.6.7004.

2. M.F.A.7816/06 is directed against the award passed inWCA.143/04 in favour of the 1[';]respondent and his wife-Kastura Bai regarding the death of their son-NingappaKasappa Singe. M.F.A.7817/06 is directed against theaward passed in WCA.155/04 in favour of the wife andchildren of Ningappa Malli and also Lakshmibai-mother ofthe deceased. M.F.A./7818/06 is directed against the awardpassed in WCA.156/04 in favour of Sharanappa grantingnim compensation for the injuries suffered by nim.

3. Heard Mr.Veeresh B.Patil for the appellants and SriSanganagouda V.Biradar and Sri Bapugouda Siddappa forthe respondents, and perused records in supplementationtnereto whnicn reveal

a) WCA.143/04 was filed by Kasappa Singe and hiswife-KasturaBai seeking compensation for the death of theirson-Ningappa Kasappa Singe. WCA.155/04 was filed by Shakuntala along with Sharanappa, Annaraya (children) andLaxmibai (mother-in-law) seeking compensation for thedeath of her husband-Ningappa Malli, s/o VirupakshappaMali WCA.156/04 was filed by Sharanappa seekingcompensation for the injuries sustained by him on theassertive contention that they were all employees of theinsured owner of the vehicle, i.e. tractor-trailer bearingNo.TMP/268/MH/14 for loading and unloading the materialstransported|inthevehicle,andwhileunder'B$9employment, when they were travelling in the said venicleon 24.6.2004, due to sheer negligence of the driver of thevenicle, the accident occurred resulting in NingappaKasappa Singe and Ningappa Malli suffering fatal injuriesand injuries to Snaranappa.

b) It is their specific case that the victims weretravelling as employees of the insured owner and thus thelegal heirs of the victims who died as also the victim whosuffered injuries were entitled to compensation under theprovisions of the Workmen’s Compensation Act. It is alsotheir specific case that they were employed by the insured owner of the vehicle-Eeragonda on a monthly salary ofRs.4,500/-.

c) Tne circumstances in whicn the accident occurredreveals that under the instructions of Eeragonda, tnevictims travelled in tne tractor on 24.6.7004 to unloadstones on tne land of one Chandrashekar. Tney hadcompleted the first trip and when they were on the secondtrip, due to recklessness of the driver, the venicle capsized.

d) In the claim petitions filed before the Commissionerfor Workmen's Compensation, they brougnt into the partyarrayEeragondaand.also|the.appellant.nerein('respondents and they were duly notified.

e) Eeragonda did not dispute the assertive contentionof the claimants that the victims were employees under himand the unfortunate accident resulted in the death of twoindividuals and injuries to one. Tne insured owner also didnot dispute that the victims were employed by him inrelation to loading and unloading of the venicie insured.

f) The appellant-insurer resisted the claim on theground victims were gratuitous passengers and thus werenot permitted to be carried in the insured vehicie which wasused at the time of the accident for transporting the goods.It is their case that the venicle having been used as a goodsvenhicie,CarryingOT|DaSsengers IS|pronibited()*consequently the insurance company is absolved of thelability.

Conclusion

g)In.tneenquiry|thatensued.before;9:Commissioner|forWorkmen'sCompensation,;9:Commissioner found no favour with the defence of theappellants and rejecting their contention, neld the victimswere employees of the insured owner and were entitled tocompensation,andtnat|tneclaim petitions|%:<:maintainable. However, the Commissioner took the viewtnat the wages paid to tne deceased victims was Rs.2,000/-p.IM)andapplyingthefactorOT|225.22,|(%(<*:*compensation to the legal heirs in a sum of Rs.2,32,540/-and Rs.1,58,065/- respectively. As regards the injuredvictim, it held that it established the injuries suffered resulting in 40% disability and taking his income atRs.2,065/-, awarded nim compensation in a sum _ Rs.83,97/5/-

n) Aggrieved by the order of the Commissioner, theinsurer is in appeal.

4Sri Veeresh B.Patil would reiterate the same defenceurged before the Commissioner to contend that the policyissued by the appellant was to cover the risk of the tractor-trailer to be used only for agricultural activity, but since thevenicle was used for transportation of stones when theaccident occurred, user of the vehicle had changed fromagricultural purpose to goods venicle, and therefore therewas violation of the terms of the policy. He would submit asthe venicle was used for carrying goods at the relevantpoint of time, the victims travelling in it being gratuitouspassengers are not covered statutorily under the policy toindemnify the owner’s liability. Therefore he contends thatthe direction of the Commissioner to the appellant to

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discharge the award is wholly unsustainable and has madereference to tne insurance policy issued.

5 As regards the injured claimant is concerned, hewould submit the evidence tendered by him does establisnhe had suffered injuries resulting in physical disability of40% and therefore grant of compensation to nim was alsonot permissible.

6. Against such proposition of the appellant-insuranceCOmMpaNnyjiearneccounse|lappearingfor;9:victims/claimants would submit that the insurance policyissued by the appellant is a Farmers Package Policy and theappellant has collected a premium of Rs.510/- which is overand above the tariff provided by law. Therefore collection ofextra premium has rendered the policy enlarged to coverthe liability of the claimants. In this regard they wouldsubmit that even though the accident has occurred whilethe victims were travelling in the trailer portion of thevehicle, since it was propelled by the tractor, it becomes immaterial wnether stones were being carried or agriculturalproduce.

J Sri Sanganagouda Biradar and Sri BapugoudaSiaddappa have advanced arguments on similar lines tnegate the contention of Sri Veeresn B.Patil.

8 Keeping in mind the contentions of both sides, I haveexamined tne material made available on record.

9 Firstly it must be noticed that occurrence of theaccident on 24.6.2004 involving the venicle insured by theappellant is not in dispute. It is also not in dispute that insucn unfortunate accident, Ningappa Kasappa Singe andNingappa Malli died leaving behind claimants referred toabove as their legal neirs. Similarly Sharanappa-one of thepersons travelling suffered injuries. Therefore the fact ofdeath of two individuals and sufferance of injuries by one iswell establisned. It Is aliso establisned tnat the Insurancepolicy issued by the appellant was valid as on the date ofthe acciadent

10. Police investigation records would reveal that thevictims were made to sit on the heap of stones when theunfortunate accident occurred when the vehicle capsized.Tne moot question is, in wnat capacity they were travelling.Whether they were gratuitouS passengers or loadersemployed by the insured owner? Tnis is a question of fact.

11. Learned counsel, Sri Veeresh B.Patil would refer tothe police records to snow there is material on recordindicating the victims were travelling aS passengers. InSupport of sucn material, there is no ocular or documentaryevidence produced by the insurance company before theCommissioner. We are, therefore, left with the sworntestimony of the claimants who Nave, in unequivocal termsdeposed to the fact that Ningappa Kasappa Singe andNingappa Malli were employed by the insured owner andthere is direct evidence of Sharanappa-victim to say he wasemployed by the insured owner. Sucn sworn statementtnougn|WaSsubjected|TO cross-examinationDY;9:insurance company, tney could salvage nothing. Therefore,it has remained unimpeacned.

17. It is also material to note, insured owner nas notdisputed victims were his employees. In this fact situation,we expect the insurance company to lead evidence tosubstantiate that the victims were not employees of theinsured owner and they were not travelling in the capacityof loaders when the incident occurred. All that theinsurance company is contending is, the policy issued is aFarmers Package Policy and not a goods vehicle policy. It istrue that the policy reads as Farmers Package Policy butthe question is, so far as the victims are concerned, couldsuch a plea be accepted?

13. It must be noticed the provision of Section 147 of theMotor Vehicles Act provides a remedy in law to victims of amotor vehicle accident who are travelling in a goods vehicleas loaders, or such of the employees of the insured whowere employed in relation to the vehicle insured. The testtherefore, is: If the victims were employed by the insuredowner in whatever capacity, either as loaders or in relationto the use of the vehicle, then by virtue of Section 14/7 o the Motor Vehicles Act, even if it is a goods vehicle, theinsurance company is statutorily liable to indemnify tneinsured.

14. AT|least tne insurance company could)9(F:Summoned the insured owner as a witness even thougn nenas not taken part in the proceedings, or the investigatingofficer who has investigated the case. On this basis, itcould be said merely because the victims died whiletravelling in the vehicle, for loading and unloading stones, itwill not absolve the insurance company. Also it must beneld, merely because the vehicle was given by the insuredowner for transporting stones for one Chandrasnekar, itdoes not absolve the insurance company so long as it isestablisned that the victims died wnile doing the assignmentof the insured owner In relation to the venicie.

LD).It must also be noticed the maximum basic premium|prescribed for a trailer by Tariff Regulatory Authority ofIndia (TRAI) is Rs.300/-. Tne insurance company hascollected Rs.510/- which is Rs.210/- in excess of the basic

Issues

premium. Therefore, the company is liable to explain tocover wnicn risk they had collected Rs.210/-. Tne answer isobvious. Collection of extra premium of Rs.210/- renderstne policy to be treated as a contractual policy attracting tneprovisions of sub-section (5) of Section 14/7 of the MotorVenicies Act.

16. In the circumstances, viewed from any angle, I donot find any of the grounds urged in the appeals against tnesubstantial question of law for decision and the defence ofthe insurance company that there is violation of terms ofthe insurance policy find no support from the materialavailable on record.

1/7In the result, I do not find any infirmity in the awardpassed by the Commissioner for Workmen’s Compensationin WCA. Nos.143/04, 155/04 and 156/04 impugned in theseappeals. The awards are confirmed. The appeals areadismissed with no order as to costs FD9N

Sd/-JUDGE