1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 30TH DAY OF OCTOBER, 2013 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.3460/2009 (WC) BETWEEN: [ENTITY], Through its Divisional Office, BH Road, Shimoga Rep. by its Divisional Manager Sri. R.N.Nayak. Appellant (By Sri.[ENTITY], Advocate for Sri.[ENTITY], Advocates, Associates) AND: 1. Smt. [ENTITY], Aged about 49 years w/o [ENTITY] 2. Kum. [ENTITY] Major in age D/o [ENTITY] Both are resident of Kelagur Kabbina Sethuve Post, Chickmagalur Taluk & District. 3. Sri. [ENTITY] s/o late Pakki Byari R/o 2nd Main Road 2 Vijayapura Layout Chikmagalur (Lorry driver) 4. Sri. [ENTITY] Aged about 48 years S/o Veeraswamy Naidu Resident of Mallenahalli, Chickmagalure Taluk 5. Sri. [ENTITY], Major S/o Rangappa Residing of Aravindanagar Basavanahalli, Chickmagalur (Owner of lorry No.KA-19-3615) Respondents (By Sri. [ENTITY], Advocate for R-1, R-2 & R-4; Notice to R-3 and R-5 are served) This Appeal is filed Under [SECTION] of [ACT] against the judgment dated 07.03.2009 passed in [CASE NUMBER] on the file of the Labour Officer and commissioner for workmen compensation, sub-division- 1, Chickmagalur awarding a compensation of Rs.4,07,484/- with interest @ 12% p.a. This Appeal coming on for hearing this day, the Court delivered the following: JUDGMENT
Insurer is in appeal questioning the correctness and legality of order and award passed by the Commissioner for Workmen's Compensation, Chikmagalur in [CASE NUMBER] dated 07.03.2009 whereunder claim petition filed by parents of deceased Sri [ENTITY] under [SECTION] of [ACT] has been allowed and a compensation of Rs.4,07,484/- with interest @ 12% p.a. payable after 30 days from the date of accident has been granted.
2. Heard the arguments of Sri [ENTITY], learned Advocate appearing for Sri [ENTITY], for appellant and Sri [ENTITY], learned Advocate appearing for respondents-1,2 & 4. Respondents-3 and 5 are served and unrepresented.
3. This Court having heard the learned Advocates appearing for the parties has admitted the appeal to consider following substantial question of law:
"Whether the Commissioner for Workmen's Compensation had erred in law in making the appellant-
Insurance Company liable as admittedly the deceased employee did not die out of the use of the insured Lorry?"
4. It is the contention of Sri [ENTITY], learned Advocate appearing for insurer that death of the workman was caused by a third party vehicle when he was away from insured lorry and accident did not occur out of employment and in the course of employment and as such, insurer is not liable to indemnify the claim. He would also submit that under [SECTION] of [ACT] there is no primary coverage to the workman in a vehicle and liability of the insurer to indemnify the insured is circumscribed under [SECTION] read with [SECTION] of [ACT] and unless employment injury was caused to the workman in an accident involving the insured vehicle, insurer would not be liable to indemnify the claim. In support of his submissions, he has relied upon following judgments:
1) [PRECEDENT].
2) [PRECEDENT].
3) [PRECEDENT].
5. Per contra, Sri [ENTITY], learned Advocate appearing for respondents-1,2 & 4 would support the order and award and seeks dismissal of the appeal. In support of his submission, he has relied upon following judgments:
1) [PRECEDENT].
2) [PRECEDENT].
3) [PRECEDENT].
4) [PRECEDENT].
RE:SUBSTANTIAL QUESTION OF LAW:
6. It is not in dispute that a claim petition has been filed by the claimants under [SECTION] of the [ACT] seeking compensation from respondents- 3 & 5 herein including the appellant herein contending interalia that on 03.04.2004 deceased Sri [ENTITY] on instructions of his employer as a loader, had proceeded in a lorry bearing registration No.KA-19-3615 and the said lorry after loading iron ore, proceeded towards Mangalore towards Kadur side and at the gate of MRPL to receive the token, deceased alighted from the vehicle and had sustained injury on account of being dashed by an unknown vehicle and he was shifted to Padmavathy Hospital, Suratkal and later shifted to Venlock Hospital, Mangalore where he was declared as brought dead. As such, parents and sister of deceased Sri [ENTITY] filed a claim petition.
Under [SECTION] of the [ACT] the employer will be liable to pay compensation in accordance with the provisions of the Act and it is not necessary that workers must be actually working on the date of injury or accident. For [SECTION] being attracted, three ingredients are required to be fulfilled namely, (1) there must be an injury; (2) it must arise in the course of employment and out of such employment ; and, (3) if injured or deceased dies of an injury sustained in such accident, irrespective of whether he is inside the vehicle or outside the vehicle, under the provisions of the [ACT] legal heirs of deceased would be entitled to seek compensation if it is proved that there was injury caused had nexus to the use of vehicle. Thus, to be entitled to seek compensation under the [ACT] what is required to be proved and established is that injured or deceased was an employee of the insured and he died on account of injuries sustained in such accident and it was in the course of employment and then, he/they would be entitled to seek compensation. However, in respect of claims arising out of [ACT] for being entitled to seek compensation under the Act it should arise in respect of accident involving death or bodily injury to a person arising out of the use of the vehicle and relationship of 'master' and 'servant' would not be necessary. If a claim is under the provisions of the [ACT] liability will be to that extent as provided under the [ACT]. However, if the claim is under the [ACT] as a third party, liability would be unlimited as provided under [SECTION] of [ACT]. Both the Acts namely, [ACT] and [ACT] being beneficial legislations, interpretation of the provisions should be in consonance with avowed object with which these enactments are enacted. However, if any other interpretation is sought to be put forward which would negate the object of the Act, then Courts would be loath in adopting such course.
7. It is the contention of insurer that death of Sri [ENTITY] was not on account of use of the vehicle in question which has been insured with the appellant and there being no nexus to the use of vehicle and cause of death, insurer need not indemnify the claim. At this juncture itself, it would be appropriate to note that in the instant case, insurer does not dispute the fact of issuance of policy to the offending vehicle which was produced and marked as Ex.R-1 and same being in force as on date of accident. A perusal of the same would indicate that apart from premium collected towards third party risks, insurer has also collected excess premium to cover 7 employees under the [ACT] Hence, it cannot be allowed to contend that risk of the workmen or employees of the insured would fall outside the scope of being indemnified by it as an insurer.
8. Though Mr.[ENTITY] , learned Advocate for the insurer would vehemently contend that deceased [ENTITY] was not in the employment of 5th respondent herein and same having been denied, burden was cast heavily on the claimants to prove the fact that deceased was employed under 5th respondent and same having not been discharged by them, question of insurer indemnifying the claim does not arise. Mother of the deceased has entered witness box as P.W.1. She has reiterated the contents of claim petition. It has been contended by her that deceased was a major and was working as a cleaner in the lorry owned by 5th respondent namely, lorry bearing No. KA-19/3615 and he was being paid daily wages at the rate of Rs.120/ per day. Owner of the offending vehicle was served and represented. Statement of objections also came to be filed. In the statement of objections filed by 5th respondent (owner) of the said lorry, it is admitted that deceased [ENTITY] was a cleaner working in the said lorry. Owner of the offending vehicle has also admitted that driver of the lorry was one Mr [ENTITY] who is none other than the complainant and based on his statement, FIR has been registered. His statement which has been relied upon by learned Advocate appearing for the appellant - insurer to contend that vehicle insured with appellant was not involved in the accident would indicate that driver of the vehicle has clearly and categorically stated that deceased Sri [ENTITY] was working as a cleaner in said lorry and he had accompanied him on 02.04.2004 and 03.04.2004 in the said vehicle. He has also stated that on account of there being a long queue at MRPL gate, deceased had alighted from the vehicle in question to obtain token at the gate, at which point of time, he was hit by an unknown vehicle resulting in injuries sustained by him. Inquest panchanama which came to be marked as Ex.P-3 would also indicate at column 11 that it has been entered that deceased [ENTITY] was a lorry cleaner. When the owner of the offending vehicle where deceased was working as a cleaner has filed statement of objections and admitted that deceased was an employee under him, question of proving admitted facts by the claimants does not arise, in view of [SECTION] of [ACT]. When the insurer has raised a plea contrary to what is admitted by the owner of the offending vehicle, then, naturally . burden shifts on the insurer to prove that plea raised by the claimants as well as by the owner of the offending vehicle is incorrect or false. Having raised such plea, insurer has failed to prove that deceased was not an employee under fifth respondent.
9. Yet another contention raised by learned Advocate appearing for insurer is that vehicle insured by it was not the cause of accident and as such, there is no nexus of passing liability on the appellant-insurer. Said contention cannot be accepted for reasons more than one.
In the case of [PRECEDENT], a Division Bench of this Court has held as under:
"The facts clearly show that the deceased was employed in connection with the motor vehicle insured by the appellant. The journey of the deceased in the lorry bearing No.[CASE NUMBER] is deemed to be in the course of employment under R1. The deceased may be the gratuitous passenger in [CASE NUMBER]. The claimants may have right and scope to sue the owner and insurer of the lorry MH-10/A 2286. But the deceased being the employee and in the course of employment met with the accident, therefore, R1 is liable to pay compensation. The appellant having issued a policy covering the risk under [ACT] is very much liable to pay compensation. When the deceased was travelling in the lorry MH-10 2286, there will be notional extension of employment and such a journey would be in the course of employment and within the meaning of proviso to [SECTION] of [ACT]."
10. As already noticed herein above, for a claim under [SECTION] of [ACT] to be invoked, ingredients to be satisfied are death or injury as the case may be, in the course of employment and arising out of employment. Though learned Advocates appearing for parties have relied upon the judgments referred to herein supra, it requires to be noticed in the facts of the present case it is proved that deceased [ENTITY] was working as a cleaner in the offending vehicle in question and said vehicle has been insured by the appellant insurer not only to cover the risk of third parties but also to cover 7 employees under the [ACT] for which additional sum of Rs.175/- has been collected and it is the specific case of the claimants as evidenced from the records namely, the complaint - Ex.P-2 and inquest panchanama Ex.P-3 which indicates that deceased [ENTITY] sustained bodily injuries in the discharge of his duties having alighted from vehicle - lorry on 03.04.2004 and when he proceeded to procure token at MRPL gate, he is said to have been hit by an unknown vehicle. Accident occurred in the course of employment and injury sustained by him resulted in his death while he was in employment. In that view of the matter, contention of learned Advocate appearing for insurer-appellant cannot be accepted and it is liable to be rejected. Accordingly, it stands rejected.
11. In fact, in the case of [PRECEDENT] driver of the motor vehicle had stopped the vehicle temporarily en route to attend call of nature and was hit by a truck resulting in his death and this Court has held that temporary stoppage of vehicle and driver getting out of vehicle for bonafide reason does not result in suspension/cessation of legal contract of driving of vehicle merely because vehicle in which he was travelling is not involved in the accident and insurance company was liable to pay compensation under [ACT]. In the present case, we are faced with same factual matrix. The death of [ENTITY] being on account of his employment as a cleaner and on the instructions of the driver, he had proceeded to procure the token at MRPL gate and was hit by an unknown truck and said injury having arisen out of employment, it cannot be gainsaid by the appellant-insurer that it should be absolved of the liability as there was no nexus to the use of vehicle and cause of his death. But for his travelling in the offending vehicle as an employee, he would not have sustained injury which resulted in his death.
12. In that view of the matter, I am of the view that substantial question of law formulated herein above requires to be answered in the negative i.e., against insurer - company and in favour of claimants and there being no other good ground to interfere with the award, I proceed to pass the following order:
(1) Appeal is hereby dismissed with costs.
(2) Order and award passed by Commissioner of Workmen's Compensation, Chikmagalur in [CASE NUMBER] is hereby confirmed. (3) Amount in deposit is ordered to be apportioned between the claimants as under: (i) A sum of Rs.2,50,000/- with proportionate
interest is apportioned to first claimant i.e., first respondent herein.
(ii) A sum of Rs.50,000/- with proportionate interest is apportioned to second claimant i.e., second respondent herein.
(iii) Balance sum of Rs.1,07,484/- with proportionate interest is apportioned to third claimant i.e., fourth respondent herein.
(iv) Out of the amount apportioned in favour of first claimant i.e., first respondent herein, 60% of the amount with proportionate interest shall be released by the Registry.
(v) Out of the amount apportioned in favour of second claimant i.e., second respondent herein, 50% of the amount with proportionate interest shall be released by the Registry.
(vi) Out of the amount apportioned in favour of third claimant i.e., fourth respondent herein, 60% of the amount with proportionate interest shall be released by the Registry.
(vii) Balance amount shall be transmitted by the Registry to the jurisdictional Commissioner for being deposited in a Fixed Deposit for a period of three years and they would be entitled to withdraw periodical interests.
(viii) Costs is quantified at Rs.5,000/- payable by appellant-insurer to respondents-
1,2 & 4 jointly.
JUDGE *sp