IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE DAY OF JULY, 2011. BEFORE THE HON’BLE MR.JUSTICE K.GOVINDARAJULU MFA No.4079/2005 C/W 4083/2005, 4929/2005, 4090/2065& 4086/2005 MFA No.4079/2005 BETWEEN: THE ORIENTAL INSURANCE CO LTD BIDARI COMPLEX, 1ST FLOOR S S FRONT ROAD, BLJAPU R, BY ITS REGIONAL OFFICE. NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE, REP. BY ITS DEPUTY MANAGER. .APPELLANT (By Sri. G N RAICHUR, ADV.) AND I. APPASI 5/0 GANGAPPA MUMANABAD AGE: h YEARS, R/AT KABANADDI TQ;BASAVANA BAGEWADI. 2. UDAYAKUMAR S/C RAYA G()UDA UMARANI iviAJORR/ATJUMNAL. BIJAPUR DIST. V RESPONDENTS (By Sri. D NAGARAJ M S SHARIFF FOR RI. SRI.S.S,DODAMANI. ADV, FOR P2) MFA FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD DATED 8.2.04 PASSED IN NE.WCA.SR.37/04 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORkMEN’S COMPENSATION BAC 1 ALKOT AWARDING COMPLNTION OF RS 1 82 204/ WITH INTEREST AT 12 P.A. AFTER 30 DAYS FROM THE DATE OF ACCIDENT I.E.. FROM 24.7.03 TILL THE DATE OF ORDER & DIRECTING THE APPELLANT HEREIN TO DEPOSIT THE SAME. MFA 4083/2005 BETWEEN: THE ORIENTAL INSURANCE CO LTD BIDARI COMPLEX, 1ST FLOOR S. S FRONT ROAD, BIJAPUR, BY ITS REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE, REP. BY ITS DEPUTY MANAGER. APPELLANT (By Sri. G N RAICHUR, ADV.) AND i. MR.SHRISHAIL S/O NINGAPPA UGRAN AGE: 23 YEARS. R/AT KABARADDI TOWN TQBASAVANA BAGEWADI BIJAPUR DISTRICT. 2. UDAYAKUMAR S/O RAYA GOUDA UMARANI MAJORR/AT JUMNAL, BIJAPUR DIST, RESPONDENTS (By Sri. D NAGARAJ, ADV. FoR Ri. SRI.S.S.DODAMANI. ADV. FOR P2) MFA FILED LS 300i OF \V.C ACT AHAINST THE JUDGMENT AND AWARD DATED 5.2.04 PASSED IN NO.WCASR38 04 ON THE FILE OP THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION. BAGALKOT, AWARDING COMPENSATION OP RSI,85,95I/ WITH INTEREST AT 12, P.A. AF1’ER 30 DAYS FROM THE DATE OF ACCIDENT I.E.. FROM 24.7.03 TILL THE DATE oF ORDER ?v, DIRECTING THE APPELLANT HEREIN TO DEPOSIT THE SAME. MFA 4929/2005 BETWEEN: THE ORIENTAL INSURANCE CO LTD BIDARI COMPLEX, 1ST FLOOR S. S FRONT ROAD, BIJAPUR, BY ITS REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD. BANGALORE, REP. BY ITS DEPUTY MANAGER. APPELLANT (By Sri. P.B.RAJU, ADV.) AND I. SMT.MIRAJA BEE W/O LATE ABDUL SAB CHOWDURY AGED 39 YEARS, 2. SRI. HUSSEIN SAB S/O ABDUL SAB CH()WDURY AGED 20 YEARS, 3. SHABBIRA D/O ABDUL SAB CHOWDURY AGED 19 YEARS ALL R/O MAHALINGAPURA MUDHOLA TALUK 4. SRI.UDAYAKIJMAR S/C) RAYA GOUDA UMARANI 4-- -4- AGED NIAJORR:O JOURNAL BLJAPUR DISTRICT. RESPONDENTS (By Sri. BABU H METAGUDDA. ADV. FOR SRI. D .NAGARAJ FOR R1-R3. R4 SERVICE H(S) MFA FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD DATED 8,2.04 PASSED IN NO.WCA.SR.30/04 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION. BAGALKOT, AWARDING COMPENSATION OP RS.2,84.340/- WITH INTEREST AT I2 P.A. AFFER 30 DAYS FROM THE DATE OF ACCIDENT TILL THE DATE OF ORDER & DIRECTING THE APPELLANT HEREIN TO DEPOSIT THE SAME. MFA 4086/2005 BETWEEN: THE ORIENTAL INSURANCE CO LTD BIDARI COMPLEX, 1 ST FLOOR S. S FRONT ROAD, BIJAPUR, BY ITS REGIONAL OFFICE, NO.44/45, LEE) SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE, REP. BY ITS DEPUTY MANAGER. APPELLANT (By Sri. G N RAICHUR, ADV. AND 1. MR. GURAPPA S/O BASAPPA TELGI, AGE: MAJOR, R/AT KABAKADDI TO\VN TQ;BASAVANA BAGEWADI BIJAPUR DISTRICT. 2. UDAYAKUMAR S/C) RAYA GOUDA UMARANI MAJORR/AT JUMNAL, BAGALKOT DIST. RESPONDENTS (By Sri, D NAGARAJ, FOR Ri. SRI.S.S.DODAMANI. ADV. FOR R2) MFA FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD DATED 8.204 PASSED IN NO.WCA.SR.39/04 ON THE FILE OP THE LABOUR OFFICER AND COMMISSIONER FUR WORKMEN COMPENSATION, BAGALKOT, AWARDIN(i COMPENSATION OF RS.2,56,921/- WITH INTEREST AT 12°o PA. AVER 30 DAYS FROM THE DATE OF ACCIDENT I.E.. FROM 24.7.03 TILL THE DATE OF ORDER & DIRECTING THE APPELLANT HEREIN TO DEPOSIT THE SAME. MFA 4090/2005 BETWEEN: THE ORIENTAL INSURANCE CO. LTD.. BIDARI COMPLEX, 1 FLOOR. S.S.FRONT ROAD, BIJAPUR, BY ITS REGIONAL OFFICE, NO.44-45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE. REP. BY ITS DEPUTY MANAGER ...APPELLANT (BY SRI.G.N.RAICHUR, ADVOCATE) AND: MR.NANDA BASAPPA S/O DUNDAPPA BIRADAR, AGED 25 YEARS. R/O KABAKADDI TOWN, TALUK BASAVANA BAGEWADI BIJAPUR DISTRICT. 2. SRI.UDAYAKUMAR, S/O RAYA (IOUDA UMARANI AGED MAJOR, R/O JUMNAL. BIJAPUR DISTRICT. RESPONDENTS (BY SRI.BABU H MATAGUDDA. SRI.D. NAGARAJ FOR M.S.SHARIFF. ADVS, FOR RI -6- 4 SRI.S.S.DODAMANI, ADV. FOR R2) THIS MFA FILED U/S 30(1) OF W.C. ACT. AGAINST THE JUDGMENT AND AWARD DATED 8.2.2005 PASSED IN WCA:SR:40/2004 ON THE FILE OF THE COMMISSIONER FOR WORKMEN’S COMPENSATION, BAGALKOT, AWARDING COMPENSATION OF RS.2,01,866/- WITH INTEREST AT 12% AFTER 30 DAYS FROM THE DATE OF ACCIDENT TILL THE DATE OF ORDER. THESE MFAs COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Respondent No.2 in WC No.37/2004, 38/2004, 39/2004, 40/2004, on the ifie of the Commissioner for Workmen’s Compensation, Bagalkot, is the appellants in MFA Nos. 4929/2005, 4079/2005, 4083/2005, 4086/2005 and 4090/2005. 2. The parties will be referred according to their status before the Commissioner for Workmen’s Compensation. 3. Claimants in MFA Nos. 4929/2005, 4079/2005, 4083/2005, 4086/2005, 4090/2005 claim to be the loaders in the Tractor and Trailer, while claimant in MFA 4086/2005 claim to be the driver of the tractor. It is their case that they were moving in the Tractor and Trailer bearing Registration No.KA-28 T-1473, T 1474 on 23/6/20O4 then the driver of the tractor has driven the -7- vehicle rashly negligently and caused the accident. So. contend that they are entitled for compensation for the pain suffering. 4. Learned advocate Sri G.N.Raichur on behalf of the Insurance Company substantiates his clients case with the following submissions: - i) The Insurance Company is not liable to pay compensation in the facts of the case as the policy issued do not show extra premium being paid. So loaders are not covered. 5. Place reliance on United India Insurance Co.Ltd. Vs. Serjerao and Others reported in 2008 SAR (Civil) 69 SC, wherein the Apex Court has held that for the labourers travelling in the tractor, the company is not liable to pay compensation. 6. Also place reliance on the order of this Court passed in MFA Nos.8133/2004 C/w 7958/2004 and 8124/2004, wherein this Court has held that unless there is an extra premium paid, the hamalies are not covered. 7. Also place reliance on New India Assurance Company Ltd., Vs. Surya Bee and others (2010 ACJ 1145), wherein the Andhra Pradesh High Court has held that the cleaner is not covered under the policy, so the company is absolved from paving compensation. Place reliance on the ruling in M.Jaycmncz Vs.K.Rczdha Krishna Reddy and another (2005 ACJ 344) contend that the Court has to consider about the assessment of the disability and it is a substantial question. Also place reliance on the ruling of Oriental Insurance Co. Ltd., Vs. Mohd. Nasir and Another “2009(3)T.A.C.598 (S.c,) wherein the Hon’ble Apex Court has held that disability cannot be more than what an employee would get, if there is permanent disablement. 8. Place reliance on Palraj Vs. The Divisional Controller, NEKRTC, contend that the interest has to be paid from the date of award and not earlier. 9. The learned advocate for the claimant submits that the Division Bench has held that the coolies in tractor are covered by the farmers package policy. 10. In regard to the assessment of disability, he contends that the Commissioner has assessed the loss of earning capacity. So the 4- approach is proper. - t) 1 1. Thirdly, he contends that interest has to he awarded from the date of the accident. 12. Carefully considered the material submissions placed before the Court. The accident is admitted, actionable negligence is not disputed. In so far as the claimant in MPA Nos. 4929/2005, 4079/2005, 4083/2005, 4086/2005, 4090/2005, the point to be considered is about liability of the company. The subject placed before the Division Bench was a similar subject wherein the Division Bench has held in judgment dated 17/12/2010 that the company is liable, in view of the Division Bench rulings on this subject and the facts placed before the Court is considered and compared with to the rulings placed before the Courts by the learned advocate Sri. G.NLRaichur. In United India Insurance Company Vs. State, the subject was whether the tractor was used for commercial purpose or agricultural purpose. The Hon’ble Apex Court has remanded the case for fresh consideration. So, this Ruling will not help the Insurance Company. 13. In United India Insurance Company Vs. Sara B, Andra Pradesh High Court was considered the coverage of cleaner, when . . -10- the policy covered in the 5 coolies said subject before the Court is not the cleaner this Rule is also not attracted. In regard to MFA 8 133/2004 is considered, the Court absolves 5 coolies can be permitted in a goods vehicle and if there is more than the said member then it is to be covered by additional premium. No such factual situation is placed in the facts of this case. So this ruling is also not helpful to the Insurance Company. IMT 39 relied reads as follows: - IMT. 39. Legal Liability to persons employed in connection with the operation and/or maintaining and/or Loading an&or Unloading of Motor Vehicles. (For GOODS VEHICLE) In consideration of the payment of an additional premium of * it is hereby understood and agreed that notwithstanding anything contained herein to the contrar) the insurer shall indemnify the insured against his legal liability under thc Workmen’s Compensation Act. 1923 and subsequent amendments of that Act prior to the date of this Endorsement, the Fatal Accidents Act 1855 or at Common Law in respect of personal irjjury to any paid driver (or cleaner or conductor or person employed in loading/or unloading but in any case not exceeding seven in number including driver and cleaner) whilst engaged in the service of the insured in such occupation in connection with the .... and not exceeding seven in number and will in addition be responsible for all costs and expenses incurred with its written consent. Provided always that: (1) this Endorsement does not indemnit\’ the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurer or Group of Underwriters a Policy of Insurance in respect of liability as herein defined for his general employees. (2) the insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations. (3) the insured shall keep a record of the name of each driver cleaner conductor or person employed iii loading and.’or unloadii and the amount of v aces saIar and other earninus paid to such einpIo ces and shall at times all the insurer to inspect such record. (4) in the event of the Polic heing cancelled at the request of the insured no rc(und of the premium paid in respeci of this I ndorsement ‘ ill be al lo\\ ed I he premium to he calculated at the rate of Rs25 — per dri er and or cleaner or conductor and or person emplo ed in loadi nc and or unloadmg hut not exceeding the numbet permitted h\ the Motor Vehicles Act I 98X including dri\ er and cleaner. Subject other ise to the terms exceptions conditions and limitations of this Polic\ except so lir as necessar\ to meet the requirements of the Motor Vehicles Act. I S)8. 14. Submission on reliance of IMT 39 can not be accepted. According to the learned advocate Sri.G.N.Raichur, in regard to the Tractor and Trailer, except driver no one is covered. IMT Reads that persons employed in connection with the operation of the Motor Vehicle is covered. Agricultural coollies comes within the category of agricultural activity. So IMT 39 is not attracted. 15. Regarding percentage of disability is concerned there is force in the submission of the learned advocate for the Insurance Company. So each of the cases are taken up consideration. 16. A careful comparison of the injuries with the disability assessed, the same will not fall within the ratio of the Apex Court in Oriental Insurance Co.Ltd,, Vs. Mohd.Nasir and Another, wherein the 4— - 12 Apex Court has held that the compensation arrived at should not be more than the disability suffered. So, the submission of the learned advocate for the claimant is rejected. Submission of the learned advocate for the Insurance Company is accepted. So, tested with this ratio, Court is of the considered opinion that the disability assessed has to be reduced in each of the claims in WC Nos,37/2004, 38/2004, 39/2004, 40/2004 to an extent of 40%. It is reduced accordingly. In so far as the death case in MFA 4929/2005, it is not altered. 18. In regard to the interest, I have carefully considered the ratio in Palraj Vs. The Divisional Controller, NEKRTC, decided by the Apex Court. Apex Court was considering about the gainful employment of the Workman to decide in MVC. The compensation is awarded from the date of application. So, adopt the principles laid down in Sarala varma and the Court holds that the claimants are entitled for interest from the date of application, as it is not the case of the claimant that they have notified Insurance Company claiming compensation before filing claim application. So the submission is accepted in part. * MPA No. 4929,12005 is dismissed. MFA Nos.4079/2005. 4083/2005. 4090/2006 & 4086/2005 are allowed in part. Interest shall be calculated 30 days from the date of application. Here take the orders note what is awarded reduce 40% in each case and fix - 1,85,95/- 2,01,866/- The amount in deposit is to be transferred to the Commissioner for payment. sd/ JUDGE Case.No iiC.No. 4929 36/04 4079 j 37/04 4083 38/04 14Q9Q •40/04 I Amount awarded Amount fixed 2, 844O/- i,7OO4/ 1,82,204/- 1,09,322/- 4086 39/04 1,11,571/- 1,21,120/- 2,56,921/- 1,54,153/- vN2 Vmb