IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.06.2011 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CMA.No.2608/2004 CMP.No.15436/2004 M/s.National Insurance Company Limited Salem-1 Appellant/ 3rd respondent Vs 1.Arjunan 2.Kannan 3.Lalitha ...1 to 3 Respondents/ Applicants 4.Mathian 5.Selvaraj ... 4 & 5 Respondents/ 1 & 2 Respondents Prayer:- This Civil Miscellaneous Appeal is filed against the order dated 21.6.2004 made in WC.No.19/2003 by the Deputy Labour Commissioner for Workmen Compensation, Salem. For Appellant : Mr.K.S.Narasimhan For Respondent : Mr.C.Prakasam-RR1to3 JUDGEMENT This Civil Miscellaneous Appeal is filed by the M/s.National Insurance Company Limited against the order dated 21.6.2004 made in WC.No.19/2003 by the Deputy Labour Commissioner for Workmen Compensation, Salem. 2. The brief facts giving rise to this appeal are stated as below:- The Respondents 1 to 3 herein are the claimants and they had filed the claim petition for compensation in respect of the death of Thangaraj, who is the son of the 1st Respondent and the brother of the Respondents 2 and 3. It is the case of the Respondents 1 to 3 that Thangaraj was engaged by the 4th Respondent Mathian as a loadman for carrying tiles in the Tractor-Trailer bearing Reg.No.TN-27-H-6855 belonging to the 5th Respondent Selvaraj. When the deceased Thangaraj was seated on the tiles loaded in the Trailer along with Mathiyan and the vehicle was proceeding near Raja Thottam, the Tractor-Trailer was being driven https://hcservices.ecourts.gov.in/hcservices/ by its driver rashly and negligently, as a result of which, it fell down in a pit, due to which, the deceased Thangaraj was thrown on the ground and the Tractor had run over him and died, while being taken to the hospital. 3. The deceased was aged 20 years at the time of the accident and was earning a daily wages of Rs.100/- to Rs.120/- and the claimants were depending on the sole income of the deceased. The Respondents 1 to 3 herein claimed a total compensation of Rs.5,00,000/- with interest. 4. The claim was resisted by the Insurance Company by contending that there was breach of policy, inasmuch as the deceased was carried in the Trailer, which was not permitted and the Tractor-Trailer was used for other than the agricultural purpose i.e. for carrying tiles of one Mathian, who had hired the vehicle belonging to the owner Selvaraj. Further, the driver of the Tractor was not holding a valid and effective driving licence at the relevant time. The age and income of the deceased were also denied. 5. The Deputy Labour Commissioner for Workmen compensation came to the conclusion that the deceased travelled in the vehicle belonging to the owner Selvaraj as a loadman and died in the course of his employment. No specific issue regarding breach of policy or the driver holding no valid licence was framed and no findings were given thereto. The Insurance Company was directed to deposit Rs.3,12,516/- as compensation to the claimants within a period of thirty days, in default to pay interest at the rate of 9 per cent per annum. 6. At the time of arguments before me, it is the breach of policy, which is vehemently argued before this court. It is argued that the Deputy Labour Commissioner for Workmen compensation did not give proper consideration to the facts and circumstances of the case. It was pointed that the claimants themselves stated in their petition that the deceased was engaged by Mathian, the 4th Respondent herein as a loadman and the Tractor-Trailer belonging to the 5th Respondent was hired by the said Mathian. It was argued that though the Tractor is a light motor vehicle, but when the Tractor is accompanied with Trailer, it would be a goods vehicle and therefore, when the driver possessed a licence only for driving light motor vehicle, it could not be said that he was having a valid and effective driving licence. 7. In so far as the actual accident is concerned, there is a death certificate produced as Ex.A2, which shows that the cause of death was due to shock and hemorrhage and the injuries sustained by him on his abdomen. As per the copy of FIR, which had been lodged by Mathian on the next day, it is stated therein that the deceased Thangaraj, who is his neighbour, was engaged as a https://hcservices.ecourts.gov.in/hcservices/ loadman and was travelling in the Trailer and it was driven rashly and negligently by its driver, as a result of which, the deceased fell down and came under the wheels of the Trailer-Tractor and sustained fatal injuries. 8. Arjunan, the father of the deceased was examined as PW.1, but he is not a witness to the incident. He has stated in his cross examination that his son was working as a coolie in the Tractor-Trailer belonging to the 5th Respondent Selvaraj. But, the averments made in the FIR Ex.A4 indicated that the tiles belonging to Mathian was carried in the Tractor-Trailer owned by Selvaraj and the deceased was sitting on the tiles loaded in the Trailer at the time of the accident. 9. RW.2, an Assistant working in the Insurance Company has stated that the driver, who drove the Tractor-Trailer, had no valid and effective licence, as he had licence only to drive light motor vehicles. The copy of the policy for both the Tractor and the Trailer have been produced, which shows that the Tractor and the Trailer were insured with the M/s.National Insurance Company Limited at the time of the accident. In Ex.A3 policy for the Tractor, premium has been paid for employees and for Trailer, no such premium is paid for employees. Only a basic premium was paid for the Tractor. 10. The testimony of RW.3, an Assistant from the RTO Office indicated that the driver Jagannathan had driving licence to drive LMVs and there was no badge for him to drive Trailer. 11. The evidence placed on record proved that the deceased Thangaraj was travelling by sitting on the tiles loaded in the Trailer at the time of the accident. As stated earlier, in the copy of the Insurance Policy produced for the Tractor, premium of Rs.15/- has been paid for "employees". In the claim petition, it is stated by the claimants that the deceased was an employee of the 4th Respondent, Mathiyan, but in evidence, PW.1 has stated that the deceased was working as a loadman in the Tractor-Trailer of the 5th Respondent Selvaraj, the owner of the vehicle. So, there is no definite and clear evidence to the effect that the deceased was a loadman working under the 5th Respondent, the owner of the vehicle. 12. In order to claim compensation under the Workmen Compensation Act, it is incumbent on the injured claimant or the dependents of the deceased to establish that the injuries or the death occurred out of and in the course of employment. The words "in the course of employment" would mean "in the course of the job, in which the employee was employed to do and happens to be incidental to it. Therefore, there has to be relationship between the injury and the employment in which the injured or the deceased is engaged, as the case may be. https://hcservices.ecourts.gov.in/hcservices/ 13. In other words, to sustain a claim petition under the Workmen Compensation Act, it has to be established that the deceased sustained injuries out of and during the course of the employment. There is no clear evidence in this case that the deceased was a workman under the insured i.e. the owner of the Tractor-Trailer. In this case, the Labour Commissioner has ignored the evidence placed on record and has come to the erroneous conclusion that the deceased was working as a loadman in the vehicle owned by the 5th Respondent Selvaraj, which warrants interference by this court. 14. Furthermore, Tractor is meant to be used for agricultural purposes and the Trailer attached to the Tractor, thus necessarily is required to be used for agricultural purposes only, unless registered otherwise. In this case, there is no such endorsement indicating that the Trailer can be used for the purposes other than the agricultural purposes. Even according to the claimants, tiles were carried in the Trailer which has been used for non agricultural purposes and therefore, the Tractor- Trailer has been used not for agricultural purposes. 15. In the case of M/s.National Insurance Company Limited Vs. Chooleti Bharatamma (2008-ACJ-268-SC), it is held that travelling with the goods itself does not disentitle anyone to protection under Section 147 of the Motor Vehicles Act, but the owner of the goods must travel in the cabin of the vehicle and not with the goods. In this case, the deceased, who was said to be travelling as a coolie, was carried on the tiles loaded in the Trailer drawn by the Tractor. 16. In the case of Rameshsay Singh Vs. New India Assurance Company Limited (2003-ACJ-1550-SC), it is laid down that the words "any person" and "any passenger" occurring in Section 147 though are of wide amplitude, do not cover employees other than those mentioned in proviso to sub section (b). Their Lordships considered meaning of "comprehensive Insurance Policy" and it is stated that it does not cover all third party risks, but only cover person or classes of persons specified in the policy. In the present case, as per the Policy Ex.A3 for the Tractor, a premium of Rs.15/- has been paid for the employees and there is nothing to suggest that it would include persons engaged for loading and unloading also. 17. At this juncture, it has to be pointed out that in the case of United India Insurance Company Limited Vs. Serjerao (2008-ACJ-254-SC), the following observations are made:- "So far as the question of liability regarding labourer https://hcservices.ecourts.gov.in/hcservices/ travelling in trolleys is concerned, the matter was considered by this court in Oriental Insurance Company Limited Vs. Brig Mohan (2007-ACJ-1909-SC) and it was held that the insurance Company has no liability." 18. It is no doubt true that it is for the insurer to prove by positive evidence that the driver had no valid driving licence. In this case, as discussed earlier, the copy of licence is produced on record and on a perusal of the same, it is clear that the driver had licence only to drive light motor vehicles. Though the Tractor is a light motor vehicle, however, here the Tractor was attached to Trailer and was drawing the Trailer and therefore, Tractor-Trailer together forms a transport vehicle. In such view of the matter, I am of the considered view that there was no valid and effective driving licence to the driver at the time of the accident. The driving licence of the driver of the offending vehicle, the copy of which is produced as Ex.R2, clearly indicates that he was authorised to drive light motor vehicles, but as Tractor-Trailer was used as goods carriage vehicle, there is breach of the terms and conditions of the policy. The driver of the Tractor was not authorised to drive the Tractor-Trailer, though he was authorised to drive only Tractor. There is also breach of condition, inasmuch as the deceased was travelling in the Trailer which is a goods carriage vehicle. So, there was breach of policy and so the Appellant is not liable to pay compensation to the claimants and as such, this Civil Miscellaneous Appeal deserves to be allowed. 19. In the result, this Civil Miscellaneous Appeal is allowed. The impugned order passed by the Deputy Labour Commissioner for the Workmen compensation at Salem is hereby set aside. However, liberty is given to the claimants to proceed against the Respondents 4 and 5 in a manner known to law. If any amount is deposited by the Appellant and lying with the Deputy Labour Commissioner for Workmen compensation at Salem, it may be withdrawn by the Appellant. No costs. Consequently, the connected MP is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Srcm https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Deputy Labour Commissioner for Workmen Compensation, Salem. Copy to The section Officer, VR Section, High Court, Madras 1 cc to Mr.C. Prakasam, Advocate, Sr. 32653 1 cc to Mr.K.S. Narasimhan, Advocate, Sr. 32466 CMA.No.2608/2004 RSY (CO) kk 5/7 https://hcservices.ecourts.gov.in/hcservices/