(Prayer: This MFA is filed under section 30(1) of the Workmen s Compensation Act against the order dated 30.05.2008 passed in WCA/SR-91/2007 on the file of the Labour Officer and Commissioner for Workmen Compensation, Sub Division No.2, Belgaum, Partly allowing the compensation and seeking enhancement of compensation.)
1. These appeals are filed by the claimants and also the insurance company challenging the legality and correctness of the judgment and order dated 30th May 2008 made in WCA:SR-91/2007 passed by the Labour Officer and Commissioner for Workmen s Compensation, Sub Division-II, Belagavi (hereinafter referred to as WCC for short).
2. For the sake of convenience and better understanding of the case, the parties are referred to as per their rankings before the WCC.
3. The claimants filed the claim petition contending that the husband of claimant No. 1 and father of claimant Nos. 2 to 4 viz., Vasant Magadum was working as a driller in the tractor No.RSE-7763 belonging to respondent No.1-owner. On 26.08.2001, as per the instructions of respondent No.1-owner of the tractor, while Vasant Magadum was travelling on the said tractor for the purpose of drilling work, near koonganalli check post due to rash and negligent driving of the tractor by its driver, it turned turtle. As a result of which, he fell down and succumbed to the grievous injuries. They contended that on the date of death, the deceased was aged about 36 years and was earning Rs.3,000/- per month and Rs.25/- as daily batta. The claimants contended that the deceased died during the course and out of employment, while travelling in the tractor, which was owned by the 1st respondent and the said tractor having been insured with respondent No.2, both respondent Nos. 1 and 2 were liable to compensate and hence, they sought for compensation of Rs.6,00,000/- with interest at 18% per annum.
4. In response to the notice issued by WCC, the respondents entered appearance. However, only respondent No.2-insurer of the tractor filed the written statement denying the entire averments made in the claim petition and also disputing the relationship of master and servant between the deceased and the owner of the tractor. The insurance policy issued in the respect of the tractor does not cover the risk of the driller working in the said tractor, who was sitting on the mudguard of the tractor. Hence, the insurance company was not liable to compensate the claimant and sought for dismissal of the claim petition.
5. On the basis of pleadings of the parties, the WCC framed necessary issues.
6. Claimant No. 1 examined herself as P.W.1 and got marked the documents as Exs.P.1 to P.9. On behalf of the respondents, no oral evidence was let in. However, the insurance policy was got marked as Ex.R.2-1.
7. The WCC, after appreciating the oral and documentary evidence let in by the parties, taking into consideration the IMV report, copy of FIR, spot panchanama and the complaint, held that the deceased was working as a driller in the tractor bearing No.RSE-7763 and on 26.08.2001 he died during the course and out of employment and the claimants being dependants of the deceased were entitled for compensation. With regard to the quantum of compensation, the WCC determining the income of the deceased as Rs.3,000/- per month and taking 50% thereof, and applying relevant factor 194.64, as he was aged about 35 years as on the date of accident, awarded a sum of Rs. 2,91,960/- with interest at 12% from one month after the date of passing the order. With regard to the liability is concerned, though the insurance company had taken the contention that insurance policy do not cover the risk of a driller, from the perusal of the policy, it is evident that additional premium was paid in respect of driller also, hence the WCC fastened liability on the insurance company to compensate the claimants. Being aggrieved by the judgment and order passed by the WCC, the claimants and the insurer of the vehicle have filed these appeals.
8. Sri. L.B. Mannoddar, advocate appearing for the insurance company, contended that the judgment and order passed by the WCC is contrary to law. The deceased was travelling on the mudguard of tractor. The tractor in question has only one seating capacity i.e. only the driver can sit in the tractor and no other person can sit on the tractor and there being violation of conditions of insurance the policy, the insurance company is not liable to compensate the claimant. He further contended that the accident occurred in the year 2001. Immediately thereafter, the wife and children of the deceased filed a claim petition in M.V.C. No.1826/2001. Subsequently, the claimants filed another petition in W.C.No. 222/2002 seeking compensation under the Workmen s Compensation Act, which came to be dismissed for default on 10.07.2003. Thereafter, the claimants filed one more claim petition WC No. 137/2006 which was renumbered as WC:NF:91/2007. He submits that M.V.C. No. 1826/2001 was withdrawn on 05.01.2007. Therefore, he submits that the earlier claim petition filed by the claimants having been dismissed for default, the present claim petition seeking compensation is not maintainable and the only remedy that was open for them is to seek recalling of the order passed in W.C. No. 222/2002. He also contended that there is an inordinate delay in filing the appeal and hence sought for dismissal of the appeal. In support of his contentions, he relied on the decisions of the Supreme Court in the cases of Susheelabai and others versus Basavaraj and another reported in (2009)17 SCC 663 and New India Assurance Co.Ltd. Vs Darshana Devi and others reported in 2008 ACJ 1388 and also on a division bench decision of this court in the case of National Insurance Co. Ltd Versus Bramaranbike and others reported in 2006 ACJ 671.
9. On the other hand, Sri Ashok A.Naik, advocate appearing for the claimants contended that while awarding the compensation, the Commissioner has not taken into consideration the daily batta of Rs. 25/- paid to the deceased. Further contended that deduction of 50% of the total income is contrary to law. He also contended that the interest awarded from one month after the date of passing of the order is contrary to law laid down by the Honourable Apex Court in the case of Oriental Insurance Co. Ltd., Versus Siby George and others reported in 2012 ACJ 2126 and hence sought for modifying the judgment and order passed by WCC. In support of his contention regarding res-judicata, he relied upon a bench decision of this Court in the case of V. Anitha Gangadhara and others versus S. Srirama Reddy and another reported in 2016 ACJ 790 and with regard to a driller/coolie travelling on the mudguard of the tractor, he relied upon an unreported judgment of division bench of this Court rendered in M.F.A. No. 7837/2007 (Manager, National Insurance Co. Ltd., Versus Imamsab and others) disposed of on 17.07.2013.
10. I have carefully considered the arguments addressed by the advocates appearing for the appellants and perused the judgment and order of the WCC and oral and documentary evidence.
11. The only point that arise for consideration in these appeals is, whether the judgment and order passed by the WCC required to be modified?
12. The records clearly disclose that the deceased was working as a driller in the tractor bearing No.RSE-7763 belonging to the 1st respondent-owner of the tractor. On 26.08.2001, as per the instructions of the owner of the tractor, while the deceased was proceeding in the tractor to the work spot, due to rash and negligent driving of the said tractor, it turned turtle due to which the deceased fell down from the tractor sustained grievous injuries and died.
13. The specific case of the claimants is that the insurance policy covers the risk of a driller also and that the accident having occurred during the course and out of employment, the insurance company is liable to compensate them. On the other hand, the insurance company contends that the seating capacity of the tractor is only one, whereas the deceased was travelling by sitting on the mudguard of the tractor that the insurance policy issued in respect of the said tractor does not cover the risk of the person travelling on the mudguard of the tractor and there being violation of conditions of the insurance policy, the insurance company is not liable to compensate the claimants.
14. In support of his contentions, the advocate for insurance company has relied upon the judgments in Sushila Bai s case and Darshana Devi s case referred to above. However, in Darshana Devi s case, the appeal filed by the appellant-New India Assurance Co. Ltd was dismissed by the Honourable Supreme Court upholding the order passed by the High Court, whereby the compensation has been awarded to the claimants.
15. The Division Bench of this Court in the judgment rendered in MFA No. 7837/2007 has observed that travelling on the mudguard is contrary to law, that by itself would not disentitle the person from claiming compensation. There should be evidence to connect the accident to his negligence act. In para 11, it is observed as under:
11. In the absence of any such evidence to show it is the negligence on the part of the deceased in travelling on the mudguard, which is the cause for the accident, it is not possible to hold that by such travelling he is disentitled from calming compensation. The Commissioner has rightly held the insurance company liable .
In the said case, the liability arose under the provisions of Workmen s Compensation Act, 1923. The relationship between the deceased and the owner of the tractor is that of employer and employee. It is in the course of employment the accident occurred and the employee died. The vehicle involve in the accident was insured. If the owner of the vehicle has paid the additional premium covering the risk of the driver as well as the additional employee, it will cover the risk of the employee traveling in the tractor. This Court had an occasion to consider the effect of contravening the provision of the Act and whether that by itself would disentitle the person from claiming any compensation in the case of the North East Karnataka Road Transport Corporation Versus Smt. Vijayalaxmi and others reported in 2012(3) Kar.L.J.281. In the instant case, additional premium has been paid which covers the risk of the additional employee working in the said tractor. Hence, the insurance company cannot disown its liability to compensate the claimant.
16. The contention of the insurance company that earlier the claimants had filed claim petitions under the Motor Vehicles Act and thereafter under Workmen s Compensation Act, which was dismissed as withdrawn and hence, they cannot file one more claim petition on the same cause of action and the same is hit by Section 11 of CPC, is not sustainable. If the issue in the earlier suit has been heard and finally decided by such court then only principles of res judicata can be made applicable. In the instant case, though the claimants filed M.V.C.No. 1826/2001 they have withdrawn the same, the claim petition in WC No.222/2012 was not finally adjudicated, but was dismissed for default. Hence, the claim petition in WC No. 137/2006 was filed which was renumbered as WC.NF.91/2007 i.e. the present claim petition. The principles of res judicata are not applicable.
17. The WCC taking into consideration the income of the deceased as Rs.3,000/- per month, taking 50% thereof, applying the relevant factor 194.64 having regard to the age of the deceased as 40 years awarded a sum of Rs.2,91,960/- as compensation with interest at the rate of 12% from one month after the date of passing the judgment and order.
18. As per the judgment of the Honourable Supreme Court in the case of Oriental Insurance Co., Ltd., versus Siby George and others reported in 2012 ACJ 2126 interest on the compensation has to be awarded from one month after the date of accident. In the instant case, the WCC has awarded interest on the compensation at the rate of 12% per annum form one month after the date of passing the judgment and order which is contrary to law laid down by the Supreme Court. Hence, the claimants are entitled to interest at the rate of 12% per annum from one month after the date of accident.
19. The insurance company has not made out a case to interfere with the impugned judgment and order of the WCC. However, as observed above, the claimants are held entitled to interest on the compensation at the rate of 12% per annum from one month after the date of accident. The impugned judgment and order passed by the WCC requires to be modified to the said extent. Accordingly, I pass the following order:
(i) M.F.A No. 20362/2008 filed by the insurance company is dismissed.
(ii) M.F.A No. 21326/filed by the claimants is allowed in part.
(iii) The impugned judgment and order passed by the WCC is modified to the extent that the claimants are entitled to interest on the compensation awarded from one month after the date of accident.
The amount in deposit be transferred to the Civil Judge (Sr. Dn), Belagavi with all records for disbursement.