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Husseinbhai Ahmedbhai Memon Vs. Mangiben Wd/O. Lallubhai Holibhai Chaudhari and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtGujarat High Court
Decided On
Judge
Reported in(1984)1GLR221
AppellantHusseinbhai Ahmedbhai Memon
RespondentMangiben Wd/O. Lallubhai Holibhai Chaudhari and ors.
Cases ReferredCity and Hall Lines v. Asis Thomas
Excerpt:
.....power or by electricity, he would not be within the term of item 1 of schedule ii to the workmen's compensation act and therefore, not within the dictionary meaning of (he term. we arc afraid this contention would not be open to the learned advocate in view of the decision of the division bench of the bombay high court in alimohmad jumardikhan's case (supra). in that view of the matter we are of the opinion that the tribunal is clearly in error in concluding that these labourers were not workmen and, therefore, not entitled to the insurance coverage. 10. the learned advocate for the appellant-owner was, therefore, perfectly justified in making a grievance that the tribunal could not have exonerated the insurance company from its statutory liability to satisfy the award. the..........in motor accident claims petitions nos. 56 to 61 and 68 of 1977 before the motor accident claims tribunal, surat. the claim petitions were required to be filed since the labourers sitting in a public career bearing registration no. gtc 3368 carrying timber logs from the forest near godariya in ahwa district to village holi-amba met with an accident. it appears that all the eight labourers, who were employed for the purposes of loading and unloading the truck in question, were sitting on the timber-logs loaded in the truck. when the truck approached village hirawadi, usmanbhai mohmad, who was the driver of the truck and original opponent no. 1, lost control of the vehicle since it is alleged that he was driving in rash and negligent manner with the result that the truck turned.....
Judgment:

B.K. Mehta, J.

1. This group of first appeals together with cross-objections and the revision applications arises out of the claims preferred in Motor Accident Claims Petitions Nos. 56 to 61 and 68 of 1977 before the Motor Accident Claims Tribunal, Surat. The claim petitions were required to be filed since the labourers sitting in a public career bearing registration No. GTC 3368 carrying timber logs from the forest near Godariya in Ahwa district to village Holi-Amba met with an accident. It appears that all the eight labourers, who were employed for the purposes of loading and unloading the truck in question, were sitting on the timber-logs loaded in the truck. When the truck approached village Hirawadi, Usmanbhai Mohmad, who was the driver of the truck and original opponent No. 1, lost control of the vehicle since it is alleged that he was driving in rash and negligent manner with the result that the truck turned turtle and fell on the side of the road. Lallubhai Holibhai, who was one of the labourers in the truck and sitting on the top of the logs got crushed under the dead weight of the logs and died instantaneously. The other seven labourers also sustained minor as well as major injuries. The injured labourers and the widow and children of the deceased Lallubhai Holibhai preferred their claim petitions for compensation before the Motor Accident Claims Tribunal at Surat.

2. Claim Petition No. 62 of 1977 preferred by the widow and children of the deceased Lallubhai Holibhai was partially allowed by the Tribunal awarding Rs. 21,000/- against the aggregate claim of Rs. 40,000/-. Similarly Claim Petition No. 56/77 by injured labourer Vasantbhai Valiabhai was partially allowed by the Tribunal by awarding Rs. 2,000/- against the aggregate claim of Rs. 9,999/- Claim Petition No. 57 of 1977 by injured workman Bhimsingbhai Tanganiabhai Chaudhari was fully allowed by the Tribunal awarding Rs. 20,000/-. Claim Petition No. 61 of 1977 by injured workman Mankabhai Bhilabhai was partially allowed by the Tribunal by awarding Rs. 2,000/- against the total claim of Rs. 15,000/- Huseinbhai Ahmadbhai Memon, original opponent No. 2 in the aforesaid Claim Petitions being dissatisfied with the aforesaid judgment and award made by the Tribunal, has preferred first Appeal Nos. 221 to 224 of 1978. Original claimants have, as stated above, preferred cross-objections in First Appeal Nos. 221, 222 and 224 of 1978. The other claim petitions viz. Claim Petition Nos. 58, 59 and 60 of 1977 and 68 of 1977 were preferred by Vasantbhai Makabhai Chaudhari, Rajnibhai Surjibhai Chaudhari, Kotwalbhai Makabhai Chaudhari and Gosaibhai Sumanbhai Chaudhari claiming compensation of Rs. 5,000/-, Rs, 5,000/-, Rs. 4,000/- and Rs. 3,000/-, respectively Since the Tribunal has granted compensation to these claiments of Rs. 1,000/-, Rs. 1,500/-, Rs. 1,000/- and Rs. 1,500/-, respectively, Huseinbhai Ahmadbhai Memon-original opponent No. 2 has preferred Civil Revision Application Nos. 502 to 505 of 1978.

3. At the outset, in response to the suggestion made by the Court, that since the amounts involved in the civil revision applications are so meagre that they must not be pressed as such or by seeking permission to convert them into Special Civil Applications, the learned Advocate for the petitioners sought permission to withdraw these civil revision applications which was accorded and the civil revision applications stand disposed of accordingly as withdrawn.

4. As regards First Appeal Nos. 222 and 224 of 1978, since the ultimate relief which the appellants may get in the appeals is so marginal that it was suggested to the learned Advocate for the appellant not to press the said appeals. The learned Advocate having appreciated the position on prima facie ascertaining the relief which the appellants are likely to get, agreed that these appeals should not be pressed. Accordingly the said appeals are permitted to be withdrawn and disposed of accordingly.

5. The learned Advocate for the original claimants, who have preferred cross-objections in First Appeal Nos. 222 and 224 of 1978 also sought permission to withdraw the said cross-objections before they reached the effective hearing since on merits also prima facie the chances of success do not appear to be bright. The cross-objections are allowed to be withdrawn and disposed of accordingly.

6. The result is that two appeals viz. Nos. 221 and 223 of 1978 and the cross-objections by the claimants in First Appeal No. 221 of 1978 survive for adjudication. The learned Advocate for the appellants assailed the award on two grounds in both these appeals. In the first place, he urged that the Tribunal was clearly in error in absolving the Insurance Company from its statutory liability to satisfy the award. Secondly he urged that the evidence as adduced on the record of the Tribunal did not justify the award of compensation aggregating Rs. 21,000/- and Rs. 20,000/- respectively in these two appeals.

7. Oil the other hand, on behalf of the original claimants who have filed cross-objections in First Appeal No. 221 of 1978, it was urged that the Tribunal was clearly in error in estimating the loss to estate by not appreciating the evidence of the appellant-owner in respect of the income which was paid (o the deceased labourer lallubhai. On the same reasoning the Tribunal's finding in Claim Petition No. 57 of 1977 out of which F.A. 223 of 1978 arises absolving the Insurance Company from its statutory liability was assailed.

8. Two questions, therefore, arise for our determination. Was the Tribunal justified in absolving the Insurance Company-respondent No. 3 in the appeals from its statutory liability to satisfy the award? It is common ground that the truck in question was insured and the policy was an Act policy to indemnify the owner of the truck to the extent of his liability under the Workmen's Compensation Act. The Tribunal was of the opinion that though it was an Act policy to indemnify the owner to the extent of his liability under the Workmen's Compensation Act, even then the Insurance Company was not liable to satisfy the award for the simple reason that it was not established by evidence that the labourers who suffered the injuries or one of them who died as a result of the accident were workmen within the meaning of the term 'workman' under Section 2(1)(n) of the Workmen's Compensation Act, 1923. He also found that the labourers concerned were not third parties following the decision of the Supreme Court in Pushpabai Parshottam Udeshi and Ors. v. Ranjit Ginning & Pressing Co. Pvt. Ltd. AIR 1977 SC 1135. In that view of the matter, the Tribunal absolved the Insurance Company from its statutory liability to satisfy the award.

9. We must state with respect to the Tribunal that the view which has commended to the Tribunal is clearly erroneous in law and in fact. The reasons are obvious. The evidence on record of the Tribunal clearly established that these labourers were travelling in the truck in question which was carrying timber logs from the forest near village Godariya in Ahwa district and was proceeding to village Holi Amba and it was near village Hirawadi that it met with an accident and got capsized as a result of which one of the labourers was crushed to death under the dead weight of the timber logs and others sustained injuries. It is nobody's case that they were passengers either gratuitous or for reward. The evidence of Husenbhai the appellant-owner is that he had engaged these eight labourers for purposes of loading and unloading the timber logs in the truck in question. This evidence has not been effectively controverted. The evidence of the injured claimants who were the labourers in the employment of the appellant-owner Husenbhai that they were in the employment of Husenbhai and were engaged in loading and carrying the logs of timber in the truck in question is also not effectively controverted. The Insurance Company has not led any evidence in that behalf since in the very nature of things they could not have any evidence which would indicate much less establish conclusively that they were the casual labourers and engaged in the business other than that of the employer. In that state of evidence, therefore, since these labourers were engaged in the work of loading and unloading the timber logs in the truck in question they would certainly be workmen. It is trite position in law to say that a person who is riding a lorry to work as a labourer to load it with goods is a workmen employed for the purpose of the employer's trade or business and is a workman within the meaning of the term as defined in Section 2(1)(n) of the Workmen's Compensation Act, and such a person is deemed to be acting in the course of his employment see Alimohamed Jumardikhan v. Shankar Tukaram Pote (1945) 47 Born. L.R. 857. It is no doubt true that the evidence as it stands on the record of the Tribunal indicates that these workmen were paid their wages per trip per day. The evidence of Husenbhai the appellant-owner of the truck was that he used to pay Rs. 25/- per trip amongst the eight labourers and there used to be two trips a day. In other words, these labourers were daily wagers. However, there is a clear authority of the High Court of Bombay in Ellerman's City and Hall Lines v. Asis Thomas : AIR1938Bom110 to show that the phrase 'monthly wages not exceeding three hundred rupees' (now it is one thousand rupees) in Section 2(1)(n) does not restrict the definition of the expression 'workman' to the people who are in fact employed on monthly wages thereby excluding the people who are daily wage earners. It is, therefore difficult for us to appreciate as to what has weighed with the Tribunal in concluding that these labourers were not workmen. The entire conclusion, with respect to the Tribunal is more in the nature of ipse dixit. The Tribunal first set out the definition of the term 'workman' as given in Section 2(1)(n) of the Workmen's Compensation Act and in the next breath the Tribunal concluded that these labourers were not workmen and, therefore, there was no question of insurance coverage for them. The Tribunal with respect has not made any finding of fact in justification of the conclusion which it reached. The learned Advocate for the Insurance Company before us urged that the thrust of the conclusion of the Tribunal appears to be that since these labourers were engaged casually, they would not be workmen. Even if we can read implied reasoning behind the conclusion of the Tribunal, we do not think that the conclusion is well founded for the simple reason that the difinition of the term 'workman' excludes only those workmen who are casually employed for purposes otherwise than that of the business of the employer. Unless both these conditions are satisfied, namely, that the nature of the work was casual and their employment was for purposes other than that of the business of the employment, the persons concerned cannot be excluded from the definition of the term 'Workmen'. The learned Advocate for the Insurance Company then attempted to persuade us that unless a person is employed in connection with the loading or unloading of any vehicle propelled by steam or other mechanical power or by electricity, he would not be within the term of item 1 of Schedule II to the Workmen's Compensation Act and therefore, not within the dictionary meaning of (he term. We arc afraid this contention would not be open to the learned Advocate in view of the decision of the Division Bench of the Bombay High Court in Alimohmad Jumardikhan's case (supra). In that view of the matter we are of the opinion that the Tribunal is clearly in error in concluding that these labourers were not workmen and, therefore, not entitled to the insurance coverage.

10. The learned Advocate for the appellant-owner was, therefore, perfectly justified in making a grievance that the Tribunal could not have exonerated the Insurance Company from its statutory liability to satisfy the award. We entirely agree with this contention that the respondent No. 3-Insurance Company is liable to satisfy the award to the extent of the liability of the owner under the Workmen's Compensation Act.

11. The next question which arises is about the quantum of compensation. The learned Advocate for the appellant owner is aggrieved by the award inasmuch as in his submission there is absence of cogent and reliable evidence to evaluate the economic loss to the estate. On the other hand on behalf of the original claimants, who have preferred cross-objections in First Appeal No. 221 of 1978, the Tribunal erred in awarding compensation in sum of Rs. 18,000/- on account of economic loss and Rs. 3,000/- by way of conventional damages for the fatal accident to Lallubhai. We have been taken through the relevant part of the discussion in the judgment and the evidence of Mangiben widow of the deceased workman Lallubhai and particularly the evidence of the appellant-owner Husenbhai. We must admit that the Tribunal has, with respect, not read this evidence properly for purposes of assessing the monthly dependency allowance by the deceased worker to his family. The Tribunal has assessed it at Rs. 100/- per month. Now the evidence of the widow Mangiben was to the effect that her husband was earning about Rs. 200/- to Rs. 250/- per month, and that he was working on public carrier. Now there is no effective cross-examination of the claimants on the point of income. Apart from this, the evidence of the appellant-owner is clear and forthwith. He deposed before the Tribunal that he used to pay Rs. 25/- per trip amongst the eight workmen and there used to be two trips per day and about 40 to 50 trips per month. The work of transporting timber from the forest used to be suspended during the monsoon season. Here also there is no effective cross-examination of the witness on this point. The result is that this evidence of the owner remains uncontroverted. If, therefore, we accept the evidenee of the appellant-owner and for which there is no reason to discard it, we must hold that the deceased Lallubhai was earning Rs. 6/- per day since he was paid Rs. 3/- per trip and having regard to the nature of the work of transport which would be carried on for all the thirty days in a month since in the very nature of the work it is to be carried on continuously, we are of the opinion that the monthly income of the deceased would be about Rs. 180/-. Having regard to the members in the family which comprised of two adults and three minors, we think that we can safely deduct Rs. 50/- as the amount which the deceased-workman would be keeping for his convenience and personal expenses and, therefore, his allowance to the family would be about Rs. 130/- per month. The annual allowance would be Rs. 1,560/- and having regard to the age of the deceased which was about 30 years, the Tribunal was right in preferring to apply the multiplier of 15 years. Applying the same multiplier, the loss to the estate of the deceased would be Rs. 23,400/-. The Tribunal was also not justified in reducing the conventional damages which on the authority of this Court has been uniformly accepted to be in sum of Rs. 5,000/-

12. We, therefore, hold that the original claimants in First Appeal No 221 of 1978 are entitled to conventional damages of Rs. 50,000/-. In other words, they would be entitled to the total compensation of Rs. 23,400/- plus Rs. 5,000/- aggregating to Rs. 28.400/- They would thus be entitled to additional compensation of Rs. 7,400/- together with proportionate costs and interest at the rate of 6 per cent thereon. The liability of the Insurance Company to indemnify the appellant-owner is to the extent of its liability under the Workmen's Compensation Act to the claimants. We have been requested that the liability of the Insurance Company may be quantified and stated clearly. We, therefore, hold that the respondent-insurance Company shall be liable to indemnify the appellant-owner in Claim Petition No. 62 of 1977 out of which First Appeal No. 221 of 1978 arises to the extent of Rs. 16,800/-over and above the proportionate costs and interest. Similary Claim Petition No 57 of 1977 out of which First Appeal No. 223 of 1978 arises, the Insurance Company is liable to indemnify the appellant-owner to the extent of Rs. 9,408/- over and above the proportionate costs and interest. First Appeal Nos. 221 and 223 of 1978 are partially allowed with proportionate costs and Cross-Objections in First Appeal No. 221 of 1978 are also partially allowed. The appellant-owner shall pay proportionate costs to the original claimants to the extent to which they succeed in the cross-objections. There would be no order as to costs in the First Appeals, Civil Revision Applications and the Cross-Objections which have been withdrawn.


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