IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT GULBARGA, BEFORE THE HON BLE MR.JUSTICE RAVI MALIMATH MISCELLANEOUS FIRST APPEAL NO.

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1 IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT GULBARGA, ON THE 2 ND DAY OF JANUARY, 2013, BEFORE THE HON BLE MR.JUSTICE RAVI MALIMATH MISCELLANEOUS FIRST APPEAL NO.30618/2008 (WC) BETWEEN: DIVISIONAL MANGER NATIONAL INSURANCE CO. LTD., BILGUNDI COMPLEX, OPP: MINI VIDHANA SOUDHA GULBARGA REPRESENTED BY ITS ADMINISTRATIVE OFFICER APPELLANT (By SMT. PREETI PATIL, Advocate) AND: 1. CHANNAPPA S/O CHOKKA CHAWAN AGE: 22 YEARS OCC: EX-LABOUR R/O ARIKERI K. THANDA TQ. YADGIR DIST: GULBARGA. 2. CHANNAYYA S/O NIMBAYYA RATHOD AGE: 24 YEARS OCC: DRIVER OF TRACTOR TROLLY NO.KA-33/1119/1120 R/O ARIKERI K THANDA TQ. YADGIR DIST: GULBARGA.

2 2 3. BASAPPA S/O LACHAPPA AGE: 40 YEARS OWNER OF TRACTOR TROLLY NO. KA-33/1119/1120 R/O ARIKERI K THANDA TQ. YADGIR DIST: GULBARGA. RESPONDENTS (BY SRI. B.C. JAKA ADV. FOR R.1 ; SRI. S.S. KUMMAN ADV. FOR R.3 ; R.2 SERVED UNREPRESENTED) *** MFA FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD DT: PASSED IN W.C.CR.NO.124/2006 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, GULBARGA PARTLY ALLOWING THE CLAIM PETIION FOR COMPENSATION AND AWARDING COMPENSATION OF 12% P.A. AFTER 30 DAYS FROM THE DATE OF ORDER. THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Aggrieved by the Judgment & award passed by the Commissioner for Workmen s Compensation the Insurer has filed the present appeal questioning its liability to satisfy the award.

3 3 2. The case sought to be made out is that the claimant was working as a labourer in the tractor and trailer bearing No.KA-33: That on the driver of the tractor trailer drove the vehicle in a rash and negligent manner and suddenly applied brakes due to which the claimant fell down from the trailer and sustained grievous injuries. That the injuries sustained by the claimant arose during the course of employment. The injuries have resulted in permanent disability. Hence, the compensation was sought under the Workmen s Compensation Act. The Commissioner by the impugned order granted compensation of Rs.1,00,800/-along with interest. Questioning its liability to satisfy the award the Insurer has filed the present appeal. 3. Smt.Preeti Patil, the learned counsel appearing for the appellant contends that the accident has not occurred during the course of the employment. That the contents of the FIR vide Ex.P-1 would show that the

4 4 accident occurred when the tractor trailer was stationery. The claimant and others got down from the tractor trailer in order to drink water and at that time an unknown Jeep came and hit him. He suffered injuries. This is the contents of the FIR. Therefore, it is pleaded that if the contents of the FIR in terms of Ex.P-1 are to be accepted, it runs contrary to the claim Petition. The FIR would clearly show that the claimant was not injured in the course of the employment when the accident occurred. It is further contended that the policy for the vehicle in question was a farmers package policy. That the plea put forth is that the trailer was being used for transportation of stones for construction purpose. Hence it violates the terms of the policy. Therefore it is pleaded that the Insurer be absolved of its liability to satisfy the award. In support whereof she places reliance on the Judgment of the Hon ble Supreme Court in the case of MAMTAJ BI BAPUSAB NADAF AND OTHERS v. UNITED INDIA INSURANCE CO.LTD., AND OTHERS reported 2010 ACJ

5 and the Judgment of the Division Bench of this Court in the case of ORIENTAL INSURANCE CO.LTD., vs. NAGARAJA K.H. AND ANOTHER reported in ILR 2011 KARNATAKA On the other hand, Sri Kumman, the learned counsel appearing for respondent No.3 defends the impugned order. He contends that the accident occurred during and in the course of the employment. That it cannot be said that he was not employed when the accident took place. In support of his case he relies on the Judgment of the Division Bench of this Court in the case of THE ORIENTAL INSURANCE COMPANY LIMITED., vs. Smt.GEETHA AND OTHERS reported in ILR 2009 KARNATAKA On hearing the learned counsels and examining the records I am of the considered view that there is no error committed by the Commissioner that calls

6 6 for interference. Ex.P-1 the complaint would narrate that the vehicle which was used to transport the stones also carried the claimant in question. However, it is not when the accident occurred. When the vehicle was returning it was stopped in order to enable the claimant and others to drink water. It is at that point of time the claimant was on the road that an unknown Jeep came and dashed against him. Therefore the contentions advanced that the policy does not cover the transportation of the goods in question would necessarily have to fail. The accident has not occurred when the trailer was being employed for the purpose of carrying stones or otherwise. If that were to be the case to be made out then necessarily the contention of the learned counsel for the appellant would have to be considered in that background. However, the facts are different. The accident did not occur when the trailer was carrying the goods or stones in question. It occurred when the trailer was stationery. Under these circumstances, the first contention of the appellant would not arise for

7 7 consideration. Secondly, the Judgment relied upon by the appellant in MAMTAJ BI BAPUSAB NADAF AND OTHERS v. UNITED INDIA INSURANCE CO.LTD., AND OTHERS reported 2010 ACJ 2661 in my considered view has not laid down any law. The Hon ble Supreme Court in the said Judgment by referring to the facts and the applicable law held that based on the facts of the case the view taken by the learned Single Judge of the Karnataka High Court seems to be justified and correct. Hence, no interference is called for. On examining the Judgment I am unable to find any declaration of law that has been made by the Supreme Court. Based on the Judgment it has confirmed the order passed by the High Court. Hence, I am unable to apply the said Judgment to the facts of the present case. 6. The second Judgment relied upon in the case of ORIENTAL INSURANCE CO.LTD., vs. NAGARAJA K.H. AND ANOTHER reported in ILR 2011 KARNATAKA 331 can

8 8 be distinguished so far as facts are concerned. In the case therein the FIR disclosed the fact that the claimant while crossing the Road was hit by a lorry. However what was pleaded in the claim Petition before the Commissioner was that when he was changing the lorry tyre the driver of the lorry moved the vehicle and at that time another vehicle came from behind and dashed against his lorry. As a result of this accident his right hand got struck in-between the lorry and it was fractured. Therefore he pleaded that the accident arose during the course of the employment. Further, the contents of the FIR were to the contrary. He was not in employment. That when he was merely crossing the Main Road he was hit by a lorry. Hence, the facts as narrated therein are totally alien to the facts of this case. The accident has taken place when he was crossing the road. Hence this Judgment would not be applicable.

9 9 7. The learned counsel for the respondent places reliance on the Judgment in the case of THE ORIENTAL INSURANCE COMPANY LIMITED., vs. Smt.GEETHA AND OTHERS reported in ILR 2009 KARNATAKA 2379 wherein it was held that the risk of accidental death or injury is inherent in the nature of the employment. That the nature of such death could be for various reasons. That such a death could occur while driving the vehicle or when not driving the vehicle also namely, while attending to nature calls or taking food, reptile bite, robbery, dacoity or electrocution etc. Therefore it is pleaded that the facts of the present case would necessarily narrate that it was only during the course of employment that he was crossing the road that the Jeep came and hit him. Hence, it cannot be construed otherwise than to necessarily hold that the accident was and in the course of the employment. 8. I find no error committed by the Commissioner that calls for interference. It is apparent that the accident

10 10 occurred when the claimant was performing his duties during and arising out of employment. It cannot be held otherwise. He was employed in the tractor trailer to perform the very function. He got down in order to drink water and at that time the accident occurred. To hold that the Insurer is liable only for a moving vehicle is wholly erroneous. 9. Even otherwise there is no substantial question of law that arises for consideration in this appeal. The appeal is purely based on facts. For the aforesaid reasons, the appeal is dismissed. The amount in-deposit is directed to be transferred to the Commissioner for necessary orders. Sd/- JUDGE Rsk/-