(Prayer: This MFA is filed under Section 30(1) of WC Act 1923, against the judgment and award dated 28.12.2012 passed in Kanapa Cr No.44/2012 on the file of the labour officer and commissioner for Workmens Compensation, Sub-Division-2, Bellary, awarding the compensation of Rs.65,293/- with interest at the rate of 12% p.a. from the date of petition and shall be deposited within 30 days from the date of the order.)
Oral Judgment
1. This appeal is filed by the insurer under Section 30(1) of the Workmen's Compensation Act, 1923, challenging the judgment passed in KANAPA-CR- No.44/2012 dated 28.12.2012, on the file of the Labour Officer and Commissioner for Workmen's Compensation-II, Bellary ('the Commissioner', for short).
2. The substantial question of law that would arise for consideration in this case is:
"Whether the Commissioner for Workmen's Compensation was justified in fastening liability on the appellant-insurer when the Insurance Policy itself was not obtained to cover liability under the Workmen's Compensation Act, 1923?"
3. Heard arguments of both sides and perused the records.
4. Learned counsel for the appellant/Insurance Company Sri. Rajashekar S. Arani, would submit that, as per the case of the workman, the accident happened after he getting down from the lorry bearing registration No.KA- 35/B-1008, while going to the hospital to take meals, a motorcycle bearing registration No.KA-27/L-7237 came in rash and negligent manner and dashed him, and thereby he sustained injuries. Learned counsel for the appellant contended that the insurance policy is not issued under the Workmen's Compensation Act, but it is issued only under Motor Vehicles Act, 1988 covering the accident arising out of motor vehicle accident. He further contended that the insurance policy is valid only in respect of motor vehicle accident involving lorry bearing registration No.KA-35/B-1008, but the said vehicle is not at all involved in the present case, and hence the appellant Insurance Company is not liable to pay compensation to the claimant or indemnify the owner of the vehicle. In this regard, learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court in the case of Mamtaj Bi Bapusab Nadaf & Others Vs. United India Insurance Co., and Others1
5. Learned counsel for respondent No.1/claimant Sri B. S. Sangati, would submit that there was employer- employee relationship between the workman and the owner of the lorry. While discharging his duties as driver of the lorry, the claimant has sustained injuries. Hence, the Insurance Company is liable to make good the award passed in his favour on behalf of the owner. Hence, prayed for dismissal of the petition.
6. The facts narrated in the complaint, charge sheet and police papers are that the claimant/workman was the driver of the lorry bearing No.KA-35/B-1008 and he was proceeding in said lorry on 26.02.2007 from Kumarapatna; near check post of Harihar at 08.30 p.m., he stopped the vehicle, got down from the vehicle and CDJ 2010 SC 820 while going to the hotel to have meals, at the time of crossing the road, a motor bike bearing registration No.KA-27/L-7237 dashed him, caused accident and due to the said accident, he sustained grievous injuries.
7. The motor vehicle accident report is produced only in respect of motorbike. Lorry in question is not involved in the accident. Hence, its motor vehicle accident report is not obtained. Already workmen/claimant had got down from the lorry and was proceeding to hotel to have his meals and on the way; he sustained accident by another motorcycle.
8. Ex.R-2-1 is the policy produced by the insurer. According to it, this policy is issued under Motor Vehicles Act and it has not covered the accident under Workmen's Compensation Act. If the accident happened involving a motor vehicle which is insured with the appellant, the appellant would be liable to make good the compensation.
9. In this regard, in the judgment of Hon'ble Apex in the case of Mamtaj Bi Bapusab Nadaf & Others cited supra held as follows:
"Examined Section 147 of the Motor Vehicles Act, 1988, and held that the insurance company cannot be held liable for the death of workmen, when the vehicle in question is not involved in the accident."
10. Reading of Section 147 of the Motor Vehicles Act, 1988, at this juncture is very much relevant. It reads as follows:-
" 147. Requirements of policies and limits of liability.--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub- section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
Explanation.--For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Notwithstanding anything contained under any other law for the time being in force, for the purposes of third party insurance related to either death of a person or grievous hurt to a person, the Central Government shall prescribe a base premium and the liability of an insurer in relation to such premium for an insurance policy under sub-section (1) in consultation with the Insurance Regulatory and Development Authority.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected, a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.
(4) Notwithstanding anything contained in this Act, a policy of Insurance issued before the commencement of the Motor Vehicles (Amendment) Act, 2019 shall be continued on the existing terms under the contract and the provisions of this Act shall apply as if this Act had not been amended by the said Act.
(5) Where a cover note issued by the insurer under the provisions of this Chapter or the rules or regulations made there under is not followed by a policy of insurance within the specified time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority or to such other authority as the State Government may prescribe.
(6) Notwithstanding anything contained in any other law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."
11. The Explanation to S.147(1) of the MV Act made it clear that Insurance Company cannot be held liable to pay compensation, when the vehicle in question for which the policy was issued is not involved in the accident.
12. In the instant case also admittedly, the lorry in question is not involved in the accident. Only after getting down from the Lorry, while crossing the road, a motor cycle dashed against the claimant and caused the accident. The owner of the lorry being the employer of workman is liable to pay compensation to the workman/driver under Workmen's Compensation Act. However, the liability of owner under Workmen's Compensation Act is not covered under policy as per Ex.R.2-1. Under those circumstances, when the lorry in question is not at all involved in the accident, the appellant cannot be held liable to pay compensation to the claimant. Respectfully relying on the judgment of Hon'ble Apex Court on this point, this Court holds that fastening liability on the insurance company by the commissioner is not proper.
13. Accordingly, this Court passes the following:
ORDER
The appeal filed under Section 30(1) Workmen's Compensation Act, 1923 is allowed. The judgment passed by the Commissioner is modified as follows:-
i) Respondent No.1/owner-Shri. C.H.M.Guruswamy is held liable to pay compensation to the claimant.
ii) The insurer is exonerated from the liability as the vehicle in question is not involved in the accident.
iii) The amount in deposit be refunded to the appellant on proper identification.
iv) Draw modified decree accordingly.
