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Karnataka High Court
G.MURGAN - Appellant
Versus
MAHESHWARAN - Respondent
Decided On : 08-22-05
M.F.A. : 3633 of 2001
MOTOR VEHICLE ACT, 1988 - Section 2(34) -Public place - Is any place where public has access.
Defence of Insurer
MOTOR VEHICLE ACT, 1988 - Section 173 -Defence of Insurer - Plea that, policy was a miscellaneous policy and risk of employees was not covered etc. was not raised before WC Commissioner - Hence is a new plea and not available to insurer to be raised now.
[Anand Byrareddy, J]: The fact that the vehicle was insured is not denied. The contention that the policy of insurance is styled as a "miscellaneous policy " and therefore would not cover the risk of employees being carried in the vehicle, is a contention put forth for the first time in appeal by the insurance company though a certificate of insurance was produced before the Commissioner, a fully worded policy containing all the terms and conditions, was never exhibited nor were any pleas taken before the Commissioner in this regard and therefore, the Commissioner did not have any basis to have arrived at any finding in this regard and in any event the Commissioner had not even framed an issue as to whether there was any nexus between the employment injury and the use of the insured vehicle. It would therefore be wholly unnecessary to embark upon a futile exercise of analysing the scope and ambit of the provisions of the M.V. Act in deciding the extent of liability vis-a-vis the workmen who were carried in the insured vehicle.
Liability of insurer
MOTOR VEHICLE ACT, 1988 - Section 147 - Liability of insurer - Vehicle was a borewell rig - Employee of unit died as a hammer fell on his head while vehicle was stationed in a private land - Whether insurer is liable? Yes.
[Anand Byrareddy, J]: The finding of the Commissioner that the death of the workman was caused by an injury during and in the course of his employment, but it could not be related however to the use of the motor vehicle which was insured and therefore, the insurance company was absolved, is an erroneous finding. That the vehicle was a special vehicle namely a bore-well rig unit which is not used for any purpose other than as a bore-well rig unit, cannot be denied. The deceased workman was employed by the insured as a part of the team that would operate the bore-well rig unit. The movement of the vehicle from one point to another and the loading and unloading of equipment to operate the rig unit, was always in conjunction with the vehicle. The association of the workman with the vehicle and his presence on the fateful day, is only by virtue of his employment of operating of the rig unit carried in the vehicle. The iron rod hammer, which is a part of the rig unit falling on the workman while it was stationary, could not be any less an accident involving the use of the vehicle, if in a hypothetical situation, the hammer and the workman had fallen off a moving rig unit resulting in injury or death. Therefore, it can be gainsaid that there was no semblance of a nexus between the injury and the use of the vehicle. A reference to the case in Shivaji Dayanu Patil and Another v Smt. Vatschala Uttam Morez, was made wherein it is laid down that the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that the accident should be connected with the use of the motor vehicle, but the said connection need not be direct and immediate. This construction, no doubt enlarges the field of protection made available to the Victims of an accident and is in consonance with the beneficial object underlying the enactment. Viewed in this light, the employment injury suffered by the deceased workman can certainly be said to have a causal relation with the use of the vehicle.
Cases Referred: AIR 1966 SC 1644: (1966) 2 Com. L. J. 1 (SC): (1966) 36 Comp. Cas. 468 (SC); AIR 2004 SC 1531: (2004) 3 SCC 297: (2004) 118 Comp. Cas. 396 (SC); 1967 ACJ 165 (Bom); 2002 ACJ 378; 1991 ACJ 74 (Raj); 1991 ACJ 101 (Ker); 1991 ACJ 695 (MP); 1992 ACJ 117 (Ori); 1993 ACJ 218 (Guj); 1993 ACJ 395; AIR 1959 SC 1331; (1959) 29 Comp. Cas. 60 (SC); AIR 2004 SC 4882: (2004) 8 SCC 517: 2004 ACJ 2094 (SC).
( 2 ) THE facts of the case are as follows.- the appellants herein are the parents of the deceased workman, who was working as a coolie in a vehicle which was a bore-well rig unit. On 21-3-2000 when the vehicle was taken to Holakoppa, Aneguddi Village and when the rig was being set up, an iron rod hammer weighing about 70 kilograms which was being installed, fell on the head of the deceased workman, who sustained grievous injuries and he was shifted to a hospital in Shimoga, where he succumbed to the injuries two days later. The vehicle involved in the accident is covered under an insurance policy which is a motor miscellaneous policy and the vehicle is defined as an ashok Leyland rig unit. The claim petition was therefore filed against the insured and the insurer. The insured as well as the insurance company filed statement of objections. The cause of death was not denied by the insured. Only the age and wage were disputed. Whereas, the second respondent denied the relationship between the insured and the deceased workman, his age and wage, as well as the fact that the accident had occurred during the course of the employment. It was also contended that even if the liability could be fastened on the insurance company, the risk of an employee working in the vehicle and while the vehicle was in use, alone was covered and in the instant case, the admitted fact being that the vehicle was parked on a private land and the installation of the bore-well unit being under progress, would have no nexus with the use of the vehicle and therefore, the insurance company was not liable. Though the Commissioner has not framed any issue as regards the nexus between the cause of death and use of the vehicle, the Commissioner has rendered a finding at para 13 of the award that there was no nexus between the use of the vehicle and the accident and therefore has absolved the insurance company of its liability. It is in this background that the appeal is filed and the following questions of law are raised.- " (i) Whether the Commissioner is justified in not fastening the liability of making payment of compensation against the insurance company? (ii) Whether the Commissioner is justified in holding that there is no nexus between the death of the deceased and use of the vehicle and the accident occurred during the course of employment of respondent 1? (iii) Whether the insurance company is liable to indemnify the owner of the vehicle? (iv) Whether the Commissioner is justified in dismissing the application against respondent 2-insurance company? (v) Whether the findings of the Commissioner are vitiated for non consideration of evidence on record?"
( 3 ) SRI S. P. Shankar, Senior Advocate appearing for Sri Ravi G. Sabhahit for the appellant, raises the following contentions.- the deceased workman was carried in the insured vehicle to the work-spot for the purpose of digging a bore-well. He was undoubtedly engaged for the purpose of loading and unloading rig related machinery and articles from the insured vehicle. While he was unloading, he suffered an employment injury, as an iron rod hammer weighing about 70 kilograms fell on his head and therefore the injury has occurred during and in the course of his employment under the insured. He would submit that it is a matter of record that the employer and the insurer did not choose to lead any evidence except the insurance company producing the policy of insurance and hence he would submit that the commissioner was not justified in dismissing the claim petition against the insurer.
( 4 ) THE next question would be whether the insured vehicle was stationary and whether the absence of actual use of the vehicle would justify absolving the i
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