Point of Law: Proviso (ii) to Sub-section (1) of Section 147 i.e., if the insured had taken a policy covering only third party risk, even then the driver of the vehicle which is insured and if it is a public service vehicle the employee engaged as a conductor of the vehicle or employee employed in examining the tickets on the vehicle and if it is a goods carriage employee being carried in the vehicle are also entitled to compensation to the extent it is provided under the provisions of Workmen's Compensation Act even though the insured had not paid any additional premium.

JUDGMENT :

This appeal is filed by the appellant-Insurance Company challenging the judgment and award dated 06.01.2016 passed in MVC.No.1086/2012 by the Senior Civil Judge, Gubbi, on the ground of liability.

2. Brief facts of the case are as under:

On 30.06.2012 at about 7.30 am., the claimant No.1 has taken the Tractor Trailer bearing Reg.No.KA-06-TA-9520-9521 to shift the manure to the garden of claimant No.1 on hire basis. To load the manure, the claimant No.1 has taken the labourers of Mallesh, Ramaiah, Sanjeevachar to the said manure pit of Obalaiah of Shivapura Village. By that time, the driver of the said tractor drove the vehicle in a rash and negligent manner and taken back side, without any caution and signal and dashed against the Mallesh and Dodaiah, as a result of which, the said Mallesh has sustained injuries all over the body, immediately, Mallesh was taken to the hospital in a Maruthi van of Karibasavaiah and on the way to hospital near Kenchanahalli at about 9 am., the said Mallesh died due to the injuries sustained in the accident.

3. Learned counsel for the appellant Insurance Company vehemently submitted that the Tribunal has wrongly fastened the liability on the Insurance Company, but as per Ex.R1-insurance policy, the risk of the deceased who is stated to be the loader and unloader is not covered. Further submitted that the claimants themselves submitted in the claim petition and in the evidence that they have taken the Tractor Trailer on hire basis. Therefore, submitted that when the Tractor Trailer was taken on hire basis and as per the conditions of insurance policy, the Insurance Company is not liable to pay compensation. It is further submitted that there is no restrictions in the insurance policy and it can be seen from Ex.R1-insurance policy that the vehicle shall not be utilized for hire purposes, but the claimants themselves stated that the vehicle was taken on hire basis. Hence, the appellant -Insurance Company is not liable to pay compensation. Therefore, submitted that the above said facts are not discussed by the Tribunal in its judgment. Therefore, submitted that the impugned judgment and award is illegal and perverse. Therefore, prays for exonerating the Insurance Company from payment of compensation by allowing the appeal.

4. Learned counsel for the appellant-Insurance Company places reliance on the judgment of the High Court of Judicature at Madras in the case of United India Insurance Company Limited Vs. Sathish Kumar in C.M.A.No.2696/2018 and C.M.A.No.20384/2018 decided on 28.02.2019 and the judgment of Punjab & Haryana High Court in the case of The New India Assurance Company Limited Vs. Sohan Lal and Others in FAO Nos.135/1994 and 1677/1993 (O&M) decided on 10.12.2012. Therefore, prays to allow the appeal by setting aside the judgment of the Tribunal.

5. On the other hand, learned counsel for respondent No.3-owner of the Tractor Trailer submitted that the Tractor Trailer was taken on hire basis. The owner is the uncle of the claimants. Hence, for transportation of manure as the manure was situated in some other place has taken the Tractor Trailer and the deceased was engaged as a loader and unloader. Further submitted that the deceased was standing on the ground outside the Tractor Trailer. Therefore, the deceased is the third party so far as Tractor Trailer is concerned. Therefore, it is submitted that the appellant-Insurance Company is liable to pay the compensation.

6. Further submitted that as per the evidence on record, the Tractor engine had hit the deceased while reversing the Tractor and in that process, the Tractor engine dashed the deceased. Therefore, the Tractor engine was insured as per Ex.R1-insurance policy. Therefore, the deceased being the third party, the Insurance Company shall indemnify the owner and pay the compensation. In this regard, learned counsel for the owner relied on the judgment of this Court in the case of The New India Assurance Company Limited Vs. Shri R. Th