Mamtaj Bi Bapusab Nadaf & Ors vs United India Insurance Co. & Ors

MAMTAJ BI BAPUSAB NADAF & ORS. Appellant(s)

VERSUS

UNITED INDIA INSURANCE CO. & ORS. Respondent(s)

J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal emanates from the judgment and

final order dated 25.10.2005 passed by the High

Court of Karnataka at Bangalore in M.F.A.

No.5843/2003 (WC) and M.F.A. No.5844/2003 (WC).

3. Brief facts which are relevant to dispose of

this appeal are recapitulated as under:

The claimants-respondents in M.F.A. No.5843 of

2003 are the legal representatives of one Bapusab

Nadaf and the claimants-respondents in M.F.A. 2

No.5844 of 2003 are the legal representatives of

Basappa Gurappa Hipparagi, who were workmen engaged

in uploading Maize (foodgrain) from a tractor-

trailer. When Maize was being unloaded from the

tractor to an underground storage bin ('Hagevu'),

both the labourers climbed the grocery pit in order

to clean the same for storing Maize and while

cleaning they fell into the grocery pit. They

shouted from inside that they were suffocating, a

rope was released to them but they did not catch it

and they died due to asphyxia. These facts are not

disputed.

4. The learned counsel for the appellants

submitted that the Insurance Company has clear

responsibility for this accident and the Insurance

Company is liable and under an obligation to pay

compensation to the appellants. This contention is

rebutted by the learned counsel for the Insurance

Company. According to him, the vehicle in question

was not involved in the accident. He further

submitted that there has been no proximity or direct

connection with the death of the workmen with the

vehicle in any manner. At the time of the accident 3

the vehicle in question was not in operation.

5. The claim petitions filed by the appellants

before the Commissioner for Workmen's Compensation,

Bizapur, were allowed and the Commissioner vide its

judgment dated 24th July, 2003, found the Insurance

Company liable to pay compensation to the

appellants.

6. Aggrieved by the said judgment, the Insurance

Company preferred in M.F.A. No.5843/2003 and M.F.A.

No.5844/2003 before the High Court of Karnataka at

Bangalore. The High Court allowed the appeals and

modified the order passed by the Commissioner and

the liability of the Insurance Company was set

aside. However, the appellants were at liberty to

recover the amount of compensation from the

employer.

7. According to the reasoning of the High Court,

the vehicle was not involved in the accident and the

death of the workmen by no stretch of imagination

can be said to have any proximate or direct

connection with the vehicle. The High Court also 4

observed that the mere fact that Maize was brought

to the spot where the workmen had died in the

insured vehicle, would not render the Insurance

Company liable in respect of the death, the cause of

which was not proximate to the actual user of the

vehicle.

8. In the present case, the use of the vehicle

was not even claimed as being a ground on which the

liability is said to be fastened on the Insurance

Company.

9. Learned counsel appearing on behalf of the

appellants placed reliance on the decision of this

Court in Shivaji Dayanu Patil and Anr. vs. Vatschala

Uttam More, (1991) 3 SCC 530. Brief facts of that

case are that a collision between a petrol tanker

and a truck took place on a National Highway at

about 3.00 a.m. as a result of which the tanker went

off the road and fell on its left side at a distance

of about 20 feet from the Highway. Due to

overturning of the tanker, the petrol contained in

it leaked out and collected nearby. At about 7.15

a.m. an explosion took place in the tanker causing 5

burn injuries to those assembled near it including

the respondent's son who later succumbed to the

injuries. The facts of this case are entirely

different and are not applicable to the present

case. In this case, the petrol tanker was directly

involved in the accident and that all the workmen

were directly connected with the accident. This case

does not help the appellants in any manner.

10. Learned counsel for the appellants has also

placed reliance on a Division Bench judgment of the

Karnataka High Court delivered on 24th February, 2006

in M.F.A. No.1870/2005 (WC). In that case, the

workman who was working as a loader, went in the

lorry and loaded the lorry with stones and

thereafter he was required to unload the same close

to the Crusher near the quarry along with other

loaders. At about 2.30 p.m. in the afternoon, the

deceased workman got down from the lorry in order to

unload the stones along with other loaders and when

they opened the lock at the hind portion of the

lorry, the entire load of stones in the lorry fell

on him, as a result of which he sustained injuries

and succumbed to the injuries on the spot. In this 6

case, the vehicle was directly involved in the

unfortunate accident.

11. Both the above-mentioned cases relied on by

the learned counsel for the appellants are of no

avail to him. These cases do not help the appellants

in any manner.

12. Learned counsel for the Insurance Company has

placed reliance on the Explanation to Section 147(1)

of the Motor Vehicles Act, 1988, which reads as

under:

"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 of the death of or bodily injury to any person, including owner of the goods or his authorised 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;

7 (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;

Provided that a policy shall not be required-

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability.

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." 8

13. According to the learned counsel for the

respondents, on a plain reading of the above quoted

Explanation, the Insurance Company cannot be held

liable for the death of the workmen and therefore,

the Insurance Company cannot be held liable to pay

compensation to the appellants.

14. In our considered opinion, on the facts of

this case, the view taken by the learned Single

Judge of the Karnataka High Court seems to be

justified and correct. Therefore, no interference is

called for. This appeal being devoid of any merit is

accordingly dismissed. However, in the facts and

circumstances of this case, the parties to bear

their own costs.

.....................J (DALVEER BHANDARI)

.....................J (Dr. MUKUNDAKAM SHARMA) New Delhi;

September 07, 2010.