G MURGAN Vs. MAHESHWARAN

JUDGEMENT

(1.) THE present appeal by the claimants before the Commissioner for workmen's Compensation, Belgaum (hereinafter referred to as 'the commissioner' for brevity), seek to question the finding of the commissioner that the insurance company was not liable to pay compensation.

(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.