NEW INDIA ASSURANCE COMPANY LIMITED Vs. CHANNAMMA

JUDGEMENT

(1.) WHEN the matter is posted for admission, since respondents are served and the question to be decided is in narrow compass, with the consent of the Learned Counsel for the appellant, the matter is taken for consideration.

(2.) THE deceased Hanumanthaiah was working as a loader in a lorry. On 24. 2. 2004, in the afternoon, while he was loading sand in the lorry from sand pit, suddenly the sand collapsed and the deceased was buried in the sand. On rescuing, he was found dead. Since he was working with respondent No. 6, the legal representatives of the deceased Hanumanthaiah (respondent Nos. 1 to 5 herein) have filed the claim petition for compensation before the Workmen's commissioner. The owner of the Lorry and the Insurance Company, the appellant herein contested the claim on the ground that since the vehicle was stationary at the time of the incident, no liability arises against for the owner or the Insurance Company to pay the compensation. The Workmen's Commissioner declined to accept this contention relying upon the pronouncement of this Court in smt. PREMILA AND OTHERS vs SHALIWAN AND ANOTHER, 2005 AIR Kant hcr 1610 After declining this preliminary objection, he proceeded to consider the claim. Depending upon the postmortem report, the Commissioner took the age of the deceased as 35 years and considering the fact that as admitted by the owner himself that he was earning around Rs. 5,000/ per month, held that his earning was 3,500/- per month, deducting 50% towards his expenses, taking Rs. 1,750/- as the income, applying the relevant factor 189. 56, awarded compensation of Rs. 3,31,730/-by the impugned award dated 30-8-2005. It is this award which is challenged before this Court in the present appeal by the Insurance company.

(3.) THE contention of the learned counsel for the Insurance company is that as the lorry in question in which the deceased hanumanthaiah was working was stationary and since said hanumanthaiah died when he was outside the lorry and because of coming under the sand which was being excavated, the claim does not fall within the purview of Workmen's Compensation Act as the death did not occur arising out of and in the course of employment. The learned counsel also challenged the correctness or otherwise of the earnings of the deceased at Rs. 3,500/- as held by the Workmen's commissioner.