IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A. No. 24548/2010 (WC)
BETWEEN:
The Branch Manager,
National Insurance Co., Ltd.,
Bellary. Now represented by its
Sr. Divisional Manager,
Dr. Veerabhadrayya, Sr. Divisional Manager,
National Insurance Co., Ltd.,
Divisional Office, Melagiri Plaza,
MCC Block, Dental College Road,
Davanagere.
. . . Appellant
(By Sri. S.K. Kayakmath, Advocate)
AND
1. Sadappa S/o. V. Jootappa,
Age: 50 years, Occ: Nil,
R/o. Indira Nagar VSSN,
Yemmiganur, Bellary.
2. Smt. Parvatamma, W/o. Sadappa,
Age: 53 years, Occ: House Hold,
R/o. Indira Nagar, Near VSSN,
Yemmiganur, Bellary.
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3. Kumari. Maramma D/o. Sadappa,
Age: 15 years, since minor rep. by petitioner No.1.
R/o. Indira Nagar, Near VSSN,
Yemmiganur, Bellary.
4. Kumar. Venkatesh S/o. Sadappa,
Age: 13 years, since minor rep. by petitioner No.1.
R/o. Indira Nagar, Near VSSN,
Yemmiganur, Bellary.
5. P. Veerareddy S/o. Hanumanthreddy,
Age: Major, Occ: Owner of lorry MYY -6477.
R/o. Siddammanahalli Village,
Tal & Dist: Bellary. ... Respondents
(By Sri. Hanumanth Reddy, Advocate for R1 to R4; R5 served)
This MFA is filed under Section 30(1) of Workmen's
Compensation Act, 1923 against the judgment and award dated
28.05.2008 passed in KANAPA No.119/2007, on the file of the
Labour Officer & Commissioner for Workmen's Compensation, Sub
Division -II, Bellary awarding the compensation of Rs.2,94,294/-
with interest at the rate of 12% p.a. from the date of petition till its
realization.
This appeal coming on for final hearing, this day, the court,
delivered the following:
JUDGMENT
Challenging the award dated 28.05.2008 passed by the Labour Officer & Commissioner for Workmen's Compensation, Sub Division-II, Bellary in KANAPA No.119/2007 the insurer is in appeal.
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2. For the sake of convenience, parties are referred to as per their original rank before trial Court.
3. Brief facts leading to this appeal are that parents and siblings of V. Raju filed a petition under Section 22 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'W.C.Act' for short) seeking for award of compensation of Rs.6,50,000/- against the owner and insurer of the lorry bearing registration No. MYY-6477 in which the deceased was working as a cleaner. Tthe said lorry met with an accident on 15.12.2005 in which the deceased sustained fatal injuries and died. It was stated in the petition that deceased was employed as cleaner by respondent No.1, on a monthly salary of Rs.4,000/-.
4. On issuance of notice, owner and insurer appeared and filed their respective objections. In his objections, owner admitted that deceased V. Raju was employed by him as a cleaner in lorry bearing registration No. MYY-6477, but denied monthly salary of Rs.4,000/-. It was stated that deceased was paid Rs.100/- per day and Rs.15/- per day as bhata. The other averments of the claim petition were denied. In its objections, respondent No.2- insurer 4 opposed the claim petition in toto. It also contended that the relationship of employer and employee between deceased and respondent No.1 was not established and therefore it was not liable to pay the compensation. It also opposed the claim as being excessive. It was also contended that the deceased was traveling in the vehicle as gratuitous passenger and there was violation of the terms of policy.
5. Based on pleadings Commissioner framed following issues.
ªÁzÁA±ÀUÀ¼ÀÄ:
1) CfðzÁgÀgÀÄ ªÀÄÈvÀ£ÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ ªÁºÀ£À ¸ÀA:JA.ªÉʪÉÊ-6477 gÀ°è ¢£ÁAPÀ:15.12.2005 gÀAzÀÄ QèãÀgï£ÁV PÉ®¸À ªÀiÁqÀÄwÛzÁÝUÀ ¸ÀA¨sÀ«¹zÀ C¥ÀWÁvÀzÀ°è ªÀÄÈvÀ¥ÀnÖgÀÄvÁÛ£ÉAzÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
2) CfðzÁgÀgÀÄ vÁªÀÅ ªÀÄÈvÀ£À C¥ÀjavÀgÉAzÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
3) ªÀÄÈvÀ¤UÉ C¥ÀWÁvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è 1£Éà ¥ÀæwªÁ¢ 4000-00 gÀÆUÀ¼À ªÉÃvÀ£À PÉÆqÀÄwÛzÀÝgÉAzÀÄ ºÁUÀÆ C¥ÀWÁvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è ªÀÄÈvÀ£À ªÀAiÀĸÀÄì 18 ªÀµÀð EvÉÛAzÀÄ CfðzÁgÀgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
4) DVzÀÝ°è CfðzÁgÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ? 5
5) G¨sÀAiÀÄ ¥ÀæwªÁ¢UÀ¼À°è CfðzÁgÀjUÉ AiÀiÁgÀÄ ¥ÀjºÁgÀ PÉÆqÀ®Ä ¨ÁzsÀågÀÄ?
6) F §UÉÎ AiÀiÁªÀ DzÉñÀ?
6. In support of the claim petition, the petitioner No.2 was examined as PW.1 and Exs.P.1 to P.8 were marked. Respondent No.2 examined an official of the insurance company as RW-1 and got marked it document as R2(1).
7. On consideration, the Commissioner, answered issue Nos. 1 to 3 in the affirmative holding that deceased was earning a monthly income of Rs.2,600/- and his age was 18 years on the date of accident. The Commissioner by answering issue No.4 in the affirmative and taking the factor 226.38 corresponding to age of deceased and considering his monthly income at Rs.2,600/- calculated a total compensation of Rs.2,94,294/- and answered issue No.5 accordingly. The Commissioner also awarded interest of 12% p.a. from 30 days after date of award. Challenging the same, insurer is in appeal.
8. Sri. S.K. Kayakamath, learned counsel for appellant submitted that a perusal of the statement enclosed to FIR-Ex.P1 6 indicates that the lorry in which the deceased was traveling was going for a wedding party and therefore deceased was traveling in the said vehicle as a gratuitous passenger. Learned counsel further drew attention of this Court to Ex.R2-1 which is the statement of father of deceased and claimant No.1 herein, who had also stated that deceased was traveling in lorry on the date of the accident to attend a wedding. Learned counsel submitted that said statement also corroborated contents of complaint and submitted that same establishes that accident did not occur during course of employment and out of employment. Learned counsel further submitted that in the absence of any other document to establish that deceased was employed by insurer -R1, relationship of employer and employee has to be held as not proved. However the Commissioner has without proper appreciation of evidence has concluded the said issue against the insurer.
9. On the other hand, Sri. Hanumanth Reddy, learned counsel for claimant submitted that complainant in criminal case was the driver of the lorry which was involved in the accident. His statement cannot be taken as conclusive proof of the fact that 7 deceased was not employed as cleaner. Even the statement of father of deceased Ex.R2-1 is a statement recorded by the police during investigation and the same is an unsigned statement and cannot be relied upon in this case. Learned counsel further submitted that respondent No.1-owner in his written statement before Tribunal admitted that deceased was employed as a cleaner of the lorry. Therefore, the relationship of employer and employee was established and as the accident was not in dispute, the other necessary factors namely, accident occurring during course of and out of employment also stood as established.
10. Countering the said statement learned counsel for the appellant relied upon the decision in Savithribai and another Vs. Doddappa and another reported in 1981 ACJ 422 and the decision of the Hon'ble Supreme Court in Bharat Singh and others Vs. M/s. T. Bhagirathi reported in AIR 1996 SC 405, on the proposition of law that even a statement recorded during the course of investigation by the police constituted admissible evidence in other proceedings.
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11. Heard learned counsel for both parties and perused the records.
12. In a claim petition under Section 22 of Workmen's Compensation Act, 1923 claimant is required to establish three factors.
(1) there was an accident (2) the accident had a causal connection with the employment and (3) the accident must have been suffered in the course of employment
13. In the case on hand, the occurrence of the accident and death of deceased, V. Raju in the accident, are not in dispute. In view of statement of first respondent - employer in his written statement, it has to be held established that deceased was employed as a cleaner in lorry No. MYY-6477. Though, learned counsel for insurer contended to the contrary, relying upon contents of Exs.P.1 and R2(1) a perusal of same would indicate that except stating that deceased traveling in the lorry to attend wedding. Further there is no clarity regarding his occupation. As against the same, there is specific admission by the employer in his written statement filed before the Tribunal admitting the relationship of 9 employer and employee. Hence, it has to be held that claimants established the second factor also. The accident has occurred when the lorry was being taken to attend the wedding party.
14. The claimants both in claim petition and in their examination-in-chief clearly asserted that lorry was proceeding towards Lakshmipura as per directions of first respondent. There is no contrary evidence led by respondents to establish otherwise. Though respondent No.2 made suggestions to PW1 that deceased was traveling as a gratuitous passenger in the lorry to attend a wedding, the same have been denied. The insurer has not made any efforts to examine the owner or place on record any other evidence. In the absence of the same, the Commissioner has arrived at a finding of a fact that the accident occurred during course of employment and out of employment and proceeded to assess the compensation.
The assessment of compensation of quantum is not assailed. Thus, no substantial question of law arises in this appeal. Accordingly it is dismissed.
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The amount in deposit, if any, before this Court is ordered to be transmitted to the jurisdictional Court for disbursement.
Sd/-
JUDGE BVK