Karnataka High Court
Thippesha vs Thimmasetty on 29 July, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:29762
MFA No. 2055 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 2055 OF 2018 (WC)
BETWEEN:
THIPPESHA
AGED ABOUT 20 YEARS
S/O GIRIYAPPA
COOLIE, R/O NAKIKERE VILLGE
HOSADURGA TALUK-577 527
CHITRADURGA DISTRICT.
...APPELLANT
(BY SRI. R SHASHIDHARA .,ADVOCATE)
AND:
1. THIMMASETTY
S/O MALLA SETTY
MAJOR, R/O DOMBADAHALLY VILLAGE
MUGTHIHALLY POST, CHIKKAMAGALURU TALUK
Digitally signed by AND DISTRICT-577 101.
HEMALATHA A
Location: HIGH 2. THE DIVISIONAL MANAGER
COURT OF
KARNATAKA UNITED INDIA INSURANCE CO LTD.,
MMK COMPLEX, AKKAMAHADEVI ROAD
DAVANAGERE-577 001
...RESPONDENTS
(BY SRI. O MAHESH., ADVOCATE FOR R2:
NOTICE TO R1 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED:22.01.2018
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NC: 2024:KHC:29762
MFA No. 2055 of 2018
PASSED IN ECA.NO.1/2016 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, MACT, HOSADURGA, DISMISSING THE
CLAIM PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
ORAL JUDGMENT
1. This appeal under Section 30(1) of the Employees Compensation Act, 1923 (hereinafter referred to as 'the Act') has been filed by the claimant being aggrieved by the judgment dated 22.01.2018 passed by Senior Civil Judge & MACT, Hosadurga in ECA No.1/2016.
2. Facts giving rise to the filing of the appeal briefly stated are that the claimant was working as a labourer under respondent No.1, who is the owner of the tractor bearing No.KA-18-T-1945. On 05.02.2004, when the claimant was working as a labourer in the said tractor, the tractor met with an accident at Shirangunda Village, -3- NC: 2024:KHC:29762 MFA No. 2055 of 2018 Chikkamagaluru. As a result, claimant sustained multiple injuries and was hospitalized.
3. The claimant filed a petition under Section 22 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc.
4. On service of notice, the respondent No.2 appeared through respective counsel and filed written statement in which the averments made in the petition were denied. Respondent No.1 did not appear before the Tribunal and was placed exparte.
5. On the basis of the pleadings of the parties, the Commissioner framed the issues and thereafter recorded the evidence. The claimant, himself was examined as PW- 1 and got exhibited documents namely Ex.P1 to Ex.P6. On behalf of the respondents, one witness was examined as RW-1 and got exhibited document namely Ex.R1. The Tribunal, by the impugned judgment, inter alia, dismissed the claim petition. Being aggrieved, this appeal has been filed.
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NC: 2024:KHC:29762 MFA No. 2055 of 2018
6. The learned counsel for the claimant has submitted that the petitioner was working as a labourer under respondent No.1. On 05.02.2004, when the claimant was working as a labourer in tractor-trailer bearing KA-18-T- 1944-45 belonging to respondent No.1 and when the claimant and others went to load cement bags from the shop to respondent No.1, the tractor did not start and the driver asked the claimant and others to push the tractor and when they were pushing, the tractor started and the driver of the tractor could not control and as a result, the right forearm of the claimant got entangled in between the tyre and mudguard and as such, he sustained grievous injuries. It is not in dispute that the claimant was working under respondent No.1. This aspect has not been considered by the Tribunal. Even in the FIR, it is clearly stated that the claimant was working under respondent No.1. Without considering the evidence of PW-1 and materials available on record, the Tribunal has erred in dismissing the claim petition. Hence, he sought for allowing the appeal.
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NC: 2024:KHC:29762 MFA No. 2055 of 2018
7. The learned counsel for the Insurance Company has submitted that claimant is the resident of Nakikere Village, Hosadurga. As per FIR, the accident occurred at Chikkamagaluru and claimant has taken treatment at Government Hospital, Holalkere, which is about 150 kms, away from Chikkamagalur. The complaint has been lodged after 16 days from the date of accident. Therefore, it is clear that in order to make a false claim, the claimant has pleaded that he was working under respondent No.1 and he sustained injuries during the course of employment. The Tribunal after considering the evidence of the parties has rightly dismissed the claim petition on the ground that the claimant has failed to prove the relationship of employer and employee between himself and respondent No.1. Hence, he sought for dismissal of appeal.
8. Heard the learned counsel for the parties and perused the judgment and award passed by the Tribunal.
9. The substantial question of law that arises for consideration is "whether the claimant has proved the -6- NC: 2024:KHC:29762 MFA No. 2055 of 2018 relationship of employer and employee between himself and respondent No.1.?"
10. The specific case of the claimant is that on 05.02.2004, when the claimant was working as a labourer in tractor-trailer bearing KA-18-T-1944-45, the said tractor met with an accident at Shirangunda Village, Chikkamagaluru and as a result, claimant sustained multiple injuries and was hospitalized. As per the records produced by the claimant, the claimant took treatment at Government Hospital, Holalkere, which is about 150 kms away from Chikkamagalur. It is clear that he is a permanent resident of Nakikere Village, Chitradurga. The complaint has been lodged after 16 days from the date of the accident. He has not examined the doctor regarding nature of injuries and disability suffered by him.
11. Therefore, considering the evidence of PW-1 and RW-1 and materials available on record, this Court is of the opinion that the Tribunal has rightly come to the -7- NC: 2024:KHC:29762 MFA No. 2055 of 2018 conclusion that the claimant has failed to establish the relationship of employer and employee between claimant and respondent No.1. Consequently, the Tribunal is justified in dismissing the claim petition. The substantial question of law framed by this Court is answered accordingly. Hence, the appeal is liable to be dismissed.
12. Accordingly, the appeal is dismissed.
Sd/-
(H.T. NARENDRA PRASAD) JUDGE DM List No.: 1 Sl No.: 82