Karnataka High Court
Smt. Laxmibai And Ors vs Chandrakant And Anr on 31 July, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
-1-
NC: 2024:KHC-K:5494
MFA No. 201523 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
MISCL. FIRST APPEAL NO.201523 OF 2017 (ECA)
BETWEEN:
1. SMT. LAXMIBAI
W/O LATE GURULINGAPPA,
AGE: 40 YEARS, OCC: HOUSEHOLD
2. SHIVAKUMAR
S/O LATE GURULINGAPPA
AGE: 25 YEARS, OCC: STUDENT
3. ANIL S/O LATE GURULINGAPPA,
AGE: 23 YEARS, OCC: STUDENT,
ALL ARE R/O. AMBALAGA, TQ: ALAND,
DIST: GULBARGA-585316.
Digitally signed
by RENUKA
Location: HIGH ...APPELLANTS
COURT OF (BY SRI ANAND V. TURE, ADVOCATE)
KARNATAKA
AND:
1. CHANDRAKANT
S/O SOMASHEKHAR,
AGE: MAJOR,
OCC: BUSINESS AND OWNER
OF TATA DCM 407 OPEN GOODS VEHICLE
BEARING REG NO.KA-32/2919,
R/O. AMBALAGA VILLAGE,
TQ: ALALD, DIST: GULBARGA-585316.
-2-
NC: 2024:KHC-K:5494
MFA No. 201523 of 2017
2. THE NATIONAL INSURANCE CO. LTD.
THROUGH ITS DIVISIONAL OFFICE,
BY ITS DIVISIONAL MANGER,
1ST FLOOR, BILGUNDI COMPLEX,
MAIN ROAD, OPP: MINI VIDHANA SOUDHA,
GULBARGA-585102.
...RESPONDENTS
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADV. FOR R1;
SMT. PREETI PATIL MELKUNDI ADV. FOR R2)
THIS MFA IS FILED U/S. 30(1)(A)OF EMPLOYEES
COMPENSATION ACT, PRAYING TO ALLOW THE APPEAL BY
MODIFYING THE IMPUGNED JUDGMENT AND AWARD DATED
09.06.2017 PASSED BY THE LEARNED SENIOR CIVIL JUDGE
AND COMMISSIONER FOR EMPLOYEE'S COMPENSATION ALAND
IN E.C.A. NO.14/2013 AND CONSEQUENTLY BYE PLEASED TO
AWARD COMPENSATION OF RS.5,00,000/- WITH INTEREST
@12% PER ANNUM FORM THE DATE OF PETITION TILL
DEPOSIT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
-3-
NC: 2024:KHC-K:5494
MFA No. 201523 of 2017
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA)
1. Whether the Commissioner was justified in dismissing the claim petition on the basis of the evidence of the wife of deceased that the claimant was an agriculturist and he was therefore not an employee of the 1st respondent is the substantial question of law that arises for consideration in this appeal?
2. The fact that the accident occurred on 05.01.2013 in which the Gurulingappa the husband of the claimant was killed is not in dispute.
3. It was stated by the claimants that Gurulingappa was working as a labourer and had been engaged for loading and unloading the goods in the vehicle and the accident occurred when the goods vehicle in which he was traveling hit a milestone and as a result of which Gurulingappa sustained fatal injuries and died on the spot and a case was also registered against the driver of the truck. -4-
NC: 2024:KHC-K:5494 MFA No. 201523 of 2017
4. The fact that the vehicle was insured in not in dispute.
5. The Insurance Company however took up the contention that there was no relationship of employer and employee and there was no evidence adduced to establish the said fact. It was highlighted that the owner of the truck, though entered appearance, did not chose to file any objections nor did he produce any documents to establish the relationship and therefore the claim that Gurulingapa was a labourer would have to be rejected.
6. The Tribunal on the basis of following deposition of wife came to the conclusion that Gurulingappa was not a labourer. The said deposition of wife is as follows;
"MAzÀĪÀgÉ JPÀgÉ d«ÄãÀÄ EgÀÄvÀÛzÉ. ¸ÀzÀj ºÉÆ®ªÀÅ ªÉÆzÀ°UÉ £À£Àß UÀAqÀ£À ºÉ¸Àj£À°èvÀÄÛ. CªÀgÉà ¸ÀévÀB ¸ÁUÀĪÀ½ ªÀiÁqÀÄwÛzÀÝgÀÄ. £À£Àß UÀAqÀ¤UÉ ¸ÀévÀB ºÉÆ® EzÀÄÝzÀjAzÀ CªÀgÀÄ MPÀÌ®ÄvÀ£À ªÀiÁqÀÄwÛzÀÝgÀÄ. 1£Éà JzÀÄgÀÄzÁgÀgÀÄ £ÀªÀÄä Hj£ÀªÀgÉà EgÀÄvÁÛgÉ. ZÁ®PÀ£ÀÄ ¸ÀAUÀtÚ AiÀiÁgÀAzÀÄ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è. PÀ®è¥Àà vÀAzÉ UÀÄgÀÄ°AUÀ¥Àà ºÀUÀÎzÀ £À£Àß CtÚ£ÁUÀ¨ÉÃPÀÄ. ¸ÀzÀj C¥ÀWÀvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è £À£Àß UÀAqÀ UÀÄgÀÄ°AUÀ¥Àà ªÀÄvÀÄÛ PÀ®è¥Àà MnÖUÉ ªÁºÀ£ÀzÀ°è ºÉÆÃUÀÄwÛzÀÝgÀÄ JAzÀgÉ -5- NC: 2024:KHC-K:5494 MFA No. 201523 of 2017 £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è. CfðAiÀÄ°è J£ÀÄ §gÉ¢zÉ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è. CzÉà jÃw ªÀÄÄRå «ZÁgÀuÉAiÀÄ ¥ÀæªÀiÁt ¥ÀvÀÛzÀ°è J£ÀÄ §gÉ¢gÀÄvÀÛzÉ JAzÀÄ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è."
7. As could be seen from the said deposition the wife of the deceased Gurulingappa did state that they owned one and half acres and previously the land stood in the name of her husband and he was himself cultivating the land. She has also stated that since her husband owned the land, he was cultivating the same. From this statement it cannot be inferred that he had not been engaged in the task of loading and unloading and that he was an agriculturist and was only cultivating his land.
8. A realistic view of a family, which owns just one and half acres of land, will have to be taken into consideration while considering the possibility of owner of one and half acres engaging himself in other avocations. Merely, because a person owns one and half acres and there is an admission by his widow that he was cultivating the land, that would not by itself exclude the possibility of that -6- NC: 2024:KHC-K:5494 MFA No. 201523 of 2017 person engaging himself in the task of loading and unloading in order to augment his income. The Tribunal therefore has committed a serious illegality in misconstruing the evidence of the wife of the deceased.
9. As far as the arguments that the owner of the truck though entered appearance did not contest the proceedings is concerned, at the outset, it is to be stated here that if a respondent/employer in a proceeding under the Employees Compensation Act, does not dispute the assertion of the claimant that the deceased was his employee, in the normal circumstances, it will have to be assumed that the assertion of the claimant was admitted.
10. The Insurance Company which entered appearance did not establish with any acceptable evidence that there was a collusion between the claimants and the owner of the truck. Unless, there was clear evidence adduced to establish collusion by the Insurance Company, the argument of the Insurance Company that the claimant will -7- NC: 2024:KHC-K:5494 MFA No. 201523 of 2017 have to be non-suited because of collusion cannot be accepted.
11. In this case, the fact that an accident occurred and Gurulingappa was killed in the accident cannot be in dispute. The police records, post mortem report and also the IMV report establish this fact. A presumption would have to be drawn, in the absence of any evidence by the owner of the vehicle or the insurer, that Gurulingappa was engaged the task of loading and unloading the vehicle and he was not a stranger. As a consequence the order of the tribunal will have to be set aside.
12. The claimants contended that the deceased was earning a sum of Rs.6,000/- per month which is not denied by the employer. The accident being of the year 2013, the wages of Rs.6,000/- stated by the claimants cannot be in serious dispute especially when the notional income as determined by the Karnataka State Legal Service Authority is Rs.7,000/-.
-8-
NC: 2024:KHC-K:5494 MFA No. 201523 of 2017
13. As provided under Section 4 of the Employees Compensation Act, therefore, the claimants will be entitled for Rs.5,35,470/- (Rs.3,000/- x 178.49).
14. The said amount was carry interest at 12% per annum from 05.02.2013. The insurer shall deposit the said amount within a period of four weeks from today.
In that view of the matter, the appeal is allowed in part.
Sd/-
(N.S.SANJAY GOWDA) JUDGE MSR List No.: 1 Sl No.: 15