Smt. Suvarna W/O Ambanna Vadageri ... vs The Managing Director Ors
2021 Latest Caselaw 5156 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

      DATED THIS THE 01ST DAY OF DECEMBER, 2021

                        BEFORE

         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

               MFA No.30699/2012 (WC)

BETWEEN:

01.     SMT. SUVARNA W/O AMBANNA VADAGERI
        AGE: 27 YEARS OCC: HOUSEHOLD

02.     KUMAR SIDDAPPA S/O AMBANNA VADAGERI
        AGE: 06 YEARS OCC: NIL
        (MINOR REPRESENTED BY APPELLANT NO.1)
        BOTH ARE R/O: SASNOOR
        TQ: B. BAGEWADI
        DIST: BIJAPUR.                 ... APPELLANT

(BY SRI. BASAWARAJ R. MATH, ADVOCATE)

AND:

01.     THE MANAGING DIRECTOR
        MOHANRAO SHINDE CO-OP.
        SUGAR FACTORY ARAG
        TQ: MIRAJ DIST: SANGLI

02.     M/S. RENUKA SUGARS LIMITED, BELGAUM
        (ARAG, TQ: MIRAJ DIST: SANGLI)
03.     SRI. PARAMANNA S/O LINGAPPA PUJARI
        AGE: 45 YEARS
        R/O: CHANDAKVATHE
        TQ: SINDAGI DIST: BIJAPUR.
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04.   SRI. BASAPPA S/O HANMANTHRAYA VADAGERI
      AGE: 50 YEARS OCC: NIL

05.   SMT. NEELAMMA W/O BASAPPA VADAGERI
      AGE: 45 YEARS OCC: HOUSEHOLD
      RESPONDENTS NO.4 AND 5 ARE RESIDING AT
      SASNOOR VILLAGE
      TQ: B. BAGEVADI DIST: BIJAPUR.

                                  ... RESPONDENTS

(BY SRI.SUDHARSHAN M., FOR R2
SRI.SANDEEP VIJAYAKUMAR, ADVOCATE FOR R3
SRI.SANGANAGOUDA V. BIRADAR, ADV., FOR R4&R5
R1 - SERVED)


      THIS MISCELLANEOUS FIRST   APPEAL    IS   FILED

UNDER SECTION 30 (1) OF WORKMEN COMPENSATION

ACT, PRAYING TO CALL FOR RECORDS AND SET-ASIDE

THE IMPUGNED AWARD DATED 15.12.2011 PASSED BY

THE LABOUR COMMISSIONER FOR COMPENSATION, SUB-

DIVISION-2, VIJAYAPUR IN CASE NO.KAB-2/KNP/DEATH

CASE-100/2007 AND ALLOWED THE CLAIM PETITION

FILED BY THE CLAIMANTS.


      THIS APPEAL COMING ON FOR FINAL HEARING THIS

DAY, THE COURT DELIVERED THE FOLLOWING:-
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                         JUDGMENT

This appeal is filed by the wife and son of the

deceased Ambanna Vadageri aggrieved by the judgment

and order passed in KAB-2/KNP/DEATH CASE-100/2007 by

the Commissioner for Compensation, Sub-Division-2

Vijayapur.

02. The brief facts leading upto filing of the appeal

are that on 01.01.2007 one Hanamanth received a call

from the supervisor - respondent No.2 - Renuka Sugars

Limited stating that a dead body was found near the

Factory at about 09.00 p.m. on 01.01.2007. When the said

Hanamant went to the spot he identified the dead body to

be of one Ambanna. The said dead body was handed-over

for postmortem. It was found that the death was due to

accident caused by an unknown vehicle. Thereafter, a case

was registered in Crime No.2/2007 before Miraj Rural

Police Station in unnatural death report (UDR) case.

03. Thereupon, the petitioners being wife and son

and parents of the deceased filed a claim petition under

Section 10 of the Workmen Compensation Act seeking

compensation in a sum of Rs.10,00,000/- against the

Managing Director-respondent No.1 herein on the premise

that the deceased Ambanna Vadageri, the husband of

petitioner No.1 and father of petitioner No.2 was working

as loader/coolie and was earning Rs.3,500/- per month in

a factory under respondent Nos.1 to 3. That on

01/01/2007 while he was on duty discharging his function

met with an accident by an unknown vehicle and

succumbed to the same. That since the deceased died

during and in the course of the employment, the said

respondent No.1 to 3 were liable to pay compensation to

the claimants.

04. Upon service of notice, respondent Nos.1, 2

and 3 appeared and filed statement of objection

categorically denying the petition averments. The

respondent No.2, the Administrative Officer of the

respondent No.1, in his objection statement at para 1 of

has stated that deceased seems to be working under a

contractor by name Shri Paramanna Lingappa who was

entrusted with a contract of godown Hamali for the season

2006-2007 and it was his responsibility to comes his

employees under the Insurance policy under the Workman

Compensation Act.

05. It is further contended that the claimants had

not made contractor as party to the proceeding, that the

claim petition was filed with a malafide intention of

enriching themselves. It was also contended that the

deceased was not employed by them. That on 01/01/2007

there was no accident occurred within the factory, that on

the said day there was holiday to the factory on account of

Bakrid Eid and on the said date no employee either directly

or indirectly was on duty and hence so called accident if

any had not occurred during or in the course of

employment. That claim made by the claimants is false

and baseless. Hence sought for dismissal of the claim

petition.

06. Respondent No.3-Contractor filed the

statement of objection denying the petition averments

more specifically contending that there was no person

working by name Ambanna Vadageri at any point of time

under the respondent No.3. Therefore, question of there

being an employer and employee relationship between the

respondent No.3 and the deceased does not arise. That

the deceased had died in a motor vehicle accident on the

public tar road which is situated outside and far away from

the premises of the sugar factory. Therefore, it was an hit

and run case. That, suppressing this aspect of the matter a

false claim petition was filed. Hence, sought for dismissal

of the claim petition.

07. Claimant No.3, wife of deceased Ambanna

Vadakeri examined herself as PW.1 and got exhibited 12

documents marked as Ex.A1 to Ex.A-12. On behalf of the

respondent, three witnesses have been examined and

exhibited 4 documents marked as Exs.R1 to R4.

08. The Commissioner, on appreciating the

evidence and materials placed before him, came to the

conclusion that the claim petition filed by the claimants

was without any basis and that they had failed to establish

that the deceased was an employee in the sugar factory of

the respondent and that the accident in question had

occurred during in course of the employment,

consequently dismissed the claim petition. Aggrieved by

the same, the claimants are before this Court.

09. Learned counsel for the claimants reiterating

the grounds urged in the appeal memo submitted that the

Commissioner erred in not appreciating the fact that there

existed master and servant relationship between the

respondent Nos.1 to 3 and the deceased Ambanna

Vadageri. He further submits that the Commissioner failed

to appreciate Exs.P1, 2, 6 to 11 which establish the

relationship of master and servant between the respondent

Nos.1 to 3 and deceased Ambanna. In view of the

availability of the materials on record that the

Commissioner was not justified in dismissing the claim

petition. He further submits that the Commissioner has

not taken into consideration the categoric admission made

by the witnesses with regard to the fact that the deceased

was working in the factory. He submits that the evidence

of contractor, who is respondent No.3 would categorically

establish the fact that the deceased was working under the

said contractor. Despite the aforesaid documents made

available on record, the Commissioner has failed to take

the same into consideration and has thereby resulted in

the miscarriage of justice.

10. Per contra, learned counsel for the respondent

Nos.1 and 2 submits that the claimants have miserably

failed to establish the relationship of employer and

employee. The deceased was never an employee either

under respondent Nos.1 and 2 or through respondent

No.3. He also submits that the accident in question

purported to have occurred for away from the factory and

the cause of accident is also unknown. He also submits

that in view of the evidence of RW1 and RW.2 along with

documents produced would establish that on 01/01/2007,

the factory was not functioning as there was a holiday on

account of Bakrid festival. He also submits that the

claimants have not produced any material to establish

casual connection between the death and the employment

if at all any. Hence he sought for dismissal of the appeal.

11. Learned counsel for respondent No.3 submits

that though it is true that respondent No.3 was a

contractor supplying the man power to the factory, but on

the said day there was no person working as it was a

holiday. He submits that no employee by name Ambanna

Vadageri was working under him and that the contract

work was extended only up to 2006 and for the relevant

year 2007 there was no contract. In the light of the same,

he sought for dismissal of the appeal.

12. Learned counsel for the respondent Nos.4 and

5 who were the claimants originally, support the case of

the appellants.

13. Having heard the rival submissions, the

substantial question of law that arises for consideration is.

Whether the Commissioner was justified in dismissing the claim petition solely relying upon the letter extract produced on behalf of the factory with regard to the list of holidays without taking into consideration the objection statement filed by respondent No.2 and the deposition of the witnesses?

14. It is the case of the claimants that deceased

Ambanna Vadageri was working as Hamali (coolie)

carrying on the function of loading and unloading of

sugarcane in the factory of respondent Nos.1 and 2. That

on 01/01/2007 at about 8.00 p.m., while on the way to

the work he met with an accident and died on the spot.

Therefore, they submit that the accident resulting death of

the deceased had occurred during and in course of

employment. It is further contended that the deceased

was earning Rs.3,500/- per month and he was contributing

the same for the family welfare.

15. The respondent No.2, in the statement of

objection which is filed also on behalf of respondent No.1

at paragraphs 1 and 2 has stated as under.

"1. At the very outset the Opponent objects the very application on the ground that the same is illegal, improper, false, baseless, misconceived and malicious. The present application is not at all maintainable in law as well as fact as there was no direct employer- employee relationship between the Opponent and the deceased at any point of time. The opponent submits that the deceased seems to be working under a contractor Shri Paramanna Lingappa Pujari R/o Chandkavate, Taluka Shindagi, District, Bijapur, who was entrusted with a contract of Godown Hamali for the season 2006-07. That in terms of the said contract the entire responsibility of accident at the time of working was on the contractor and he was to cover his employees under insurance policies under WC Act. Hence, the opponent submits that in terms of contract the Opponent is not all responsible for payment of any compensation as claimed. Hence this application is not all maintainable as against the Opponent and the same is liable to be dismissed in limine".

"2. The Opponent submits that the Applicant has not made the said contractor party in this mater, even though they are aware of the same and hence the application suffers from non-joinder of necessary party and is liable to be dismissed on this point".

16. From the aforesaid contents of statement of

objection it is very clear that the respondent Nos.1 adn 2

do not dispute the employer and employee relationship.

All that they are saying is that the deceased was not

under direct employment. That he might have been

employed under the contractor Shri Paramanna Lingappa

Pujari. Further without prejudice to the aforesaid

contentions raised, the respondent Nos.1 and 2 also

contend elaborately that on 01/01/2007, the factory was

not functioning on account of the holiday, therefore, the

question of deceased meeting with accident during and

course of employment does not arise.

17. It is necessary to note at this juncture that the

respondent Nos.1 and 2 have not outrightly rejected the

claim. They set up a defense that the deceased might have

been an employee under respondent No.3 who was

admittedly supplying the man power to the factory.

Therefore, the statement of respondent Nos.1 and 2

denying the relationship of employer and employee cannot

be considered.

18. On the basis of the aforesaid taken up by the

respondent No.1 and 2 that deceased might have been

working under the respondent No.3-contractor and also in

view of respondent No.3 not disputing the fact of he is

supplying the man power to the sugar factory it can be

presumed that the defence set up by the respondent

carries no merits.

19. It is noted the during the cross examination to

the repeated questions and suggestions made to the said

respondent No.3 regarding the deceased working in the

factory, he has not specifically denied with regard to

deceased being an employee. But has given evasive

answers. Upon on suggestion made with regard to all the

workers residing within the factory he has responded that

all the Hamalis were given the sheds.

20. Though list of holidays produced at Ex.R1AA by

the respondents to justify their stand of the factory being

closed on 01/01/2007, it is not clear as to who has issued

the same and also it is not clear as to who is the author of

said document. The said document seems to have been

produced through the Secretary of Sugar Factory, who is

RW.2.

21. It is necessary to note that the statement of

Hanumant given to the police. The said Hanumant first

person to get information with regard to the death of the

deceased and he is the person who identified the deceased

Ambanna Vadegeri and he is a person who took the

deceased to the Hospital. He is also a witness to the

panchanama. He has categorically stated that deceased

was a coolie working along with him in the sugar factory.

This aspect of the matter has not been disputed by the

respondents.

22. The aforesaid Hanumant, in the statement

given to the of the police as per Ex.A7 recorded on

02/01/2007 has stated that on the said day at about 8'o

clock he was in the factory and received the information

from the Supervisor of the factory regarding the death of

Ambanna Vadakeri. Neither the respondent Nos.1 and 2

nor respondent No.3 have denied the said Hanumant

Gullappa being an employee (working as coolie) in the

factory. They have not made any attempt to summon the

said Hanumant Gullappa in support of the evidence.

23. From the aforesaid material evidence, what

emanate is that respondent Nos.1 and 2 and respondent

No.3 have not seriously disputed the fact that the

deceased Ambanna Vadekeri was their employee though a

feeble attempt is made in the statement objection by the

respondent Nos.1 and 2 which is extracted hereinabove,

would only suggest and reveal that he was indirectly

employed by them through respondent No.3. In this

aspect of the matter, it can be inferred that the deceased

Ambanna Vadakeri was working as Hamali through

respondent No.3 under respondent Nos.1 and 2.

Therefore, provision of Section 12 of the Employee's Act,

1923 comes into play. In terms of which, "where any

person in the course of or for the purposes of his trade or

business contracts with any other person for the execution

by or under the contractor of the whole or any part of any

work which is ordinarily part of the trade or business of the

principal, the principal shall be liable to pay to any

employee employed in the execution of the work any

compensation which he would have been liable to pay if

that employee had been immediately employed by him".

24. As noted above, from the averments in the

statement objection of the respondent Nos.1 and 2 and

deposition of respondent No.3 and in the statement of

Hanumanth Gullappa and various of the persons, it is clear

that Ambanna Vadegeri was working as Hamali/coolie in

the sugar factory of respondent No.2.

25. There is another aspect of this matter is that

admittedly, dead body of deceased Ambanna Vadakeri was

found near the factory. From the evidence of RWs.1, 2

and 3, it is clear that the road on which the dead body of

the deceased found leads only to the sugar factory. It is

also clear from the evidence that any vehicle which comes

on the said road goes only to the factory. This further

probablises that the fact that the deceased was working

and was employed by the respondent Nos.1 and 2 through

respondent No.3. In the light of the aforesaid facts and

circumstances of the case, the order passed by the

Commissioner holding that the deceased was not an

employee, cannot be sustained.

26. The second issue with regard to whether the

accident in question resulted in the death occurred during

in course of the employment needs to be considered. The

Commissioner having concluded that the deceased was not

an employee under respondents, has not adverted to the

issue with regard to the cause of death and also with

regard to whether the death had occurred during the

course of the employment.

27. Though the respondents have alternatively set

up their defence that on the date of accident i.e.

01/01/2007 the factory was closed on account of Bakrid

Festival no justifiable and acceptable material evidence is

forthcoming. Further the fact of the matter that whether

on the said date the factory was closed or not, whether

employees were working in the factory on the said date or

not, and also the working hours of the factory, all these

aspects of the matter needs be proved and established.

The casual relation between the death of deceased

Ambanna Vadkeri and with the employment needs to be

established.

28. In the light of the above, this Court is of the

considered opinion that the parties relegated to the

Tribunal by providing an opportunity to lead further

evidence with regard to the aforesaid aspects of the

matter.

29. It is made clear that the remand of this matter

is only to the extent of enquiry with regard to the accident

resulting in death of Ambanna Vadakeri and its relationship

with his employment under the respondents. The issue

with regard to the employer and employee relationship

need not be gone into inasmuch as the same has been

held to be existing by this order.

30. For the aforesaid reasons and analysis,

following.

ORDER

I. Appeal in MFA.No.30699/2012(WC) is partly allowed.

II. Matter is remitted to the Commissioner, for

Compensation, Sub-Division-2 Vijayapur for

determination of the point with regard to the

question if accident resulting in death of deceased

Ambanna Vadageri arose out of and in due course of

his employment.

III. The parties shall appear before Commissioner for

Compensation, Sub-Division-2 Vijayapur on

18/01/2022 without further notice.

IV. The Commissioner shall provide sufficient

opportunity to the parties to lead such further

evidence and rebuttal evidence and arrive at a

conclusion in accordance with law. The

Commissioner shall dispose off the matter within six

months from the date of receipt of copy of this

judgment.

Sd/-

JUDGE KJJ/mkm