Karnataka High Court

The Divisional Manager vs Sri. Rajappa S/O Dvalappa Harijan on 3 December, 2021

Bench: Ravi V.Hosmani

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 03 R D DAY OF DECEMBER, 2021

                           BEFORE

        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

                 M.F.A.No.22329/2010(WC)
BETWEEN
THE DIVISIONAL MANAGER,
THE NEW INDIA A SSURANCE COM PA NY LTD.,
SHAMNUR BUI LDI NG, P.B.NO.62,
2ND FLOOR, CHAM RAJPET ,DAVENGERE,
REPD . BY REGI ON AL MANAGER
REGIONAL OFFICE 2-B, UNITY BUILDI NG
ANNEXE P, KALINGARAO ROAD(MISSION ROAD),
BANGALORE
                                            ...A PPELLANT
(BY SRI.G.N .RAICHUR, ADVOCATE)

AND

1. SRI . RAJA PPA S /O DVALA PPA HARIJAN,
AGE:33 Y EARS, OCC: NIL,
R/O S UNKADAVAR ONI,
SHIGGION , DIST: HAVERI.

2. SONY TRANSPORT
M.G.C. COMPOUND , D EVASNAKA,
INDORE (M.P) , ( OWNER OF GOODS TRUCK
BEARING N O. MP- 09/KA- 1300)
                                          ..RESPONDENTS
(BY SRI.MADANMOHAN M KHANNUR, ADVOCATE FOR R1)
(R2- N OTICE HELD SUFFICEINT)
     THIS   MFA   IS FILED   U/S. 30( 1) OF   WORKMEN'S
COMPENSATION A CT 1923, PRAYING TO SET ASIDE THE ORDER
PASSED BY LABOUR OFFI CER A ND COMMISSIONER FOR
WORKMENS COMPENSATION, HAVERI IN W.C.NO.335/2002 AND
CALL FOR RECORD S OF LABOUR OFF ICER AND COMMISSIONER
FOR WORKMEN'S COMPENATION HAVERI DATED 22.07.2004
AND ETC.
                                     2




     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT , D ELIV ERED THE F OLLOW ING:


                           JUDGMENT

This appeal is filed by appellant/insurer challenging

order dated 22.07.2004 passed by Labour officer and

Commissioner for Workmen's Compensation, Haveri (for

short, 'the Tribunal') in W.C.No.335/2002.

2. Though this appeal is listed for admission, with

the consent of learned counsel for parties, it is taken up

for final disposal.

3. For the sake of convenience, parties will be

referred to as per their respective ranks before Tribunal.

4. Brief facts giving rise to this appeal are that in

an accident that occurred on 10.09.2002, Rajappa (for

short' employee') claiming to be working as driver in a

lorry bearing registration No.MP-09/KA-1300 belonging to

respondent no.2 herein (for short 'employer') sustained

grievous injuries when, it met with an accident in

Bharamasagar. Despite taking treatment, claimant did

not recover fully and sustained partial permanent physical

disability. Claiming compensation for same, he filed

application under Section 22 of Workmen's Compensation

Act before Commissioner of Workmen's Compensation.

5. On service of notice, respondent no.2/employer

admitted employing applicant as driver in his lorry and

that accident occurred while he was on duty.

Appellant/insurer herein filed objections denying accident,

relationship of employer and employee and dependency.

It was contended that no application seeking for

compensation was filed before insurer and that insurer

was not liable to pay compensation.

6. Based on pleadings, commissioner framed

issues. Thereafter, applicant examined himself as PW.1

and doctor B.S.Manjunath as PW.2 and Exhibits P1 to P12

were marked.

7. On consideration, Commissioner held that

relationship of employer and employee between applicant

and respondent no.2 herein was established and held that

applicant was 28 years of age and his monthly income was

Rs.2,000/- per month and loss of earning capacity as 55%

and assessed compensation of Rs.1,39,781/- with interest

at 12% per annum from one month after date of accident

till deposit. Assailing same, insurer is in appeal.

8. Sri.G.N.Raichur, learned counsel for

appellant/insurer submitted that appeal by insurer is on

limited ground of liability. It was submitted that Exhibit

P.12/insurance policy produced by applicant before

Commissioner is found to be not issued by

appellant/insurer. It was submitted that Exhibit P.12 is a

manipulated document and not an authenticated insurance

policy and that insurance policy with reference to cover

note number does not pertains to vehicle in question or

insured. It was specifically submitted that owner of

offending vehicle in this case has not purchased insurance

policy from appellant/insurer with regard to vehicle in

question for period during which accident occurred.

9. Along with appeal, appellant has filed IA

no.2/2019 seeking for permission to lead additional

evidence by way of production of cover note no.022017

issued by appellant. Particulars mentioned in cover note,

do not tally with vehicle number or name of owner herein.

On above ground, leaned counsel seeks for allowing

appeal and discharge liability of appellant/insurer.

10. Learned counsel for appellant submits that

following substantial questions of law would arise for

consideration.

1) Whether the Labo ur Office r and Co mmissione r for wo rkmen co mpensation is justified in be lie ving the fake cover no te Ex.P.12 without calling for the original and without giving any impo rtance to the defence of the appellant?

2) Whether the labo ur officer and Commissioner for Workme n's Co mpensation justified taking the disability as 45% by be lie ving the evide nce o f the do ctor Sri.B.S .Manjuanth?

11. On the other hand, Sri.Madan Mohan M.Kannur,

leaned counsel for respondent/claimant submits that

insurer had contested matter before Tribunal. Exhibit

P.12 was marked without objection by insurer and

therefore, at this stage, appellant/insurer cannot be

permitted to take up such contention and submit that

issue of policy would be a question of fact and

Commissioner had held it in favour of claimant.

12. From above submission, it is seen that main

dispute between parties is regarding contract of

insurance. While appellant/insurer is alleging fraud,

respondent/claimant is urging acquiescence.

13. In view of above, following substantial question

of law would arise for consideration before this Court.

1) Whether, IA no .2/ 2019 filed by appellant for additional e vidence deserves to be allo wed?

               2)    Whether,      Co mmissioner        was        justified        in
                     passing       impugne d         orde r        by        placing
                     re liance    upon     Exhibit     P.12        and   holding
                     appe llant/ insure r           liable          to             pay
                     compensation?

14. Indeed, as submitted by learned counsel for

respondents/claimants, insurer has contested matter

before Commissioner. No objections were urged at the

time of marking of Exhibit P.12. But, contention of

appellant/insurer as stated in memorandum of appeal are

required to be taken note of, which are as follows:

"The Commissione r has passed the award against the appe llant thro ugh his orde r dated 22.07.2004 even afte r passing of the award the appe llant not stoppe d his co rre sponde nce with the Pune DO. And other o ffice to get o f the said ce rtifie d co py o f the cover no te. At last with gre at efforts, it was revealed that the cover no te No.022017 was issued by the N asik office , then the appe llant wrote a letter to Nasik office to se nd the ce rtified copy of the cove r No.022017. Then the Nasik sent the certified co py of the cove r note through the ir le tte r dated 08.06.2010. I t is surprised to see that the cove r note No.022017 covering Priya Scooter No .MH-15/8128 and it is not cove red the vehicle be aring N o.MP-09/KA-1300. The insured name me ntioned in the said co ver note S unil V.Sandhanasiur there is no mention of So ny Transport and the Vehicle No. o f the invo lved in the accident. Therefore , after ve rificatio n it was

revealed that Ex.P.12 pro duce d by the pe titione r is a fake co ver note and pre pared to get the compensation by playing fraud on the insurance company. It is evident from the records that the owner and the petitione r in co llisio n with each other produced a fabricated and bogus and fake cover note to get the compe nsation ille gally although the re is no insurance co verage to the vehicle M P-09/KA- 1300."

15. Said averments are reiterated in affidavit filed

in support of IA No.2/2019. Along with application, cover

note issued by appellant/insurer bearing no.022017 is

produced. On perusal, cover note is not in respect of

vehicle involved in accident. In view of clear assertion

regarding fraud, said document would be necessary for

proper disposal. Therefore, IA No.2/2019 deserves to be

allowed. However, respondents / claimants are required

to be given an opportunity to contest the same.

Therefore, it would be appropriate for this Court to

remand matter back with a direction to provide

opportunity to owner and claimant to contest evidence,

sought to be led.

16. It is seen that accident occurred on 10.09.2002.

Claimant is deprived of compensation till now. Insurer

had contested matter before Commissioner. However,

matter is being remanded back to Tribunal for further

evidence at instance of insurer which would cause further

inconvenience and hardship to claimant. Therefore, it

would be appropriate to compensate claimant for

inconvenience caused by imposing appropriate cost which

is assessed at Rs.10,000/-. The cost to be paid to

claimant/appellant on first date of appearance or to be

deposited before said Court.

17. As matter is being remanded only for purpose of

determination of validity of insurance coverage/liability of

appellant/insurer and shall permit parties to lead evidence

on said issue only and pass fresh order on this issue after

giving adequate opportunity to both parties.

18. Appellant and claimant who are served and

represented before this Court shall appear before Prl.

Senior Civil Judge, Haveri, the jurisdictional Civil Court,

now empowered to deal with claims under workmen's

Compensation act and Employee's Compensation Act, on

17.01.2022 without awaiting notice.

19. As matter is of the year 2002, both parties are

directed not to take unnecessary adjournments. Trial

Court shall endeavor to dispose of matter as early as

possible, within a period of four months after service of

notice to owner.

20. In the result, I pass the following:

ORDER

Appeal is allowed.

Amount in deposit is ordered to be

transmitted to Court of Prl. Senior Civil Judge,

Haveri with a direction to deposit same in

fixed deposit in any nationalized bank initially

for a period of six months.

           In   case,        appellant/insurer      succeeds,

     amount        to        be     refunded         to        the

     appellant/insurer.