Karnataka High Court
Shri.Vijaykumar S/O Ganapati ... vs Smt.Noorjahan W/O Meerasab Daddi on 16 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 16 T H DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.J USTICE RAVI V . HOSMANI
M.F.A .NO.100022/ 2021 (ECA)
BETWEEN:
SHRI VIJAYKUMAR S/O GANA PATI MUSANDI,
AGE: 40 YEARS , OCC: BUSINESS ,
R/O 4058, BASTI GALLI CHIKKODI ,
TQ: CHIK ODI-591201,
DISTRICT: BELA GAVI.
...APPELLANT
(BY SRI SHIVARAJ P.MUDHOL, ADV OCATE)
AND
1. SMT.NOORJAHAN W/O MEERASAB D ADDI,
AGE: 60 YEARS , OCC: HOUS EHOLD WORK,
R/O HOSPET GALLI , ID GA MAIDAN CHIKKODI,
TALUK: CHIKKODI -591201,
DISTRICT: BELA GAVI.
2. SHRI MEERASAB S /O KHAJAMEN DAD DI,
AGE: 650 YEARS, OCC: NIL,
R/O HOSPET GALLI , ID GA MAIDAN CHIKKODI,
TALUK: CHIKKODI -591201,
DISTRICT: BELA GAVI.
3. RIHAN S/O ASIF D ADDI,
AGE: 14 YEARS , OCC: STUD ENT,
R/O HOSPET GALLI , ID GA MAIDAN CHIKKODI,
TALUK: CHIKKODI -591201,
DISTRICT: BELA GAVI.
2
4. AFROZA D/ O ASIF DADDI,
AGE: 14 YEARS , OCC: STUD ENT,
R/O HOSPET GALLI , ID GA MAIDAN CHIKKODI,
TALUK: CHIKKODI -591201,
DISTRICT: BELA GAVI.
(RESPOND ENTS N O.3 AND 4 ARE MINORS
REP.BY THEIR NAT URAL GUARDIAN
RESPOND ENT NO.1)
5. RAGHAVENDRA SHETTY,
S/O GOPALSHETTY ,
AGE: 56 YEARS ,
OCC: BUSINESS ,
R/O WARD NO.5, SHIRAGUPPA ,
TALUK: SHIRA GUPPA,
DISTRICT: BALLARI.
6. THE NEW INDIA A SSURANCE CO.LTD.,
1 S T FLOOR, ARYA EDIGA HOSTEL COM PLEX,
DOUBLE ROAD , BA LLARI, DIST: BA LLARI,
REP.BY ITS MANA GER.
...RESPONDENTS.
(BY SRI SANJAY S .KATAGERI, ADV.F OR C/ R1 TO C/R4;
SRI G.N .RAICHUR, ADV OCATE FOR R6;
R5 - NOTICE HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 30( 1) OF EMPLOYEES COMPENSATION ACT, 1923,
AGAINST THE JUDGMENT AND AWARD DATED 09.10.2019
PASSED IN ECA NO.12/ 2015 ON THE FILE OF
COMMISSIONER FOR WORKMEN'S COMPENSATION AN D THE
PRINCIPA L SENIOR CIVIL JUDGE, CHIKODI, AWARDING
COMPENSATION OF RS.7,79,925/- WITH INTEREST AT 12%
P.A . FROM THE DA TE OF PETITION TI LL ITS DEPOSIT.
THIS APPEAL COMING ON FOR ADMI SSION THIS DAY,
THE COURT DELIV ERED THE F OLLOW ING:
3
JUDGMENT
Challenging judgment and award dated
09.10.2019 in ECA No.12/2015 by the Co mmissio ner for
Workme n's Compe nsation and Principal Senior Civil Judge ,
Chikodi ( for sho rt, 'trial Court') , this appeal is filed.
2. Though this appeal is listed for admission,
with consent of learned counsel for parties, it is taken
up for final disposal.
3. Brief facts as stated are that Chevrolet
Tavera vehicle bearing registration KA-22/N-6641
belongs to appellant (hereinafter referred to as
'employer'). Deceased Asif Daddi who was employed as
a driver (hereinafter referred to as 'workman') of said
vehicle. That on 03.08.2015 at about 6.15 a.m. as per
directions of his employer, Asif went to drop some
customers at Tadas village. But when he did not
return, his father approached the employer for his
whereabouts. As Asif, could not be traced, a missing
complaint was registered in Cr.No.171/2015 on
07.08.2015 with Chikkodi police station. It was later on
found that when Asif had taken vehicle to Tadas,
passengers had murdered him and had attempted to
make away with vehicle. As death of Asif occurred in
the course of employment and out of employment, his
parents and children filed application under Section 22
of W.C.Act, against employer.
4. On appearance, employer contended that on
03.08.2015 when he was in Mangalore, Asif, had
requested him to use the vehicle and that out of
friendly relationship he had allowed Asif to use the
vehicle with a condition that Asif returns vehicle on the
same day. Therefore, there was no relationship of
employer and employee. It was denied that death of
Asif occurred in the course of and out of employment.
It was further contended that as it was a case of
murder and no accident as such had occurred, claim
petition was not maintainable. Even the dependency of
the applicants was also denied.
5. Based on pleadings, trial court framed
following issues:
1. Whether the petitioners prove that there
was jural relationship between the
respondent and deceased Asif as
employer and employee as on
03.08.2015?
2. Whether the petitioners prove that said
Asif died out of and in the course of
employment under the employment of
respondent?
3. Whether the petitioners are entitled for
the compensation? If so, at what rate and
from whom?
4. What order or award?
6. In support of the case, mother of deceased
was examined as PW1. Another witness was examined
as PW2. Exhibits P1 to P18 were marked. Respondent-
employer examined himself as RW1.
7. On consideration, trial Court answered issue
nos.1 and 2 in the affirmative, issue no.3 partly in
affirmative and issue no.4 by allowing the application
in part assessing compensation of Rs.7,79,925/- and
holding employer liable to pay the same with interest
at 12% per annum.
8. Challenging the award, employer is in
appeal.
9. Sri Shivaraj P.Mudhol, learned counsel for
appellant-employer submitted that there was no
relationship between the appellant and deceased as the
deceased had borrowed his vehicle for personal use. It
was further contended that as on date of accident;
appellant was not the owner of the vehicle. 5th
respondent was the earlier owner who had got it
insured with 6 t h respondent. Due to inadvertence, they
were not arrayed as parties before trial Court by
claimants. Relying upon judgment of the Hon'ble
Supreme Court in the case of Surendra Kumar
Bhilawe V/s New India Assurance Company
Limited reported in 2020 SCC OnLine SC 523,
submitted that the Hon'ble Supreme Court had held
that the registered owner continues to remain owner
and when vehicle is insured in the name of registered
owner, insurer would remain liable to pay
compensation to third parties as well as insured
himself in case of an accident. Said decision was given
after interpreting definition of owner under Section
2(3) of Motor Vehicles Act. This decision followed
earlier three Judges Bench decision in the case of
Naveen Kumar Vs. Vijay Kumar and others reported
in (2018) 3 SCC 1.
10. It was further contended relying upon
decision of this Court in the case of Assistant
Executive Engineer and Others V/s Santan Razai
Adiveppa @ Siddi in MFA No.100757/2014 disposed
of 21.06.2021, that a claim petition under Section of
10 of Employees Compensation Act, 1923 would not be
maintainable without issuance of a notice of the claim
under Section 10. As there was non-compliance of
Section 10 in the case, it was liable to be dismissed.
Learned counsel further contended that earlier owner
respondent no.5 and insurer had been impleaded in the
appeal and though they were served with notices of
application for impleading, they were not notified of
the appeal and submitted that opportunity requires to
be granted to them. It was further submitted that an
issue regarding ownership of vehicle was not framed
and therefore, sought interference by this Court and
therefore, submitted that following substantial
questions of law arise for consideration:
1. Whether trial Court committed serious
error in holding that son of respondents
no.1 and 2 was the employee under
appellant and there is employer and
employee relationship even though
vehicle was standing in the name of
Raghavendra Shetty at the time of
incident, at the time of incident RC not
in the name of appellant?
2. Whether trial Court justified in holding
that claim petition was maintainable
even though registered owner was not
made a party and even though vehicle
insurance was in force at the time of
incident?
3. Whether trial Court was justified in
awarding compensation even though
there was no accident and murder of Asif
criminal case has been registered
against the accused person, therefore
claim petition for seeking grant of
compensation is not maintainable in law?
4. Whether trial Court was justified in
granting compensation with interest
even though the claimants have not
proved their case by producing cogent
and valid evidence?
11. On the other hand, Sri Sanjay S.Katageri,
learned counsel for respondents no.1 to 4 and Sri
G.N.Raichur, learned counsel for respondent
no.6-insurer opposed the appeal. Referring to contents
of Ex.P.3-complaint, learned counsel submitted that
applicant no.2, father of deceased Asif had stated in
the complaint that Asif was a driver by profession. He
earlier owned a TATA Sumo, which was sold by him due
to financial constraints and thereafter Asif was working
as driver with the employer. That on 03.08.2015, when
he had driven Chevrolet Tavera, on the instructions of
his employer carrying passengers to Tadas, he was
untraceable along with vehicle. It was later learnt that
passengers had hired the vehicle with ulterior intention
and had murdered him. The compliant clearly states
that Asif was employed as a driver by appellant-
employer. Even the statement of Basavaraj Annappa
Kamble recorded by police under Section 161 of Cr.P.C.
marked as Ex.P5 also stated that Asif was working as
driver with the appellant-employer and on 03.08.2015
when he was returning to Chikkodi after completing
his duty at Belagavi, he had seen Asif driving Tavera
vehicle. He had waived down the vehicle and had
spoken to Asif, who had given him the particulars of
trip to Tadas to drop passengers.
12. Attention of this Court was drawn to Ex.P.17-
application filed by appellant-owner before the
Magistrate seeking for release of vehicle seized by
police. In the said application, appellant clearly
admitted that he was owner and in possession of
vehicle and that vehicle was standing in his name. It
was further stated that it was a new vehicle and was
very much required for his day-today business.
13. From above evidence, it was submitted that
claimants had established that Asif was working as
driver with appellant-employer and while he was on
duty, he was murdered by passengers. Therefore,
accident had occurred during course of and arose out
of employment and that trial court had on proper
appreciation passed the impugned award and there was
no merit in appeal.
14. From above submissions, occurrence of
accident, involving vehicle belonging to appellant and
death of Asif is not in dispute. While the applicants
contended that death occurred during course of
employment and out of employment, employer denied
said relationship. The trial court held that relationship
of employer and employee was established and after
determining age of deceased Asif as 30 years, monthly
wages as Rs.7,500/- and applying factor of 207.98
awarded compensation of Rs.7,79,925/-. Challenging
said award, owner-employer is in appeal.
15. Substantial question of law no.1: In order to
establish relationship of employer and employee and
that accident occurred during course of and out of
employment, claimants produced FIR, complaint,
certified copies of statement of witnesses, voluntary
statement of accused, charge sheet extract of driving
licence of deceased, extract of registration certificate
of vehicle, certified copy of application for release of
vehicle filed by appellant and extract of registration
certificate. In support of the said evidence, they
examined mother of deceased as PW1, who deposed in
support of her case. During the course of cross-
examination, it is suggested by the appellant to PW1
that Asif used to work as driver on demand as and
when required and he was not appointed as regular
driver.
16. They also examined another witness as PW2,
who stated that he was in acquaintance with deceased
Asif as well as employer. He was also in the business
of lending vehicles on hire at Chikkodi since several
years. He stated that he was aware of Asif being in
employment of appellant as driver of Chevrolet Tavera
bearing registration no.KA-22/N-6641 on monthly
salary of Rs.4,500 + daily bhatta of Rs.300/-. Though
PW2 has been cross-examined, nothing worthwhile is
elicited.
17. Contents of statement recorded under
Section 161 Cr.P.C., marked as Ex.P.4 and in fact, the
entire prosecution case has proceeded on the footing
that Aisf was while being in the employment of
appellant had driven the Chevrolet Tavera to Tadas
carrying passengers when he was murdered. Evidence
available on record both oral and documentary would
sufficiently substantiate relationship of employer and
employee and in any case, being a question of fact,
and no case of either ignorance of any evidence
available on record of a conclusion contrary to
evidence on record is made out. Therefore, proposed
substantial question of law would not arise for
consideration.
18. Substantial question of law no.2: Though, it
is contended before this Court that appellant was not
registered owner as on date of accident and vehicle
was insured with respondent no.6, who were not
arrayed as parties to the application, it is seen that no
such specific objection was taken before the trial court.
In fact, ownership of vehicle is admitted by appellant.
The main ground of opposition was denying
relationship of employer and employee. Therefore, no
fault can be found with trial court in not framing an
issue and not impleading respondents no.5 and 6
herein before trial court. In any case, contents of
Ex.P.17, wherein appellant admitted about ownership
and possession of vehicle and also its need for his
day-to-day business, does not leave any room for
doubt about ownership of vehicle.
19. Further in view of finding on substantial
question of law no.1 above, that relationship of
employer and employee as being established,
application filed against employer would be
maintainable and issue regarding ownership of vehicle
would only be incidental and impugned order would not
pivot on the said finding. Therefore, said substantial
question of law also does not arise for consideration.
20. Substantial question of law No.3: It is not in
dispute that Asif, the workman was murdered while he
was on duty as driver in the vehicle belonging to the
appellant-owner. It is sought to be contended by the
appellant that death of Asif due to murder would not
constitute an accident under the provisions of
Employees Compensation Act. However, the said
contention would not hold good in view of the
interpretation of the word accident used in Section 3 of
the Act, by the Hon'ble Supreme Court in the case of
Rita Devi and others V/s New India Assurance
Company Limited and another reported in 2000 (5)
SCC 113, murder has been held to be included in the
meaning of the word accident. Therefore, said
substantial question of would not arise for
consideration.
21. Substantial question of law No.4: Though the
award is sought to be challenged on the ground of lack
of evidence, in view of finding above, it is held that the
award passed by the trial Court is based on evidence
on record and its conclusions are neither in ignorance
of the same nor contrary to it. The trial Court after
assigning sufficient reasons arrived at its conclusions.
Therefore, the said substantial question of law also
would not arise for consideration.
22. In view of the above, there is no merit in the
appeal. Appeal is dismissed.
Amount in deposit is ordered to be transmitted to
the trial Court for payment.
Sd/-
JUDGE
Mrk/-
