Karnataka High Court
The Branch Manager, National ... vs Sadappa S/O.V Jootappa on 7 January, 2021
Author: Ravi.V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A. No. 24548/2010 (WC)
BETWEEN:
The Branch Manager,
National Insurance Co., Ltd.,
Bellary. Now represented by its
Sr. Divisional Manager,
Dr. Veerabhadrayya, Sr. Divisional Manager,
National Insurance Co., Ltd.,
Divisional Office, Melagiri Plaza,
MCC Block, Dental College Road,
Davanagere.
. . . Appellant
(By Sri. S.K. Kayakmath, Advocate)
AND
1. Sadappa S/o. V. Jootappa,
Age: 50 years, Occ: Nil,
R/o. Indira Nagar VSSN,
Yemmiganur, Bellary.
2. Smt. Parvatamma, W/o. Sadappa,
Age: 53 years, Occ: House Hold,
R/o. Indira Nagar, Near VSSN,
Yemmiganur, Bellary.
2
3. Kumari. Maramma D/o. Sadappa,
Age: 15 years, since minor rep. by petitioner No.1.
R/o. Indira Nagar, Near VSSN,
Yemmiganur, Bellary.
4. Kumar. Venkatesh S/o. Sadappa,
Age: 13 years, since minor rep. by petitioner No.1.
R/o. Indira Nagar, Near VSSN,
Yemmiganur, Bellary.
5. P. Veerareddy S/o. Hanumanthreddy,
Age: Major, Occ: Owner of lorry MYY -6477.
R/o. Siddammanahalli Village,
Tal & Dist: Bellary. ... Respondents
(By Sri. Hanumanth Reddy, Advocate for R1 to R4; R5 served)
This MFA is filed under Section 30(1) of Workmen's
Compensation Act, 1923 against the judgment and award dated
28.05.2008 passed in KANAPA No.119/2007, on the file of the
Labour Officer & Commissioner for Workmen's Compensation, Sub
Division -II, Bellary awarding the compensation of Rs.2,94,294/-
with interest at the rate of 12% p.a. from the date of petition till its
realization.
This appeal coming on for final hearing, this day, the court,
delivered the following:
JUDGMENT
Challenging the award dated 28.05.2008 passed by the
Labour Officer & Commissioner for Workmen's Compensation, Sub
Division-II, Bellary in KANAPA No.119/2007 the insurer is in
appeal.
2. For the sake of convenience, parties are referred to as
per their original rank before trial Court.
3. Brief facts leading to this appeal are that parents and
siblings of V. Raju filed a petition under Section 22 of the
Workmen's Compensation Act, 1923 (hereinafter referred to as
'W.C.Act' for short) seeking for award of compensation of
Rs.6,50,000/- against the owner and insurer of the lorry bearing
registration No. MYY-6477 in which the deceased was working as a
cleaner. Tthe said lorry met with an accident on 15.12.2005 in
which the deceased sustained fatal injuries and died. It was stated
in the petition that deceased was employed as cleaner by
respondent No.1, on a monthly salary of Rs.4,000/-.
4. On issuance of notice, owner and insurer appeared and
filed their respective objections. In his objections, owner admitted
that deceased V. Raju was employed by him as a cleaner in lorry
bearing registration No. MYY-6477, but denied monthly salary of
Rs.4,000/-. It was stated that deceased was paid Rs.100/- per day
and Rs.15/- per day as bhata. The other averments of the claim
petition were denied. In its objections, respondent No.2- insurer
opposed the claim petition in toto. It also contended that the
relationship of employer and employee between deceased and
respondent No.1 was not established and therefore it was not liable
to pay the compensation. It also opposed the claim as being
excessive. It was also contended that the deceased was traveling in
the vehicle as gratuitous passenger and there was violation of the
terms of policy.
5. Based on pleadings Commissioner framed following
issues.
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¸ÀA:JA.ªÉʪÉÊ-6477 gÀ°è ¢£ÁAPÀ:15.12.2005 gÀAzÀÄ
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PÉÆqÀ®Ä ¨ÁzsÀågÀÄ?
6) F §UÉÎ AiÀiÁªÀ DzÉñÀ?
6. In support of the claim petition, the petitioner No.2 was
examined as PW.1 and Exs.P.1 to P.8 were marked. Respondent
No.2 examined an official of the insurance company as RW-1 and
got marked it document as R2(1).
7. On consideration, the Commissioner, answered issue
Nos. 1 to 3 in the affirmative holding that deceased was earning a
monthly income of Rs.2,600/- and his age was 18 years on the date
of accident. The Commissioner by answering issue No.4 in the
affirmative and taking the factor 226.38 corresponding to age of
deceased and considering his monthly income at Rs.2,600/-
calculated a total compensation of Rs.2,94,294/- and answered
issue No.5 accordingly. The Commissioner also awarded interest of
12% p.a. from 30 days after date of award. Challenging the same,
insurer is in appeal.
8. Sri. S.K. Kayakamath, learned counsel for appellant
submitted that a perusal of the statement enclosed to FIR-Ex.P1
indicates that the lorry in which the deceased was traveling was
going for a wedding party and therefore deceased was traveling in
the said vehicle as a gratuitous passenger. Learned counsel further
drew attention of this Court to Ex.R2-1 which is the statement of
father of deceased and claimant No.1 herein, who had also stated
that deceased was traveling in lorry on the date of the accident to
attend a wedding. Learned counsel submitted that said statement
also corroborated contents of complaint and submitted that same
establishes that accident did not occur during course of employment
and out of employment. Learned counsel further submitted that in
the absence of any other document to establish that deceased was
employed by insurer -R1, relationship of employer and employee
has to be held as not proved. However the Commissioner has
without proper appreciation of evidence has concluded the said
issue against the insurer.
9. On the other hand, Sri. Hanumanth Reddy, learned
counsel for claimant submitted that complainant in criminal case
was the driver of the lorry which was involved in the accident. His
statement cannot be taken as conclusive proof of the fact that
deceased was not employed as cleaner. Even the statement of
father of deceased Ex.R2-1 is a statement recorded by the police
during investigation and the same is an unsigned statement and
cannot be relied upon in this case. Learned counsel further
submitted that respondent No.1-owner in his written statement
before Tribunal admitted that deceased was employed as a cleaner
of the lorry. Therefore, the relationship of employer and employee
was established and as the accident was not in dispute, the other
necessary factors namely, accident occurring during course of and
out of employment also stood as established.
10. Countering the said statement learned counsel for the
appellant relied upon the decision in Savithribai and another Vs.
Doddappa and another reported in 1981 ACJ 422 and the
decision of the Hon'ble Supreme Court in Bharat Singh and
others Vs. M/s. T. Bhagirathi reported in AIR 1996 SC 405, on
the proposition of law that even a statement recorded during the
course of investigation by the police constituted admissible
evidence in other proceedings.
11. Heard learned counsel for both parties and perused the
records.
12. In a claim petition under Section 22 of Workmen's
Compensation Act, 1923 claimant is required to establish three
factors.
(1) there was an accident
(2) the accident had a causal connection with the
employment and
(3) the accident must have been suffered in the course of
employment
13. In the case on hand, the occurrence of the accident and
death of deceased, V. Raju in the accident, are not in dispute. In
view of statement of first respondent - employer in his written
statement, it has to be held established that deceased was
employed as a cleaner in lorry No. MYY-6477. Though, learned
counsel for insurer contended to the contrary, relying upon contents
of Exs.P.1 and R2(1) a perusal of same would indicate that except
stating that deceased traveling in the lorry to attend wedding.
Further there is no clarity regarding his occupation. As against the
same, there is specific admission by the employer in his written
statement filed before the Tribunal admitting the relationship of
employer and employee. Hence, it has to be held that claimants
established the second factor also. The accident has occurred when
the lorry was being taken to attend the wedding party.
14. The claimants both in claim petition and in their
examination-in-chief clearly asserted that lorry was proceeding
towards Lakshmipura as per directions of first respondent. There is
no contrary evidence led by respondents to establish otherwise.
Though respondent No.2 made suggestions to PW1 that deceased
was traveling as a gratuitous passenger in the lorry to attend a
wedding, the same have been denied. The insurer has not made
any efforts to examine the owner or place on record any other
evidence. In the absence of the same, the Commissioner has
arrived at a finding of a fact that the accident occurred during
course of employment and out of employment and proceeded to
assess the compensation.
The assessment of compensation of quantum is not assailed.
Thus, no substantial question of law arises in this appeal.
Accordingly it is dismissed.
The amount in deposit, if any, before this Court is ordered to
be transmitted to the jurisdictional Court for disbursement.
Sd/-
JUDGE
BVK
