The Divisional Manager vs Durgaji S/O Subbaji Jadhav
2021 Latest Caselaw 2579 Kant

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

              DATED THIS THE 2ND   DAY OF JULY 2021

                            BEFORE

            THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                  MFA NO.101352 OF 2018 (WC)

BETWEEN:

THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.
ENKAY COMPLEX, KESHWAPUR
HUBLI, BY ITS AUTHORIZED SIGNATORY.
                                                      ...APPELLANT

(BY SRI. A.G.JADHAV, ADVOCATE)

AND:

  1. DURGAJI S/O. SUBBAJI JADHAV
     AGE ; 56 YEARS, OCC; COOLIE
     R/O. MISHRIKOTI,
     TQ. KALAGHATAGI - 581 204
     DIST. DHARWAR.

  2. SMT. SHANTAWWA, W/O. DURGAJI JADHAV
     AGE ; 48 YEARS, OCC; HOUSEHOLD WORK
     R/O. MISHRIKOTI,
     TQ. KALAGHATAGI - 581 204
     DIST. DHARWAR.

  3. YALLAPPA RAMACHANDRA KATHARE
     AGE ; MAJOR,
     OCC ; OWNER OF LORRY NO.KA-25/A-3522
     R/O. KAMARIPETH, HUBLI - 580 020.

                                                  ...RESPONDENTS
                                  2


(BY SRI. PRASHANT S. KADADEVAR, ADVOCATE FOR R.1 AND R.2.
SRI. C.B. PATIL, ADVOCATE FOR R.3.)

      THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S
COMPENSATION ACT, 1923, PRAYING THAT THIS HON'BLE COURT MAY
BE PLEASED TO CALL FOR RECORDS IN ECA:NO.36/2014 ON THE FILE
OF THE II ADDL. SENIOR CIVIL JUDGE AND COMMISSIONER FOR
EMPLOYEES COMPENSATION, DHARWAD AND SET ASIDE THE JUDGMENT
AND ORDER DATED 10.10.2017 AND GRANT SUCH OTHER RELIEFS AS
THIS HON'BLE COURT MAY DEEM FIT, ETC.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                            JUDGMENT

This is an appeal by the insurer calling in question the legality

of the award dated 10.10.2017 passed in ECA No.36/2014 by the

learned II Additional Senior Civil Judge and Commissioner for

Employees Compensation, Dharwad.

2. Brief facts as per the claim petition averments are

that the deceased Manjunath @ Manju who is the son of

the claimants was working as cleaner in lorry bearing

registration No. KA-25-A-3522 owned by respondent No.3

- Yallappa Ramachandra Kathare and insured with the

appellant herein. It is further pleaded in the claim

petition that on 30.10.2011 at about 10.00 p.m. as per

the instructions of respondent No.3. the deceased was

proceeding as a cleaner along with the driver Basayya

Gadigeyya Viraktamath - P.W.2 from Gadag towards

Mumbai for delivering the green gram bags. The accident

took place on P.B.Road, opposite Bharth Palace Hotel,

Near Tegur Cross, Dharwad taluk and due to the impact,

Manjunath @ Manju died on the spot itself. In the

proceedings before the learned Court below, respondent

No.1 - the owner of the lorry has filed a written statement

denying the relationship of employer-employee between

himself and the deceased. He has also stated in the

written statement that lorry belonging to him has been

falsely implicated in the case and Police have submitted

'C' report after thorough investigation in the matter.

3. Respondent No.2 - Insurance Co. has filed its

separate written statement denying the averments made

in the claim petition.

4. During the enquiry, claimant No.1 examined

himself as P.W.1 and one Basayya Gadagayya Viraktmath

- who is stated to be the driver of the lorry, as P.W.2.

Exs.P.1 to P.9 were got marked. Respondents examined

respondent No.1 - Yallappa Ramachandra Katare as R.W.1

and policy of insurance was marked as Ex.R.1.

5. The learned Court below upon consideration of

the materials produced and the evidence let in, recorded a

finding that the employer-employee relationship is

established as well as the death of the deceased took

place in an accident which took place in the course of and

arising out of the employment. On such findings, learned

Court below has awarded a compensation of Rs.9,49,640/-

with interest thereon at 12% p.a.

6. It is urged on behalf of the appellant - Insurance

Co. that the employer-employee relationship is not at all

established in this case and the finding of the learned

Court below in this behalf is based on no evidence and it

is perverse. It is urged on behalf of the claimant that the

finding of the learned Court below that deceased was

receiving monthly wages of Rs.9,000/- is perverse and the

same is liable to be set aside.

7. Learned counsel Sri. Prashant B. Kadadevar

appearing for respondent Nos. 1 and 2 submits that

learned Court below has recorded a finding that employer-

employee relationship is established on evidence and that

being a finding of fact, is not liable to be interfered with

in an appeal under Section 30(1) of the Employees

Compensation Act, 1923. He further submitted that

learned Court below has fixed the monthly wage of the

deceased at Rs.9,000/- based on evidence and therefore,

the same is not liable to be interfered with.

8. I have given my anxious consideration to the

submissions made on both sides and I have perused the

records.

9. It is no doubt true that in the claim petition,

claimants have asserted that deceased was working as a

cleaner under respondent No.1 in lorry bearing

registration No. KA-25-A-3522. Learned Court below has

also recorded a finding that the relationship of employer-

employee as between respondent No.1 - owner of the

vehicle and the deceased was established in the evidence

produced before it. It is required to be noticed that

respondent No.1 - the owner of the vehicle has

consistently taken a stand that he had never employed

the deceased as a cleaner in his lorry and there was no

employer-employee relationship between him and the

deceased. The complaint - Ex.P.1 lodged immediately

after the accident also shows that the deceased was found

dead on account of some motor vehicle accident by the

side of the road. The Police after investigation have filed

a 'C' report as per Ex.P.7. Respondent No.1 - the owner

of the vehicle has examined himself as R.W.1 and he has

denied in his evidence that the deceased was his

employee and working in the lorry as a cleaner. Without

giving due attention to these aspects available on record,

learned Court below has given a finding that employer-

employee relationship has been established in this case

and therefore such finding given by the learned Court

below is based on no evidence and it is perverse.

10. In that view of the matter, the finding of the

learned trial Court that employer-employee relationship

has been established in this case is liable to be set aside.

Accordingly, the appeal is entitled to be allowed. Hence,

the following :

11. The above appeal is allowed.

Award dated 10.10.2017 passed in ECA No.36/2014 by the

learned II Additional Senior Civil Judge and Commissioner for

Employees Compensation, Dharwad, is set aside and the claim

petition is dismissed.

The amount in deposit shall be returned to the appellant

forthwith.

Sd/-

JUDGE

Mgn/-