Karnataka High Court
The New India Assurance Co. Ltd. vs Sri.Gullappa S/O Hanumanthappa ... on 6 July, 2021
Author: P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO.23207 OF 2009 (WC)
BETWEEN
THE NEW INDIA ASSURANCE CO. LTD
THE BRANCH MANAGER, SAVITRI SADAN
OPP: KITTLE COLLEGE, P.B. ROAD, DHARWAD
THROUGH ITS REGIONAL OFFICE, NO.2B
UNITY BUILDING ANNEXED P.KALINGA RAO RAOD,
BANGALORE-560 0027BY DULY CONSTITUTED ATTORNEY
...APPELLANT
(BY SRI.M K SOUDAGAR, ADV.)
AND
1 . SRI.GULLAPPA S/O HANUMANTHAPPA NARENDRA
AGED 62 YEARS, OCC: NIL,
R/O AMINAGHAVIA TALUK AND DIT DHARWAD
2 . SRI ESHWARAPA HANUMANTHAPA
PAMOJI, AGED MAJOR,
OCC: OWNER OF THE VEHICLE
R/O SHIBBARAGATTI VILLAGE
KURUBAGATTI POST,TALUK AND DIST: DHARWAD
SINCE DECEASED BY HIS LRS.
2A. SUSHILAVVA W/O ESHWARAPPA PAMMOJI
AGE: 48 YRS, OCC: HOUSEHOLD WORK
R/O. SHIBBARGATTI VILLAGE, TQ. AND DIST: DHARWAD
2
2B.UMESH S/O ESHWARAPPA PAMMOJI
AGE: 26 YRS, OCC: HOUSEHOLD WORK
R/O. SHIBBARGATTI VILLAGE,
TQ. AND DIST: DHARWAD
2C.JYOTIBA S/O ESHWARAPPA PAMMOJI
AGE: 24 YRS, OCC: NOT KNOWN
R/O. SHIBBARGATTI VILLAGE,
TQ. AND DIST: DHARWAD
2D.FAKIRAPPA S/O ESHWARAPPA PAMMOJI
AGE: 22 YRS, OCC: NOT KNOWN
R/O. SHIBBARGATTI VILLAGE, TQ. AND DIST: DHARWAD
2E.IRAVVA D/O ESHWAAPPA PAMMOJI
AGE: 20 YRS, OCC: NOT KNOWN
R/O. SHIBBARGATTI VILLAGE,
TQ. AND DIST: DHARWAD
...RESPONDENTS
(BY SRI RAJASHEKAR R GUNJALLI, ADV. FOR R1;
NOTICE TO R2 (A) TO R2(E) HELD SUFFICIENT)
THIS MFA FILED U/S.30(1) OF WORKMEN'S COMPENSATION
ACT, AGAINST THE JUDGMENT AND AWARD DATED:24.10.2008
PASSED IN W.C.A.NF NO.7/2005, ON THE FILE OF THE LABOUR
OFFICER & COMMISSIONER FOR WORKMEN'S COMPENSATION,
SUB-DIVISION-1, HUBLI, AWARDING THE COMPENSATION OF
RS.1,19,850/- WITH INTEREST AT THE RATE OF 12% P.A., FROM
THE DATE OF PEITTION TILL ITS DEPOSIT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This is an appeal by the insurer calling in question
the legality of the award dated 24.10.2008 passed in
WCA/NF/No.7/2005 by the learned Labour Officer and
Commissioner for Workmen's Compensation, Sub-division-
1, Hubballi (for short, 'Commissioner').
2. Brief facts are that the claimant Gulappa was
working as a Hamali in a light goods vehicle bearing
registration No.407/CRA/0120 owned by respondent No.1/
Ishwarappa H Pammoji and insured with appellant herein.
On 07/06/2004 as per the instruction of the respondent
No.1, the claimant proceeded in the goods vehicle from
Shibargatti to Dharwad via Yadwad accompanying the
goods at that time, the vehicle met with an accident on
account of rash and negligent driving by its driver and it
fell into a ditch causing grievous injuries to the claimant.
3. In the proceedings before the learned
Commissioner, respondent No.1/Insured remained Ex-
parte and respondent No.2/Insurer contested the
proceedings by filing written statement.
4. During the enquiry, claimant examined himself as
PW1 and he also examined a qualified medical practitioner
as PW.2. Exs.P1 to P7 were marked.
5. Upon consideration of the materials produced and
the evidence let in, learned Commissioner answered all
the points for consideration in favour of the claimant and
against the appellant herein and he awarded a
compensation of Rs.1,19,850/- with interest thereon at
12% p.a.
6. The only contention advanced by the learned
counsel Sri. M.K.Soudagar appearing for the appellant/
insurance company is that the finding of the learned
Commissioner that there was employer and employee
relationship between the respondent No.1 and the
claimant is based on no evidence and it is perverse. For
the said purpose he contended that the said respondent
No.1 remained Ex-parte and he did not file any written
statement taking a stand regarding jural relationship and
further during the cross examination, the claimant himself
has admitted that he was hawking grains by going from
place to place and that in the said goods vehicle about 10
-12 people were traveling. He therefore submitted that
the finding of the learned Commissioner being based on
no evidence is liable to set aside.
7. The learned counsel for claimant Sri.Rajasekhar R
Gunjalli, per contra, submits that the finding of the
learned Commissioner on the question of employer and
employee relationship is not liable to be interfered with
and it is the finding of fact recorded by the learned
Commissioner who is final fact finding authority and the
same is based on evidence and therefore, there is no
merit in the appeal and it should be dismissed.
8. I have given my anxious consideration to the
submissions made on either side and I have perused the
case papers.
9. It is the case of the claimant in the claim petition
that on 7.6.2004 he was proceeding in the light motor
goods vehicle bearing registration No.407/CRA/0120 as
Hamali and it met with an accident causing him injuries.
The learned counsel for appellant submitted that
respondent No.1 remained Ex-parte and he did not take
any categorical stand as to whether the claimant was
employee or not under him. It is significant that during
the cross examination PW.1 has made a following
statement.
C¥À¥sÁvÀPÉÆ̼ÀUÁzÀ UÁrAiÀÄ°è 10-12 ªÀÄA¢ EzÀÝgÀÄ. PÁå©£ïzÀ°è 12
ªÀÄA¢ PÀƽwzÀÝgÀÄ. qÉæöʪÀgï ©lÄÖ 11 ªÀÄA¢ CAzÀgÉ qÉæöʪÀgÀ£ÀÄß »rzÀÄ MlÄÖ 12
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PÉAZÀ¥Àà ¥ÀÆeÁgÀ, §¸À¥Àà ©üêÀÄ¥Àà ºÀÆqÉzÀ, ±ÀAPÀgÀ¥Àà ¥sÀQgÀ¥Àà §lUÉÆý,
ZÀ£Àߧ¸À¥Àà §¸À¥Àà ºÁ¢ªÀĤ, ±ÀAPÀgÀ¥Àà §¸À¥Àà ºÉ§â½î, zsÀļÀ¥Àà ºÀ£ÀĪÀÄAvÀ¥Àà ©üêÀÄ¥Àà
PÉÆl¨ÁV, gÁAiÀÄ¥Àà ¤AUÀ¥Àà ºÀÄqÉÃzÀ EªÀgÀzÀÄ £À£ÀUÉ ¥ÀjZÀAiÀÄ EgÀĪÀÅ¢¯Áè. d£ÀgÀÄ
EzÀÝzÀÄ. £Á£ÀÄ HjAzÀ HjUÉ ºÉÆÃV PÁ¼ÀÄRr ªÀiÁr ªÁå¥ÁgÀ ªÀiÁqÀÄvÉÛãÉ
C£ÀÄߪÀzÀÄ ¤d. PÁ¼ÀÄPÀr zsÁgÀªÁqÀzÀ°è Rjâ¹ ²¨ÁgÀUn
À ÖAiÀÄ°è ªÀiÁgÀÄvÉÛãÉ.
C¥ÀWÁvÀ¥ÀlÖ ªÁºÀ£ÀªÀÅ ²¨ÁgÀUÀnÖ¬ÄAzÀ zsÁgÀªÁqÀPÉÌ §gÀĪÁUÀ AiÀiÁzÀªÁqÀ
¹UÀÄvÀÛzÉ. AiÀiÁzÀªÁqÀzÀ°è 4-5 d£ÀgÀÄ ¸ÀÄj UÁrAiÀÄ°è ºÀwÛzÀgÀÄ. ²¨ÁgÀUÀnÖAiÀÄ°è
4-5 d£ÀgÀÄ ºÀwÛzÀgÀÄ. UÁrAiÀÄ°è ºÀªÀiÁ® CAvÀ PÉ®¸À ªÀiÁqÀÄwÛzÉÝ CAvÀ
vÉÆÃj¸À®Ä AiÀiÁªÀÅzÉà PÁUÀzÀ ¥ÀvÀæUÀ¼À£ÀÄß F PÉÆÃnðUÉ ºÁdgÀ¥Àr¹¯Áè. ¥ÉÆðøï
gÉPÁqÀðzÀ°è ºÀªÀiÁ® CAvÁ J®Æè §gÉ¢gÀĪÀÅ¢¯Áè.
10. As contended by the learned counsel for the
appellant that the claimant himself has admitted during
the inquiry before the learned Commissioner that there
were as many as 10-12 persons traveling in the mini
goods vehicle and the statement of the claimant clearly
suggest that he was going in the said vehicle as
gratuitous passenger for the purpose of selling grains in
various places. The learned Commissioner has wholly
overlooked the above aspect of the matter and thereby
come to the conclusion that there was employer and
employee relationship between respondent No.1 and the
claimant. The said finding is completely contrary to the
specific admission made by the claimant himself during
his evidence. Accordingly, the said finding is wholly illegal
and based on no evidence and therefore, I set aside the
same. Consequently, the appeal is liable to be allowed.
Hence, I pass the following:
ORDER
i) Appeal is allowed.
ii) The award dated 24.10.2008 passed in
WCA/NF/No.7/2005 is set aside and the claim petition is
dismissed.
iii) The amount in deposit, if any shall be
transmitted to the concerned jurisdictional tribunal.
Sd/-
JUDGE
VB/-
