The Divisional Manager vs Mahabunni W/O Shafi @ Shafi Ulla,
2021 Latest Caselaw 2636 Kant

                 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.20690 OF 2011

BETWEEN:

THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.
BELLARY
THROUGH ORIENTAL INSURANCE CO. LTD.
DIVISIONAL OFFICE
SUJATA COMPLEX
NEAR OLD BUS STAND, HUBLI.
                                                     ...APPELLANT

(BY SRI. S.K. KAYAKAMATH, ADVOCATE)

AND:

  1. SMT. MAHABUNNI
     W/O. SHAFI @ SHAFI ULLA
     29 YEARS, HOUSEHOLD WORK
     (WIFE OF DECEASED)

  2. SRI. B. IBRAHIM SAB,
     S/O. B. KHASIMSAB
     52 YEARS, (FATHER OF THE DECEASED)

       BOTH R/O. HULIGI VILLAGE
       TQ. & DIST. KOPPAL.

  3. SRI. KHASIM PEER S/O. MAHABOOBSAB
     CONTRACTOR AND LORRY OWNER BEARING
     REGISTRATION NO. KA-37/7799
     R/O. NEAR DARGA MASJID
                                  2


     SANDUR, BELLARY DISTRICT.

  4. SRI. ABDUL KALAM AZAD
     S/O. ABDUL RASHEED SAB
     INSURANCE POLICY HOLDER OF
     LORRY BEARING REGISTRATION
     NO.KA-37/7799
     R/O. VSSN CHORNUR
     SANDUR, BELLARY DISTRICT.
                                                   ...RESPONDENTS
(BY SRI. Y. LAKSHMIKANT REDDY, ADVOCATE FOR R.3.
 NOTICE TO R.1 AND R.2 IS HELD SUFFICIENT.
 NOTICE TO R.4. IS SERVED BUT UNREPRESENTED.)

     THIS APPEAL IS FILED UNDER SECTION 30(1) OF WORKMEN'S
COMPENSATION ACT, 1923, PRAYING TO CALL FOR THE RECORDS AND
TO SET ASIDE THE JUDGMENT AND ORDER DATED 08.10.2010 PASSED
BY THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, KOPPAL, IN W.C.NO.17/2009, ETC.

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

                          JUDGMENT

This is an appeal filed at the instance of the Insurance Co.

calling in question the legality and validity of the award dated

08.10.2010 in WC No.17/2009 by the learned Labour Officer and

Commissioner for Workmen's Compensation, Koppal.

2. Brief facts are that, one Shafi @ Shafiulla was the

driver of lorry bearing registration No.KA-37/7799 owned

by respondent No.1 - Khasim Peer and insured with the

appellant herein. Respondent No.2 - Abdul Kalam Azad is

stated to be the policy holder at the time of the accident

in respect of the lorry KA-37/7799.

3. On 18.04.2006 while the deceased - Shafi @

Shafiulla was driving the lorry as per the instruction of

respondent No.1, it met with an accident and he died on

the spot itself.

4. Respondent No.1 - the R.C. owner entered

appearance and filed his detailed written statement

admitting the employer-employee relationship between

himself and the deceased and further that the death had

taken place due to employment related injuries. He also

stated that even though he was the R.C. owner having

purchased the same from respondent No.1 - Abdul Kalam

Azad, the policy was still standing in the name of the said

respondent No.2. Respondent No.2 also filed his separate

written statement submitting that he had sold the lorry in

question to respondent No.1 and the policy was yet to be

transferred. The appellant filed its own detailed written

statement denying the material averments in the claim

petition, particularly contending that the deceased was

not in possession of valid and effective driving licence

before the accident.

5. During the enquiry, claimant No.1 was examined

as P.W.1 and Exs.P.1 to P.8 were marked. The appellant

- Insurance Co. examined one of its officials as a witness

R.W.1 and Exs. R.1 to R.5 were marked.

6. Upon hearing and considering the materials placed

on record, learned Commissioner answered the points

arising for consideration in favour of the claimants and

against the appellant and awarded a compensation of

Rs.4,42,740/- with interest thereon at 12% p.a.

7. Learned counsel Sri. Kayakamath appearing for

the appellant advanced several contentions in support of

his appeal. He firstly contended that the accident had

taken place within the jurisdiction of the Workmen's

Compensation Commissioner. Bellary and in respect of the

same, having initially filed the claim petition before the

said Commissioner, the same was withdrawn and

thereafter had been filed before the Workmen's

Compensation Commissioner, Koppal, which lacked the

territorial jurisdiction. He further contended that even

though R.C. was standing in the name of respondent No.1

- Khasim Peer, the policy of insurance issued for the lorry

in question continued to stand in the name of respondent

No.2 - Abdul Kalam Azad and therefore there is no privity

of contract between respondent No.1 who is the owner of

the lorry and who is presently liable to pay the

compensation amount and the appellant herein and under

these circumstances claim petition as against the

appellant is not maintainable. His last contention is that

deceased - Driver was not in possession of a valid and

effective driving licence to drive the lorry in question and

such driving licence having not been produced during the

enquiry, there is breach of essential terms of the policy

and therefore, the appellant is not liable to reimburse the

compensation.

8. Learned counsel Sri. Y. Lakshmikant Reddy

appearing for respondent No.3 contended that the learned

Commissioner having considered the entire evidence

placed before him has given his finding based on evidence

and such findings being findings of fact, they are not

liable to be interfered with in an appeal under Section

30(1) of the Employee's Compensation Act, 1923 and

therefore appeal is liable to be dismissed.

9. I have given my anxious consideration to the

submissions made on either side and I have perused the

case papers.

10. It is no doubt true that the claimants initially

filed the claim petition before the Workmen's

Compensation Commissioner, Bellary, within whose

jurisdiction the accident had taken place and subsequently

by filing a memo, the said claim petition was dismissed as

withdrawn and thereafter, the claimants pursued their

remedy before the Workmen's Compensation

Commissioner, Koppal, which has passed the impugned

award. Under the circumstances, it cannot be disputed

that the Workmen's Compensation Commissioner at

Bellary had not decided the matter on merits. In so far as

the question of jurisdiction is concerned, law is well

settled by a decision of the Hon'ble Supreme Court in

Malati Sardar vs. National Insurance Co. Ltd. - 2016

ACJ 542 and therefore it cannot be said that the

Workmen's Compensation Commissioner at Koppal did not

have jurisdiction to entertain the petition. In that view of

the matter, I do not find any error or illegality in the

Workmen's Compensation Commissioner at Koppal,

entertaining the petition and passing the impugned award.

11. In regard to the grievance made by the learned

counsel for the appellant that there was no privity of

contract between the appellant herein and respondent

No.1 - Khasim Peer who is the R.C.owner of the lorry in

question and the one who is primarily responsible for

paying the compensation, on account of non-transfer of

the policy issued by the appellant in respect of the lorry in

favour of respondent No.2 - Sri. Abdul Kalam Azad is

concerned, the matter is concluded by a decision of

Division Bench of this Court reported in 2007 (4) KCCR

2263 - M/s. United India Assurance Co. Ltd. vs. M.N.

Ravikumar and others. Accordingly, I hold that the said

contention of the learned counsel for the appellant has no

merit and it is liable to be rejected. The last contention

of the learned counsel for the appellant is that even

though appellant had taken a specific contention in the

written statement that the deceased - Driver was not in

possession of valid and effective driving licence, neither

the claimants nor the owner - respondent No.1 Khasim

Peer produce the driving licence and therefore in view of

Section 134(c) of the Motor Vehicles Act, 1988, the

appellant is not liable to reimburse the compensation. He

further submitted that since the claimants and the R.C.

owner have failed to produce the driving licence, this

Court should exonerate the appellant from the liability to

reimburse the compensation. In regard to the said aspect

of the matter, it needs to be observed that the deceased -

Driver was statutorily required to carry the driving licence

on his person and because he has died in the accident,

which it is disclosed from the records that has happened

on account of lorry falling into a ravine which was 300

feet deep, it is entirely probable that the driving licence

might have been lost. In a similar fact situation, Hon'ble

Allahabad High Court in New India Assurance Co. Ltd.

vs. Smt. Kusuma Devi and others - 2007 (1) T.A.C.

729 (All.) has observed as follows :

"3. The next argument is with regard to non-production of valid driving licence of the driver of the Mini Bus. The Tribunal has examined this issue and has come to the conclusion that in the accident the driver of the vehicle also died. In this view of the matter an inference has been drawn by it that possibility that the driving licence has been lost, cannot be ruled out. A driver is supposed to carry the driving licence while driving the bus."

Under such circumstances I am not inclined to accept the

argument of the learned counsel for the appellant and I

reject the same. Accordingly, this appeal lacks merits and

I proceed to pass the following :

The appeal is dismissed.

The amount in deposit be transmitted to the Court of

learned Senior Civil Judge, along with records forthwith.

Sd/-

JUDGE

Mgn/-