The Divisional Manager vs Sri.Rudrappa
2021 Latest Caselaw 2653 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 23819 OF 2009 (WC)
BETWEEN

THE DIVISIONAL MANAGER
NEW INDIA ASSURNCE CO.LTD., BELLARY,
HEREIN REP BY NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE, NO.2-B, UNITY BUILDING ANNEXE
MISION ROAD BANGALORE, REP BY ITS AUTHORISED SIGNATORY

                                                        ...APPELLANT
(BY SRI.R. R MANE, ADV.)

AND

1 . SRI.RUDRAPPA S/O GADEPPA,
AGE 18 YEARS, OCC:COOLIE,
R/O TIMMALAPUR VILLAGE,
TQ:MONAKALLURU, DIST:CHITRADURGA

2 . SHRI.M.VENKATA SUBBA REDDY
S/O SUBBA REDDY, AGE MAJOR,
OCC:BUSINESS, R/O WARD N.25,
BABU NAIDU COMPOUND OPPOSITE
R.T.O. OFFICE CANTONMENT, BELLARY
                                                      ...RESPONDENTS
(NOTICE TO R1 SERVED;
      R2 NOTICE IS HELD SUFFICIENT)

      THIS MFA FILED U/S. 30(1)(A)(AA) OF THE WORKMEN'S
COMPENSATION, ACT, 1923, AGAINST THE JUDGMENT AND AWARD
DATED:30-09-2009, PASSED IN WCA NO.68/2007, ON THE FILE OF THE
LABOUR OFFICER & COMMISSIONER FOR WORKMEN'S COMPENSATION,
SUB-DIV.I, BELLARY, AWARDING COMPENSATION OF RS.1,91,973/- ALONG
WITH INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF PETITION
TILL DEPOSIT.
                              2



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

                          JUDGMENT

This is an insurer's appeal calling in question the

legality of the award dated 30.09.2009 passed in WCA

No.68/2007 by the learned Labour Officer and

Commissioner for Workmen's Compensation, Sub-division-

1, Bellary (for short, 'Commissioner').

2. Brief facts are that the claimant Rudrappa filed

claim petition before the learned Commissioner stating

that he was working as a cleaner in a lorry bearing

registration No.KA-34/1757 owned by respondent No.1/M

Venkata Subba Reddy and insured with appellant herein.

On 11.01.2007 as per the instruction of the respondent

No.1, the claimant proceeded in the said lorry along with

several coolies who were going to report for duty in Balaji

Steel Factory near Hulkundi, the said lorry met with an

accident and capsized, and fell into a ditch and on account

of the impact, the claimant suffered grievous injuries.

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 denying the

material averments made in the claim petition.

4. During the enquiry, claimant himself examined as

PW1 and he also examined a qualified medical practitioner

as PW.2. Exs.P1 to P9 were marked. Respondent No.2

marked policy of insurance as Ex.R.2(1).

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.1,91,973/- with interest thereon at

12% p.a.

6. Sri.R.R.Mane, learned counsel appearing for the

appellant/insurance company strenuously contended that

the finding of the learned Commissioner on the

foundational question of employer and employee

relationship is based on no evidence and it is perverse

and therefore it is liable to be set aside. In this

connection he submits that the learned Commissioner has

entirely overlooked Ex.P.5 which is a statement of

claimant made before the Investigating Officer on the date

of the accident. It is, therefore, submitted that in the said

statement claimant had stated that at the time of the

accident he was traveling in the lorry along with 50

coolies for reporting at Balaji factory. He therefore

submitted that the award passed by the learned

Commissioner is liable to be set aside and appeal is

entitled to be allowed.

7. I have given my anxious consideration to the

submissions urged by the learned counsel and I have

perused the records.

8. The learned Commissioner while recording the

finding that employer and employee relationship between

the respondent No.1 and the claimant has been proved

has not referred to a very important document produced

by claimant at Ex.P.5. It is no doubt true that respondent

No.1/owner of the vehicle did not contest the proceedings

by filing a written statement and he has not taken any

definite stand as to whether the claimant was cleaner

appointed by him to work in lorry bearing registration

No.KA-34/1757. However, Ex.P.5 which is produced by the

claimant himself shows that he had made statement

before ASI, Ballari Rural Police Station on 11.01.2007 to

the effect that about 50 coolies were traveling in the said

lorry at the time of the accident. He was one of them and

they were proceeding to Balaji Factory to work as coolie

there. In the said statement, he has never claimed that he

was working as coolie in the lorry in question. Since, the

learned Commissioner has not at all referred to the said

important piece of evidence and he has placed his

conclusion on surmises and conjecture, the said finding is

perverse and it is liable to be set aside. Accordingly, I

pass the following:

ORDER

i) The above appeal is allowed.

ii) The award dated 30.09.2009 passed in WCA

No.68/2007 by the learned Labour Officer and

Commissioner for Workmen's Compensation, Sub-division-

1, Bellary is set aside and the claim petition is dismissed.

iii) The amount in deposit, if any shall be

transmitted to the concerned jurisdictional tribunal along

with records.

Sd/-

JUDGE

VB/-