The Divisional Manager vs Durgeshrao S/O Damodar Mirajkar
2021 Latest Caselaw 2678 Kant

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

              DATED THIS THE 7TH DAY OF JULY 2021

                            BEFORE

            THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                     MFA NO.21091 OF 2009

BETWEEN:

THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO. LTD.
DIVISIONAL OFFICE
ENKAY COMPLEX
KESHWAPUR, HUBLI
NOW REPRESENTED BY ITS
ASSISTANT MANAGER
ORIENTAL INSURANCE CO. LTD.
REGIONAL OFFICE, SUMANGALA COMPLEX
LAMINGTON ROAD, HUBLI.
                                                    ...APPELLANT

(BY SRI. G.N. RAICHUR, ADVOCATE)

AND:

  1. DURGESHRAO S/O. DAMODAR MIRAJKAR
     AGE : 55 YEARS, R/O. RANEBENNUR
     TQ : RANEBENNUR
     DIST. HAVERI.

  2. SMT. AMBUJA W/O. DURGESHRAO MIRAJKAR
     AGE : 48 YEARS, R/O. RANEBENNUR
     TQ : RANEBENNUR
     DIST. HAVERI.

  3. ABDUL KHAYUM S/O. ABDUL GANISAB NANDIHALLI
     SINCE DECEASED BY HIS LR
     SMT. NASIMABANU
                                 2


     W/O. ABDEUL KHAYUM NANDIHALLI
     AGE : MAJOR, R/O. MARUTI NAGAR
     RANEBENNUR, DIST. HAVERI.
                                                   ...RESPONDENTS
(BY SRI. M.H.PATIL, ADVOCATE FOR R.1 AND R.2.
 NOTICE TO R.3 IS SERVED BUT UNREPRESENTED.)

     THIS APPEAL IS FILED UNDER SECTION 30(1) OF WORKMEN'S
COMPENSATION ACT, 1923, PRAYING TO CALL FOR THE RECORDS, HEAR
THE PARTIES AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING
ASIDE THE JUDGMENT AND ORDER DATED 15.10.2008 PASSED BY THE
LABOUR    OFFICER    AND    COMMISSIONER     FOR   WORKMEN'S
COMPENSATION, HAVERI, IN WCA F NO.91/2007 WITH COSTS IN THE
INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR HEARING 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

15.10.2008 in WCA F No.91/2007 by the learned Labour Officer and

Commissioner for Workmen's Compensation, Haveri.

2. Brief facts are that, deceased Pradeep was

working as a 'hamali' in lorry bearing registration No.KA-

25/A-6233 owned by respondent No.1 and insured with

the appellant herein.

3. On 13.09.2006 while the deceased was proceeding

in the lorry as 'hamali', it met with an accident and he

died on account of the injuries sustained. In connection

with the accident a case in Crime No. 112/2006 was

registered.

4. Respondent No.1 did not appear and file any

written statement before the learned Commissioner. The

appellant herein entered appearance and filed his detailed

written statement denying all the material averments

made in the claim petition.

5. During the enquiry, claimant No.1 examined

himself as P.W.1 and Exs.P.1 to P.6 were marked. The

appellant - Insurance Co. examined one of its officials as

a witness and got marked policy of insurance as Ex.

R.2(1).

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.3,51,394/- with interest thereon at 12% p.a.

7. Learned counsel Sri. G.N.Raichur, appearing for

the appellant - Insurance Co. vehemently contended that

there was no policy coverage for the risk of the deceased

- Pradeep who was working as a Writer as per the

records. He therefore submitted that learned

Commissioner has over looked this material evidence and

therefore, the same is liable to be set aside. He also

submitted that at the time of the accident, the driver -

Abdul Khayum was not having valid and effective driving

licence and therefore there is violation of the terms of the

policy and accordingly appellant is not liable to reimburse

the compensation.

8. Learned counsel for the claimant per contra

submitted that learned Commissioner has appreciated the

entire evidence and his findings are on question of fact

and the same is not liable to be interfered with.

9. Perusal of the records show that in the claim

petition, the claimants have asserted that deceased -

Pradeep was working as a 'hamali' in the lorry in question.

Respondent No.1 - the R.C. owner of the lorry in question

did not file any written statement denying the same.

Learned counsel for the appellant places reliance on the

complaint of one Chamman Sab who was working as a

driver in the said lorry. He submits that in the complaint

Chamman Sab has stated that deceased Pradeep was

Writer. However, the said Chamman Sab on the very

same day had given a further statement stating that the

deceased - Pradeep was a 'hamali' and since he was

knowing reading and writing and also to maintain

accounts, he was being called as Writer Pradeep by the

employer. Perusal of Exs.P.1 and P.2 show that the

complainant Chamman Sab had initially referred to his

employer in Ex.P.1 as only driver and in Ex.P.2 he has

stated that he is his employer. Perusal of the said two

statements disclose that perhaps on account of the

ghastly nature of the accident, initially he had stated

Pradeep as Writer and his owner as driver. Learned

Commissioner who is the final fact finding authority under

the Act, on appreciation of the entire materials has held

that employer-employee relationship between the

deceased and respondent No.1 has been established and

he was working as a 'hamali'. I do not find any good

ground to interfere with the same as the said finding is a

finding of fact.

10. Ex.P.13 is the driving licence of deceased Abdul

Khayum who was the owner cum driver of the said lorry.

It is shown from the said document that the licence was

valid from 25.06.2003 to 24.06.2006. No further renewal

of the driving licence has been proved before the Court.

Accordingly, it has to be held that he was not in

possession of valid and effective driving licence at the

time of the accident. This amounts to a violation of the

policy condition and therefore principle of 'pay and

recover' is applicable to the case. Hence, the following :

The above appeal is allowed in part.

While maintaining the quantum of compensation, the

appellant herein shall pay the compensation with interest

thereon in the first instance and thereafter recover the

same from respondent No.1 in the same proceedings.

The amount in deposit be transmitted to the Court of

learned Senior Civil Judge, along with records forthwith.

In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are accordingly dismissed.

Sd/-

JUDGE

Mgn/-