Divisional Manager, Icici ... vs Sri.Laxman S/O Sakrappa Baloli
2021 Latest Caselaw 2727 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

             DATED THIS THE 09TH DAY OF JULY 2021

                           BEFORE

           THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                  MFA NO.21922 OF 2009 (WC)
                             C/W
                     MFA No.21921 of 2009
IN MFA NO.21922 OF 2009

BETWEEN
DIVISIONAL MANAGER,
ICICI LOMBARD GIC LTD, KOPPAL,
NOW R/B ICICI LOMBARD GIC LTD,
BY ITS MANAGER LEGAL,
BELLAD AND COMPANY,
II FLOOR, GOKUL ROAD,
HUBLI-580030.
                                                    ...APPELLANT

(BY SRI. NAGARAJ C KOLLOORI, ADV.,)

AND
1.    SRI. LAXMAN
      S/O SAKRAPPA BALOLI
      AGE: 52 YEARS, OCC:COOLIE,
      R/O: KOONIKERI TANDA,
      TQ AND DIST: KOPPAL

2.    RAMAPPA S/O LAXMAN BALOLI
      AGE: 22 YEARS, OCC:COOLIE,
      R/O: KONIKERI TANDA,
      TQ AND DIST: KOPPAL
                                       2


3.   NAGARAJ S/O LAXMAN BALOLI
     AGE: 24 YEARS, OCC:COOLIE,
     R/O: KONIKERI TANDA,
     TQ AND DIST: KOPPAL

4.   SRI. BASAVARAJ
     S/O LAXMAN BALOLI
     AGE: 30 YEARS, OCC:COOLIE,
     R/O: KONIKERI TANDA,
     TQ AND DIST: KOPPAL

5.   SRI. KRASHNANAYAK
     S/O CHANDYANAYAK
     AGE: 42 YEARS, OCC:AGRICULTURE,
     R/O: KONIKERI TANDA,
     TQ AND DIST: KOPPAL
                                                        ...RESPONDENTS

(BY SRI. T HANUMAREDDY, ADV., FOR R1-R4;
SRI. A. S. PATIL, ADV., FOR R5)

     THIS    MFA      IS    FILED    U/S.30(1)   OF   THE   WORKMEN'S
COMPENSATION ACT, 1923 PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER DATED 31-03-2009, PASSED IN WC.NO.104/2007 BY THE
LABOUR      OFFICER        AND      COMMISSIONER      FOR   WORKMEN'S
COMPENSATION, KOPPAL DISTRICT, KOPPAL.


IN MFA NO.21921/2009
BETWEEN
DIVISIONAL MANAGER,
ICICI LOMBARD GIC LTD, KOPPAL,
NOW R/B ICICI LOMBARD GIC LTD,
BY ITS MANAGER LEGAL,
BELLAD AND COMPANY,
II FLOOR, GOKUL ROAD,
HUBLI-580030.
                                                            ...APPELLANT

(BY SRI. NAGARAJ C KOLLOORI, ADV.,)
                                        3




AND
1.    SMT. LAXMIBAI
      W/O FAKKIRAPPA
      AGE: 37 YEARS, OCC:COOLIE,
      R/O KOONIKERI TANDA,
      TQ AND DIST: KOPPAL

2.    SRI. FAKKIRAPPA
      S/O PECHCHAPPA
      AGE: 47 YEARS, OCC:COOLIE,
      R/O KOONIKERI TANDA,
      TQ AND DIST: KOPPAL

3.    SRI. KRASHNANAYAK
      S/O CHANDYANAYAK
      AGE ABOUT: 42 YEARS,
      OCC:AGRICULTURE
      R/O KOONIKERI TANDA,
      TQ AND DIST: KOPPAL

                                                         ...RESPONDENTS

(BY SRI. SHIVA SHIRUR ADV., FOR
SRI. MRUTYUNJAYA S HALLIKERI, ADV., FOR R1 AND R2;
SRI. A. S. PATIL, ADV., FOR R3)


      THIS    MFA      IS    FILED    U/S.30(1)   OF   THE   WORKMEN'S
COMPENSATION ACT, 1923 SEEKING TO SET ASIDE THE JUDGMENT
AND ORDER DATED 31-03-2009, PASSED IN WC.NO.105/2007 BY THE
LABOUR       OFFICER        AND      COMMISSIONER      FOR   WORKMEN'S
COMPENSATION, KOPPAL DISTRICT, KOPPAL.


      THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                 4



                           JUDGMENT

These are appeals at the instance of the insurer calling in

question the legality of the award dated 31.03.2009 in WC

No.104/2007 and WC No.105/2007 passed by the learned

Labour Officer and Commissioner for Workmen's Compensation,

Koppal District, Koppal (for short "the Commissioner").

2. Brief facts are that one Devamma and Kumar (both

deceased) were working as Hamalies in tractor-trailer bearing

registration No.KA-37/T-9050 and T-9051 owned by respondent

No.1-Krishnanayak and insured with the appellant herein. It is

stated that on 26.05.2006 the tractor-trailer met with an

accident and Devamma and Kumar died in the same. The

claimants are stated to be their dependants. It is further stated

that in connection with the accident, a case in Crime No.75/2006

was registered.

3. Before the learned Commissioner, respondent No.1

filed written statement admitting that the deceased and several

others were working as Hamalies and there was employer-

employee relationship between him and the deceased. The

appellant filed its separate written statement denying the

material averments made in the claim petition. Appellant had

taken a clear contention in the written statement that there was

no policy of insurance in operation at the time of the accident as

the cheque issued by respondent No.1-Krishnanayak towards

payment of premium had bounced and the appellant had

cancelled the policy of insurance.

4. During the enquiry, the claimants had examined

themselves and Ex.P1 to Ex.P7 were marked. The appellant

examined one of its officials as RW1 and got marked Ex.R2(1) to

Ex.R2(4).

5. Upon consideration of the materials produced and

the evidence let in, learned Commissioner has answered all the

points for consideration in favour of the claimants and against

the appellant and awarded compensation to the claimants.

6. Learned counsel for the appellant-insurance

company submits that there was no policy of insurance in

operation at the time of the accident namely, 26.05.2006 and

therefore, there was no privity of contract between the appellant

and respondent No.1-onwer of the vehicle in question. In this

behalf, he contended that the cheque issued by respondent No.1

towards payment of premium had bounced for lack of sufficient

funds and the appellant had informed the cancellation of

insurance policy No.728342 issued in favour of respondent No.1

by its letter dated 30.11.2005 and the same was sent under

certificate of posting as per Ex.R2(3). He, therefore, submits

that the policy of insurance issued by the appellant herein was

subject to realization of cheque issued towards the premium and

since the cheque had bounced, the appellant having informed

the same to respondent No.1 and having cancelled the policy of

insurance, there is no further liability on the appellant to

reimburse the compensation amount and therefore, submitted

that the appeals are entitled to be allowed and the claim

petitions be dismissed as against the appellant.

7. Learned counsel for the respondent No.1 and 2 in

MFA No.21921/2009, who are the dependants of deceased

Kumar, per contra, contended that there was coverage of

insurance policy issued by the appellant and therefore, the

appellant is liable to reimburse the compensation amount.

8. Perusal of the records clearly show that respondent

No.1 had issued a cheque bearing No.69692 drawn on Canara

Bank for Rs.8,057/- towards premium for the policy of insurance

and the said cheque was returned with endorsement "funds

insufficient" by the banker of the appellant. The same was

informed to respondent No.1-Krishnanayak by stating that the

policy of insurance issued stood cancelled by a letter dated

30.11.2005 which was sent under certificate of posting as per

Ex.R2(3). Such plea was taken by the appellant in the written

statement filed by it. Respondent No.1 has not denied it even

though the relevant documents as per Ex.R2(1) to Ex.R2(3)

have been produced before the learned Commissioner. Since the

policy of insurance issued by it had been cancelled as on

30.11.2005 with intimation to respondent No.1-Krishnanayak,

insurance company cannot be held liable to pay the

compensation for the accident which took place on 26.05.2006.

There was no privity of contract between the appellant herein

and respondent No.1-Krishnanayak. Therefore, the appeal is

entitled to be allowed. Hence, the following:

ORDER

The above appeals are allowed.

The judgment and award passed in WC No.104/2007 and 105/2007 are hereby set aside to the extent that there is direction to appellant to pay the compensation. .

The amount in deposit, if any, before this Court shall be refunded to the appellant insurance company.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration.

Sd/-

JUDGE

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