Mallikarjun Ishwar Ganiger vs Sakrewwa W/O Hanamant Siddapur
2021 Latest Caselaw 2762 Kant

                 IN THE HIGH COURT OF KARNATAKA
                         DHARWAD BENCH
               DATED THIS THE 12th DAY OF JULY 2021
                             BEFORE
             THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

                    MFA NO.24005 OF 2012 (WC)
                              C/w
                      MFA NO.24407 OF 2012

IN MFA.NO.24005/2012

BETWEEN:

THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
RAMDEV GALLI, BELGAUM,
NOW REPRESENTED BY ITS DEPUTY
MANAGER, REGIONAL OFFICE
NATIONAL INSURANCE CO.LTD,
ARIHANT PLAZA, KESHWAPUR,
OPP: SBI ZONAL OFFICE, HUBLI.
                                                      ...APPELLANT
(BY SRI.GUNDI SURESHA SHARANAPPA, ADVOCATE)

AND:

1.     SHRI MALLIKARJUN ISHWAR GANIGER,
       AGE: 27 YEARS, OCC: NIL,
       R/O. SUNADOLLI, TQ. GOKAK,
       DIST: BELGAUM

2.     SMT. SAKREVVA HANAMANT
       SIDDAPUR, AGE: MAJOR,
       OCC: BUSINESS, R/O. HONAKUPPI,
       TQ.GOKAK, DIST: BELGAUM.
                                                  ...RESPONDENTS
(BY SRI.H.D.PATIL, ADVOCATE FOR C/R1
    SRI.BAHUBALI N.KANABARGI, ADVOCATE FOR R2)
                                 2


     THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE W.C. ACT,
AGAINST THE JUDGMENT AND AWARD DATED 04.05.2012 PASSED IN
WCA NO.56/2011 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, SUB-DIVISION-1,
BELGUAM, AWARDING THE COMPENSATION OF RS.1,86,002/- WITH
INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF THE PETITION
AND SHALL BE DEPOSITED WITHIN ONE MONTH FROM THE DATE OF
THE ORDER.


IN MFA.NO.24407/2012

SHRI MALLIKARJUN ISHWAR GANIGER,
AGE: 27 YEARS, OCC: NIL,
R/O. SUNADOLLI, TQ. GOKAK,
DIST: BELGAUM.
                                                   ...APPELLANT
(BY SRI.H.D.PATIL, ADVOCATE)

AND:

1.     SMT. SAKREVVA HANAMANT
       SIDDAPUR, AGE: MAJOR,
       OCC: BUSINESS, R/O. HONAKUPPI,
       TQ.GOKAK, DIST: BELGAUM.

2.     THE DIVISIONAL MANAGER
       NATIONAL INSURANCE CO. LTD.,
       HAVING ITS OFFICE AT:
       RAMDEV GALLI, BELGAUM,

                                                ...RESPONDENTS
(BY SRI.BAHUBALI N.KANABARGI, ADVOCATE FOR R1
    SRI.SURESH S.GUNDI, ADVOCATE R2)

     THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE W.C. ACT,
1923 AGAINST THE JUDGMENT AND AWARD DATED 04.05.2012 PASSED
IN WCA NO.56/2011 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, SUB-DIVISION-1,
BELGUAM,   PARTLY    ALLOWING    THE  CLAIM    PETITION   FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
                                       3


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

                                   JUDGMENT

These appeals are at the instance of the insurer and

claimants calling in question the legality and validity of

the award dated 04.05.2012 passed in WCA/SR

No.56/2011 by the learned Labour Officer and

Commissioner for Workmen's Compensation, Sub-

Division-1, Belgaum (for short, 'Commissioner').

2. Brief facts are that the claimant, one Mallikarjun

Ishwar Ganiger filed a claim petition before the Labour

Commissioner asserting that he was working as loader in

the tractor and trailer bearing registration No.KA 49/T-

3741 and KA 49/4663 belonging to respondent No.1-

Smt.Sakrevva Hanamant and insured with the appellant-

Insurance Company (MFA No.24005/2012). He has further

stated that on 12.01.2012, while tractor and trailer was

in the land of one Sri.Siddappa Shivamurtheppa Pashi for

the purpose of loading sugarcane to the said tractor and

trailer, the claimant and several others were loading

sugarcane to the said tractor and trailer and one bundle

of sugarcane slipped and fell on the claimant, resulting in

serious injuries i.e. fracture neck of femur, right hip and

other injuries.

3. Before the learned Commissioner, respondent

No.1-Smt.Sakrevva Hanumant, entered appearance and

filed written statement admitting the employer and

employee relationship etc.

4. The appellant-Insurance Company filed separate

written statement denying the material averments made

in the claim petition.

5. During the enquiry, claimant examined himself as

PW1 and he examined one qualified medical practitioner-

Dr.A.B.Patil, as PW2 and produced documents as per

Exs.P1 to P20 were marked. Official working in the

Insurance Company examined as RW1 and Exs.R2(1) to

(3) were marked.

6. Upon consideration of the materials produced and

evidence let in, the learned Commissioner answered all

the points arising for consideration in favour of the

claimant and as against the appellant/Insurance Company

and awarded a compensation of Rs.1,86,002/- with

interest thereon at 12% per annum.

7. The important substantial question of law

canvassed by the learned counsel for the appellant-

Insurance Company is that the finding of the learned

Commissioner that employer and employee relationship

between the respondent No.1-Smt.Sakrevva Hanumant

and the claimant has been established is based on no

evidence and it is perverse. For the said purpose, the

learned counsel for the Insurance Company drew my

attention to Ex.P1, which is the complaint lodged by the

claimant before the Police on 28.01.2011. It is his

submission that in the complaint PW1-claimant has

clearly stated that he was employed by the respondent

No.1 and on 12.01.2011 as per direction of respondent

No.1, vehicle had gone to the land of one Siddappa

Shivamurtheppa Pashi from where sugarcane was being

loaded into the tractor and trailer belonging to

respondent No.1 and in the said complaint he had not

stated about he being an employee under respondent

No.1. Therefore, he submits that appeal is entitled to be

allowed and judgment and award passed by the labour

Commissioner is liable to be set aside.

8. Sri.H.D.Patil, learned counsel appearing for the

claimant vehemently contended that the learned labour

Commissioner being the final fact finding authority having

recorded the finding that employer-employee relationship

has been established, supported by evidence, the same is

not liable to be set aside in an appeal filed under Section

30(1) of the Employee's Compensation Act, 1923. In this

behalf he drew my attention to the statements of co-

workers as per Ex.P7 to P12 recorded during the course

of investigation of the criminal case and the learned

Commissioner having placed reliance on the same, there

is no merit in the appeal. Hence, he submits that appeal

filed by the Insurance Company is liable to be dismissed.

9. I have given my anxious consideration to the

submissions made on either side and also perused the

records.

10. The records disclose that the accident resulting

in injury to the claimant had taken place on 12.01.2011,

in the land of one Siddappa Shivamurtheppa Pashi. It is

also disclosed that at that time, claimant and others were

loading sugarcane from the field of Siddappa

Shivamurtheppa Pashi to the tractor and trailer in

question owned by respondent No.1-Smt.Sakrevva

Hanumant. As rightly pointed out by the learned counsel

for the appellant-Insurance Company, Ex.P1, which is the

complaint lodged on 28.01.2011, the

claimant has categorically stated that he was working in

the field of Sri.Siddappa Shivamurtheppa Pashi and at the

time of accident he was loading harvested sugarcane to

the tractor and trailer belonging to respondent No.1-

Smt.Sakrevva, and at that time the mishap took place

and he suffered grievous injuries. Insofar as Ex.P7 to P12

are concerned, it is no doubt true as contended by the

learned counsel for the claimant that all those persons

who had given the statement before the investigation

officer have stated that they were working as loader to

the tractor and trailer. What is required to be noticed

from the records which has escaped the notice of the

learned Commissioner that those statements at Ex.P7 to

P12 were also recorded on 28.01.2011, the same day

when claimant had given complaint as stated earlier. It is

also note worthy that it is not as if claimant had given

the complaint afresh immediately after the accident and,

therefore, he would have been in a state of shock, and

thus, there is possibility of giving a confused version.

Claimant had given complaint a good 16 days after the

accident and on the same day, Exs.P7 to P12 statement

were recorded and therefore, it is inevitable that this

contradiction is required to be noticed and importance

has to be given regarding the facts relating to employee-

employer relationship as made by the complainant

himself. Therefore, the learned Labour Commissioner

having ignored this aspect of the matter, the judgment

and award passed by the learned Commissioner is

required to be set aside on the question of employee-

employer relationship as perverse. Regard being had to

the impugned award passed, overlooking the material

aspects, it is liable to be set aside insofar as liability

fastened on the Insurance Company is concerned.

Hence, I proceed to pass the following:

ORDER

a) The appeal filed by the Insurance

Company is allowed.

       b) The     appeal       filed    by    the     claimant   is

           dismissed.

       c) The    impugned        award        dated   04.05.2012

passed by the learned Labour Offider and

Commissioner for Workmen Compensation,

Sub-Division-I, Belgaum is set-aside.

d) The amount in deposit before this Court,

if any, shall be refunded to the

appellant/insurer forthwith.

Sd/-

JUDGE

SB