Karnataka High Court
Basavaraj S/O Halappa, vs A.S. Ramappa S/O N.S. Adiveppa, on 15 July, 2021
Author: P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO. 21722/2012 (WC)
C/W.
MFA.NO.21720/2012
IN MFA NO 21722 OF 2012
BETWEEN
BASAVARAJ S/O HALAPPA,
AGE: 33 YEARS,
OCC: EX-HAMALI,
R/O BHAGATH SINGH NAGAR 22ND WARD,
TALUR ROAD, BELLARY.
...APPELLANT
(BY SRI.HANUMANTHAREDDY SAHUKAR, ADV.)
AND
1 . A.S. RAMAPPA S/O A.S. ADIVEPPA,
AGE: 35 YEARS, OCC: OWNER OF LUGGAGE,
AUTO NO.KA-34/3810R/O BHAGATH SINGH NAGAR 22ND WARD,
TALUR ROAD, BELLARY.
2 . THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO. LTD.,BELLARY.
...RESPONDENTS
(BY SRI. N.R.KUPPELLUR, ADV. FOR R2;
NOTICE TO R1-SERVED)
2
THIS MFA FILED U/S.30 OF THE W.C.ACT 1923, AGAINST THE
JUDGEMENT AND AWARD DATED:16.09.2011, PASSED IN W.C.
NO.94/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER
FOR WORKMEN COMPENSATION, SUB-DIVISION-1, BELLARY, PETITION
IS HEREBY DISMISSED.
IN MFA NO 21720 OF 2012
BETWEEN
A.S. NARASIMHA S/O ADIVEPPA,
AGE: 33 YEARS,
OCC: DRIVER,
R/O: BHAGATH SINGH NAGAR 22ND WARD,
TALUR ROAD, BELLARY.
...APPELLANT
(BY SRI.HANUMANTHAREDDY SAHUKAR, ADV.)
AND
1 . A.S. RAMAPPA S/O A.S. ADIVEPPA,
AGE: 35 YEARS,
OCC: OWNER OF LUGGAGE AUTO NO.KA-34/3810
R/O BHAGATH SINGH NAGAR,22ND WARD,TALUR ROAD, BELLARY.
2 . THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO. LTD.,BELLARY.
...RESPONDENTS
(BY SRI. N.R.KUPPELLUR, ADV. FOR R2;
NOTICE TO R1-SERVED)
THIS MFA FILED U/S.30 OF THE W.C.ACT 1923, AGAINST THE
JUDGEMENT AND AWARD DATED:16.09.2011, PASSED IN W.C.
NO.93/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER
FOR WORKMEN COMPENSATION, SUB-DIVISION-1, BELLARY, PETITION
IS HEREBY DISMISSED.
3
THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are at the instance of the claimants
calling in question the awards dated 16/9/2011 passed in
WC Nos.93 and 94 of 2009 by the learned Labour Officer
and Commissioner for Workmen's Compensation, Sub-
division-1, Ballary (for short, 'Commissioner').
2. The learned counsel for the appellants
Sri.Hanumanthreddy Sahukar raises twofold contentions.
Firstly, he draws my attention to the relevant portion of
the impugned award and submits that the learned
Commissioner has grounded his order entirely on the
reason that claimant/A.S.Narasimha who was the driver of
luggage auto himself was negligent in causing the
accident which resulted in his suffering employment
related injuries. However, he further submits that there is
no finding that there was willful disobedience of
instruction of his employer or disregard of any safety
measures as envisaged under Section 3(1)(b) of the
Employee's Compensation Act, 1923 and hence he is
entitled to claim compensation. He secondly contended
that the learned Commissioner has erred in holding that
claimant/Basavaraj was not an employee of respondent
No.1/A.S.Ramappa and the same is based on no evidence
specially in the background that respondent No.1 himself
has admitted the same in the written statement filed by
him.
3. Sri.S.K.Kayakmath and Sri.N.R.Kuppellur,
learned counsel for respondent No.2/insurer submit that
employer and employee relationship has not been properly
established in view of the fact that the police papers
namely Ex.P.1/Complaint and charge sheet Ex.R.2(2) did
not mention anything about the claimant/Basavaraj being
either Hamali under respondent No.1 or that he had
suffered any injuries in the accident at all.
4. Perusal of the impugned awards show that the
learned Commissioner has grounded his order merely on
the basis that claimant/A.S.Narasimha who was driver of
Luggage Auto insured with respondent No.2/insurance
company herein was himself negligent for causing the
accident as per Ex.R.2(2) and therefore, compensation
could not have been claimed by driver/A.S.Narasimha in
view of Section 3(1)(b) of the Employee's Compensation
Act, 1923.
5. This aspect of the matter is covered by a
decision of the Full Bench of this Court reported in ILR
2004 KAR 193 (Shivalinga Shivanagowda Patil vs
Erappa Basappa Bhavihala And Ors.) and a decision of
a Co-ordinate Bench of this Court dated 02.06.2011 in
MFA.No.22044/2011 and connected matter (Divisional
Manager V/s. Satish and others) of which para 5 and 6
read as under:
" 5. Furthe r, what is also to be no ticed is
that the F ull Be nch of this Court in the case of
Shivalinga Shivanagowda Patil and Others Vs.
Erappa Basappa Bhavihala and Others ILR 2004
KAR 193 has also considere d the aspect of
negligence , insofar as the grant o f workmen's
compensation. T hough in the said decision, the
contention of the employer that he was no t
negligent was taken into consideration, the gist
of the decision is that, while determining the
compensation under the Workmen's
Compensation Act, 1923('the Act' fo r sho rt) , the
question o f negligence would not arise and what
is to be do ne is to determine compensation. In
that regard, in the said decisio n it has been
state d that the object of the act is to be
achie ved and while doing so, libe ral constructio n
would accomplish the humane and bene ficial
purposes o f the legislation, which is res ponsive
to social and eco nomic needs reco gnized by our
society and the co nstitution.
6. Therefo re, if the se aspects of the
matter are kept in view, the decision o f the
Division Be nch referre d above would not be
applicable to the instant case , inasmuch as there
is no willful disobedience as contemplated unde r
Section 3( 1)(b) of the Act so as to de ny
compensation to the claimant who was the
driver. There fore , I am of the view that the said
contention is no t sustainable ."
6. In that view of the matter, reasons and finding
given by the learned Commissioner on this aspect is
wholly illegal and therefore it is liable to be set aside.
7. In regard to the employer and employee
relationship between the claimant/Basavaraj and
respondent No.1/A.S.Ramappa is concerned, it is evident
from the records that respondent No.1 had filed written
statement before the learned Commissioner admitting
employer and employee relationship between himself and
claimant/Basavaraj. The learned Commissioner has given
a finding against claimant/Basavaraj on the ground that in
the complaint and charge sheet filed, there is no
reference to the fact that the said Basavaraj was
employee under respondent No.1. Since the matter is now
being remanded for fresh consideration by the learned
Commissioner, the said aspect can be examined
conveniently by the learned Court below by affording
opportunity to both sides to lead evidence on this aspect,
including by summoning respondent No.1/A.S.Ramappa for
cross examination. Accordingly, I proceed to pass the
following:
ORDER
i) Appeal is allowed.
ii) The impugned awards dated 16/9/2011 passed
in WC Nos.93 and 94 of 2009 by the learned
Commissioner are set aside. The matters are remanded to
the learned jurisdictional Senior Civil Judge for fresh
consideration of the matters by affording opportunity to
both sides.
iii) All contentions are left open.
Sd/-
JUDGE
VB/-
