Karnataka High Court

The Divisional Manager vs Ramakrishna 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.23571/2009 (WC)

                             C/W

       MFA NOS.23572/2009, 23573/2009 AND 23574/2009

BETWEEN
THE DIVISIONAL MANAGER
M/S NEW INDIA ASSURANCE CO., LTD, BELLARY,
NOW REPRESENTED BY ITS
DEPUTY MANAGER,
NEW INDIA ASSURANCE CO., LTD.,
REGIONAL OFFICE,
2-B UNITY BUILDING ANNEXES,
MISSION ROAD, BANGALORE-27
                                        ...COMMON APPELLANT
(BY SRI. G N RAICHUR, ADV.,)

AND

IN MFA NO.23571/2009
1.    SULEMAN S/O RAHAMAN SAB
      AGE:31 YEARS, OCC:EX-CLEANER,
      R/O: TORANAGALLU, DIST: BELLARY.

2.    SHRI HAJI @ MAHAMMAD HAJI
      S/O RAJHUSEIN,
      AGE MAJOR,
      OCC:OWNER OF LORRY NO.KA-35-3331,
      R/O: WARD NO.2, YASHAVANT NAGAR,
      TAL:SANDUR, DIST BELLARY.
                                                ...RESPONDENTS

(BY SRI. B. CHIDANANDA, ADV., FOR R1;

R2- NOTICE SERVED BUT UNREPRESENTED)

IN MFA NO.23572/2009

1. SHRI. S. KHADARWALI S/O. MOHAMMAD HANEEF, AGE: 49 YEARS, OCC:EX-DRIVER, R/O: TORANAGALLU, DIST: BELLARY.

2. SHRI HAJI @ MAHAMMAD HAJI S/O RAJHUSEIN, AGE MAJOR, OCC:OWNER OF LORRY NO.KA-35-3331, R/O: WARD NO.2, YASHAVANT NAGAR, TAL:SANDUR, DIST BELLARY.

...RESPONDENTS

(BY SRI. B. CHIDANANDA, ADV., FOR R1;

R2- NOTICE SERVED BUT UNREPRESENTED)

IN MFA NO.23572/2009

1. SHRI.S.KHADARWALI S/O. MOHAMMAD HANEEF, AGE 49 YEARS, OCC:EX-DRIVER, R/O: TORANAGALLU, DIST: BELLARY.

2. SHRI HAJI @ MAHAMMAD HAJI S/O RAJHUSEIN, AGE MAJOR, OCC:OWNER OF LORRY NO.KA-35-3331, R/O: WARD NO.2, YASHAVANT NAGAR, TAL:SANDUR, DIST BELLARY.

...RESPONDENTS

(BY SRI. B. CHIDANANDA, ADV., FOR R1;

R2- NOTICE SERVED BUT UNREPRESENTED)

IN MFA NO.23573/2009

1. SHRI. JAYARAMULU S/O. AANJANEYALU, AGE: 35 YEARS, OCC:EX-LOADER,

R/O: TORANAGALLU, DIST: BELLARY.

2. SHRI HAJI @ MAHAMMAD HAJI S/O RAJHUSEIN, AGE MAJOR, OCC:OWNER OF LORRY NO.KA-35-3331, R/O: WARD NO.2, YASHAVANT NAGAR, TAL:SANDUR, DIST BELLARY.

...RESPONDENTS

(BY SRI. B. CHIDANANDA, ADV., FOR R1;

R2- NOTICE SERVED BUT UNREPRESENTED)

IN MFA NO.23574/2009

1. SHRI. RAMAKRISHNA S/O. RANGAYYA AGE: 29 YEARS, OCC:EX-LOADER, R/O: TORANAGALLU, DIST: BELLARY.

2. SHRI HAJI @ MAHAMMAD HAJI S/O RAJHUSEIN, AGE MAJOR, OCC:OWNER OF LORRY NO.KA-35-3331, R/O: WARD NO.2, YASHAVANT NAGAR, TAL:SANDUR, DIST BELLARY.

...RESPONDENTS

(BY SRI. B. CHIDANANDA, ADV., FOR R1;

R2- NOTICE SERVED BUT UNREPRESENTED)

THESE MISCELLANEOUS FIRST APPEALS ARE FILED U/S 30(1) OF W.C. ACT 1923, PRAYING TO SET ASIDE THE COMMON JUDGMENT AND ORDER DATED 23.07.2009 IN KANAPA/CR NOS.386/2008 TO 389/2008 PASSED BY THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB - DIVISION I, BELLARY BY ALLOWING THE APPEALS.

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

COMMON JUDGMENT

These appeals were admitted on 19.06.2014 to consider

the following substantial question of law:

"Whether the finding of the Commissioner that the respondent is a workman is perverse and illegal?"

2. These appeals are at the instance of the insurer

calling in question the legality of the common judgment and

award dated 23.07.2009 in KANAPA/CR NOS.386/2008 to

389/2008 passed by the learned Labour Officer and

Commissioner for Workmen's Compensation, Sub Division-I,

Bellary (for short the "the Commissioner").

3. Brief facts are that the claimant No.1-Suleman was

working as cleaner, claimant No.2-S.Khadarvali was working as

driver and claimant No.3-Jayaramulu and claimant No.4-

Ramakrishna were working as hamalies in lorry bearing

registration No.KA-35/3331 owned by respondent No.1-Haji @ K

Mohammed Haji (before the learned Commissioner) and insured

with the appellant herein. It is stated that on 18.11.2005, when

claimant No.1-Khadarwali was driving the lorry in question and

claimant No.2-Suleman (cleaner), claimant No.3-Jayaramulu

and claimant No.4-Ramakrishna hamalies were sitting in the

lorry, it met with an accident and all of them suffered grievous

injuries.

4. Respondent No.1 before the learned Commissioner

filed a written statement admitting the relationship of employer-

employee between him and the claimants and also the accident.

Appellant herein also filed detailed written statement denying

the material averments made in the claim petition and, in

particular, the employer-employee relationship between the

insured and the claimants.

5. Claimants examined themselves as PW1 to PW4 and

a qualified medical practitioner Dr.Rajesh M was examined as

PW5. Ex.P1 to Ex.P12 were also marked for the claimants.

Respondent No.1 examined himself as RW1.

6. Upon consideration of the materials placed before

him and the evidence let in, the learned Commissioner answered

the points for consideration in favour of the claimants and

awarded compensation of Rs.89,699/- in favour of claimant

No.1-Suleman, Rs.1,34,568/- in favour of claimant No.2-

S.Khadarwali, Rs.77,766/- in favour of claimant No.3-

Jayaramulu and Rs.1,00,751/- in favour of claimant No.4-

Ramakrishna with interest thereon at 12% per annum.

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

appellant strenuously contended that there was no employer-

employee relationship between the claimants and respondent

No.1-the owner of the lorry in question, and the finding of the

learned Commissioner on this aspect is wholly perverse and

based on no evidence. In this behalf, he submitted that even

though complaint as per Ex.P1 is said to have been filed by

claimant No.1-Suleman, no case has been registered by the

police in spite of incident being a motor vehicle accident

involving rash and negligent driving and that creates a strong

suspicion that this is a fraudulent case. He further submitted that

the appeals are liable to be allowed and award set aside.

8. Learned counsel appearing for the claimants, on the

other hand, strongly contended that respondent No.1, who is the

owner of the vehicle in question has filed a written statement

admitting the employer-employee relationship between him and

the claimants and further he had examined himself as RW1 and

given evidence to the effect that the claimants were working

under him in the lorry bearing registration No.KA-35/3331 as

cleaner, driver and hamalies. He, therefore, submitted that the

finding of the learned Commissioner on the employer-employee

relationship is based on evidence and such being the case, it is

not liable to be interfered with in an appeal filed under Section

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

9. I have given my anxious consideration to the

submissions made on both sides and I have perused the records.

10. Claimants have asserted in their claim petitions that

claimant No.1-Suleman was working as cleaner, claimant No.2-

S.Khadarwali was working as driver and claimant No.3-

Jayaramulu and claimant No.4-Ramakrishna were working as

hamalies in lorry bearing registration No.KA-35/3331 owned by

respondent No.1-Haji @ K.Mohammed Haji. In the written

statement filed, respondent No.1 has specifically admitted the

same. In their evidence also, PW1 to PW4 have deposed clearly

that all of them were working in the lorry in question under the

employment of respondent No.1 and that has not been shaken in

the cross-examination. Respondent No.1 was examined as RW1

and in his evidence also he has stated that all the claimants were

working in the lorry in question under him. The only thing

elicited during the course of cross-examination of RW1 on behalf

of the appellant herein is that he had not maintained the records

either for having employed the claimants in the lorry in question

or payment of wages made by him. It is required to be noticed

that there is nothing elicited in the cross-examination of RW1

that he was a fleet owner and therefore, if respondent No.1 was

only owning the lorry in question it is rather difficult to expect

such a employer to maintain elaborate documents or resistance

for having employed driver, cleaner and hamalies and also for

having made payment of wages to them. In that view of the

matter, the finding of fact recorded by the learned Commissioner

that employer-employee relationship has been established in this

case cannot be said to be based on no evidence or that it is

perverse and therefore, I am not inclined to interfere with the

same in an appeal filed under Section 30(1) of the Employee's

Compensation Act, 1923. Accordingly, there is no merit in these

appeals and they are liable to be dismissed.

11. Further, it is brought to the notice of this Court by

the learned Counsel for the claimants that the interest on the

compensation amount is awarded w.e.f. 30 days from the date

of adjudication instead of awarding the same w.e.f. 30 days from

the date of the accident, which is incorrect as per the statute

itself and thus the claimants are entitled to grant of interest

w.e.f. 30 days from the date of the accident. Hence, the

following:

ORDER

The above appeals are dismissed.

While maintaining the award, it is directed to the appellant-insurance company to pay the interest on the award amount w.e.f.30 days from the date of the accident.

The amount in deposit, if any, before this Court, shall be transmitted to the jurisdictional Court

of the learned Senior Civil Judge along with records forthwith.