United India Insurance Co. Ltd., vs Dundayya S/O. Shankrayya ...
2021 Latest Caselaw 2245 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

             DATED THIS THE 15TH DAY OF JUNE 2021

                           BEFORE

           THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                   MFA No.25295/2012 (WC)

BETWEEN:
UNITED INDIA INSURANCE CO., LTD.,
DIVISIONAL OFFICE, SITA SMRUTI,
P.B.NO.156, 1568, MARUTI GALLI, BELGAUM
REP. BY ITS SENIOR DIVISIONAL MANAGER.
                                                    ...APPELLANT
(BY SRI. N. R. KUPPELUR, ADVOCATE)

AND:
1.   SRI. DUNDAYYA S/O. SHANKRAYYA HIREMATH,
     AGE: 57 YEARS, OCC: HOUSEHOLD,
     R/O. KERUR VILLAGE,
     TQ: CHIKKODI, DIST: BELGAUM

2.   SMT. MANGALA W/O. DUNDAYYA HIREMATH,
     AGE: 47 YEARS, OCC: HOUSEHOLD,
     R/O. KERUR VILLAGE,
     TQ: CHIKKODI, DIST: BELGAUM

3.   MAHADEV S/O. BHEEMA MADALE,
     AGE: MAJOR, OCC: BUSINESS,
     R/O. SADALGA, TQ: CHIKKODI,
     DIST: BELGAUM
                                              ...RESPONDENTS
(BY SRI.K. ANANDKUMAR, ADV., AND
SMT. GEETA K. M. ADV., FOR R1 AND R2)

     THIS APPEAL IS FILED UNDER SECTION 30(1) OF WORKMEN'S
COMPENSATION ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 23.08.2012 PASSED IN WCA SR NO.109/2010 ON THE
                                2


FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, SUB-DIVISION-1, BELGAUM DISTRICT BELGAUM.


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


                        JUDGMENT

The insurer who was respondent No.2 before the

learned Commissioner has preferred this appeal under

Section 30(1) of the Employees' Compensation Act,

1923, calling in question the legality of the award dated

23.03.2012 in WCA SR NO.109/2010 passed by the

learned Labour Officer and the Commissioner for

Workmen's Compensation, Sub-Division-1, Belgaum.

2. The brief facts are that one Anil @

Veerabhadrayya Dundayya Hiremath, who was the son

of the claimants before the learned Commissioner was

working as a helper in JCB bearing registration No.KA-

23/9234       under     one          Sri.Mahadev         Bheema

Madale/respondent       No.1         before        the   learned

Commissioner. It is stated that on 29.03.2007 while the

deceased/Anil @ Veerabhadrayya Dundayya HIremath

was working in the said JCB under Mahadev Bheema

Madale, on account of JCB requiring some repair work,

he was sent by his employee, respondent

No.1/Mahadevappa Bheema Madale for bringing some

articles for carrying out repair work and accordingly,

deceased had gone in the motorcycle of his employer

bearing registration No.KA-23/9324 and while he was

near Chinchali village at about 10.30 p.m., there was

an accident involving unknown vehicle and due to the

injuries suffered in the accident, he died in the spot

itself.

        3. During        enquiry          before      the      learned

Commissioner,            claimant         Dundayya      Shankarayya

Hiremath examined himself as P.W.1 and got marked

Ex.P.1 to Ex.P.6. The employer Sri. Mahadev Bheema

Madale/respondent No.1 before the learned

Commissioner got examined himself as R.W.1 and got

marked Ex.R.1, which was the statement of objections

filed by him before the M.A.C.T., Belagavi in MVC

No.1755/2007 filed by the present claimants relating to

the same accident. The appellant herein did not

examine any witnesses but got marked policy of

insurance as Ex.R.2.

4. Upon consideration of the entire materials

produced before him, the learned Commissioner

recorded a finding that the employer and employee

relationship between the deceased and respondent

No.1/Mahadev Bheema Madale was proved and that the

accident resulting in the death of deceased took place

in the course and arising out of the employment. He

also recorded a finding that deceased was aged 23

years at the time of his death and he was getting

monthly wages of Rs.4,000/- and by applying the

relevant factor, he awarded compensation of

Rs.4,39,900/- with interest thereon at 12% per annum.

5. Learned counsel for the appellant vehemently

contended that there was no employer and employee

relationship between Mahadev Bheema Madale and the

deceased. In this behalf he submitted that respondent

No.3 herein in his statement of objections filed before

the learned Commissioner he had denied such a

relationship between himself and the deceased. He

further submitted that Sri. Mahadev Bheema Madale

had examined himself as R.W.1 and during his evidence

he has denied such a relationship. He therefore,

submits that the finding of the learned Commissioner in

this behalf is contrary to the evidence placed before

him and therefore, it is perverse and a substantial

question of law arises and in view of the same, the

appeal is entitled to be allowed and the claim petition is

liable to be dismissed.

6. Learned Counsel Sri. Anandkumar, per contra,

submits that the learned Commissioner upon

consideration of the entire materials placed before him

and on appreciation of such evidence has come to the

conclusion that the employer and employee relationship

between respondent No.3 herein and the deceased was

clearly established and in this behalf he particularly

draws my attention to the statement of objections filed

by respondent No.3 herein in MVC No.1755/2007 filed

by the present claimants before the jurisdictional

M.A.C.T., prior to filing this claim petition before the

learned Commissioner. He drew my attention to Para

No.5 of the statement of objections filed by respondent

No.3 herein before the M.A.C.T. wherein respondent

No.3 herein has clearly admitted the employer and

employee relationship. He therefore submits that inview

of the decision reported in 2009 ACJ 509 rendered by a

Division Bench of this Court and also decision reported

in 2009 ACJ 1420 rendered by a Division Bench of

Kerala High Court and decision of this Court in MFA

No.24623/2012 dated 10.06.2021 between the National

Insurance Company Ltd. vs. Shri. A Subramanyam Rao

and another, the finding of the learned Commissioner is

correct and therefore, it is not liable to be interfered

with.

7. I have given my anxious consideration to the

submissions made on either side and I have perused

the case papers.

8. Perusal of the impugned award shows that

Ex.R1 got marked by respondent No.3 herein himself is

the statement of objections filed by him before the

learned M.A.C.T. in MVC No.1755/2007, which was filed

by the claimants, who are the parents of the deceased

before the jurisdictional M.A.C.T., Belgaum and in the

said statement of objections the employer/respondent

No.3 herein has clearly admitted the employer and

employee relationship between himself and the

deceased. It is therefore, evident that in the claim

petition which is filed subsequently he is resiling from

his earlier stand and taking a contrary stand the

reasons for which he has not explained properly.

9. On the other hand, the learned Commissioner

upon consideration of the said contrary stand taken by

respondent No.3 herein with regard to the employer

and employee relationship and also based on the police

papers, which clearly disclosed that deceased was

working as helper in the JCB of the respondent No.3

herein and also that he had gone on an errand as per

the instruction of respondent No.3 on his motorcycle

and further because the deceased died on account of

the motor vehicle accident involving the said

motorcycle of respondent No.3 herein has held that the

claim petition filed by the claimants deserves to be

allowed. I find that the said finding recorded by the

learned Commissioner is entirely based on the evidence

placed before him. Under such circumstances, I am

unable to agree with the learned counsel for the

appellant herein that the finding of the learned

Commissioner that there was employer and employee

relationship between respondent No.3 and the deceased

is based on no evidence. Therefore, no substantial

question of law arises in this case, particularly, in view

of the decisions relied upon by the learned counsel for

the claimants reported in 2009 ACJ 509 rendered by a

Division Bench of this Court and also decision reported

in 2009 ACJ 1420 rendered by a Division Bench of

Kerala High Court. Accordingly, this appeal is liable to

be dismissed. However, the learned Commissioner in

view of the clear provision under Section 4-A(3) of the

Employees' Compensation Act, 1923, was in error in not

granting the interest at 12% per annum from 30 days

of the accident. In view of the said provision of law and

also the decisions of the Hon'ble Supreme Court, the

claimants are entitled to receive interest on the award

amount from 30 days of the accident at 12% per annum

till the date of realization. Hence, the following:

ORDER

The above appeal is dismissed.

The appellant is directed to deposit the interest at the rate of 12% per annum from 30 days of the accident till the date of realization of the award amount.

The amount in deposit, if any, before the registry, shall be transmitted to the

jurisdictional Senior Civil Court along with records, forthwith.

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

Sd/-

JUDGE

yan