The Divisional Manager vs Mahesh S/O. Yamanappa Notagar
2021 Latest Caselaw 2303 Kant

               IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

             DATED THIS THE 21ST DAY OF JUNE 2021

                            BEFORE

           THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                  MFA NO.24979 OF 2012 (W.C)

BETWEEN
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD., BELGAUM
R/BY ASSISTANT MANAGER
ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, SUMANGALLA COMPLEX,
LAMINGTON ROAD, HUBLI
                                                    ...APPELLANT
(BY SRI. M. K. SOUDAGAR, ADV.,)

AND
1.    MAHESH S/O. YAMANAPPA NOTAGAR
      AGE: MAJOR, OCC: DRIVER
      R/O. MUTTALAGERI,
      TQ: BADAMI, DIST: BAGALKOT

2.    THE MANAGING PARTNER
      M/S. KONKAN MARINE AGENCIES,
      II FLOOR, VIJAYASHREE ARCADE,
      OPP: PADAVU HIGH SCHOOL,
      NANTOOR, MANGALORE-4.
                                                ...RESPONDENTS
(BY SRI. S. C. HIREMATH, ADV., FOR R1;
SRI. RAVI HEGDE, ADV., FOR R2)

     THIS MFA IS FILED U/SEC.30(1)(a) OF WORKMEN'S
COMPENSATION ACT, 1923, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 19.06.2012 PASSED IN W.C.NO.382/2007 ON
THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN'S COMPENSATION, BAGALKOT, DISTRICT BAGALKOT.
                                  2



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

                            JUDGMENT

The insurer has preferred this appeal under Section

30(1)(a) of the Employee's Compensation Act, 1923 (for short

"the Act") calling in question the legality of the award dated

19.06.2012 in W.C.NO.382/2007 passed by the learned Labour

Officer and the Commissioner for Workmen's Compensation,

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

2. Brief facts are that a claim petition was filed by one

Mahesh Yamunappa Notagar (respondent No.1 in this appeal) on

the allegation that he was working as driver in the lorry bearing

registration No.KA-19/1270 owned by respondent No.2 herein

and insured with the appellant. It is further stated that on

23.05.2005 while he was driving the lorry in question, namely,

lorry bearing registration No.KA-19/1270, another lorry driven

by its driver in a rash and negligent manner came from the

opposite side and collided with the lorry driven by the claimant

and on account of the impact, he suffered fracture of the right

leg and right hand.

3. The claim petition was resisted by respondent No.2

herein by filing a written statement denying the fact that the

claimant was working as a driver under it and further asserting

that the facts stated in the claim petition are all false. The

appellant herein had also filed written statement denying the

entire averments made in the claim petition.

4. Learned Commissioner has answered all the points

arising for consideration in the claim petition in favour of the

claimant and awarded compensation of Rs.2,04,288/- with

interest thereon at 12% per annum.

5. In this appeal filed by the insurer, learned counsel

for the appellant has advanced two fold contentions. Firstly, he

contended that the accident resulting in injuries to the claimant

having taking place on 23.05.2005 and the claim petition having

been filed only on 06.11.2007, such claim petition is plainly

barred by time in terms of Section 10 of the Act. He further

contended that the claimant was in possession of a driving

licence which authorized him to drive LMV (NT) and the vehicle

involved in the accident insured under the appellant being a

Heavy Goods Vehicle, there is violation of the terms of policy and

therefore also the compensation awarded against the appellant

is illegal.

6. Learned Counsel appearing for the claimant-

respondent No.1 in the appeal, on the other hand, supported the

award passed by the learned Commissioner and submitted that

since the claimant had suffered serious injuries there was some

delay in filing the claim petition. He further submitted that the

fact that the claimant was in possession of driving licence to

drive LMV (NT) is not a ground to disclaim liability for

indemnifying the compensation awarded against the owner of

the vehicle. He submitted that the appeal is liable to be

dismissed.

7. I have given my anxious consideration to the

submissions made on either side and I have perused the

records.

8. There is no dispute about the fact that the accident

which is the basis for claiming compensation had taken place on

23.05.2005 and there is no dispute that the claim petition was

filed only on 06.11.2007. It is also evident that before the

learned Commissioner, the claimant had not shown any sufficient

cause for filing the claim petition beyond the period of 2 years

permitted under Section 10 of the Act. Under such

circumstances, there is considerable force in the submissions

made by the learned counsel for the insurance company that

claim petition filed before the learned Commissioner was barred

by time and since the claimant had not shown sufficient cause

for filing the petition beyond the time permitted under Section

10 of the Act, the petition was not maintainable at all. In that

view of the matter, the claim petition was not maintainable

having been filed beyond the time granted under Section 10 of

the Act, and therefore, the award passed by the learned

Commissioner is without jurisdiction.

9. Learned counsel for the appellant is right in

contending that the claimant was not in possession of valid and

effective driving licence to drive a heavy goods vehicle like lorry

bearing registration No.KA-19/1270 held by respondent No.2

herein. Ex.P.7 is the driving licence owned and possessed by the

claimant, which shows that it was a licence issued by the

competent authority permitting the claimant to drive a LMV (NT).

It is also required to be noticed that respondent No.2 in its

written statement has clearly alleged that the claimant was not

working as a driver in respect of the lorry bearing registration

No.KA-19/1270. Since the claimant was not having any valid

and effective driving licence to drive the vehicle insured with the

appellant herein, the learned Commissioner was in error in

awarding the compensation as against the appellant.

Accordingly, the appeal is entitled to succeed and I proceed to

pass the following:

ORDER

The appeal is allowed.

The award dated 19.06.2012 in W.C. No.382/2007 passed by the learned Labour Officer and the Commissioner for Workmen's Compensation, Bagalkot, is set aside.

The amount in deposit, if any, before the registry, shall be refunded to the appellant forthwith.

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

Sd/-

JUDGE

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