The Divisional Manager vs Shri. Shankargouda ...
2021 Latest Caselaw 2348 Kant

                  IN THE HIGH COURT OF KARNATAKA
                           DHARWAD BENCH

               DATED THIS THE 23RD DAY OF JUNE 2021

                                  BEFORE

              THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                      MFA NO.20463 OF 2010 (WC)
                                c.w.
                      MFA NO.20464 OF 2010 (WC)


MFA NO.20463 OF 2010 (WC) :

BETWEEN:

The Divisional Manager
United India Insurance Co. Ltd.
Divisional Office, Maruti Galli
Belgaum.
                                                      ...APPELLANT

(BY SRI. RAVINDRA R. MANE, ADVOCATE)

AND:

   1. Shri. Basappa F. Baligatti Gotadgi
      Age : 73 yrs., Occ: Coolie
      R/o. At & Post: Sutagatti
      Tal : Bailhongal, Dist. Belgaum.

   2. Smt. Chinnawwa Basappa Chikani
      Age : major, Occ : business
      R/o. At & Post: Sutagatti
      Tal : Bailhongal, Dist. Belgaum.

   3. Shri. Shivappa Shivalingappa Ani
      Age : major, Occ: Business
      R/o. At & Post: Chachadi
      Tal. Saundatti, Dist. Belgaum.              ...RESPONDENTS
                                    2


(BY SRI. SHANKARGOUDA B. PATIL, ADVOCATE FOR R.1.
R.2 AND R.3 - HELD SUFFICIENT.)

      THIS APPEAL IS FILED UNDER SECTION 30(1)(a)(aa) OF
WORKMEN'S COMPENSATION ACT, 1923, PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO CALL FOR THE RECORDS, ALLOW THIS
APPEAL AND SET ASIDE THE JUDGMENT AND ORDER DATED 25.11.2009
PASSED BY THE COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-
DIVISION NO.2, BELGAUM IN WCA NO. 164/2007.

MFA NO.20464 OF 2010 (WC) :

BETWEEN:

The Divisional Manager
United India Insurance Co. Ltd.
Divisional Office, Maruti Galli
Belgaum.
                                                    ...APPELLANT

(BY SRI. RAVINDRA R. MANE, ADVOCATE)

AND:

   1. Shri. Shankargouda Maharudragouda Patil
      Age : 51 yrs., Occ: Coolie
      R/o. Gotadagi, Tal. Bailhongal
      Dist. Belgaum.

   2. Smt. Chinnawwa Basappa Chikani
      Age : major, Occ : business
      R/o. At & Post: Sutagatti
      Tal : Bailhongal, Dist. Belgaum.

   3. Shri. Shivappa Shivalingappa Ani
      Age : major, Occ: Business
      R/o. At & Post: Chachadi
      Tal. Saundatti, Dist. Belgaum.            ...RESPONDENTS

(R.1, R.2 AND R.3 SERVED.)

    THIS APPEAL IS FILED UNDER SECTION 30(1)(a)(aa) OF
WORKMEN'S COMPENSATION ACT, 1923, PRAYING THAT THIS HON'BLE
                                      3


COURT MAY BE PLEASED TO CALL FOR THE RECORDS, ALLOW THIS
APPEAL AND SET ASIDE THE JUDGMENT AND ORDER DATED 25.11.2009
PASSED BY THE COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-
DIVISION NO.2, BELGAUM IN WCA NO. 165/2007.

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

                               JUDGMENT

These two appeals are filed at the instance of the

insurer calling in question the legality of the award dated

25.11.2009 in WCA No.164/2007 and WCA No.165/2007

passed by the Commissioner for Workmen's

Compensation, Sub-Division No.2, Belgaum.

2. Brief facts are that, the claimants filed separate

claim petitions claiming that they were working as

'hamals' in TATA 407 Tempo bearing No. KA-24/1565

under respondent No.1 before the learned Commissioner

by name Chinnawwa Basappa Chikani and insured with the

appellant herein. They further claimed that on

12.07.2005 when they were proceeding in the said Tempo

from Belgaum to Sutagatti, near Hanamanhatti, on

account of a KSRTC bus dashing against the Tempo, these

claimants suffered grievous injuries.

3. Respondent No.1 and respondent No.3 have

remained ex parte. The appellant who was respondent

No.2 before the learned Commissioner has contested the

proceedings.

4. During the enquiry, the claimants examined

themselves as P.W.1 and P.W.2 and one qualified medical

practitioner who was examined as P.W.3. Ex. P.1 to P.11

were marked. Appellant - Insurance Co. examined one of

its officers as R.W.1 and R.C. extract and policy of

Insurance were marked.

5. Upon examination of the entire records and the

evidence placed, learned Commissioner has recorded the

findings on all the points raised for consideration in favour

of the claimants and against the appellant - insurer and

awarded compensation of Rs.74,528/- and Rs.86,292/-

respectively with interest thereon at 12% p.a. in favour of

the claimants.

6. Learned counsel for the appellant has contended

that respondent No.3 before the learned Commissioner by

name Shivappa Shivalingappa Ani was the R.C. owner of

the Tempo in question which was insured with the

appellant and policy of insurance was also standing in his

name. He further submits that claimants have asserted

that they were working as hamals under respondent No.1

- Chinnawwa Basappa Chikani, who is respondent No.2 in

these appeals and therefore there was no employer-

employee relationship between the insured and the

claimants and as such, the learned Commissioner has

committed a gross error of law in allowing the claim

petitions and awarding compensation and thereafter

fastening the liability to reimburse the claim as against

the present appellant. He therefore submits that appeals

are entitled to be allowed and claim petitions are liable to

be dismissed as against the appellants herein.

7. I have given my anxious consideration to the

submissions made and also I have perused the records of

the case.

8. Both the claimants in their claim petitions have

unequivocally asserted that they were employed as

'hamals' by the respondent No.1 before the learned

Commissioner, namely Chinnawwa Basappa Chikani

(respondent No.2 herein). The R.C. extract pertaining to

the Tempo bearing registration No. KA-24/1565 stands in

the name of respondent No.3 - Shivappa Shivalingappa

Ani and similarly he is the insured by the appellant in

respect of the said vehicle as could be seen from Ex.R.3

which is the policy of the Insurance. There is absolutely

nothing stated either in the claim petitions by the

claimants or during their evidence before the learned

Commissioner during the enquiry that respondent No.3

had either employed them as 'hamals' to work in the

Tempo in question or he had authorized respondent No.2

- Chinnawwa Basappa Chikani (respondent No.1 before

the learned Commissioner) to employ them as 'hamals' in

the Tempo owned by him. Learned Commissioner has not

adverted to this aspect of the matter in the impugned

order and therefore his finding regarding employer-

employee relationship is based on no evidence and his

finding is also perverse. In that view of the matter, the

impugned award as against the appellant is liable to be

set aside. Hence, the following :

9. The above appeals - MFA 20463/2010 and MFA

20464/2010 are allowed in so far as the liability to

reimburse the compensation awarded is fastened against

the appellant herein.

The amounts in deposit before this Registry shall be

refunded to the appellant forthwith.

Misc. Civil 101396/2010 and Misc. Civil 101400/2010

are dismissed.

Sd/-

JUDGE Mgn/-