Sanjeev Kulkarni, vs Renuka W/O Irayya Hiremath,
2021 Latest Caselaw 2464 Kant

               IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

             DATED THIS THE 29TH DAY OF JUNE 2021

                            BEFORE

           THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


        MFA NO.24544/2012 C/W MFA NO.23533/2012 (WC)

IN MFA NO.24544/2012
BETWEEN
SHRI. SANJEEV KULKARNI,
AGE: MAJOR, OCC: BUSINESS,
R/O: MARUTI COMPLEX,
LINE BAZAAR, DHARWAD.
(OWNER OF TRACTOR NO.KA-25/T-5356)
                                                    ...APPELLANT

(BY SRI. S. B. NAIK, ADVOCATE)

AND
1.    SMT. RENUKA
      W/O IRAYYA HIREMATH,
      AGE: 31 YEARS,
      OCC: HOUSEWIFE,
      R/O: BETADUR VILLAGE,
      TQ: KUNDAGOL, DIST: DHARWAD.

2.    SRI. RUDRAYYA
      S/O GADIGAYYA HIREMATH,
      AGE: 68 YEARS,
      OCC: AGRICULTURE,
      R/O: BETADUR VILLAGE,
      TQ: KUNDAGOL,
      DIST: DHARWAD.

3.    SMT. SOMAVVA
      W/O RUDRAYYA HIREMATH,
                                  2


      AGE: 61 YEARS, OCC: HOUSEWIFE,
      R/O: BETADUR VILLAGE,
      TQ: KUNDAGOL, DIST: DHARWAD.

4.    SMT. KASTURI @ KASTURAVVA
      W/O IRAYYA HIREMATH,
      AGE: MAJOR, OCC: SERVICE,
      R/O: WAMBENAGAR,
      NAVANAGAR, BAGALKOT.

5.    KUMARI GADIGEVVA
      D/O IRAYYA HIREMATH,
      AGE: 14 YEARS, OCC: STUDENT,

6.    KUMAR GADIGEYYA
      S/O IRAYYA HIREMATH,
      AGE: 13 YEARS, OCC: STUDENT,

7.    KUMARI GURUSHANTAVVA
      D/O IRAYYA HIREMATH,
      AGE: 7 YEARS, OCC: STUDENT,

      SINCE RESPONDENTS 5, 6, 7 ARE MINORS,
      THEY ARE REPRESENTED BY
      THEIR MOTHER AND NATURAL GUARDIAN
      RESPONDENT NO.4.
      R/O: WAMBENAGAR,
      NAVANAGAR, BAGALKOT.

8.    THE DIVISIONAL MANAGER,
      THE ORIENTAL INSURANCE COMPANY LTD.,
      DHARWAD.
      (INSURER OF TRACTOR NO.KA-25/T-5356)
                                                     ...RESPONDENTS

(BY SRI. M. H. PATIL, ADV., FOR R2 TO R4;
R5 TO R7 ARE MINORS R/BY R4;
SRI. S. S. JOSHI, ADV., FOR R8)

      THIS MFA IS FILED U/S.30 OF THE W.C.ACT 1923, SEEKING
MODIFICATION OF THE AWARD DATED 30.05.2012, PASSED IN
WCA/F-2/2011   ON   THE   FILE   OF   THE   LABOUR    OFFICER   AND
                                3


COMMISSIONER FOR WORKMEN COMPENSATION, SUB-DIVISION-1,
HUBLI, TO THE EXTENT OF AWARDING PENALTY OF Rs.60,000/- UPON
THE APPELLANT.


IN MFA NO 23533 OF 2012
BETWEEN
DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO., LTD.,
DHARWAD.
REPRESENTED BY ASST. MANAGER,
REGIONAL OFFICE, HUBLI.
                                                ...APPELLANT

(BY SRI. S. S. JOSHI, ADV.,)

AND
1.    SANJEEV B KULKARNI,
      AGE: MAJOR,
      OCC: OWNER OF THE TRACTOR
      BEARING NO. KA-25/T-5356,
      R/O: MARUTI COMPLEX,
      LINE BAZAR,DHARWAD.

2.    SMT. KASTURI @ KASTUREVVA
      W/O IRAYYA HIREMATH,
      AGE: MAJOR, OCC: SERVICE,
      R/O: VAMBE NAGAR,
      NAVANAGAR, BAGALKOT.

3.    KUM. GADIGEVVA
      D/O IRAYYA HIREMATH,
      AGE: 14 YEARS, OCC: STUDENT,
      R/O: VAMBE NAGAR,
      NAVANAGAR, BAGALKOT.

4.    KUM. GADIGAYYA
      S/O IRAYYA HIREMATH,
      AGE: 13 YEARS, OCC: STUDENT,
      R/O: VAMBE NAGAR,
      NAVANAGAR, BAGALKOT.
                                4


5.   KUM. GURUSHANTAVVA
     D/O IRAYYA HIREMATH,
     AGE: 7 YEARS, OCC: STUDENT,
     R/O: VAMBE NAGAR,
     NAVANAGAR, BAGALKOT.

     RESPONDENTS 3 TO 5 ARE SINCE MINORS,
     REPRESENTED BY M/G. MOTHER
     RESPONDENT NO.2 IN THIS APPEAL

6.   SMT. RENUKA
     W/O IRAYYA HIREMATH,
     AGE: 31 YEARS,
     OCC: HOUSEHOLD,
     R/O: BETADUR VILLAGE,
     TQ: KUNDAGOL, DIST: DHARWAD.

7.   SRI. RUDRAYYA GADIGEYYA HIREMATH,
     AGE: 68 YEARS, OCC: COOLIE,
     R/O: BETADUR VILLAGE,
     TQ: KUNDAGOL, DIST: DHARWAD.

8.   SMT. SONAVVA
     W/O GADIGEYYA HIREMATH,
     AGE: 61 YEARS,
     OCC: HOUSEHOLD,
     R/O: BETADUR VILLAGE,
     TQ: KUNDAGOL, DIST: DHARWAD.
                                              ... RESPONDENTS

(BY SRI. S. B. NAIK, ADV., FOR R1;
SRI. M. H. PATIL, ADV., FOR R2;
R3 TO R5 ARE MINORS R/BY R2;
NOTICE TO R6 TO R8 HELD SUFFICIENT
V/O.DATED 29.07.2016)

     THIS   MFA   IS   FILED   U/S.30   OF   THE   WORKMEN'S
COMPENSATION ACT, PRAYING TO SET ASIDE THE JUDGEMENT AND
AWARD DATED 30.05.2012, PASSED IN WCA/F-2/2011, ON THE FILE
OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION, SUB-DIVISION-1, HUBLI,
                                       5



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


                                   JUDGMENT

These appeals are by the owner-insured and the insurer

calling in question the legality of the order dated 30.05.2012 in

WCA/F-2/2011 passed by the learned Labour Officer and

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

Hubli (for short "the Commissioner").

2. Brief facts are that deceased Irayya Hiremath was

working as driver in truck bearing registration No.KA-25/5356

owned by respondent No.1-Sanjeev Kulkarni and insured with

the Oriental Insurance Company Limited (respondent No.2

before the learned Commissioner). It is stated that on

01.10.2010, while the deceased was driving the tractor, it met

with an accident and fell into a ditch resulting in death of the

deceased.

3. In the claim proceedings before the learned

Commissioner, respondent No.1-Sanjeev Kulkarni did not file his

written statement. Respondent No.2-insurance company filed its

detailed written statement contesting the proceedings.

4. During the enquiry, witnesses were examined on

both sides and several documents were also marked.

5. Upon consideration of the materials produced and

the evidence let in, learned Commissioner answered the points

arising for consideration in favour of the legal representatives of

the deceased and against the insurance company. He awarded a

compensation of Rs.4,23,600/- with interest thereon at 12% per

annum. It also awarded a penalty of Rs.60,000/- with direction

to respondent No.1-Sanjeev Kulkarni to pay the same.

6. Learned counsel Sri. S. B. Naik appearing for

respondent No.1-Sanjeev Kulkarni, in support of his appeal,

contended that the penalty quantified by the learned

Commissioner is excessive and on the higher side and the same

is required to be reduced suitably.

7. Learned counsel appearing for the insurance

company, in support of his appeal, submitted that the employer-

employee relationship has not been established by the evidence

of the claimants and therefore, the finding of the learned

Commissioner in this behalf is based on no evidence. He further

submitted that the deceased was not in possession of valid and

effective driving licence to drive a tractor and therefore, there is

material violation of the policy condition and the insurance

company is not liable to reimburse the compensation amount. In

this behalf, he particularly drew my attention to the charge-

sheet (Ex.P.2) where it is specifically stated that the driver was

not in possession of valid and effective driving licence to drive

the tractor in question. He, therefore, submits that the appeal

should be allowed and the award should be set aside.

8. I have given my anxious consideration to the

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

9. In regard to the question of employer-employee

relationship between the deceased and Sanjeev Kulkarni

(appellant in MFA No.24544/2012) is concerned, the charge-

sheet (Ex.P.2) shows that it was the deceased who was driving

the tractor at the material point of time. Learned Commissioner,

upon consideration of the entire materials, has recorded a

finding that employer-employee relationship has been

established and he being a final fact finding authority, I do not

find any good ground to interfere with the same.

10. Learned counsel for the appellant-insurance

company further contended that the deceased was not in

possession of valid and effective driving licence to drive the

tractor in question. He also brought to my notice that the

insurance company had issued notice to the claimants as well as

the insured owner - Sri. Sanjeev Kulkarni to produce the driving

licence of the deceased. He also has brought to my notice the

charge sheet (Ex.P.2) which also discloses that the deceased

was not in possession of valid and effective driving licence. In

that view of the matter, the learned Commissioner has

committed serious error of law in ignoring the above evidence

brought on record. It is a fact that driving licence of the

deceased was not produced before the learned Commissioner.

Under such circumstances, I am constrained to hold that learned

Commissioner has committed a serious error in recording a

finding that the deceased was having valid and effective driving

licence to drive the tractor in question. Accordingly, there is

serious violation of the terms of the policy as rightly contended

by the learned counsel for the insurer. In that view of the

matter, the appellant-insurance company is required to be

directed to pay the award amount in the first instance and

thereafter recover the same from the insured owner - Sanjeev

Kulkarni in the same proceedings.

11. Learned counsel for the owner-appellant (Sanjeev

Kulkarni) has contended that the quantification of the penalty

namely Rs.60,000/- awarded by the learned Commissioner is

excessive and therefore, it is unreasonable and accordingly, it is

liable to be set aside. The requirement under the Employee's

Compensation Act, 1923 is very clear namely that the owner of

the vehicle is required to deposit the compensation amount

within one month from the date of the accident. The Act being a

social welfare legislation, the purpose underlying the said

requirement is to ensure that the family of the deceased

workman does not go without any financial support and the

family gets it entitlement for having lost its bread winner in time.

There is no dispute about the fact that the owner-employer had

not deposited the compensation amount till the time award was

passed. Therefore, the learned Commissioner had the power and

jurisdiction to order payment of penalty by the owner. He has

recorded his reasons for awarding penalty against the owner in

the impugned order. However, I am of the view that the amount

of penalty of Rs.60,000/- ordered by the learned Commissioner

is on higher side and therefore, it is required to be scaled down

to Rs.30,000/-.

12. The learned Commissioner has however committed

an error in awarding interest only w.e.f. 30 days from the date of

the award and not w.e.f.30 days from the date of the accident,

which is a requirement under the law. Therefore, the same is

required to be rectified and accordingly interest is awarded w.e.f.

30 days from the date of the accident. Hence, the following:

ORDER.

The appeal in MFA No. 24544/2012 filed by the insured owner Sanjeev Kulkarni is allowed in part.

The penalty amount awarded at Rs.60,000/- by the learned Commissioner is modified and it is held that he is liable to pay penalty at Rs.30,000/- only. The owner of the tractor Sri. Sanjeev Kulkarni shall deposit the same within 30 days from today before the jurisdictional Court of learned Senior Civil Judge.

The appeal in MFA No.23533/2012 filed by the insurer-Oriental Insurance Company is allowed in part.

While maintaining the compensation amount awarded by the learned Commissioner, it is directed that the appellant-insurance company shall in the first instance pay the compensation amount with interest thereon at 12% per annum w.e.f. 30 days from the date of the accident till the date of realization and thereafter recover the same from the insured-Sanjeev Kulkarni in the same proceedings.

The amount in deposit, if any, before registry shall be transmitted to the jurisdictional Court of learned Senior Civil Judge forthwith along with records.

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

Sd/-

JUDGE

yan