The Oriental Insurance Co Ltd vs L Kumar S/O M Lakshmana
2021 Latest Caselaw 2472 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 29TH DAY OF JUNE, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                   M.F.A.NO.982/2013(WC)

BETWEEN:

THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE
LEO SHOPPING COMPLEX
44/46, RESIDENCY ROAD
BENGALURU.                                 ... APPELLANT

           (BY MRS. HARINI SHIVANAND, ADVOCATE)
AND:

1.     L.KUMAR
       S/O M.LAKSHMANA
       AGED ABOUT 29 YEARS
       R/AT No.137, NEW No.1918,
       SANJEEVININAGAR,
       SAHAKAR NAGAR POST
       BENGALURU- 560092

2.     THE MANAGING DIRECTOR
       M/S. T.C.I. FINANCE LTD.,
       HEAD OFFICE NO 1-7-293
       P.B. No.20, M.G.ROAD,
       SECUNDERBAD BRANCH OFFICE AT
       NO 47, SINGASANDRA VILLAGE,
       BEGUR HOBLI HOSUR MAIN ROAD,
       BENGALURU
       (OWNER OF THE BAJAJ TEMPO GOODS
       TRAVELLER BR.NO.KA-05-B-5339)
                                2



3.   SRI PAUL JACOB S/O JAMS
     NO.104, RAMACHANDRAPURA
     JALAHALLI CROSS POST, JALAHALLI
     BENGALURU-560 013.

4.   SRI V.T. KESHAV
     S/O DR. M.THIMMEGOWDA
     RAMANATHA KRUPA
     NO.63, 7TH CROSS
     MARUTHI CO-OPERATIVE SOCIETY
     BASAVESHWARANAGARA
     WEST OF CHORD ROAD
     BENGALURU-560 079.                        ... RESPONDENTS

        (BY MR.B.M.HALASWAMY, ADVOCATE FOR R2;
            R4-SERVED; V/O DATED 30.08.2016
     SERVICE OF NOTICE IN R/O R3 IS HELD SUFFICIENT)


     THIS M.F.A IS FILED UNDER SECTION 30(1) OF WC ACT
AGAINST THE JUDGMENT DATED 30.10.2012 PASSED IN
WCA/NFC/CR-42/2004 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB-
DIVISION-2, BENGALURU, AWARDING A COMPENSATION OF
Rs.67,200/- WITH INTEREST.

     THIS M.F.A. COMING ON FOR ADMSSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                       JUDGMENT

Though this appeal is listed for admission today, with the

consent of learned counsel appearing for the appellant/Insurance

Company, the same is taken up for final disposal.

2. This appeal is filed by the appellant/Insurance

Company challenging the Judgment and Award dated

30.10.2012 passed in No.WCA/NFC/CR-42/2004 on the file of

the Commissioner for Workmen's Compensation, Bengaluru,

('the Commissioner' for short) questing the liability.

3. The factual matrix of the case is that the

claimant/respondent No.1 herein was working with respondent

No.3 - Sri Paul Jacob S/o. Jams as Cleaner and when the vehicle

was met with an accident he has sustained the injuries. Hence,

he has filed the claim petition before the Commissioner.

4. In order to substantiate his contention, he examined

himself as P.W.1 and got examined the Doctor as P.W.2 and the

Doctor has assessed the disability of 20% and in respect of the

particular limb 7% and he was aged about 29 years.

5. The Tribunal after appreciating the oral and

documentary evidence allowed the claim petition granting an

amount of Rs.67,200/- and fastening the liability against the

Insurance Company. Hence, the present appeal is filed.

6. The main contention of the Insurance Company

before this Court is that the claimant has admitted that he was

not working under the first respondent and the salary was paid

by the third respondent and there was no agreement between

him and the first respondent and further admits that he was

working under the instructions of third respondent and in spite of

the same has been considered by the Commissioner in page 15

of the judgment and came to the conclusion that he was working

with the third respondent, who is having lease-cum-sale vehicle

agreement but committed an error in fastening the liability on

the Insurance Company. Hence, the main contention and

substantial question raised before this Court is that the Tribunal

has committed an error in awarding the compensation and

fastening the liability on the Insurance Company even though

there was no employer and employee relationship between the

insured and the first respondent.

7. The learned counsel for the appellant would

vehemently contend that there is a separate agreement between

the first and the third respondent while handing over the vehicle

for lease-cum-sale agreement, wherein, it is the duty upon the

third respondent to take the policy in respect of the employees,

who were working under him. Hence, the Insurance Company is

not liable to pay the compensation. Hence, fastening the liability

on the Insurance Company is erroneous.

8. The claimant in spite of service of notice did not

choose to appear and contest the matter. The learned counsel,

who is appearing for respondent No.2 also not, appeared before

this Court. This Court on the earlier occasion passed an order

that, 'If counsel for respondent No.2 does not appear on the next

date of hearing, the matter will be heard on merits in his

absence'.

9. Having heard the arguments of learned counsel

appearing for the appellant/Insurance Company and on perusal

of the grounds urged in the appeal and the materials available

on record, the substantial questions that would arise for

consideration of this Court are:

(i) Whether the Commissioner has committed an error in fastening the liability on the Insurance Company in spite of the Commissioner came to the conclusion that there was no relationship has been established between the claimant and the first respondent?

(ii) What order?

Point No.(i):

10. Having heard the appellant's counsel and on perusal

of the award passed by the Commissioner in page-15 of the

award discussed in detail and came to the conclusion that there

was no relationship established between respondent No.1 and

the claimant and also came to the conclusion that the claimant

himself has admitted that he was working with the third

respondent. The commissioner also considered Ex.R-2-2,

wherein, the service contract was entered between respondent

No.1 and respondent No.3. Respondent No.3 took the vehicle on

lease-cum-sale basis and he had employed the claimant and

when the said fact has been noticed by the Commissioner and

came to the conclusion that the claimant was not an employee of

the first respondent, no doubt, there is a contract of indemnity

between the first respondent and the second respondent and

unless a relationship has been established as workman and

employee between respondent No.1 and the claimant, the

Commissioner ought not to have fastened the liability on the

Insurance Company in view of the contract of indemnity. Hence,

the Insurance Company has established that there is no any

relationship between the first respondent and the claimant as

employer and employee. Hence, the Commissioner ought to

have fastened the liability on respondent No.3, when the

Commissioner had come to the definite conclusion that the

claimant was the employee of the third respondent. Hence,

there is a force in the contention of the Insurance Company that

the Commissioner has committed an error in fastening the

liability on the Insurance Company. Hence, it requires

interference of this Court.

11. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

(ii) The liability fastened on the Insurance Company is set aside and the liability of the Company is exonerated and respondent No.3 in this appeal and also in the claim petition is liable to pay the compensation amount. Hence, the Judgment and Award dated 30.10.2012 passed in No.WCA/NFC/CR-42/2004 on the file of the

Commissioner for Workmen's Compensation, Bengaluru, has been modified fastening the liability on the third respondent.

(iv) The amount in deposit, if any, is ordered to be refunded on proper identification in favour of the appellant.

Sd/-

JUDGE

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