Shri.Appasab S/O Mahadev Mali vs Mrs.Manjula W/O Abhayachandra ...
2021 Latest Caselaw 2501 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

              DATED THIS THE 30th DAY OF JUNE 2021

                            BEFORE

            THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                  MFA NO.103480 OF 2015 (ECA)

BETWEEN:

1.     SHRI. APPASAB S/O MAHADEV MALI
       AGE:44 YEARS, OCC:COOLIE,
       R/O H.NO.5292, INDIRA NAGAR,
       CHIKKODI, DIST:BELAGAVI.

2.     SMT. SHANTA W/O APPASAB MALI
       AGE:41 YEARS, OCC:HOUSEHOLD,
       R/O H.NO.5292, INDIRA NAGAR,
       CHIKKODI, DIST:BELAGAVI.

3.     KUMAR LAXMAN S/O APPASAB MALI
       AGE:24 YEARS, OCC:STUDENT,
       R/O H.NO.5292, INDIRA NAGAR,
       CHIKKODI, DIST:BELAGAVI.
                                                     ...APPELLANTS
(BY SRI.HANAMANT R LATUR, ADVOCATE)

AND:

MRS.MANJULA W/O ABHAYCHANDRA JAIN
AGE:50 YEARS, OCC:BUSINESS,
R/O RAJAVANTHI MANSION, JAINPETH,
MODDBIDRE, DIST:DAKSHIN KANNADA-574227.
                                                 ...RESPONDENT
(SERVED)
                                    2


     THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE
EMPLOYEES' COMPENSATION ACT, 1923 PRAYING TO ENHANCE THE
COMPENSATION BY MODIFYING THE JUDGMENT PASSED BY THE
COURT OF III ADDL. SENIOR CIVIL JUDGE AND COMMISSIONER
UNDER EMPLOYEES COMPENSATION ACT, BELAGAVI IN ECA
NO.582/2014 DATED 16.10.2015 IN THE INTEREST OF JUSTICE AND
EQUIRY.

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

                                JUDGMENT

This is an appeal by the claimants calling in question

the legality of the award dated 16.10.2015 passed in ECA

No.582/2014 by the learned III Addl. Senior Civil Judge

and Commissioner under Employees' Compensation Act,

Belagavi at Belagavi (for short, 'Commissioner').

2. Brief facts are that the claim petition was filed by

the claimants on the averments that the deceased

Shivaraj Appasab Mali, who is son of claimants 1 and 2

and brother of claimant No.3, was working as a cleaner in

a bus bearing registration KA-19-C-6159. It is further

stated that he was discharging his duties on the said bus

for 4-5 months preceding the incident in question. It is

stated that on 12.7.2013, the deceased Shivaraj was

working as a cleaner in the said bus and while the said

bus was proceeding towards Belagavi, the deceased was

standing on the door steps of the bus and the driver of

the said bus was driving the same in high speed in a rash

and negligent manner and when the bus reached near

Corporation office cross road, Belagavi at 10.40 p.m., on

account the driver of the bus applying brake abruptly, the

deceased lost balance and fell down from the bus and

sustained injuries to his vital parts of the body and he

died there itself. It is further alleged in the claim petition

that the driver of the bus did not stop the vehicle and he

drove away to protect himself from the criminal charges.

3. In the claim proceedings, respondent-owner of the

bus in question has remained exparte.

4. During the enquiry, claimant No.1 examined

himself as PW1 and Exs.P1 to P8 were marked.

5. Upon consideration of the materials produced and

the evidence let in, the learned Court below answered the

question of employer-employee relationship against the

claimants and similarly, the learned Court below answered

the question of whether the accident had taken place

arising out of and in the course of employment as against

the claimants and consequently, dismissed the claim

petition.

6. The learned counsel for the appellants/claimants

vehemently contended that the deceased was working as a

cleaner in the bus in question and on 12.7.2013, when he

was on duty at about 10.40 p.m., on account of driver of

the bus driving the same in a high speed and thereafter

applying brake abruptly, the deceased was thrown out of

the bus near Corporation office cross road, Belagavi and

on account of the impact injuries, he died there itself and

the driver drove away the bus. He submits that the

learned Court below has referred to the mistake regarding

the date of accident as mentioned in the claim petition

and also in the evidence of PW1 and has come to the

conclusion that no incident as claimed in the claim

petition had taken place and thereby erroneously

dismissed the claim petition. For the said purpose, he

draws the attention of the Court to Ex.P1-FIR which shows

that the accident had taken place on 12.7.2013 as also

the complaint-Ex.P2. He further submits that claimant

No.1 had given the complaint to the Superintendent of

Police, Belagavi as per Ex.P7 narrating the facts clearly

and if the learned Court below had appreciated the same,

it would not have dismissed the claim petition.

7. I have given my anxious consideration to the

submission made and also perused the records.

8. The learned Court below has meticulously

examined the materials produced in this case and

thereafter recorded a finding that the employer-employee

relationship as well as the factum of the accident resulting

in death of the deceased had taken place in the course of

and arising out of the employment have not been

established and for arriving at such conclusion, it has

extensively referred to the documents produced in the

proceedings and also evidence of PW1, more particularly

FIR registered in the first instance shows that PSI-II of

Traffic North Police Station, Belagavi had stated in the

complaint that while he was on duty at about 10 p.m. on

12.7.2013, he saw the dead body lying near RTO Circle

and his enquiry disclosed that a bus had dashed to the

pedestrian and on account of the impact injures, he died.

As per the materials produced, there were no eye-

witnesses to the incident in question. There is absolutely

no materials produced to show that the deceased was

working as a cleaner in the bus bearing registration

No.KA-19-C-6159 against the owner of which the claim

petition is made. The learned Court below has discussed

the entire material evidence and thereafter has come to

the conclusion that both material aspects of the case

namely employer-employee relationship and the accident

resulting in death of the deceased taking place in the

course of and arising out of the employment have not

been established and the said finding cannot be said to be

based on no evidence and in view of the same, there is no

good ground to interfere with the same. Accordingly, I

proceed to pass the following:

ORDER The above appeal is dismissed.

Sd/-

JUDGE

JTR