The Divisional Manager vs Sri G M Venu
2021 Latest Caselaw 1985 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 26TH DAY OF MAY, 2021

                           BEFORE

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

                  M.F.A.NO.5869/2013 (WC)

BETWEEN:

THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
NEW MUSLIM HOSTEL COMPLEX,
1ST MAIN, SARASWATHIPURAM, MYSURU.
REP. BY ITS REGIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
No.44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD CROSS,
BENGALURU-560 025.                              ... APPELLANT

            (BY SRI C. SHANKARA REDDY, ADVOCATE)
AND:

1.     SRI G.M.VENU,
       S/O G. MURTHY,
       AGED ABOUT 30 YEARS,
       R/AT TUBINKERE VILLAGE,
       KOTHATHI HOBLI,
       MANDYA TALUK AND DISTRICT-571 401.

2.     G. MURTHY,
       S/O LATE GURAPPA,
       R/AT No.207, 2ND CROSS,
       ANJANEYA TEMPLE STREET,
       YADIYUR, JAYANAGAR,
       BENGALURU-560070.                    ... RESPONDENTS

                (VIDE ORDER DATED 25.07.2018,
     SERVICE OF NOTICE TO R-1 AND R-2 IS HELD SUFFICIENT)
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     THIS M.F.A IS FILED UNDER SECTION 30(1) OF WC ACT
AGAINST THE JUDGMENT DATED 27.12.2012 PASSED IN WCA
NO.62/2008 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, SUB-DIVISION,
MANDYA, AWARDING A COMPENSATION OF Rs.50,381/- WITH
INTEREST @ 12% P.A. FROM 22.05.2008 TILL THE DATE OF
DEPOSIT.

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

                           JUDGMENT

This appeal is filed by the Insurance Company challenging

the judgment dated 27.12.2012 passed in W.C.A.No.62/2008

passed by the Labour Officer and Commissioner for Employee's

Compensation, Sub-Division-I, Mandya.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid the confusion and for the

convenience of the Court.

3. The factual matrix of the case is that the claim petition

was filed before the Commissioner for Employee's Compensation

claiming that the applicant was driving the goods tempo bearing

registration No.KA-03-1632 and he was employed by respondent

No.1. When he was driving the said goods tempo, all of a

sudden a bullock cart came across the goods tempo and when

the applicant was overtaking the bullock cart, the accident

occurred and in the said accident, he has sustained injuries.

This claim petition was resisted by the Insurance Company

contending that the claimant is none other the son of the owner

of the vehicle and there is no any employer-employee

relationship between them. The Tribunal after considering the

material on record in paragraph No.14 comes to the conclusion

that the policy Ex.R.2 is unlimited and it covers the legal liability

for paid drivers/workmen No.2. That being so, respondent No.2

cannot take a challenge that though the applicant is the son of

respondent No.1 that he cannot claim the compensation when

admittedly he is the driver of the insured vehicle. The claim of

the Insurance Company was rejected and the liability was

fastened on the Insurance Company. Hence, the present appeal

is filed before this Court.

4. The main grounds urged in the appeal is that in the

absence of any relationship of employer-employee, the applicant

cannot approach the Workmen Commissioner. Substantial

question of law was also raised by the appellant before this

Court that the Commissioner for Workmen Compensation has

failed to understand the evidence of R.W.1 who has been

examined on behalf of the Appellant Company where he has

denied the relationship of employer-employee, as they are father

and son. The same has not been taken note of by the

Commissioner. Hence, it requires interference of this Court.

5. This Court had issued notice against respondent

Nos.1 and 2 and they have not chosen to appear before this

Court and contest the matter.

6. Having heard the learned counsel for the appellant,

the point that arise for the consideration of this Court are:

(i) Whether the Commissioner for Workmen Compensation has committed an error in fastening the liability on the Insurance Company in coming to the conclusion that the claimant is the son of the insured and premium has been collected and the same is unlimited and it covers the legal liability for paid drivers and workmen and whether it requires interference of this Court?

7. Having heard the learned counsel for the appellant

and on perusal of the material before the Court, the claimant

before the Commissioner for Workmen Compensation specifically

pleaded that he was driving the vehicle at the time of the

accident. It is not in dispute that the premium has been

collected in respect of the driver also. The only question raised

before this Court is that he being the son of the insured, he is

not entitled for any compensation. It has to be noted that the

liability of the Insurance Company is on account of the contract

of indemnity. The Insurance Company also does not dispute the

fact that the premium has been collected in respect of the driver

also. When the premium has been collected in respect of the

driver, merely because the driver happens to be the son of the

insured, the very contention of the Insurance Company cannot

be accepted. There is a contract of indemnity and premium has

been collected and other than the insured, the Insurance

Company is liable to pay the compensation in terms of the

contract of insurance. Hence, I do not find any merit in the

appeal to reverse the finding of the Commissioner for Workmen

Compensation.

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

following:

ORDER

(i) The appeal is dismissed.

(ii) The amount in deposit, if any, shall be transmitted to the office of the Principal Civil Judge, Mandya, forthwith.

(iii) The Registry is directed to transmit the Trial Court Records to the concerned Court, forthwith.

Sd/-

JUDGE

MD