Karnataka High Court

National Insurance Co. Ltd. ... vs Chandrappa on 20 September, 2021

Author: V.Srishananda

                               -1-




           IN THE HIGH COURT OF KARNATAKA,
                    DHARWAD BENCH

      DATED THIS THE 20TH DAY OF SEPTEMBER 2021

                          BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

                  M.F.A. NO.21786/2010

            C/W. M.F.A. NO.21787/2010 (WC)

IN MFA NO.21786 OF 2010

BETWEEN:

NATIONAL INSURANCE CO. LTD.
BELLARY BRANCH, MANAGER

THROUGH ITS REGIONAL OFFICE
NO. 144, SUBHARAM COMPLEX,
MG ROAD, BANGALORE 560001
REP. BY ITS ADMINISTRATIVE OFFICER
MR. M KHAJA PASHA
                                             ...APPELLANT
(BY SRI.N. R KUPPELUR, ADV.)

AND

1.    SRI.VIJAYA NAIK
      AGE: ABOUT 24 YEARS, OCC: CLEANER
      S/O YALLA NAIK, R/O BELAGAL THANDA
      TQ AND DIST: BELLARY
      PIN 583 101

2.    SRI J RAJAGOPAL
      MAJOR, S/O SANJAPPA
      R/O ANDRAL VILLAGE, KANEKAL ROAD
      BELLARY PIN 583101
                               -2-




      (OWNER OF LORRY NO. KA-34/A-9599)
                                          ...RESPONDENTS

(BY SRI.HANUMANTH REDDY SAHUKAR, ADV. FOR R1, NOTICE TO R2 HELD SUFFICIENT)

THIS APPEAL IS FILED U/S.30(I) OF WORKMEN'S COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED:05.10.2009 PASSED IN W.C.A.NF NO.435/2005, ON THE FILE OF THE LABOUR OFFICER & COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-DIVISION - II, BELLARY, AWARDING THE COMPENSATION OF RS.1,01,349/- WITH INTEREST AT THE RATE OF 12% P.A., FROM THE DATE OF PEITTION TILL ITS DEPOSIT.

IN MFA NO.21787 OF 2010

BETWEEN

NATIONAL INSURANCE CO. LTD.

BELLARY BRANCH, MANAGER

THROUGH ITS REGIONAL OFFICE NO. 144, SUBHARAM COMPLEX, MG ROAD, BANGALORE 560001 REP. BY ITS ADMINISTRATIVE OFFICER MR. M KHAJA PASHA ...APPELLANT (BY SRI.N R KUPPELUR, ADV.)

AND

1. SRI.CHANDRAPPA AGE: ABOUT 32 YEARS, OCC: LOADER, S/O THIPPANNA, R/O BELAGAL CROSS, BELLARY TQ.AND DIST: 583 101

2. SRI.J RAJAGOPAL MAJOR S/O SANJAPPA, R/O ANDRAL VILLAGE KANEKAL ROAD BELLARY 583101 (OWNER OF LORRY NO. KA-34/A-9599) ...RESPONDENTS (BY SRI.HANUMANTH REDDY SAHUKAR, ADV.)

THIS APPEAL IS FILED U/S.30(I) OF WORKMEN'S COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED:05.10.2009 PASSED IN W.C.A.NF NO.436/2005, ON THE FILE OF THE LABOUR OFFICER & COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-DIVISION - II, BELLARY, AWARDING THE COMPENSATION OF RS.66,078/- WITH INTEREST AT THE RATE OF 12% P.A., FROM THE DATE OF PEITTION TILL ITS DEPOSIT.

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

COMMON JUDGMENT

Both these appeals arising out of common judgment

and award and therefore, these appeals are disposed of

by this common judgment.

2. Heard Sri.N.R.Kuppelur, learned counsel for

the Insurance Company and Sri.Hanumanthreddy

Sahukar, learned counsel for the claimants.

3. These two appeals are filed challenging the

validity of the judgment and award dated 05.10.2009

passed in WC/NF Nos.435/2005 and 436/2005 on the file

of the Labour Officer and Commissioner for Workmen's

Compensation, Ballari (hereinafter referred to as 'the

Commissioner' for short).

4. The brief facts of the cases are as under:

The claimants approached the Commissioner for

awarding suitable compensation for the accidental

injuries sustained by them while they were working as

cleaner and loader of lorry bearing No.KA-34/A-9599 on

account of rash and negligent driving of the drier of the

said lorry on 25.06.2004 at about 5.00 p.m.

5. Respondent-owner of the lorry remained

absent and he was placed exparte. Insurance Company

resisted the claim petition by filing written statement

denying the very accident itself. The Commissioner raised

appropriate issues and considering the oral and

documentary evidence on record, allowed the claims in a

sum of Rs.1,01,349/- and Rs.66,078/-, respectively with

interest at 12% p.a.

6. This Court by order dated 29.05.2018

admitted the appeals on the following substantial

question of law:

           "Whether          the          Commissioner          for
     Workmen's       Compensation                was    right    in

granting the claim in view of the documents produced at Exs.R.2(1) and R.2(4) which prima facie suggest that the claimants have not sustained injuries?"

7. Sri.N.R.Kuppelur, learned counsel for the

Insurance Company in pursuance of the substantial

question of law, contended that the Commissioner has

passed the impugned judgment and award mechanically

without application of mind. He drew the attention of this

Court to the discussion made in the impugned judgment

while answering issue No.1 and contended that even

though there is oral and documentary evidence, the

Commissioner has ignored the same and prayed for

allowing the appeals.

8. Per contra, Sri.Hanumanthreddy Sahukar,

learned counsel for the claimants contended that the

Commissioner has not specifically stated that there is no

evidence on record but it is to be construed that

respondent has failed to establish the contentions taken

by him and therefore, sought for dismissal of the appeals.

9. On meticulous consideration of the evidence

placed on record, there is material available on record in

the form of oral evidence of RW.1, who is the officer of

the Insurance Company and Exs.R.2(1) and R.2(4) which

are the endorsements clearly show that the claimants

were not taken to any hospital nor lodged any complaint

to the police outpost as is contended by them.

10. Even though the police complaint is not must

in adjudicating the claim under the Workmen's

Compensation Act, at least the claimants were required

to establish the accident by placing necessary oral and

documentary evidence on record. It is their case that

they had been admitted to VIMS Hospital. Admittedly,

there would be records to show that on 25.06.2004

between 5.00 p.m. to 7.00 p.m. they have been in the

VIMS Hospital for treatment for the injuries sustained by

them. The wound certificate marked on behalf of the

claimants also does not indicate the necessary details as

to they sustaining injuries on account of the road traffic

accident, but it has been mentioned that the injuries are

sustained due to lorry bearing No.KA-34/A-9599. The

author of Ex.P.2 is also not examined on behalf of the

claimants to establish that in fact the claimants had

visited the outpost containment and had given the

complaint and name of author in Ex.P.1 is also not

forthcoming. So also, there is a delay of 3 days in lodging

Ex.P.1. The endorsement issued at Ex.R.2(1) clearly

shows that Ex.P.1 is not entered in the outpost police

station. In Ex.R.2(1) it has been mentioned as under:

"1. ¤ÃªÀÅ PÉÆlÖ zÀÆgÀÄ CfðAiÀÄÄ ¸ÀÄ¼ÉîAzÀÄ ¥ÀjUÀt¹ Â zÉ.

2. ¤ÃªÀÅ PÉÆnÖgÀÄªÀ CfðAiÀÄÄ ¹«¯ï ¸ÀégÀÆ¥ÀzÁÝVzÀÄÝ/C¸ÀAeÉÐÃAiÀÄ CgÁzsz À ÁVzÀÄÝ, £ÁåAiÀiÁ®AiÀÄzÀ ªÉÆgÉ ºÉÆÃUÀ®Ä ¸ÀÆa¸À¯ÁVzÉ.

3. ¤ÃªÀÅ PÉÆlÖ CfðAiÀÄÄ ¸ÀvÀåªÁVzÀÄÝ, C¥Á¢üvÀgÀ ªÉÄÃ¯É PÁ£ÀÆ£ÀÄ PÀª æ ÀÄ dgÀÄV¹ oÁuÉAiÀÄ°è ªÉÆPÀzÀÝªÉÄ zÁR¯É ªÀiÁqÀ¯ÁVzÉ. ªÉÆPÀzÀÝªÉÄ ¸ÀASÉå... PÀ®A......

4. ¥Àw æ ªÁ¢AiÀÄªÀg£ À ÀÄß PÀgÉ¬Ä¹ ¤ªÀÄä vÀAmÉ vÀPÀgÁjUÉ ¨ÁgÀzA À vÉ ¸ÀÆPÀÛ w¼ÀÄªÀ½PÉ ¤Ãr §AzÉÆÃ§¸ïÛ ªÀiÁqÀ¯ÁVzÉ.

5. ¤ªÀÄä zÀÆgÀÄ CfðAiÀÄÄ ¥ÉÆ°Ã¸ï «ZÁgÀuÁ ªÁå¦ÛUÉ M¼À¥z À ÀÄªÀÅ¢®è.

6. ¤ÃªÀÅ ¸ÀÆPÀÛ gÀPÀëuU É ÁV PÉÆÃjzÀÝ£ÀÄß ¥ÀjUÀt¹ Â , ¸ÀÆPÀÛ gÀPÀëuÉ ¤ÃrzÉ.

7. ¤ÃªÀÅ ¤ªÀÄä CfðAiÀÄ£ÀÄß ªÀÄÄPÁÛAiÀÄUÉÆ½¸À®Ä ¤ÃªÀÅ PÉÆlÖ ºÉÃ½PÉAiÀÄ ªÉÄÃgÉUÉ CfðAiÀÄ£ÀÄß ªÀÄÄPÁÛAiÀÄUÉÆ½¹zÉ.

8. ¤ÃªÀÅ PÉÆlÖ Cfð «µÀAiÀÄzÀ §UÉÎ ¥Àw æ ªÁ¢UÀ¼£ À ÀÄß «ZÁj¸À¯ÁV, ¥ÀæwªÁ¢UÀ¼ÀÄ ºÉÃ½PÉU¼ À À ¥ÀPæ ÁgÀ CfðUÉ ®UÀwÛ¹zÀ zÁR¯ÉU¼ À £ À ÀÄß AiÀiÁgÉÆÃ K£ÉÆÃ ¸ÀÈ¶Ö¹ E£ÀÄìg£ É ïì PÉèÃªÀiï ªÀiÁqÀ®Ä £ÁåAiÀiÁ®AiÀÄzÀ°è PÉÃ¸ÀÄ ºÁQgÀÄªÀÅzÁV w½zÀÄ §A¢zÉ. F §UÉÎ

ªÀiÁ»w ¸ÀAUÀ» æ ¸À¯ÁV AiÀiÁªÀÅzÉÃ ¸ÀÄ½ªÀÅ zÉÆgÉAiÀÄzÉÃ EzÀÄÝzj À AzÀ E£ÀÄìg£ É ïì PÉèÃªÀiïUÁV ¤ªÉÃ¢¹PÉÆArgÀÄªÀ zÁR¯ÁwUÀ¼ÀÄ PÁ£ÀÆ£ÀÄ §zÀÝªÀ®èªA É zÀÄ ¥ÀjUÀt¹ Â , Cfð «ZÁgÀuA É iÀÄ£ÀÄß ªÀÄÄPÁÛAiÀÄUÉÆ½¹zÉAiÉÄAzÀÄ w½AiÀÄ¥Àr¸À¯ÁVzÉ."

11. Therefore, veracity of Ex.P.1 is in question.

Exs.R.2(1) and R.2(4) are on record in each of the cases.

The Commissioner without applying his mind to the effect

of veracity of Exs.R.2(1) and R.2(4), blindly accepting

the version of the claimants and allowing the claim

petition in the considered opinion of this Court is

incorrect.

12. At this stage, Sri.Hanumanthreddy Sahukar

submits that the claimants may be provided an

opportunity to explain about the veracity of Ex.P.1,

Exs.R.2(1) and R.2(4) issued by the outpost police is

without enquiring the claimants. Therefore, he seeks the

matter to be remanded to the Commissioner for fresh

consideration in accordance with law.

13. His submission has sufficient force having

regard to the nature of proceedings. Accordingly, this

Court is of the considered opinion that the matter

requires reconsideration before the Commissioner.

14. At this stage, parties submit that the Court of

Workmen's Commissioner seizes to exist in view of the

promulgation of the Employee's Compensation Act and it

is the Civil Courts which are having jurisdiction to

entertain such claims and mater be remanded to Civil

Court. Accordingly, substantial question of law is

answered and following order is passed:

ORDER

Appeals are allowed in part.

The impugned judgment and award dated 05.10.2009 passed in WC/NF Nos.435/2005 and 436/2005 on the file of the Labour Officer and Commissioner for Workmen's Compensation, Ballari is hereby set aside. The matter is remitted to the Principal

Civil Judge (Sr.Dn.), Ballari with a direction to reconsider the case in accordance with law.

Parties shall appear before the Principal Civil Judge (Sr.Dn.), Ballari/designated Court under the Employee's Compensation Act on 08.10.2021 without further notice. Having regard to the age of the claim petitions the designated Court shall dispose of the matter in accordance with law on or before 31.03.2022. Needless to emphasise that the parties shall co-operate for the same.

It is made clear that this Court has not expressed any opinion on the merits or demerits of the matter and the designated Court is at liberty to dispose of the matter in accordance with law.

Amount in deposit, if any, is ordered to be returned to the Insurance Company for the time being under due identification.

Sd/-

JUDGE