Rahul S/O Umesh vs Ningegowda S/O Hiregowda
2022 Latest Caselaw 1436 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 1st DAY OF FEBRUARY, 2022

                        BEFORE

       THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

              M.F.A.NO.2776/2010 c/w
              M.F.A.No.5976/2009 (WC)

IN MFA No.2776/2010

BETWEEN:

1. RAHUL S/O UMESH
AGED ABOUT 11 YEARS
MINOR REP BY GRAND FATHER AS
NATURAL GUARDIAN APPELLANT NO.3

2 . RAGHAVENDRA S/O UMESH
AGED ABOUT 9 YEARS
MINOR REP BY GRAND FATHER AS
NATURAL GUARDIAN APPELLANT NO.3

3. HARISHCHANDRANAYAKA
AGED ABOUT 58 YEARS
S/O RAMAJANAYAKA

ALL ARE R/AT
BHIMASAMUDRA,
CHITRADURGA DISTRICT
                                         ...APPELLANTS
(BY SRI. DAYANAND S. PATIL, ADVOCATE)

AND:

1. NINGEGOWDA S/O HIREGOWDA
MAJOR, R/O GANGABASAVANAHALLI
PILLANAHALLI POST.

2. NATIONAL INSURANCE CO LTD,
                            2



BRANCH OFFICE, R G ROAD,
YAHSHOROM CHAMBERS,
CHICKMAGALUR DISTRICT

3 . SRI K S RAJU
S/O SANNEGOWDA,
AGED ABOUT 41 YEARS
C/O CHURCH STREET,
CHICKMAGALUR DISTRICT
                                      ...RESPONDENTS
(BY SRI.LAKSHMINARASAIAH, ADVOCATE FOR
SRI. A.M. VENKATESH, ADVOCATE FOR R-2
SRI. HARISH N.R., ADVOCATE FOR R-1
R3 - SERVED )

     THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT DATED 12.5.2009 PASSED IN W.C.NO.KAPKA/F-
04/2007 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, DIVISION-2
AT CHIKMAGALUR PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION.

IN MFA NO.5976/2009

BETWEEN:

M/S NATIONAL INSURANCE CO.LTD.,
BRANCH OFFICE, R G ROAD, YASHORAM COMPLEX,
CHICKMAGALUR
NOW R/BY ITS REGIONAL OFFICE,
NO.144, SHUBHARAM COMPLEX,
M G ROAD, BANGALORE
R/BY ITS ADMINISTRATIVE OFFICER
                                             ..APPELLANT
(BY SRI. LAKSHMINARASAIAH, ADVOCATE
FOR SRI. A.M. VENKATESH, ADVOCATE)

AND:

1 . UMESH BIN HARISH CHANDRA NAIK
AGED 32 YEARS

2 . RAHUL BIN UMESH
                             3



AGED 10 YEARS, MINOR

3 . RAGHAVENDRA BIN UMESH
AGED 8 YEARS, MINOR

R-2 AND R-3 BEING MINORS, THEY ARE
R/BY THEIR NATURAL GUARDIAN AND FATHER
RESPONDENT NO.1.

4 . HARISH CHANDRA NAIK BIN RAPUJA NAIK
AGED 57 YEARS

ALL ARE R/O BHEEMA SAMUDRA, CHITRADURGA.

5 . NINGEGOWDA BIN EREGOWDA
MAJOR, GANGA DASAVANAHALLI,
PILLENAHALLI POST

6 . K S RAJU BIN SANNEGOWDA
AGED 40 YEARS
R/O CHURCH ROAD,
CHICKMAGALUR.
                                          ..RESPONDENTS

(BY SRI. DAYANANDA S. PATIL, ADVOCATE FOR R2 TO R4
SRI. HARISH N.R., ADVOCATE FOR R5
R2 TO R4 ARE L.Rs OF DECEASED R-1
R6 - SERVED)

      THIS MFA IS FILED U/S. 30(1) OF WC ACT AGAINST THE
ORDER DT. 12.5.2009 PASSED IN WCA.F.NO.4/2007 ON THE
FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN'S        COMPENSATION,        SUB     DIVISION-2,
CHIKMAGALUR, AWARDING A COMPENSATION OF RS.
4,42,740/- WITH INTEREST @ 12% P.A.

     These appeals coming on for Final Hearing, this
day, the court delivered the following:
                                    4



                            JUDGMENT

These appeals are at the instance of the

claimants and the insurance company calling in

question the legality and validity of the award dated

12.5.2009 passed in W.C.No.KAPKA/F-04/2007 by the

Labour Officer and Commissioner for Workmen

Compensation, Division-2 at Chikmagalur.

2. The claim petition proceeded on the

allegation that one Chandramma @ Bhanubai

(hereinafter referred to as 'deceased') was working as

a coolie in the tractor and trailer bearing Registration

No.KA-18-3641 & 3642 which was owned by

respondent No.1-Ningegowda, before the learned

Commissioner and insured with the appellant-

insurance company. Respondent No.3-K.S.Raju

before the learned Commissioner was subsequently

impleaded on the allegation that he was a contractor

who had employed the deceased. It is further alleged

in the claim petition that on 25.8.2001 at about 3.50

p.m. when the deceased was proceeding in the tractor

and trailer in question, on account of the rash and

negligent driving of the driver of the tractor, it met

with an accident resulting in the death of the

deceased.

3. On issuance of notice by the learned

Commissioner, respondent Nos.1 to 3 appeared before

the learned Commissioner. Respondent No.1

Ningegowda filed a detailed written statement denying

the very employer and employee relationship between

himself and the deceased. Respondent No.2 who is

the appellant-insurance company filed a detailed

written statement denying all the material allegations

made in the claim petition. Respondent No.3 also filed

a written statement denying the averments made in

the claim petition.

4. During the enquiry before the learned

Commissioner, claimant No.1 examined himself as

PW-1 and got marked Exs.P1 to P9. Respondent No.1-

Insurance Company examined one of its officials as

RW-1 and also examined the investigator appointed

by it as RW-2 and Exs.R1 to R5 were marked.

5. Learned Commissioner upon hearing the

learned counsel on both sides and perusing the

records, allowed the claim petition in part and

awarded a compensation of Rs.4,42,740/- with

interest thereon @ 12% p.a. fastening the liability to

pay the same by respondent No.2-insurance company.

6. Learned counsel for the claimants in

support of their appeal submitted that the

compensation awarded is highly inadequate and the

income of the deceased taken at Rs.4,000/- per

month is on the lower side. He, therefore, submitted

that the compensation awarded requires to be

enhanced and the appeal requires to be allowed.

7. Learned counsel for the insurance

company, per contra, submitted in support of his

appeal that the finding recorded by the learned

Commissioner that there exists a relationship of

employer and employee between respondent No.1

Ningegowda and the deceased is based on no

evidence and therefore it is liable to be set aside. He

also submitted that the tractor and trailer in question

was covered with a Farmers Package Policy and

therefore it did not cover the risk of accident to a

coolie in the said trailer. He also submitted that the

policy clearly disclaimed any liability if the accident

took place while the tractor and trailer was being used

for hire purpose. He also submitted that the evidence

placed before the learned Commissioner clearly shows

that the respondent No.3-Rajegowda had taken the

tractor and trailer on hire basis and the accident

having taken place while transporting large number of

coolies to the work site, the insurance company is not

liable for paying the compensation and therefore the

appeal should be allowed and the claim petition should

be dismissed.

8. I have given my anxious consideration to

the submissions made on both sides and carefully

perused the records.

9. The substantial question of law that arises

for consideration in this case is:

     Whether     the     finding         of    the    learned
     Commissioner       that         employer             and
     employee        relationship             between      the
     owner      of     the     tractor          and     trailer
     Ningegowda         and        the        deceased       is
     established, is    based on evidence or not?

10. The claimants have no doubt pleaded in the

claim petition that on 25.08.2001 the deceased

Chandramma @ Bhanubai was proceeding in the

tractor and trailer for loading and unloading manure

transported in the same for the purpose of owner

Ningegowda. However, as pointed out by the learned

counsel for the insurance company, in the cross

examination PW-1 has admitted that deceased

Chandramma was not working as an employee under

the owner of the tractor and trailer Ningegowda.

Ex.P4 is the FIR and the complaint lodged in this case

on the very day of the accident itself. One Nirvani,

son of Thimma Bovi is the complainant. He has stated

in the said complaint that at the time of the accident,

18 coolies working under Raju @ Rajegowda

(respondent No.3 before the Hon'ble Commissioner)

were travelling in the tractor and trailer including

deceased Chandramma and on account of the rash

and negligent driving of the driver of the tractor and

trailer, it capsized and Chandramma suffered serious

injuries and she died. This clearly supports the

admission made by PW-1 in the cross examination

that Chandramma was not working under the owner

Ningegowda. In his pleadings also, respondent No.1-

Ningegowda categorically denied the employer and

employee relationship between himself and the

deceased. As a matter of fact, Ex.P4 is the complaint

lodged by the claimant No.1 alleging that his wife

Chandramma had eloped with one Venkatesh, son of

Thimma bovi and they had taken his second son

Raghavendra along with them between 28.7.2001 and

29.7.2001.

11. Learned Commissioner has not at all

adverted to the very important and material evidence

in deciding whether there was employer and employee

relationship between the owner of tractor and trailer

Ningegowda and the deceased.

12. My perusal of the records clearly shows

that the findings recorded by the learned

Commissioner that employer and employee

relationship between the owner Ningegowda and the

deceased has been established is not based on

evidence. In that view of the matter, the appeal of

the insurance company is liable to be allowed and the

appeal of the claimants is liable to be dismissed.

Hence, the following:

ORDER

MFA No.5976/2009 filed by the insurance

company is allowed. MFA No.2776/2010 filed by the

claimants is dismissed. The amount in deposit shall be

refunded to the Insurance Company.

Sd/-

JUDGE

Dvr: