National Insurance Co. Ltd vs Smt. Rathna Gatti
2022 Latest Caselaw 1504 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 2ND DAY OF FEBRUARY, 2022

                         BEFORE

         THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

                MFA NO.9197/2010(WC)
                        C/W
                MFA NO.9198/2010(WC)

MFA NO.9197/2010:

BETWEEN:

NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, II FLOOR,
RASIK CHAMBERS,
OPP CENTRAL MARKET,
MANGALORE
NOW REP BY ITS REGIONAL MANAGER,
NATIONAL INSURANCE CO LTD,
REGIONAL OFFICE,
SUBHARAM COMPLEX,
144, M G ROAD,
BANGALORE-560 001

                                           ... APPELLANT

(BY SRI. A N KRISHNA SWAMY, ADVOCATE)


AND:

1.     SMT. RATHNA GATTI
       W/O LATE VISHWANATHA GATTI,
       AGE MAJOR
       R/A KORAGAPPA GATTI COMPOUND,
       I KOLYA, KOTEKAR POST,
       SOMESHWARA VILLAGE,
       MANGALORE TALUK
                             2




2.     SURESH SHETTY
       S/O GOPAL SHETTY,
       MAJOR
       R/A NEELIPAL, SHUBHA NILAYA,
       KOTEKAR,
       MANGALORE TALUK

                                      ... RESPONDENTS
(BY SRI. PRASAD AND
    SMT. SANDHYA, ADVOCATES FOR R1;
    SRI. K. RANJAN KUMAR, ADVOCATE FOR R2)

       THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT DATED 17.8.2010 PASSED IN WCA/CR-
02/2008 F ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER      FOR   WORKMEN       COMPENSATION,   SUB
DIVISION-1, MANGALORE, DAKSHINA KANNADA, AWARDING
A COMPENSATION OF RS.3,88,504/- WITH INTEREST @ 12%
P.A.


MFA NO.9198/2010:

BETWEEN:

NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, II FLOOR,
RASIK CHAMBERS,
OPP CENTRAL MARKET,
MANGALORE
NOW REP BY ITS REGIONAL MANAGER,
NATIONAL INSURANCE CO LTD,
REGIONAL OFFICE,
SUBHARAM COMPLEX,
144, M G ROAD,
BANGALORE-560 001
                                             ... APPELLANT

(BY SRI. A N KRISHNA SWAMY, ADVOCATE)
                             3




AND:

1.     RAMADAS KOLYA
       S/O LATE NARAYANA
       AGE: MAJOR

2.     SMT BABY
       W/O RAMADAS KOLYA,
       AGE: MAJOR,
       BOTH R/A D.NO.3-103,
       KOLLYA KARIMBETTU, I KULYA,
       BELTHANGADY TALUK

3.     SURESH SHETTY
       S/O GOPAL SHETTY MAJOR,
       R/A NEELIPAL, SHUBHA NILAYA,
       KOTEKAR, MANGALORE TALUK

                                       ... RESPONDENTS

(V/O DATED 29.09.2012 NOTICE TO R1 & R2 H/S
 R3 SERVED AND UNREPRESENTED)


       THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT DATED 17.08.2010 PASSED IN WCA/CR-
3/2008 F ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, D.K.,SUB
DIVISION -1, MANGALORE, AWARDING A COMPENSATION OF
Rs.3,83,415/- WITH INTEREST @ 12% FROM 01.12.07 TILL
DEPOSIT IN COURT.



       THESE MFAs COMING ON FOR HEARING THIS DAY,
THROUGH VIDEO CONFERENCE/ PHYSICAL HEARING, THE
COURT DELIVERED THE FOLLOWING:
                                      4




                               JUDGMENT

These two appeals are at the instance of insurance

company calling in question the legality and validity of the

common award dated 29.10.2007 passed in WCA/CR-

02/2008F by Commissioner for Workmen's Compensation,

Dakshina Kannada, Sub-Division-1, Mangalore.

2. The claim petition under the Employees

Compensation Act, 1923, was filed by the dependents of one

Harish Gatti and Vinod. It is alleged in the claim petitions that

Harish Gatti was working as loader and Vinod was working as

cleaner in a goods tempo bearing registration No.KA-19/B-

7391 owned by respondent No.1-Suresh Shetty before the

learned Commissioner and insured with the appellant-

insurance company. It is stated that on 30.10.2007 at about

1.30 a.m. when Harish Gatti and Vinod were proceeding in the

offending goods tempo, same had met with an accident and

on account of impact injuries, both of them died on the spot

itself.

3. In the claim petitions, both the respondents

namely, insured-owner as well as insurance company entered

appearance and filed their separate written statements. The

insured-owner in his written statement admitted that two

deceased were working as loader and cleaner in the offending

vehicle under him. Insurance company in its written

statement denied the material averments made in the claim

petitions.

4. During the enquiry before learned Commissioner,

claimants were examined as PW1 and PW2 and Exs.P-1 to P-8

were marked on behalf of claimants. Respondents examined

one of the officials of insurance company as RW1 and Exs.R-1

to R-7 were marked on behalf of respondents.

5. Upon hearing the learned counsel on both sides

and perusing the records, learned Commissioner allowed the

claim petitions in part and awarded a compensation of

Rs.3,88,504/- and Rs.3,83,415/- respectively with interest

thereon at 12% p.a.

6. Sri.A.N.Krishnaswamy, learned counsel appearing

for the appellant-insurance company has vehemently

contended that finding of the learned Commissioner that

claimants have proved the employer and employee

relationship between respondent No.1 - Suresh Shetty and

deceased, is not based on evidence and therefore, same is

liable to be set aside. Elaborating the said submission,

learned counsel submitted that evidence produced before the

learned Commissioner has irrefutably showed that several

people were traveling as gratuitous passengers in the

offending vehicle and on account of rash and negligent driving

of the said vehicle by its driver, same had met with an

accident resulting in death of these two deceased. Therefore,

he submitted that there was no employer and employee

relationship between the insured-Suresh Shetty and deceased

and as such, finding of the learned Commissioner is against

the weight of evidence and same is liable to be set aside and

appeal is required to be allowed.

7. Learned counsel appearing for the claimants, per

contra, contended that appellant - insurance company has

not at all taken a specific plea in its written statement to the

effect that deceased were gratuitous passengers in the

offending vehicle and a false case has been filed in order to

get compensation for the claimants. He submitted that

statement on which insurance company is placing reliance to

contend that deceased were working as marble tile fitter and

employed under HDFC Bank, is based on the version of third

parties said to have been made during the inquest

proceedings, the sole purpose of which is to find out the cause

of death. He submitted that none of the deponents before

police during inquest proceedings were examined by the

insurance company and therefore, no reliance can be placed

on the same. He submitted that owner of the offending

vehicle, who is insured has clearly admitted the employer and

employee relationship and PW1 and PW2 have also spoken

about it. According to him, learned Commissioner on

appreciating the said evidence has given a finding of fact

regarding employer and employee relationship and therefore,

it is not liable to be interfered with.

8. I have given my anxious consideration to the

submissions made on both sides and I have carefully perused

the records.

9. The appellant-insurance company is stoutly

disputing the relationship of employer and employee between

the owner of offending vehicle - Suresh Shetty and deceased.

It is the stand of appellant-insurance company that deceased

were working as marble tile fitter and further employed in a

bank. Learned Commissioner on the other hand appreciating

the evidence and pleadings has recorded a finding that

employer and employee relationship between the owner of

offending vehicle and deceased has been established. The

relevant aspects taken note of by the learned Commissioner is

an admission made by the owner of vehicle in the statement

of objections to the effect that both deceased were working as

loader and cleaner respectively in the offending vehicle.

10. Further, PW1 and PW2 have deposed that

deceased were employed by owner of the vehicle as loader

and cleaner and during the cross examination such version

has not been shaken at all. Under such circumstances, much

reliance cannot be placed on the statement said to have been

made before police during the inquest proceedings, the

purpose of which is to find out the cause of death of the

deceased. As rightly submitted by the learned counsel for the

claimants, such persons who have made statements during

the inquest proceedings have not been examined before the

learned Commissioner. Since learned Commissioner on

appreciation of evidence has recorded a finding of fact to the

effect that relationship of employer and employee between

the owner of vehicle and deceased has been established and

same has been supported by the evidence, same is not liable

to be interfered with by this Court in an appeal filed under

Section 30 of the Employees Compensation Act, 1923.

Hence, the following:

JUDGMENT

(1) Appeals are dismissed.

(2) Amount in deposit, if any, shall be

transmitted to the learned Court below

with the records of the case.

Sd/-

JUDGE

DR