Tulajappa S/O. Vittalsa ... vs Jamalbi W/O. Hazarasab Hubballi
2022 Latest Caselaw 2735 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 18 T H DAY OF FEBRUARY, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

              M.F.A. No.23967/2013 (WC)

BET WEEN

SRI TU LAJAPPA,
S/O VITTALSA MEHERWADE,
AGED AB OUT 70 YEARS,
OCC: ENGINEER AND CONTRACTOR,
R/O ADHYAPAK NAGAR,
NEAR SUB -JAIL, HU BB ALLI,
TQ: HU BBALLI, DIST : DHARWAD.
                                          ...APPELLANT

(BY SRI G.I.GACHCHINAMATH, ADVOCATE)

AND

1.    SMT.JAMALB I,
      W/O HAZARESAB HU BB ALLI,
      AGED AB OU T 49 YEARS,
      OCC: HOU SEHOLD WORK,
      R/O NOOLVI, TQ: HUBB ALLI,
      DIST: DHARWAD.

2.    KUM. SALEEM,
      S/O HAZ ARESAB HUBB ALLI,
      AGED AB OU T 23 YEARS,
      OCC: COOLIE,
      R/O NOOLVI,
      TQ: HUBB ALLI,
      DIST: DHARWAD.

3.    SRI BASAVARAJ,
      S/O GANGAPPA B AGALKOT,
      AGED AB OU T 57 YEARS,
      OCC: BU SINESS,
                                   2




       R/O KANCHAGAR GALLI AND
       CHOLINAVAR ON I, HUB B ALLI,
       TQ: HUBB ALLI, DIST: DHARWAD.
                                                ...RESPONDENTS
(NOT ICE T O R1 TO R3 SERVED)

      THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE ORDER DATED 05.08.2013 PASSED IN KA.A.HU.-1
WCA:F-23/2009 ON T HE FIL E OF T HE LAB OU R OFFICER AND
COMMISSION ER FOR WORKMEN 'S COMPENSATION, SUB -
DIV IS ION- 1, HUBBALLI, AWARDING THE COMPENSATION OF
`2,10,958/- WIT H INTER EST AT T HE RATE OF 12% P.A.
FROM T HE DATE OF PETIT ION AND SHALL B E DEPOSIT ED
WITH IN 30 DAYS FROM THE DATE OF THE ORDER.

     THIS APPEA L COMING ON FOR ADMISSION, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:

                            JUDGMENT

This appeal is filed by the 2 n d respondent before

the Commissioner for Workmen's Compensation,

Hubb alli (hereinafter referred to as the

'Commissioner', for brevity) challenging the judgment

and order dated 05.08.2013 made in Ka.A.Hu-1.

WCA:F-23/2009.

2. Brief facts of the case that would be

relevant for the purpose of disposal of this appeal

are:

herein had filed a claim petition under Section 22 of

the Workmen's Compensation Act, 1923 claiming

compensation against the respondents in the claim

petition in respect of the death of one Hazarathsab

Hubballi. It is the case of the claimants that

deceased Hazarathsab Hubballi who is the husband of

the 1 s t claimant and father of the 2 n d claimant was

working in the building belonging to the 1st

respondent in the claim petition and respondents

No.2 and 3 in the claim petition were the contractor

and supervisor of the said building which was under

construction. On 14.08.2008, when the deceased

Hazarathsab Hubballi was on duty, he came in

contact with live electric wire and as a result died

due to the electric shock. In this regard, a case was

registered in Crime No.121/2008 against respondents

mentioned in the claim petition for offence

punishable under Section 304-A read with Section 34

of I.P.C. The claim petition filed before the

Commissioner was partly allowed and a compensation

of `1,10,958/- with interest at 12% per annum after

expiry of one month from the date of accident till

realization was awarded and respondent Nos.1 and 2

were jointly and severally held liable to pay

compensation. The 2nd respondent, who is the

contractor of the building in question wherein the

deceased was working, has preferred this appeal

challenging the judgment and award insofar as it

relates to saddling the liability to pay the

compensation on him jointly and severally.

3. Learned counsel for the appellant submits

that the contract period of the building was already

over and therefore no work was being carried out by

the appellant as on the date of accident. He also

submits that the owner of the building had taken

illegal electricity connection and therefore the

Commissioner ought to have saddled the liability to

pay the compensation only as against the owner of

the building and not on the appellant who was the

contractor of the building.

4. I have carefully appreciated the arguments

addressed on behalf of the appellant and also

perused the material available on record.

5. It is not in dispute that the deceased

Hazarathsab Hubballi was working in the building

owned by the 1st respondent which was under

construction and the 2 n d respondent/appellant was

the contractor of the said building and the 3rd

respondent was the supervisor of the said building.

Though the learned counsel for the appellant has

contended that the contract period as per the

agreement between respondents No.1 and 2 had

expired and therefore no work was being carried out

by the 2 n d respondent in the building belonging to the

1 s t respondent, he has not produced any material

before the Commissioner to show that the building in

question, constructed by him was completed and the

possession of the same was handed over by him to

the 1 s t respondent-owner. He has also not produced

completion certificate of the building, if any to

establish his case that the building was completed

and he had handed over possession of the same to

the owner. The deceased was allegedly working as a

curing worker in the under construction building.

Since he was found working in the building as on the

date of accident, it can be safely presumed that the

construction of the building was not complete. It is

the case of the claimants that the services of the

deceased was engaged by the 2 n d respondent for the

purpose of working in the building of the 1st

respondent. Therefore, even if it is believed that the

1 s t respondent had taken illegal electricity connection

to his building, this Court cannot loose sight of the

fact that the services of the deceased was engaged

by the 2 n d respondent for the purpose of the 1 s t

respondent. Under the circumstances, the

Commissioner was fully justified in saddling the

liability to pay the compensation on respondents No.1

and 2 jointly and severally. I find no illegality or

irregularity in the said finding recorded by the

Commissioner. Accordingly, the appeal does not merit

consideration and therefore, the same is dismissed.

The amount in deposit before this Court shall be

transferred to the competent Court forthwith for the

purpose of disbursement of the same to the

claimants.

The claimants are at liberty to withdraw the

amount in deposit.

Sd/-

JUDGE

CLK