United India Insurance Co Ltd vs Eramma
2022 Latest Caselaw 2881 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF FEBRUARY, 2022

                       BEFORE

     THE HON'BLE MR.JUSTICE P.KRISHNA BHAT

              M.F.A. NO.4067/2011(WC)
                         C/W
              M.F.A. NO.8033/2011(WC)

IN M.F.A.4067/2011

BETWEEN:

UNITED INDIA INSURANCE CO. LTD.
BRANCH OFFICE, KANCHAN TOWERS,
N.H-17, KUNDAPURA
THROUGH
DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
JEWEL PLAZA, 1ST FLOOR,
MARUTHI,VEETHIKA,
UDUPI-576101.
BY IT"S MANAGER
                                    ...APPELLANT

(BY SRI. O MAHESH, ADVOCATE)

AND:

1.     ERAMMA
       AGED 66 YEARS,
       W/O LATE YELLAPPA GOWDA,
       R/O NILSKAL, NERTHIGE VILLAGE,
       HOSNAGAR TALUK, SHIMOGGA DISTRICT
                            2


1.a.   DUGGAPPA GOWDA,
       AGED 57 YEARS
       GOVT. SERVANT IN K.P.C. LTD.,

1.b.   GUNDAPA GOWDA,
       AGED 55 YEARS
       GOVT. SERVANT IN K.P.C. LTD.,

1.c.   SHANKARAPPA GOWDA,
       AGED 53 YEARS
       AGRICULTURIST,

1.d.   ANANDA GOWDA,
       AGED 51 YEARS,
       AGRICULTURIST,

1.e.   KRISHNAPPA GOWDA,
       AGED 44 YEARS
       AGRICULTURIST,

1.f.   SURESH GOWDA,
       AGED 38 YEARS
       AGRICULTURIST AND CONTRACTOR

1.g.   SMT. CHANDRAMMA, MAJOR,
       W/O MUDDAPPA GOWDA

1.h    SMT. DEVAMMA, MAJOR
       W/O UMESH GOWDA,

       1.a. to 1.h ARE CHILDREN OF DECEASED
       ALL ARE RESIDING AT HOUSE NO.1-3,
       NARTIGE (MAJARE), KARIMANE (ASALI),
       HOSNAGAR TQ,
       SHIMOGGA DIST.
       (CAUSE TITLE AMENDED VIDE COURT
        ORDER DATED 6.8.15)
                          3


2.     S.T. RAMAPPA, MAJOR,
       S/O RATHNAPPA GOWDA,
       R/O CHAKRANAGARA,
       SAMPAGONDA VILLAGE,
       HOSNAGAR TALUK,
       SHIMOGGA DISTRICT

                                    ...RESPONDENTS

(By SRI. MAHESH SHETTY, ADVOCATE FOR R.1(a- h);
    R2 - SERVED)

     THIS MFA FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT DATED 21.12.2010 PASSED IN WCA-CR-
37/FC/2008 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, UDUPI
DISTRICT, UDUPI, AWARDING A COMPENSATION OF
RS.2,18,470/- .

IN M.F.A.No.8033/2011

BETWEEN

SMT. ERAMMA
W/O LATE YELLAPPA GOWDA
SINCE DEAD LRs ARE BROUGHT ON
RECORD AS PER ORDER DATED 6.8.15

1.a    N.Y. DUGGAPPA
       S/O YELLAPA GOWDA
       AGED ABOUT 57 YEARS

1.b    N.Y. GUNDAPPA
       S/O YELLAPA GOWDA
       AGED ABOUT 55 YEARS

1.c.   SAHANKARAPPA N.Y.
       S/O YELLAPA GOWDA
       AGED ABOUT 53 YEARS
                          4


1.d.   N.Y. ANANDA
       S/O YELLAPA GOWDA
       AGED ABOUT 49 YEARS

1.e.   SMT. CHANDRAMMA
       D/O YELLAPA GOWDA
       W/O MUDDAPPA
       AGED ABOUT 51 YEARS

1.f.   N.Y. KRISHNAPPA
       S/O YELLAPA GOWDA
       AGED ABOUT 45 YEARS

1.g.   N.Y. DEVAMMA
       W/O S.V. UMESH
       AGED ABOUT 43 YEARS

1.h.   N.Y. SURESYH
       S/O YELLAPA GOWDA
       AGED ABOUT 40 YEARS

ALL ARE RESIDING AT
NILSKAL, SERTHIGE VILLAGE,
HOSANAGAR TALULK,
SHIMOGA DISTRICT.
(AMENDED AS PER ORDER DATED 6.8.15)
                                      ...APPELLANTS
(BY SRI. MAHESH SHETTY, ADVO
     FOR LRs OF DECEASED APPELLANT)

AND:

1.     SRI S T RAMAPPA
       S/O RATHNAPPA GOWDA
       MAJOR
       R/AT CHAKRANAGARA,
       SAMPAGONDA VILLAGE,
       HOSANAGARA, HOSANAGARA TALUK
       SHIMOGA DISTRICT-577418.
                               5



2.    UNITED INDIA INSURANCE COMPANY LTD.,
      BRANCH OFFICE
      KANCHANA TOWERS
      N H 17, KUNDAPURA
      UDUPI-576201

                                       ..   RESPONDENTS

(BY SRI. O. MAHESH, ADV. FOR R2;
     V/O DT. 14.8.313, R1 SERVED)

     THIS MFA FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT DATED 21.12.2010 PASSED IN WCA/CR-
37/FC/2008 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, UDUPI
DISTRICT, UDUPI, PARTLY ALLOWING THE CLAIM
PETITION   FOR    COMPENSATION     AND    SEEKING
ENHANCEMENT OF COMPENSATION.

     THESE APPEALS COMING ON FOR HEARING
THROUGH VIDEO CONFERENCING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                      JUDGMENT

These appeals are at the instance of the Insurance

Company and the claimants calling in question the legality

and validity of the award dated 21.12.2010 in

WCA/CR-37/FC/2008 passed by the Labour Officer and

Commissioner for Workmen Compensation, Udupi District,

Udupi.

2. The claim petition proceeded on the allegation

that one Sri. N.Y. Devendra (hereinafter referred to as 'the

deceased' for short), son of the claimant - Smt. Iramma,

was working as a driver of lorry bearing Registration

No.KA-20-763 owned by respondent No.1 -

Sri. S.T. Ramappa and insured with the appellant. It is

further stated that the deceased was employed as a driver

by respondent No.1 and on 30.11.1995, while he was

driving the vehicle, he met with an accident and

Sri. N.Y. Devendra died on account of the same.

3. Before the learned Commissioner, the owner -

respondent No.1 and the appellant - Insurance Company

both contested the proceedings. The owner - respondent

No.1 filed a written statement admitting the employer

employee relationship. Insurance Company in its written

statement, denied all the material averments made in the

claim petition.

4. Before the learned Commissioner, the claimant

- Smt. Iramma examined herself as PW.1, her son

Sri. Krishnappa was examined as PW.2 and respondent

No.1 - Sri. S.T. Ramappa, the owner of the lorry was

examined as PW.3 and Exs-P.1 to P.7 were marked. The

Insurance Company did not examine any witnesses, but

Insurance policy was marked as Ex-R.1.

5. After hearing learned counsel on both sides

and perusing the records, learned Commissioner allowed

the claim petition in part awarding a compensation of

Rs.2,18,470/- with interest thereon at 12% p.a. with effect

from 30 days from the date of the order of the learned

Commissioner.

6. Learned counsel, Sri. O. Mahesh appearing for

the appellant-Insurance Company strenuously contended

that the accident having taken place in Hosanagar Taluk,

Shimogga District, learned Commissioner at Udupi District

lacked the jurisdiction in view of the express provision

under Section 21 of the Employee's Compensation Act,

1923 (hereinafter referred to as 'the Act' for short).

He contended that the claim petition having been filed in

the year 2008, for an accident which had occurred on

30.11.1995, was barred under Section 10(1) of

the Act and therefore, the learned Commissioner has

committed a serious error of law in entertaining the claim

petition. He further contended that there was no

employer-employee relationship between the insured

owner - Sri. S.T. Ramappa and the deceased and learned

Commissioner has not appreciated the evidence of PW.1

properly and therefore, the claim petition ought to have

been dismissed. Lastly, he contended that the original

claimant - Smt. Iramma has passed away during the

pendency of the appeal and therefore, there is no surviving

cause of action for the claimants, who were brought on

record and accordingly, the appeal of the Insurance

Company is liable to be allowed and the claim petition

should be dismissed.

7. Learned counsel for the claimants, per contra,

contended that the contention of the appellant -Insurance

Company that the accident has occurred in Hosanagar

Taluk, Shimogga District is false and against the records.

The learned Commissioner based on the documentary

evidence and the oral evidence has come to the conclusion

that the accident has occurred within the jurisdiction of

Shankar Narayana Police Station of Udupi District. He

further submitted that this aspect of want of jurisdiction

has not been raised even in the written statement filed by

the Insurance Company and therefore, the appeal should

be dismissed with costs. Insofar as the enormous delay of

in filing the petition is concerned, the learned counsel for

the claimants submits that after detailed consideration of

the evidence placed on record and also in light of proviso

to Section 10(1) of the Act, learned Commissioner has

found that the claimant had shown that she was prevented

by sufficient cause from preferring the claim petition within

time and therefore, there is no merit in the said contention

of the learned counsel for the appellant. He also submitted

that the claimant was the mother of the deceased and she

herself had filed the claim petition and her death was

subsequently during the pendency of this appeal and

therefore, the conclusion that there is no cause of action or

that the claim petition cannot be continued now is without

substance. In support of his appeal, learned counsel for

the claimants submitted that the compensation awarded is

on the lower side as the learned Commissioner has taken

the monthly income of the deceased at Rs.2,000/- and

therefore, it is liable to be enhanced.

8. I have given my anxious consideration to

the respective submissions made by the learned

counsel and I have carefully perused the records.

9. The contention of the learned counsel for the

appellant-Insurance Company is that there was delay of 11

years in preferring the claim petition and therefore, under

Section 10 of the Act, it is barred by time and learned

Commissioner ought to have rejected the claim petition.

10. Section 10 of the Act which is relevant for

the current purpose reads as follows:

"10. Notice and claim.-(1) [No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within [two years] of the occurrence of the accident or in case of death within [two years] from the date of death:] Provided that where the accident is the contracting of a disease in respect of which the provisions of sub-section (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the [employee] was continuously absent from work in consequence of the disablement caused by the disease:

[Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the [employee] to absent himself from work, the period of two years shall be counted from the day the [employee] gives notice of the disablement to his employer:

Provided further that if [an employee] who, having been employed in an employment for a continuous period, specified under sub-

section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected:

[Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the [entertainment of a claim]--

(a) if the claim is [preferred] in respect of the death of [an employee] resulting from an accident which occurred on the premises of the employer, or at any place where the [employee] at the time of the accident was working under the control of the employer or of any person employed by him, and the [employee] died on such premises or at such place, or on any premises belonging to the employer, or died without having left

the vicinity of the premises or place where the accident occurred, or

(b) if the employer [or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured [employee] was employed] had knowledge of the accident from any other source at or about the time when it occurred:]

Provided further that the Commissioner may [entertain] and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been [preferred], in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or [prefer] the claim, as the case may be, was due to sufficient cause."

(Emphasis Supplied)

11. From the above, it is clear that the claimants

have to prefer the claim petition under the Act within two

years of the arising of the cause of action. There is no

doubt in this case that the claim petition was filed after 11

years of the arising of cause of action to file such a

petition. Before the learned Commissioner, evidence was

let in regarding the question of delay and learned

commissioner has framed a point for consideration on this

aspect. In evidence, Ex.P.11 was also marked which shows

that the claimant - mother was an old woman and she had

serious ailments and also evidence was let in to show that

she was suffering from mental health issues also. Upon

consideration, learned Commissioner in exercise of his

power under proviso to Section 10(1) of the Act, has

condoned the delay and I am not inclined to interfere with

the said finding since it is supported by evidence.

Accordingly, the contention of the learned counsel to the

effect that learned Commissioner should not have been

condoned the delay is rejected.

12. The next contention advanced by the learned

counsel for the appellant-Insurance Company is that there

is no evidence to show that the deceased and the insured

owner - Sri. S.T. Ramappa had jural relationship of

employee and employer. Learned Commissioner has

framed appropriate points for consideration and has gone

into the evidence. My attention was drawn to certain

statements made by PW.1 - Smt. Iramma, the mother of

the deceased during her cross examination. It is no doubt

true that PW.1 has given answers suggesting that the

deceased was driving the lorry under respondent No.1 -

Sri. S.T. Ramappa on profit basis/for the purpose of his

own profit. The relevant portions of the evidence of PW.1

read as follows:

"ªÀÄÈvÀ£ÁzÀ £À£Àß ªÀÄUÀ ªÀÄÈvÀ£ÁzÁUÀ DvÀ¤UÉ 25 ªÀµÀð ªÀAiÀĸÀÄì DVvÀÄÛ. 1 £Éà ¥ÀæwªÁ¢UÀ¼ÀÄ £ÀªÀÄä Hj£ÀªÀgÀÄ. £À£Àß ªÀÄÈvÀ£ÁzÀ ªÀÄUÀ 1£Éà JzÀÄgÀÄ zÁgÀgÀ PÉÊ PɼÀUÉ PÉ®¸À ªÀiÁrzÀÄÝ E®è JAzÀgÉ ¸ÀjAiÀÄ®è. F ¥ÀæPÀgÀtzÀ°è 1£Éà JzÀÄgÀÄzÁgÀjUÉ ¸ÉÃjzÀ 1ÁjAiÀÄ 1Á¨sÀ £ÀµÀÖ J®è £À£Àß ªÀÄUÀ¤UÉ ¸ÉÃjzÀÄÝ JAzÀgÉ ¸Àj. £À£Àß ªÀÄUÀ¤UÉ 1Áj N£Àgï ¸ÀA§¼À PÉÆqÀÄwÛzÀÝgÀÄ. ªÀÄÈvÀ£ÁUÀĪÀ JgÀqÀÄ ªÀUÀ¼À »A¢¤AzÀ £À£Àß ªÀÄUÀ ¸ÀéAvÀ 1Á¨sÀPÁÌV 1Áj Nr¸ÀÄwÛzÀÝ JAzÀgÉ ¸Àj. £À£Àß ªÀÄÈvÀ£ÁzÀ ªÀÄUÀ¤UÉ 1£Éà JzÀÄgÀÄzÁgÀgÀÄ ¸ÀA§¼À PÉÆqÀÄwÛzÀÄÝzÀÄÝ £À£Àß ªÀÄUÀ ªÀÄÈvÀ£ÁUÀĪÀÅzÀQÌAvÀ JgÀqÀÄ ªÀµÀð »AzÉ, 1£Éà ¥ÀæwªÁ¢UÀÆ ºÁUÀÆ £À£Àß

ªÀÄÈvÀ£ÁzÀ ªÀÄUÀ¤UÀÆ ªÀiÁ°PÀ-PÁ«ÄðUÀ ¨ÁAzsÀªÀå EgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è. 1£Éà ¥ÀæwªÁ¢AiÀĪÀgÀ 1ÁjAiÀÄ£ÀÄß £À£Àß ªÀÄÈvÀ£ÁzÀ ªÀÄUÀ ªÀ»¹PÉÆArzÀÝ. £À£Àß ªÀÄÈvÀ£ÁzÀ ªÀÄUÀ gÁªÀÄ¥Àà¤UÉ 1ÁjAiÀÄ ¸ÀA¥ÀÆtð PÀæAiÀĪÀ£ÀÄß PÉÆlÄÖ ªÀ»¹PÉÆArzÀÝ. ¸ÁQëAiÀÄÆ ªÀÄÄAzÀĪÀgÉzÀÄ ºÉüÀÄvÁÛgÉ. "K£ÀÄ ªÀiÁrzÀÝ£ÉÆà £À£ÀUÉ UÉÆwÛ®è" 1ÁjAiÀÄ j¥ÉÃjUÉ ¸ÀĪÀiÁgÀÄ JgÀqÀÄ ®PÀë RZÀÄð DVzÉ. J¥ÉÃjUÉ RZÀÄð DzÀ ºÀtªÀ£ÀÄß £ÁªÉà PÉÆlÖzÀÄÝ. ¸ÀzÀj 1ÁjAiÀÄ£ÀÄß ªÀiÁgÁl ªÀiÁrzÉÝÃªÉ DzÀgÉ JµÀÖPÉÌ JAzÀÄ UÉÆwÛ®è. 2£Éà ¥ÀæwªÁ¢UÀ¼ÀÄ £À£ÀUÉ AiÀiÁªÀÅzÉà ¥ÀjºÁgÀ ¤ÃqÀ®Ä ºÉÆuÉUÁgÀgÀ®è JAzÀgÉ ¸ÀjAiÀÄ®è. 1£Éà JzÀÄgÀÄzÁgÀgÀÄ ºÁUÀÆ £Á£ÀÄ ¸ÉÃj K£ÁzÀgÀÆ ¥ÀjºÁgÀ ¹UÀĪÀÅzÁzÀgÉ ¹UÀ° JAzÀÄ £ÁåAiÀiÁ®AiÀÄPÉÌ Cfð ¸À°è¹zÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ¤±Á£É ¦-1 £Á£ÀÄ ¸À馅 ªÀiÁrzÀ zÁR1É JAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ JAzÀÆ PÀÆqÀ ¤±Á£É ¦--1 £ÀÄß ¤ÃrzÀ ªÉÊzÀågÀ°è aQvÉì ¥ÀqÉ¢®è JAzÀgÉ ¸ÀjAiÀÄ®è".

(Emphasis supplied)

13. It is necessary to notice that the owner

respondent - Sri. S.T. Ramappa had filed written

statement at the earliest instance and had admitted the

relationship of employer and employee. He has also given

evidence as PW.3 admitting the jural relationship. PW.2

examined in this case is the son of PW.1 - Smt. Iramma.

He has stated in his evidence that claimant - Smt.

Iramma, who is the mother of the deceased as well as

PW.2, was suffering from mental health issues and also

from various other ailments. The relevant portion of his

evidence is as follows:

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14. Taking into consideration all the aspects much

importance cannot be given to certain admissions made by

PW.1 at the time of cross-examination in the face of

overwhelming evidence from the mouth of PW.2 and PW.3.

She has stated emphatically that she didn't know what all

transactions her son was doing clearly suggesting that the

old woman - mother was not fully stable when she gave

the evidence. In any case, the witness is a rustic one and

learned Commissioner has come to a conclusion that there

was employer-employee relationship which is based on his

appreciation of the evidence and I am not inclined to

interfere with the same as it is based on evidence.

15. Learned counsel for the appellant-Insurance

Company also contended that since during the pendency of

the appeal, claimant - Smt. Iramma has died, the cause of

action for the death of the deceased to maintain claim

petition does not survive. This contention does not bear

legal scrutiny in as much as at the time of filing the claim

petition, the dependent - Smt. Iramma was alive and in

fact, she had instituted the claim petition. Her subsequent

death during the pendency of this appeal does not take

away the cause of action which existed at the time of filing

the claim petition. Accordingly, the said submission of

learned counsel for the appellant-Insurance company is

rejected.

16. The last submission of the learned counsel for

the appellant-Insurance Company is learned Commissioner

had no territorial jurisdiction to entertain the claim

petition. In this behalf and he took me through the

provision of law under Section 21 of the Act as well as

emphasized that the accident had occurred in Hosanagar

Taluk, Shimogga District and he further contended that

claim petition having been filed at Udupi District, the claim

petition is barred for want of territorial jurisdiction. This

submission of the learned counsel for the appellant-

Insurance Company is totally against the weight of the

records. Records clearly show that the accident has

occurred within the jurisdiction of Shankar Narayana Police

Station, which is within the jurisdiction of the Workmen

Compensation Commissioner, Udupi.

17. Insofar as the contention of the learned

counsel for the claimants regarding the learned

Commissioner taking the monthly income of the deceased

at Rs.2,000/- is concerned, it is required to be noticed that

accident had occurred on 30.11.1995. In that view of the

matter, it cannot be said that the income taken at

Rs.2,000/- per month for the deceased is on the lower

side. Accordingly, I reject the said contention.

For the foregoing, there is no merit in both the

appeals and I proceed to pass the following:

ORDER

(i) Both appeals are dismissed.

(ii) The amount in deposit shall be transmitted to the

learned Court below forthwith along with the records.

Sd/-

JUDGE

NM/HDK