Rathnamma vs The Chief General Manager
2022 Latest Caselaw 227 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 6TH DAY OF JANUARY, 2022

                             BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

      MISCELLANEOUS FIRST APPEAL No.24682/2012(WC)
                               C/W.
      MISCELLANEOUS FIRST APPEAL No.24288/2012(WC)

IN MFA NO.24682/2012

BETWEEN:

1.     Smt. Rathnamma
       W/o. Halli Manjunath @ Manju
       Aged about 23 years
       Deceased's wife

2.     Sri. Halli Mahadevappa
       S/o. late Shivappa
       Aged major, Deceased's father

3.     Smt. Basamma
       W/o. late Halli Mahadevappa
       Aged major, Deceased' mother

4.     Kumar Basavaraj
       S/o. late Halli Manjunath @ Manju
       Deceased's son

       All are residing at Danapura Village
       Hospet Taluk, Bellary District.
                                              ...APPELLANTS

(By Sri. Y. Lakshmikant Reddy, Advocate)
                                 2




AND:

1.     The Chief General Manager
       The Sandur Manganese & Iron Ore
       Limited, Lorry No.MEK-4387
       Lakshmipura, Sandur Taluk
       Bellary District.

2.     The Divisional Manager
       M/s. New India Assurance Co. Ltd.,
       Bellary.
                                                 ...RESPONDENTS
(By Sri. Aravind D. Kulkarni, Advocate for R1;
    Sri. Ravindra R. Mane, Advocate for R2)
                                ---

MISCELLANEOUS FIRST APPEAL NO.24682/2012 IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED 27.04.2012 PASSED IN WC NO.379/2008 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-DIVIION-1, BELLARY, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA NO.24288/2012

BETWEEN:

The Divisional Manager M/s. New India Assurance Co. Ltd., Bellary. Now represented by its Asst Manager U. M. Raikar. New India Assurance Co. Ltd., MTP Hub. Divisional Office, Srinath Complex NCM Hubli.

...APPELLANT (By Sri. Ravindra R. Mane, Advocate)

AND:

1. Smt. Rathnamma W/o. Halli Manjunath @ Manju

Age: Major, Occ: Household R/o. Danapur Village Tal: Hospeth & Dist.Bellary.

2. Halli Mahadevappa S/o. Shivappa Age: Major, Occ: Not mentioned R/o. Danapur Village Tal: Hospeth & Dist.Bellary.

3. Smt. Basamma, W/o. Halli Mahadevappa Age: Major, Occ: Household work R/o. Danapur Village Tal: Hospeth & Dist.Bellary.

4. Kumar Basavaraj, S/o. Halli Manjunath @ Manju Age: Minor rep by petitioner No.1 natural mother Smt. Ratnamma W/o. Halli Manjunath @ Manju R/o. Danapur Village, Tal: Hospeth Dist: Bellary.

5. Chief General Manager The Sondur Magnis & Iron Ore's Ltd., Owner of Lorry. Laxmipur Sondur Dist: Bellary.

6. Euro Industrial Enterprises Pvt Ltd., Hospeth, Dist: Bellary ...RESPONDENTS (By Sri. Y. Lakshmikanth Reddy, Advocate for R1 to R4;

R4 - minor rep. by R1;

Sri. Aravind D. Kulkarni, Advocate for R5 & R6)

MISCELLANEOUS FIRST APPEAL NO.24288/2012 IS FILED UNDER SECTION 30 OF THE WORKMEN'S COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED 27.04.2012 PASSED IN KANAPA SR NO.379/2008 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-DIVIION-1, BELLARY, AWARDING COMPENSATION OF `4,42,740/- WITH INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF PETITION AND SHALL BE DEPOSITED WITHIN ONE MONTH FROM THE DATE OF ORDER.

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

COMMON JUDGMENT

These two appeals arise out of the judgment and

award dated 27.04.2012 passed in Kanapa CR

No.379/2008 by the Labour Officer and Commissioner

for Workmen's Compensation, Sub-Division-I, Ballari

(hereinafter referred to as 'the Commissioner', for

brevity) and therefore both the appeals are heard

together and disposed of by a common judgment.

2. Though the matters are posted for

admission, with the consent of learned counsel

appearing on both sides they are taken up for final

hearing.

3. The parties herein are referred to as per

their ranking as assigned before the Commissioner

for the sake of convenience.

4. The brief facts of the case relevant for the

purpose of disposal of these appeals are:

The claimants being the legal representatives of

one Halli Manjunath had filed a claim petition under

Section 22 of the Workmen's Compensation Act 1923

(hereinafter referred to as the 'WC Act', for brevity),

seeking compensation in respect of the death of said

Halli Manjunath, that had taken place on 03.10.2007

during the course of his employment with respondent

No.1, before the Commissioner.

It is the case of the claimants that the deceased

was working as a driver in the lorry bearing No.MEK-

4387 belonging to the first respondent and on

03.10.2007 at about 3:30 p.m. when he was driving

the lorry he had met with an accident in National

Highway No.4 and as a result he had expired.

The respondents had entered appearance before

the Commissioner and filed separate statement of

objections.

Respondent No.1 had contended in his written

statement that the deceased was not his workman

and he had not paid any salary to the deceased and

there was no relationship of employee and employer

between the first respondent and the deceased.

However he had admitted that the lorry, which had

met with the accident on 03.10.2007, in which the

deceased was the driver, belongs to the first

respondent. The first respondent had also contended

that the vehicle was insured at the relevant point of

accident with the second respondent and therefore

the second respondent was liable to indemnify the

compensation amount, if any, granted to the

claimants.

The second respondent had filed written

statement stating that the claimants were not the

legal representatives of the deceased. It was also

contended that the first respondent was not the

employer of the deceased and therefore they were

not liable to pay any compensation amount to the

claimants.

The third respondent had filed written statement

contending that the deceased was employed by the

third respondent on behalf of the first respondent

and the deceased was working as a driver with the

first respondent and the lorry which was driven by

the deceased on the fateful day of accident was

belonging to the first respondent.

The Commissioner on the basis of the rival

pleadings had framed issues and during the course of

trial the claimant No.1 was examined as PW1 and she

also got six documents marked in favour of her case.

On behalf of the respondent a representative of the

first respondent was examined as RW1. The

Commissioner thereafterwards heard the arguments

addressed on both sides and vide the judgment and

award impugned, granted the compensation of

`4,42,740/- to the claimants payable by the second

respondent - Insurance Company.

Being not satisfied with the interest awarded by

the Commissioner and also on the ground that the

Commissioner has failed to pay the funeral expenses,

the claimants have preferred MFA No.24682/2012,

while the Insurer has preferred MFA

No.24288/2012, being agreed by the liability saddled

on it by the Commissioner to pay the compensation

amount.

5. Learned counsel for the appellants/

claimants submit that, insofar as the interest

awarded by the Commissioner, the claimants are

satisfied and they are not pressing the appeal in that

regard. He submits that the Commissioner has erred

in not awarding the funeral expenses of `2,500/- to

the claimants as provided under Section 4(4) of the

WC Act and prays to modify the award to the said

extent.

6. Learned counsel for the appellant/Insurer

submits that the challenge made by the Insurer with

regard to the validity of the driving licence held by

the deceased will not survive for consideration in

view of the judgment of the Hon'ble Supreme Court

in the case of Mukund Dewangan vs. Oriental

Ins.Co.Ltd reported in (2016) 4 SCC 298. He

submits that, he is pressing his appeal only on the

ground that there was no relationship of employee

and employer between the deceased and the first

respondent and therefore the Commissioner had

erred in saddling the liability on the Insurance

Company. He submits that the first respondent is the

Insurance Policy holder and when there is no

relationship between the deceased and the first

respondent of employee and employer, the

Commissioner ought not to have saddled the liability

to pay compensation on the Insurer. Accordingly he

prays to allow his appeal.

7. I have given my anxious consideration to

the rival contentions urged by the learned advocates

appearing on both sides and also perused the

material on record.

8. The substantial questions of law that arise

for consideration in these two appeals are:

i. Whether the Commissioner has erred in not awarding the statutory amount of ` 2,500/- towards funeral expenses to the claimants as contemplated

under Section 4(4) of the Workmen's Compensation Act, 1923?

ii. Whether the commissioner has erred in holding that the deceased was the employee of the first respondent and thereby further erred in saddling the liability to pay compensation amount on the appellant Insurance Company?

9. The undisputed facts of the case are, the

deceased Halli Manjunath had died in a road traffic

accident that had taken place on 03.10.2007 and at

the time of the said accident, he was driving the lorry

bearing registration No.MEK-4387 and the said lorry

was admittedly belonging to the first respondent.

The Commissioner after appreciating the overall oral

and documentary evidence available on record has

granted the compensation of `4,42,740/- in favour of

the claimants with interest at 12% p.a. However, as

rightly contended by the learned counsel for the

appellants/claimants, the Commissioner has failed to

pay the statutory amount of `2,500/- to the

claimants towards funeral expenses incurred by

them, as provided under Section 4(4) of the WC Act.

10. Learned counsel appearing for the

appellant/Insurer having gone through the aforesaid

provision of law fairly submit that, the claimants are

entitled for the funeral expenses of `2,500/- having

regard to the fact that the accident in question had

taken place on 03.10.2007, though subsequently

there has been an amendment and the statutory

amount of funeral expenses has now been enhanced

to `5,000/-.

11. Under the circumstances, I am of the

considered view that the substantial question of law

No.1 is required to be answered in favour of the

claimants and I hold that the claimants are entitled

for an amount of `2,500/- towards funeral expenses

as provided under Section 4(4) of the WC Act.

12. Insofar as the second substantial question

of law is concerned, a perusal of the material on

record would go to show that the first respondent has

filed a written statement that the deceased was not

it's employee. RW1, who is a representative of the

first respondent, during the course of his

examination-in-chief has stated that the deceased

was employed by the third respondent on behalf of

the first respondent and on the first day of the

employment itself he had met with the accident. He

has further stated that the third respondent had paid

a sum of `1,50,000/- to the claimants immediately

after the accident with the consent of the first

respondent and the first and third respondents are

entitled to recover the said amount of `1,50,000/-

from the second respondent Insurer. Respondents

No.1 and 3 have also filed a detailed written

argument before the Commissioner and they have

categorically admitted in the said written arguments

that the deceased was their employee.

13. Under the circumstances, the Commissioner

was completely justified in holding that the deceased

was the employee of the first respondent. The

finding recorded by the Commissioner that the

deceased was an employee of the first respondent is

based on the admission made by respondents 1 and 3

and the same is a finding of fact.

14. The Hon'ble Supreme Court in the case of

North East Karnataka Road Transport

Corporation Vs. Sujatha reported in 2019 ACJ 29

has held that, once the question of facts are proved

with the aid of evidence, the finding recorded thereon

are regarded as finding of fact and therefore the

appeal filed as against such finding cannot be

entertained, as the appeal against the order of the

Commissioner would be maintainable only if the same

involves substantial question of law. In other words,

the appeal provided under Section 30 of the WC Act

to the High Court against the order of the

Commissioner is not like a Regular First Appeal akin

to Section 96 of the Code of Civil Procedure, which

can be heard both on facts and law and the appellate

jurisdiction of the High Court to decide the appeal

under Section 30 of the WC Act would be

maintainable only if it involves substantial question

of law.

15. Therefore the contention of the Insurer that

the Commissioner was not justified in holding that

the deceased was the employee of the first

respondent cannot be considered as substantial

question of law in the case on hand and therefore I

find no merit in the contention of the Insurer.

Therefore the substantial question of law No.2 is

required to be answered in the negative.

16. In my considered view, the Commissioner

on overall appreciation of the oral and documentary

evidence available on record was completely justified

in granting the compensation of `4,42,740/- with the

applicable interest to the claimants. However, he has

erred in not awarding a sum of `2,500/- to the

claimants towards funeral expenses. Therefore, in

addition to the amount of `4,42,740/- granted by the

Commissioner as compensation to the claimants, a

sum of `2,500/- is granted to the claimants towards

funeral expenses of the deceased. Therefore the

total compensation for which the claimants would be

entitled to is ` 4,45,240/- as against `4,42,740/- and

the said compensation amount will carry interest as

ordered by the Commissioner. Accordingly the

following:

ORDER

Miscellaneous First Appeal No.24682/2012 filed

by the claimants is partly allowed.

Miscellaneous First Appeal No.24288/2012 filed

by the Insurance Company is dismissed.

The amount in deposit before this Court in MFA

No.24288/2012 shall be transferred to the competent

Court for disbursement in terms of the award passed

by the Commissioner.

If the Insurer is liable to pay any compensation

amount inclusive of interest in addition to the amount

deposited before this Court, the same shall be

deposited before the competent Court within a period

of six weeks from the date of receipt of certified copy

of the order.

Sd/-

JUDGE

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