Karnataka High Court

Smt. Ratna Raju Gaonkar @ Kamble vs M/S Essem Enterprises on 4 January, 2022

Bench: S.Vishwajith Shetty

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 4TH DAY OF JANUARY, 2022
                       BEFORE
  THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
    MISCELLANEOUS FIRST APPEAL No.103452/2017(WC)

BETWEEN:

SMT. RATNA RAJU BIKAJI GAONKAR @ KAMBLE
AGE: 33 YEARS, OCC: HOUSE HOLD
R/O: GANDHI NAGAR, DANDELI
TQ: HALIYAL, DIST: KARWAR (UK)
                                             ...APPELLANT

(BY SRI. RAGHAVENDRA PUROHIT FOR SRI.DINESH M.
KULKARNI, ADVOCATE)

AND:

1 . M/S ESSEM ENTERPRISES
    PROP. VISHNU S ANGLE
    P.O. BOX NO. 719, AVE MARIA BUILDING
    NEAR CINE LATE MARAGAO, GOA 403 108.

2 . M/S BANDEKAR BROS. PVT. LTD
    P.O. BOX NO.11,
    SUVARNA BANDEKAR BUILDING,
    VASCO DA GAMA, GOA 403 802.

3 . NATIONAL INSURANCE CO. LTD
    FRANCISCO LUIS GOMES ROAD,
    VASCO DA GAMA, GOA 403 802.
                                           ...RESPONDENTS

(BY SMT. AFSHAN SHABASHKHAN AND SRI. AMAR AHMED H.
BAGALI, ADVOCATES FOR R2; R1 - SERVED;
SRI. S. K. KAYAKAMATH, ADVOCATE FOR R3)
                                     2




     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF THE EMPLOYEES' COMPENSATION ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED
BY THE SENIOR CIVIL JUDGE AND MACT & COMMISSIONER FOR
EMPLOYEES COMPENSATION, HALIYAL, IN E.C.A. NO.7/2017
(OLD E.C.A. NO.6/2015) DATED 5/7/2017.

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

                              JUDGMENT

The unsuccessful petitioner has preferred this

app eal challenging the judgment and award dated

5/7/2017 passed by the Court of Senior Civil Judge and

MACT and Commissioner for Employees Compensation,

Haliyal (hereinafter referred to as the 'trial Court', for

brevity)in ECA No.7/2017 (old ECA No.6/2015).

2. The brief facts of the case that would be

relevant for the purpose of disposal of this app eal are:

The app ellant herein, who was the petitioner

before the trial Court, had filed a claim petition und er

Section 22 of the Workman's Compensation Act seeking

comp ensation with reg ard to the death of her husband

Raju Bikaji Gaonkar @ Kamb le, who died on 4/1/1996

while he was working in Pit No.6 of Pali Mines,

Bicholium Taluk of North Goa District. It is the case of

the petitioner that her husb and diseased Raju Bikaji

Gaonkar was working with respondent No.1, who is the

Contractor of Pali Mines and respondent No.2 was the

owner of the said Pali Mines. On 4/1/1996 when the

petitioner's husb and was working in the Pali Mines, he

was trapped in between mud and machine and as a

result he had died . The jurisdictional police had

initially reg istered UDR case/A.D.1/96U under Section

174 of Cr.P.C.

The petitioner herein had filed a claim p etition in

the year 2004 alleg ing that she was married to

deceased Raju Bikaji Gaonkar on 30/05/1993 at Kumta

Taluk and they had no children from the wedlock. She

also contend ed that, after the d eath of her husband,

she had approached the respondents seeking

comp ensation, b ut they had postponed the same and

the p etitioner being an illiterate lady b elieved the

promise made by the respondents and kept waiting. It

is only subsequently in the year 2004 she got issued a

legal notice to the respondents and thereafterwards

filed a claim p etition.

In the said petition, after service of notice,

respondents No.1 to 3 had entered app earance and

filed their written statement. All the respond ents had

taken serious ob jection for entertaining the petition on

the g round that the petition was b arred by limitation as

the same was filed after a lapse of more than 8 years

from the d ate of death of Raju Bikaji Gaonkar.

Respondents No.1 and 2 before the trial Court had also

contend ed in the objection that the petitioner was not

the leg ally married wife of the deceased Raju Bikaji

Gaonkar. However it was not disputed that deceased

Raju Bikaji Gaonkar was the employee of the first

respondent and he had died in p it No.6 of Pali Mines on

4/1/1996.

The trial Court on the basis of the rival plead ing s

had framed the following issues for consideration:

i. Whether the petitioner proves that her husb and Sri. Raju Bhikhaji Gaonkar died when he was trapped in the mud and machine occurred on 4/1/1996 at Pit No.6 Pali Mines, Taluk Bicholium, District North Goa d uring the course

of his employment with respondent No.1 and 2?

     ii.      Whether the petitioner is entitled for
              the compensation claimed by her, if
              so, what is the quantum                and    from
              whom?
     iii.     What award or order?

     Subseq uently        by   ord er   dated        5/7/2017        the

application filed by the petitioner under Section 5 of

the Limitation Act for condoning the delay of 8 years 9

months 14 d ays was allowed by the trial Court. It is

not in dispute that the said ord er has attained finality.

To substantiate the case of the petitioner, she had

examined herself as PW1 and the elder brother of the

deceased Raju Bikaji Gaonkar was examined as

PW2. She had g ot marked 14 documents in support of

her case as Exhib its P1 to P14. On behalf of the

respondents no witnesses were examined and no

documents were also marked.

The trial Court thereafterwards heard the

arguments on both sides and vid e the impugned

judgment and award had d ismissed the claim p etition

on the g round that the p etitioner had failed to prove

that she was the leg ally wedded wife of the d eceased

Raju Bikaji Gaonkar @ Kamb le. It is und er these

circumstances the petitioner has filed this Misc. First

Appeal before this Court.

3. Learned counsel for the app ellant submits

that the entire approach of the trial Court is erroneous

in law. He submits that the trial Court has not framed

proper issues and without appreciating the petitioner's

case has dismissed the claim petition on the g round

that she has not proved that she is the leg ally wedded

wife of the deceased Raju Bikaji Gaonkar. He submits

that the p etitioner has examined herself as PW1 and

also examined the brother of the deceased as PW2,

who has categorically admitted the relationship of the

petitioner with the diseased Raju Bikaji Gaonkar. He

also submits that, in add ition to the same the

petitioner has also prod uced documentary evidence to

estab lish the relationship which prima facie establish

the relationship of the petitioner with the d eceased .

He submits that the trial Court without properly

app reciating the oral and documentary evidence

available on record and without framing the proper

issues has erred in rejecting the claim p etition.

4. Per Contra learn ed counsel appearing for the

second respond ent submits that the material on record

produced by the petitioner is not sufficient to prove

that she is the wife of the d eceased Raju Bikaji

Gaonkar. She submits that there is discrep ancy in the

surname of the petitioner and the deceased and the

delay caused in filing the petition makes the claim of

the petitioner very doub tful. She also submitted that

the petitioner had not approached the respond ents at

any point of time before filing the claim petition before

the trial Court and therefore the trial Court is justified

in dismissing the claim p etition.

5. I have given my anxious consideration to the

rival augments addressed on both sides and also

perused the material on record.

6. The relationship of workman and emp loyer

between the deceased Raju Bikaji Gaonkar @ Kamble

and the first respondent herein is undisputed. The

claim p etition has been d ismissed only on the g round

that the petitioner has failed to prove that she is the

legally wedded wife of the deceased Raju Bikaji

Gaonkar. The p etitioner, who has examined herself as

PW1 has p roduced her marriag e invitation card and

also copy of the election ID card to show that she is

the leg ally wedded wife of the deceased Raju Bikaji

Gaonkar. In addition to the same, she has got

examined the b rother of the deceased Raju Bikaji

Gaonkar as PW2. The respond ents have not disputed

that PW2 is the brother of diseased Raju Bikaji

Gaonkar. PW2 has categorically admitted that the

petitioner is the leg ally wedded wife of the deceased

Raju Bikaji Gaonkar. The oral and documentary

evidence prod uced by the petitioner would prima facie

show that she is the leg ally wedded wife of the

deceased Raju Bikaji Gaonkar, which is not p roperly

app reciated by the trial Court.

7. The respond ents had filed sep arate

statement of objections before the trial Court and all of

them had d isp uted that the petitioner was the legally

wedded wife of the diseased Raju Bikaji Gaonkar. In

spite of such a specific plea raised by respond ents, the

trial Court has not framed any issue casting the burden

on the petitioner to prove that she is the leg ally

wedded wife of the deceased Raju Bikaji Gaonkar. On

the other hand, the issue No.1 framed by the trial

Court refers the deceased Raju Bikaji Gaonkar as the

husband of the p etitioner.

8. As rightly contended by the learned counsel

for the appellant, the trial Court without framing the

proper issue casting burd en on the p etitioner to prove

that she was the wife of the deceased Raju Bikaji

Gaonkar, could not have d ismissed the claim petition

on the g round that the petitioner has failed to prove

that she was the leg ally wedded wife of the d eceased

Raju Bikaji Gaonkar.

9. Though a contention has b een raised by the

learned counsel appearing for respondent No.2 that,

having reg ard to the inordinate delay of more than 8

years in filing the claim p etition, a serious doub t arises

as to the genuineness of the claim and therefore the

trial Court was justified in dismissing the claim

petition, the said contention cannot be appreciated for

the simple reason that the trial Court had considered

the app lication I.A.1, filed by the p etitioner for

condoning the d elay of more than 8 years in filing the

petition, which was seriously objected to by the

respondent and by a sep arate ord er has allowed the

said application in I.A.1 and condoned the delay of 8

years 11 months caused in filing the claim

petition. Und er the circumstances it is not op en for the

respondents to now contend that the claim p etition is

filed b elated ly.

10. From the overall perusal of the oral and

documentary evidence available on record, the material

on record would also go to show that, prior to the filing

of the claim petition before the trial Court in the month

of December 2004, the p etitioner had got issued a leg al

notice to respondents No.1 and 2 in the month of June

2004 and a cop y of the said notice is prod uced as

Exhib it P7. Exhibit P11 is the reply issued by the first

respondent to the said notice and a reading of the

same would go to show that the petitioner has mad e a

claim reg arding comp ensation even b efore app roaching

the trial Court by filing the p resent claim p etition.

Therefore there is no merit in the arguments addressed

by the second respondent that, prior to filing the claim

petition, the petitioner has not mad e any attempt to

claim the comp ensation from the respondents.

11. The respondents in their statement of

objections had ad mitted the relationship of workman

and employer between the deceased Raju Bikaji

Gaonkar and the first respondent. The objections

raised by the respondents with regard to the d elay in

filing the claim petition has alread y been consid ered

and the delay in filing the claim petition has been

condoned and the said ord er has already attained

finality. The only other ob jection that was raised by

the contesting respondents was with regard to the

relationship of the petitioner with the diseased Raju

Bikaji Gaonkar. Though the respondent had sp ecifically

contend ed that the p etitioner was not the leg ally

wedded wife of d eceased Raju Bikaji Gaonkar, the trial

Court has failed to frame a p roper issue in this regard

and in sp ite of there b eing no proper issue, the trial

Court has proceeded to dismiss the petition on the

ground that the petitioner has failed to prove that she

was the leg ally wedded wife of deceased Raju Bikaji

Gaonkar. This according to my consid ered view is an

erroneous approach of the trial Court. The trial Court

ought to have framed proper issue when there was a

specific pleading by the respondents d enying the

relationship of the petitioner with the diseased Raju

Bikaji Gaonkar.

12. Under the circumstances, I am of the

consid ered view that, after framing appropriate issue,

the matter is required to be remanded to the trial

Court to dispose of the claim petition afresh. The trial

Court ought to have framed an issue casting the burden

on the petitioner to p rove that she was the leg ally

wedded wife of the d iseased Raju Bikaji Gaonkar.

Since the trial Court has failed to frame such an issue,

I am of the considered view that, while remanding the

matter for fresh consideration, it would be prop er for

this Court to frame an additional issue that requires

consid eration by the trial Court.

13. Accordingly following issue is framed to be

taken into consideration by the trial Court:

"Whether the petitioner proves that she is the legally wedded wife of Raju Bikaji Gaonkar @ Kamble, who died on 4/1/1996 at Pit No.6 of Pali Mines Bicholium Taluk of North Goa District, during the course of his employment with respond ents 1 and 2?

14. The trial Court is d irected to provid e an

opportunity to all the p arties to lead evidence on the

additional issue now framed by this Court and

thereafter dispose of the claim petition in accord ance

with the law on the merits of the case. Since the claim

petition has been filed in the year 2004, I deem it

app ropriate to direct the trial Court to dispose of the

claim p etition within a time frame. Accordingly the

following:

ORDER

Miscellaneous First App eal is allowed. The

judgment and award dated 5/7/2017 passed by the