Karnataka High Court
T Chandrababu @ Babu Chandra ... vs Smt. Vishalakshi T ... on 6 July, 2022
Bench: P.Krishna Bhat
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MFA No. 22489 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 06TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MISC. FIRST APPEAL NO. 22489 OF 2010 (WC)
BETWEEN:
T CHANDRABABU @ BABU CHANDRA MODALIYAR @
T.C. BALU S/O A TANGAPPAN
AGE: 48 YEARS, OCC: DRIVER, AT: SIYON KOLIVAD,
INDRANAGAR, PLONG ROAD, MUMBAI.
...APPELLANT
(BY SRI. MADANMOHAN M KHANNUR, ADVOCATE)
AND:
1. SMT. VISHALAKSHI T KONTIRUVENKADASAM
AGE: MAJOR, OCC: OWNER, R/O: OLD and NEW NO.
1 CHINNAMUTTU, 1ST STREET, IROD, TAMILNADU.
2. THE MANAGER
ROYAL SUNDARAM, ALLIANZ INSURANCE COMPANY
LIMITED, NO. 46, WHITES ROAD, CHENNAI.
...RESPONDENTS
Digitally signed
by SUJATA
SUBHASH
(BY SRI.S.K. KAYAKAMATH, ADV. FOR R2)
PAMMAR
Location: HIGH (R1-HELD SUFFICIENT)
COURT OF
KARNATAKA,
DHARWAD
THIS MFA FILED IS U/SEC.30(1) OF WC ACT 1923,
AGAINST THE JUDGMENT AND AWARD DTD:27.04.2010
PASSED IN WCA/NF NO.124/2008 ON THE FILE OF THE
LABOUR OFFICER AND COMMISSIONER FOR WORKMENS
COMPENSATION, HAVERI DISTRICT HAVERI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY. THE
COURT DELIVERED THE FOLLOWING.
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MFA No. 22489 of 2010
JUDGMENT
This appeal is at the instance of the claimant calling
in question the legality and validity of judgment and award
dated 27.04.2010 in WCA/NF No.124/2008 by the learned
Labour Officer and Commissioner for Workmen's
Compensation, Haveri (for short, 'Commissioner').
2. It is the case of the claimant that on
11.04.2008, he was driving a Car bearing registration
No.TN-33/AK-2839 belonging to respondent No.1-Smt. T.
Vishalakshi and insured with respondent No.2/Insurance
Company. While he was driving the said Car at the
instruction of owner, near Karjagi Seeds Company at
Ranebennur, PB Road, lorry bearing registration No.
AP-36/X-4788 with its driver driving the same in a rash
and negligent manner and in high speed came and dashed
against the said Car resulting in grievous injuries to him.
3. On claim petition being filed, respondent
No.1/owner remained exparte. Respondent No.2-
Insurance Company contested the proceedings by filing
MFA No. 22489 of 2010
statement of objections denying all the averments made in
the claim petition.
4. During enquiry, claimant examined himself as
PW1 and he examined a qualified Medical Practitioner as
PW2 and Exs.P1 to P13 were marked. The respondents
did not examine any witness but Claim Form and Policy of
Insurance were marked for them as Ex.R2(1) & (2).
5. After hearing the learned counsel on both sides
and perusing the records, the claim petition was dismissed
by the learned Commissioner on the ground that the
employer and employee relationship was not established.
6. Learned counsel appearing for the
appellant/claimant strenuously contended that the learned
Commissioner has committed a legal error in placing
reliance on Claim Form(Ex.R2-1) for recording a finding
that the employer and employee relationship has not been
established by adopting a reasoning that when the Claim
Form was marked, even though the claimant's advocate
was present, he did not object to the same. It is the
MFA No. 22489 of 2010
contention of the learned counsel for the
appellant/claimant that when Ex.R2-1 was marked on
17.11.2009, counsel for the claimant was not present and
therefore, the said observation of the learned
Commissioner is wholly erroneous. He also submitted that
the claimant was deprived of an opportunity of questioning
the authenticity of the Claim Form and therefore, the
impugned award should be set-aside by remanding the
matter to the learned Commissioner for fresh
consideration.
7. Learned counsel appearing for the
respondent/Insurance Company, per contra, submitted
that the learned Commissioner after appreciating the
material placed before him/her has passed the impugned
award which is just and reasonable and therefore, no case
is made out for interference with the same.
8. I have given my anxious consideration to the
submissions made on both sides and also perused the
records.
MFA No. 22489 of 2010
9. The case of the claimant is that he was working
as driver in a Car bearing registration No.TN-33/AK-2839
owned by respondent No.1-Smt. T. Vishalakshi and
insured with respondent No.2/Insurance Company as a
driver. It is further case of the claimant that on
11.04.2008, while he was driving the said car as employee
under the owner/insured, the accident had taken place
and he had suffered certain grievous injuries. Respondent
No.1/owner of the car remained exparte and therefore,
her statement of objections was not available before the
learned Commissioner. The learned Commissioner had
come to the conclusion that the employer and employee
relationship between the owner/insured and the claimant
was not at all established by placing reliance on entry in
the Claim Form (Ex.R2-1). The said document was not
marked without examining any witness from the side of
the respondents. Learned counsel for the
appellant/claimant points out that the said Claim
Form(Ex.R2-1) was not signed by the owner and it was
MFA No. 22489 of 2010
signed by someone on her behalf and below the same,
name of respondent No.1 is written. He further submitted
that the learned Commissioner has erroneously observed
in his order that even though on 17.11.2009, when
Ex.R2-1 was tendered in evidence, learned counsel for the
claimant was present, he did not object to the authenticity
of the same which from records is shown to be incorrect.
The order sheet of the learned Commissioner dated
17.11.2009 shows that the learned claimant was not
present when Claim Form and Policy of Insurance
(Ex.R2-1 & 2) were marked. Since the authenticity of
Claim Form (Ex.R2-1) is central to the whole case and
based on the same, the learned Commissioner has given
a finding that the employer and employee relationship is
not established and therefore, dismissed the claim
petition, it is very much essential in the interest of justice
that the claimant should have an opportunity of contesting
the authenticity of Claim Form (Ex.R2-1) by cross-
examining the witness. In that view of the matter, it is
MFA No. 22489 of 2010
necessary to set-aside the award impugned herein and to
remand the matter for fresh consideration before the
learned Commissioner.
10. Hence, the following:
ORDER
a) The above appeal is allowed.
b) The impugned award passed by learned
Commissioner is hereby set-aside.
c) The matter is remanded to the Court of
jurisdictional learned Senior Civil Judge
for fresh consideration on merits by
giving opportunities to both sides.
d) TCR to be transmitted to the learned
Court below forthwith.
e) All contentions of the parties are kept
open.
Sd/-
JUDGE
JTR
