Sri Jayaramegowda @ Jayaramu vs Sri Narasimharaju
2022 Latest Caselaw 10606 Kant

                           1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF JULY, 2022

                        BEFORE

     THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                MFA NO.1295/2012 (WC)

BETWEEN:

1.     SRI. JAYARAMEGOWDA @ JAYARAMU,
       S/O GIDDEGOWDA @ SHIVANANJEGOWDA,
       AGED ABOUT 48 YEARS,

2.     SMT. PREMA,
       W/O JAYARAMEGOWDA @ JAYARAMU,
       AGED ABOUT 43 YEARS,
       R/A KSRTC LAYOUT,
       NELAMANGALA TOWN,
       BANGALORE RURAL DISTRICT.
                                          ...APPELLANTS
(BY SRI.SHRIPAD V SHASTRI, ADVOCATE)

AND:

1.     SRI. NARASIMHARAJU,
       S/O HANUMANTHAIAH,
       NAGENAHALLI VILLAGE,
       NAGAVALLI POST,
       HEBBUR HOBLI,
       TUMKUR DISTRICT.

2.     THE DIVISIONAL MANAGER,
       THE NATIONAL INSURANCE CO. LTD.,
                              2


     DIVISIONAL OFFICE - 4,
     2ND FLOOR, SHIVANANDA CIRCLE,
     BANGALORE.
                                 ... RESPONDENTS
(BY SRI.N.H.RANGANATHA, ADVOCATE FOR R1;
    SRI.K.S.LAKSHMINARASAPPA, ADVOCATE FOR
    SRI.A.M.VENKATESH, ADVOCATE FOR R2)

     THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST
THE   JUDGMENT     DATED    19.09.2011   PASSED   IN
WCA/FC/CR-83/2008 ON THE FILE OF THE LABOUR
OFFICER    AND    COMMISSIONER      FOR     WORKMEN
COMPENSATION,      SUB    DIVISION-1,     BANGALORE,
REJECTING THE CLAIM PETITION FOR COMPENSATION.

     THIS MFA IS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                    JUDGMENT

Heard the learned counsel appearing for the

appellants and the learned counsel appearing for

respondent No.2 - Insurer.

2. The appellant is assailing the correctness of

the judgment and award dated 19.09.2011 passed by

the Court of Labour Officer and Commissioner for

Workmen's Compensation, Sub-Division-I,

Bannerghatta Road, Bangalore-29, in proceedings

No.WCA/FC/CR-83/2008. The Commissioner has

rejected the petition filed by the dependants of the

deceased - Raghu.

3. Certain facts necessary for adjudication of

the case can be summarized as under:-

The accident in question took place on

05.11.2008. The accident occurred on account of

collision between two lorries namely, lorry bearing

registration No.KA-06/A-8813 and another lorry

bearing registration No.KA-05/AF-3663. On account

of the accident, Raghu succumbed to injuries and

died. In the lorry along with Raghu, one Satish was

also travelling. Satish filed a complaint. In his

complaint, he has referred to deceased - Raghu as the

Salesman. Based on the complaint, FIR is

registered. Thereafter, the claim petition is filed by

the dependants of the deceased - Raghu.

4. It is alleged that the lorry belonged to one

Narasimharaju, who is the first respondent before the

Commissioner. It is further claimed that Raghu was

working as a cleaner under Narasimharaju and further

claimed that the vehicle belonging to Narasimharaju

was insured by the second respondent - the Insurance

Company.

5. The owner - Narasimharaju appeared in the

matter and contested the matter. He denied the

relationship of employer and employee between

himself and the deceased - Raghu.

6. The insured also took a stand that there

was no relationship between Narasimharaju and

deceased - Raghu, and prayed for dismissal of the

petition.

7. To substantiate the case before the

Commissioner, the father of the deceased was

examined. He was cross-examined by the Insurer and

a statement alleged to have been made by the father

of the deceased was confronted and the said

statement was marked as Ex.R1.

8. Further, the claimants also examined one

Satish, the complainant who is said to be the eye

witness to the incident.

9. The owner of one M/s.Arpita Milk

Distributor was also examined. He has stated that the

deceased Raghu was the Workman under the first

respondent.

10. The first respondent disputed the

relationship of Raghu as his employee in the

statement of objections and did not participate in the

proceedings by leading evidence. The insurer was

examined to substantiate the contention in its

statement of objection.

11. The Commissioner after considering the

evidence on record has concluded that the claimants

have not established the relationship between

employer and employee. Accordingly, the petition

was dismissed. Aggrieved by the same, the claimants

have filed this appeal.

12. Sri. Shripad V.Shastri, learned counsel

appearing for the appellants would raise the following

contentions:-

i. The relationship of employer and employee between Narasimharaju and deceased - Raghu is established through the evidence of PW-2 - Satish as well as PW-3 - the owner of M/s.Arpitha Milk Distributor, who was using the hired vehicle which belonged to Narasihmaraju.

ii. The Commissioner erred in disbelieving the evidence on record which established the relationship of employer and employee between Narasimharaju and deceased - Raghu.

iii. M/s.Arpitha Milk Distributor hired the vehicle of Narasimharaju and also hired the services of the deceased- Raghu, who was an employee under Narasimharaju, as such, the relationship is established and minor discrepancies in the evidence of claimants and minor discrepancies in the complaint registered by Satish cannot be construed to hold that the deceased was not employed under Narasimharaju.

13. The learned counsel appearing for the

appellants to substantiate his contention would place

reliance on the judgment of this Court in

M/S.UNITED INDIA ASSURANCE COMPANY

LIMITED v. M.N.RAVIKUMAR AND OTHERS - ILR

2007 KAR 3543 and also in the case of THE

MANAGER v. SUSHEELA AND OTHERS disposed of

on 14.07.2021 in MFA No.6359/2013.

14. These two cases deal with the question

where there was a transfer of a vehicle by way of sale

and consequently, there was no change in the R.C.

book. The question, in this case, is not relating to the

transfer of a vehicle. Thus the aforesaid judgments

would not come to the rescue of the

claimants/appellants.

15. The learned counsel appearing for

respondent No.2 - Insurance Company would submit

that the relationship of employer and employee is not

established in this case. The complaint would reveal

that the deceased was working as a salesman as per

the averments in the complaint and he never worked

under respondent no.1.

16. He has further stated that Sri.

Narasimharaju - the first respondent before the

Commissioner, who is alleged to be the employer of

the deceased - Raghu himself has stated in the written

statement that there is no relationship between

employer and employee between himself and Raghu.

17. It is also stated that the father of the

deceased who is one of the claimants has stated that

the deceased - Raghu was working in M/s.Arpitha Milk

Distributors. Based on these submissions, he would

submit that the relationship between employer and

employee is not established and the Commissioner is

justified in dismissing the petition.

18. To substantiate his contention, learned

counsel for the Insurer would place reliance on the

following judgments:-

1. THE DIVISIONAL MANAGER v.GUJJAMMA AND OTHERS - MFA No.1584/2022 disposed of on 16.01.2004.

2. RAHUL AND OTHERS v.NINGEGOWDA AND OTHERS - MFA No.2776/2010 c/w. MFA No.5976/2009 disposed of on 01.02.2022.

3. GOTTUMUKKALA APALA NARASIMHA RAJU AND OTHERS v. NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER - (2007) 13 SCC 446.

4. M/S.UNITED INDIA INSURANCE COMPANY LIMITED v. SRI.HARISH AND ANOTHER - MFA No.4375/2011 disposed of on 30.08.2021.

5. THE ORIENTAL INSURANCE CO. LTD. v.

MOHD. NAZEER AND ANOTHER -

MFA No.7447/2010 disposed of on 25.11.2020.

19. This Court has considered the contentions

raised at the Bar and also considered the impugned

judgment and award passed by the Commissioner.

20. The Commissioner has considered the

complaint which reveals that the deceased - Raghu

was travelling in the vehicle which was hired by

M/s.Arpitha Milk Distributor and it is stated by the

complainant that the deceased was working as a Sales

Manager. The complaint does not disclose that he was

working as an employee under the first respondent -

Narasimharaju and the father of the deceased namely,

claimant No.1, on the very next day of the accident

stated before the police that the deceased - Raghu

was working in M/s.Arpitha Milk Distributor. This

statement was confronted by the witness during the

cross-examination. He has admitted the statement

and the statement is marked as Ex.R1. These two

documents would demonstrate that the deceased -

Raghu was not working under Narasimharaju. It is

extremely difficult to believe that the father who made

a statement the very next day after the incident would

make a wrong statement about the employer of his

son.

21. The evidence of PW-2 - Satish to

substantiate the contention that the deceased Raghu

was working as an employee under Narasimharaju

does not support the case of the claimants because

there is no other proof except the oral stand of Satish

to say that the deceased - Raghu was working as an

employee under Narasimharaju and the evidence of

PW-3 - the proprietor of M/s.Arpitha Milk Distributor

also does not come to the rescue of the claimants to

show that the deceased -Raghu was working under

Narasimharaju. The owner of M/s.Arpitha Milk

Distributor at the most can give evidence relating to

the fact as to who are his employees. He cannot give

evidence as to who are the employees of

Narasimharaju. It is stated that the Narasimharaju

has lent the vehicle to M/s.Arpitha Milk Distributor

along with the services of deceased - Raghu. In this

regard, no document is produced. The oral evidence

of the owner of Arpita Milk distributor is not

convincing in this regard as it is contrary to Ex-R1 the

statement of claimant no.1

22. Under the circumstances, the contention of

the claimants that the deceased - Raghu was working

under Narasimharaju cannot be accepted. The

Commissioner has considered all these facts and also

analyzed the evidence on record. Based on the

evidence on record, the Commissioner has concluded

that the relationship between employer and employee

is not established.

23. The judgment and award passed by the

Commissioner cannot be said to be erroneous and this

Court does not find any reason to interfere with the

same.

24. For the aforesaid reasons, this Court is of

the opinion that there is no merit in the appeal and

accordingly, the appeal is dismissed.

Sd/-

JUDGE

VMB