Karnataka High Court
The Branch Manager vs Shri.Khajavali S/O.Abdulsab on 28 June, 2022
Bench: P.Krishna Bhat
-1-
MFA No. 24067 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MFA NO. 24067 OF 2010 (WC)
BETWEEN:
THE BRANCH MANAGER,
THE NEW INDIA ASSURANCE CO.LTD.,
BELLARY, NOW REPRESENTED BY ITS
REGIONAL MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
DIVISIONAL OFFICE,
MTP HUB, SRINATH COMPLEX,
NCM HUBLI.
... APPELLANT
(BY SMT. SHARMILA M.PATIL, ADVOCATE)
AND:
1. SHRI. KHAJAVALI S/O.ABDULSAB,
AGE:30 YEARS, OCC:EX-DRIVER
R/O:C/O:SHEKSHAWALI MANAGER,
MOTI TALKIES, BELLARY.
Digitally signed
2. M/S.TRANSISTEM LAGISTICKS
by SUJATA
SUBHASH
PAMMAR
INTERNATIONAL PVT.LTD.
Location: HIGH
COURT OF
KARNATAKA,
OWNER OF LORRY NO:KA-03-A-9120
DHARWAD
Date:
2022.06.29
R/O: TOYATO TECHNO PARK
09:43:27 +0530
BIUDADI INDUSTRIAL AREA,
RAM NAGAR TALUKA
BANGALORE RURAL DISTRICT.
...RESPONDENTS
(BY SRI. SHIVAKUMAR S.BADAWADAGI, ADVOCATE)
-2-
MFA No. 24067 of 2010
THIS MFA FILED UNDER SECTION 30(1) OF
WORKMEN'S COMPENSATION ACT 1923, AGAINST THE
JUDGMENT AND AWARD DATED:20.05.2010 PASSED IN
KANAPA CR NO.638/2006, ON THE FILE OF THE LABOUR
OFFICER & COMMISSIONER FOR WORKMEN'S
COMPENSATION, SUB-DIVISION - 2, BELLARY, AWARDING
THE COMPENSATION OF RS.1,58,364/- WITH INTEREST AT
THE RATE OF 12% P.A. FROM THE DATE OF PETITION TILL
ITS DEPOSIT.
THIS MFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
The Insurance Company of the offending lorry
bearing Registration No.KA-03/A-9120 is in appeal
before this Court calling in question the legality and
validity of the award dated 20.05.2010 passed in
KANAPA CR No.638/2006 by the learned Labour
Officer & Commissioner for Workmen's compensation,
Sub-Division-2, Bellary (for short, 'Commissioner').
2. The case of the claimant by name Sri.
Khajavali S/o Abdulsab is that he was working as a
driver in the offending lorry bearing Registration
No.KA-03-A-9120 owned by respondent No.2-M/s.
Transistem Lagisticks International Pvt. Ltd., and was
MFA No. 24067 of 2010
insured with the appellant herein. His further case is
that on 10.04.2004 at about 04:00 a.m., the said lorry
was being driven by another driver and he was
traveling in the same as a spare driver and while it
was proceeding near Malasapatti Village on
Dharmapuram Road, on account of negligence of the
driver, he lost control over the vehicle and dashed to
another truck and it capsized resulting in grievous
injuries to the claimant.
3. On claim petition being filed, the
respondent-Owner remained exparte. The appellant-
Insurance Company resisted the claim by filing
statement of objections.
4. During trial, claimant examined himself as
PW1 and examined a qualified Medical Practitioner as
PW2. Exs.P1 to P8 were marked. The appellant-
Insurance Company examined one of its officials as
RW1 and policy of insurance was marked as Ex.R2(1).
MFA No. 24067 of 2010
5. After hearing the learned counsel on both
the sides and perusing the records, the learned
Commissioner allowed the claim petition in part and
awarded a compensation of Rs.1,58,364/- with
interest thereon at 12% p.a. with effect from 30 days
from the date of accident till the date of payment.
6. Learned counsel for the appellant-Insurance
Company contends before me that the finding
recorded by the learned Commissioner that there was
an employer-employee relationship between the
claimant and the respondent No.2 and that the injury
arose out of and in the course of employment is
without there being any acceptable evidence. She
further contended that there is absolutely no material
placed before the learned Commissioner that the
claimant was a spare driver. She therefore, submits
that the appeal is entitled to be allowed and the
petition of the claimant is liable to be rejected.
MFA No. 24067 of 2010
7. Per contra, learned counsel appearing for
the claimant submitted that the claimant has
examined himself as PW1 before the learned
Commissioner and he also examined a qualified
Medical Practitioner and he has produced Exs.P1 to P8
which include FIR, Spot Punchanama and also the
Driving License of the claimant and on appreciation of
the same, the learned Commissioner awarded a
compensation which being a finding of fact on the
appreciation of the evidence is not liable to be
interfered with. He further submitted that the policy of
insurance-Ex.R2(1) covers the risk of not only the
driver but also four employees and two non-fair
paying passengers and therefore, once it is
established that claimant was in the lorry at the time
of the accident and then suffered an injury arising out
of the accident involving the said vehicle, the insurer
cannot disclaim its liability to pay the compensation.
MFA No. 24067 of 2010
He therefore, submits that there is no merit in the
appeal and is liable to be dismissed.
8. I have given my anxious consideration to
the contentions taken on both sides and I have
carefully perused the records.
9. The case of the claimant is that he was
working as driver in the offending lorry bearing
Registration No.KA-03-A-9120 owned by respondent
No.2-M/s. Transistem Lagisticks International Pvt.
Ltd., and insured with the appellant herien.
Respondent No.2-insured even though served with
notice, did not appear before the learned
Commissioner and deny the said assertion made by
the claimant. Ex.P1-FIR also contains the charge sheet
which shows that the claimant was an injured in the
said accident. The claimant has also given his
evidence before the learned Commissioner and his
version that he was traveling in the said lorry has not
MFA No. 24067 of 2010
been shaken during the cross-examination. Even
otherwise perusal of the policy of insurance-Ex.R2(1)
shows that the risk covered in the said policy includes
four crews and two non-fair paying passengers. In
that event, once the claimant shows that he was
traveling in the lorry, it makes little difference in the
eye of law in view of the policy coverage in Ex.R2(1)
whether he establishes himself as a spare driver or he
is a non-fair paying passenger. The evidence produced
before the learned Commissioner clearly shows that he
was traveling in the lorry at the time of the accident
and in that view of the matter, the learned
Commissioner fastening the liability on the Insurance
Company to pay the compensation cannot legally be
faulted.
10. On perusal of the award passed by the
learned Commissioner, I do not find any error or
illegality in the assessment of the compensation made
by him, accordingly, this appeal is devoid of merits
MFA No. 24067 of 2010
and is liable to be dismissed and hence I pass the
following:
ORDER
i) The appeal is dismissed.
ii) The amount in deposit before this
Court shall be transmitted to the
Court of learned jurisdictional Senior
Civil Judge along with TCR forthwith.
iii) No costs.
Sd/-
JUDGE
RH
