Karnataka High Court
The Divisional Manager vs Sri. Sharnappa S/O Shivraya ... on 25 May, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF MAY 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.32796/2013 (WC)
BETWEEN:
The Divisional Manager,
The Oriental Insurance Co. Ltd., Gulbarga,
Represented by its Divisional Manager.
... Appellant
(By Sri. S.S.Aspalli, Advocate)
AND:
1. Sri. Sharnappa S/o Shivraya Halhalli,
Age: 29 years, Occ: Driver (Now Nil),
R/o Mugnur village, Tq. Humnabad,
Dist. Bidar - 585 401.
2. Sri. Ganesh V. Kamat,
Age: 52 years, Occ: Business,
2B1, Eela O.V.H. Road,
Basvana Gudi,
Bangalore North - 560 004.
... Respondents
(Sri. S.S.Hiremath, Advocate for
Sri. Amareshwar S. Rawoor, Advocate for R1;
R2 - served)
2
This MFA is filed under Section 30(1) of the Workmen's
Compensation Act, 1923, praying to set aside the judgment
dated 27.08.2012 passed by the Labour Officer and
Commissioner for Workmen's Compensation, Gulbarga, in
WCA/Cr.No.59/2009 by allowing the above appeal.
This appeal coming on for final hearing this day, the Court
delivered the following:
JUDGMENT
This appeal is filed under Section 30(1) of the
Workmen's Compensation Act, 1923, challenging the
judgment passed by the Commissioner for Workmen's
Compensation, Gulbarga in WCA/Cr.No.59/2009 dated
27.08.2012, whereby the Commissioner has awarded
compensation of Rs.1,03,334/- with simple interest at the
rate of 12% p.a.
2. For the sake of convenience, the parties
herein are referred with the original ranks occupied by
them before the Trial Court.
3. It is the case of the claimant that he was
working as a driver on the vehicle bearing Reg. No.KA-04/
N-7542 (Maruti Van) under respondent No.1 and drawing
salary of Rs.6,000/- per month. That, on 03.05.2008 as
per the instruction of respondent No.1, he took the other
painting labourers in the said Maruti Van and when they
were proceeding towards work place at about 2.00 p.m.,
near Halliyan Bridge Hubli-Dharwad bypass Road, a new
Lorry having Engine No.KA-NAT.037462.C.N.132212, TD
No.TN.24/TC.1034 came and dashed to the Maruti Van
driven by the claimant resulting in the accident. It is
further asserted that the claimant sustained grievous
injuries in the said accident and was admitted in the
hospital at Dharwad and later on he took treatment in
Shekar Hospital, Bangalore. Hence, he filed a claim
petition before the Commissioner under the Workmen's
Compensation Act.
4. Respondent No.1-owner in the said claim
petition appeared and filed his written statement denying
the liability to pay the compensation disputing that the
claimant was a workman under him and further contended
that the accident has not occurred during the course of
employment under respondent No.1. It is also asserted
that the claimant was working as a Operator in M/s.
Creative Markings and Controls Pvt. Ltd., Bangalore and
denied the relationship of employer and employee between
him and the claimant. Respondent No.2 (appellant herein)
has also taken similar contention and disputed the liability.
5. After recording the evidence, the
Commissioner has awarded a compensation of
Rs.1,03,334/- with interest at the rate of 12% p.a. Being
aggrieved by this order, respondent No.2-insurer has filed
this appeal.
6. Heard the arguments advanced by the learned
counsel for the appellant-insurer and leaned counsel for
respondent No.1-claimant. Perused the records.
7. The learned counsel for the insurer has
seriously contended that there is no relationship of
employer and employee between respondent No.1 and the
claimant. He would also contend that the document
produced by the claimant itself disclose that he was
working as a Operator under M/s. Creative Markings and
Controls Pvt. Ltd., Bangalore and he had no occasion to
work as a driver under respondent No.1. Hence, he would
contend that when there is no relationship of employer and
employee, the claim petition itself is not maintainable
under Section 3 of the Employees Compensation Act,
1923. Hence, he would contend that the Commissioner has
committed an error in awarding the compensation and the
remedy for the claimant was to approach the Motor Vehicle
Accident Claims Tribunal and seek appropriate relief
provided under the law.
8. Per contra, learned counsel for the claimant
would support the judgment of the Commissioner.
9. Having heard the arguments and perusing the
records, it is evident that there is serious dispute between
the parties in respect of relationship between the claimant
and respondent No.1 as employee and employer. It is an
admitted fact that the claimant was driving the Maruti Van
when the accident has occurred. He claims to be working
as a driver under respondent No.1, who is the owner of the
Maruti Van, but, however, it is important to note here that
he has not even produced his driving licence to show that
he was possessing driving licence. There is no serious
dispute regarding the accident. However, the document
produced by the claimant at Ex.A-5 clearly disclose that
the Salary Certificate was issued by M/s. Creative Markings
and Controls Pvt. Ltd., Bangalore. The Salary Slip at
Ex.A-6 also disclose that it was issued by M/s. Creative
Markings and Controls Pvt. Ltd., Bangalore. The claimant
though all along asserts that he was working as a driver
under respondent No.1, no piece of document has been
produced, but very contrary, the documents produced by
him themselves disclose that he was getting salary from
M/s. Creative Markings and Controls Pvt. Ltd. These
documents at Exs.A-5 and A-6 completely falsify the claim
of the claimant that he was under employment of
respondent No.1. When the claimant has failed to establish
the relationship of employee and employer between
himself and respondent No.1, the question of respondent
No.2 being the insurer of the Maruti Van paying
compensation under the provisions of Employees
Compensation Act, 1923 does not arise at all.
10. Apart from that, in the cross-examination,
PW.1 has admitted that he has not produced any
documents to show that he was working under respondent
No.1. No doubt, it is elicited in the cross-examination by
making suggestion that respondent No.1 is one of the
Director in Creative Markings and Controls Pvt. Ltd., but
there is no evidence to show that the Maruti Van was
belonging to the said company and admittedly it is
standing in the name of respondent No.1. No evidence is
led to show that respondent No.1 had let out the vehicle to
the use of company and this material evidence is also
missing. Even the claimant has not produced the driving
licence to show that he knew the art of driving. Under
these circumstances, the Commissioner though recorded
the evidence, has ignored this material evidence at Exs.A-
5 and A-6 and in a mechanical way has fastened the
liability on respondent No.2-insurer. The remedy for the
claimant was to file a claim petition under Section 166 of
the Motor Vehicles Act, but he has approached the
Commissioner under the Employees Compensation Act,
which is not available to him. Under these circumstances,
the claim petition is devoid of any merits and needs to be
rejected. However, the claimant is at liberty to approach
the MACT, if he is advised to do so. The Commissioner has
erroneously allowed the claim petition by awarding the
compensation and as such the order under appeal is
erroneous and unsustainable. As such, the appeal filed by
the insurer needs to be allowed. Accordingly, I proceed to
pass the following:
ORDER
i. The appeal is allowed.
ii. The impugned judgment dated 27.08.2012
passed by the Commissioner under Employees
Compensation Act in WCA/Cr.No.59/2009 is
set aside and the claim petition stands
dismissed.
iii. The amount deposited by the appellant-insurer
shall be refunded to him.
Sd/-
JUDGE
LG
