Dasharath S/O Ramu Naik vs Asha W/O Machchendra Nakate
2022 Latest Caselaw 11943 Kant

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                                      MFA No. 23965 of 2012




IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

      DATED THIS THE 19TH DAY OF SEPTEMBER, 2022

                           BEFORE
          THE HON'BLE MR JUSTICE H.P.SANDESH
     MISCELLANEOUS FIRST APPEAL NO. 23965 OF 2012
                            (WC-)
BETWEEN:

      DASHARATH S/O RAMU NAIK,
      AGE: 51 YEARS, OCC: NIL,
      R/O: ANANTUR, TQ: ATHANI,
      DIST: BELGAUM.



                                                  ...APPELLANT
(BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE)

AND:


1.    SMT. ASHA W/O MACHCHENDRA NAKATE,
      AGE: MAJOR, OCC: BUSINESS,
      R/O: 232/236, PURNA VILLAGE,
      MUMBAI-AGRA ROAD, BHIWANDI,
      DIST: THANE.

2.    THE MANAGER,
      THE FUTURE GENERAL INDIA INSURANCE CO. LTD.,
      2ND FLOOR, KALABURGI LANDMARK,
      OPP: B.B. GIRLS HIGH SCHOOL,
      DESHPANDE NAGAR, HUBLI,
      DHARWAD.

3.    SMT. YALLAVVA W/O. DASHARATH NAIK,
      AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
      R/O: ANANTPUR, TQ: ATHANI, DIST: BELGAUM.

4.    KUMARI. SUDHA D/O DASHARATH NAIK,
      AGE: 19 YEARS, OCC: HOUSEHOLD WORK,
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                                            MFA No. 23965 of 2012

    R/O: ANANTPUR, TQ: ATHANI,DIST: BELGAUM.



                                                        ...RESPONDENTS
(BY SRI. S K KAYAKAMATH, ADVOCATE FOR R2;
NOTICE TO R1 IS HELD SUFFICIENT;
R3 & R4 ARE SERVED)

      THIS MFA IS FILED UNDER SECTION 30(1) OF W.C.ACT, 1923,
AGAINT THE JUDGMENT AND AWARD DATED 18.05.2012 PASSED IN
W.C.NO.KAPAKA/SR-32/2011 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB-
DIVISION-I, BELGAUM, PARTLY ALLOWING THE CLAIMPETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
     THIS APPEAL COMING ON FOR ORDERS THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT
PASSED THE FOLLOWING:


                               JUDGMENT

Heard the appellant counsel and also the counsel

appearing for the respondents.

2. The claimants are the parents and also Sister of

the deceased and he met with an accident and hence, the

claim petition was filed before the Workmen's

Compensation Commissioner and the Workmen's

Compensation Commissioner dismissed the claim petition

by coming to the conclusion that, the deceased was

working under respondent No.1 has not been proved and

hence, the present appeal is filed before this Court.

MFA No. 23965 of 2012

3. The main contention of the counsel appearing

for the appellants is that, the Workmen's Compensation

Commissioner has committed an error in not relying upon

the documents at Ex.P.1 to Ex.P.3 and also the Workmen's

Compensation Commissioner while passing an order in

paragraph No.11, stated that, the respondent/owner

admitted that the deceased was working under him, but in

in the very same paragraph comes to the conclusion that

the respondent has denied the employment of the

deceased and contra observation is made in the order.

4. The counsel appearing for the respondents

would submits that, though the Workmen's Compensation

Commissioner referred the statement of the respondent

No.1, but with regard to the nature of the accident and

also with regard to the course of employment has been

denied and the matter can be remanded.

5. Having heard the respective counsel and also

on perusal of the material, particularly paragraph No.11 of

the order, though the Workmen's Compensation

MFA No. 23965 of 2012

Commissioner noted in the order that the respondent No.1

admitted that the deceased was working as driver in

respect of the vehicle which he has owned i.e. Truck

bearing No.MH-04/AL-2154, but contra observation is

made in the order and dismissed the claim petition and not

discussed anything about his salary and also with regard

to the liability, whether the company is liable or not and

when such being the case, the matter requires to be

remanded to the trial Court to consider the matter on

merits and decide whether the claimants are entitle for

compensation and compensation payable by whom and

regarding employer and employee relationship, this Court

comes to the conclusion that when the respondent No.1

has categorically admitted the relationship between the

employer and employee between the owner of the truck as

well the driver, the Workmen's Compensation

Commissioner ought not to have dismissed the claim.

6. In view of the above discussions, I pass the

following:

MFA No. 23965 of 2012

ORDER

The impugned order dated 18.05.2012 is hereby set aside. The matter is remanded back to the concerned Court to decide the matter on merits.

The parties are directed to appear before the concerned Court on 28.10.2022 and the parties not to expect any separate notice from the concerned Court.

The concerned Court is directed to give an opportunity to both sides to adduce further evidence, if any.

The matter is of the year 2011 and hence, three months time is given to the concerned Court to dispose of the matter and the respective counsels are also directed to assist the Court in disposal of the matter within three months.

Registry is directed to send the records forthwith.

Sd/-

JUDGE

SVH