Karnataka High Court
B Thippeswamy vs Bangarappa on 30 August, 2023
Bench: H T Prasad
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NC: 2023:KHC:31082
MFA No. 1046 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 1046 OF 2018 (WC)
BETWEEN:
B THIPPESWAMY
S/O BORAIAH
AGED ABOUT 36 YEARS
R/O KTJ NAGARA, DAVANAGERE
...APPELLANT
(BY SRI. KANTHARAJAPPA M G., ADVOCATE)
AND:
1. BANGARAPPA
S/O NARASIMHAIAH M
AGE MAJOR, R/O YEDEHALLI POST
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577301.
Digitally signed
by
DHANALAKSHMI 2. BASHA SAB B
MURTHY S/O BUDEN SAB
Location: High R/O HOUSE NO.860,NAYAKANAHATTI
Court of
Karnataka CHALLAKERE TALUK-577522.
3. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD
DIVISIONAL OFFICE MMK COMPLEX
AKKAMAHADEVI ROAD, P J EXTENSION
DAVANAGERE-577001.
...RESPONDENTS
(BY SRI. O. MAHESH., ADVOCATE FOR R3:
SRI. T. THIPPESWAMY, ADVOCATE FOR R2:
NOTICE TO R1 IS SERVED AND UNREPRESENTED)
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MFA No. 1046 of 2018
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED:6.06.2017
PASSED IN ECA.NO.47/2015 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND MEMBER MACT-IV, DAVANAGERE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimants under Section
30(1) of the Workmen's Compensation Act, 1923 (for
short, 'the Act') being aggrieved by the judgment and
award dated 06.06.2017 passed by the Principal Senior
Civil Judge and MACT-IV, Davanagere (for short, 'the
Tribunal') in ECA No.47/2015.
2. Facts giving rise to the filing of the appeal
briefly stated are that the claimant was working under
respondent No.2 in his lorry bearing registration No.MYH-
7534 as a hamali. On 22.08.2012 at about 4.30 p.m. the
claimant was engaged as a hamali in the said lorry along
with a cleaner and driver from Kadabanakatte village
towards Nayakanahatti village. When the vehicle came
near Gowdagere gate, at that time the driver of the said
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MFA No. 1046 of 2018
lorry drove the same at a high speed and in a rash and
negligent manner and toppled down the lorry. Due to the
accident, the claimant has sustained grievous injuries.
3. The claimants filed a claim application under
the Act seeking compensation. It was pleaded that the
respondent No.2 was paying salary of Rs.6,000/- per
month and Rs.50/- towards bata. It was further pleaded
that the accident occurred when he was under the
employment of respondent No.1. It was further pleaded
that there is a valid policy as on the date of the accident
and hence they are entitled for the compensation from
respondent Nos. 1, 2 and 3.
4. On service of notice, the respondent No.3
appeared through counsel and filed written statement in
which the averments made in the petition were denied. It
was pleaded that there is no employer and employee
relationship between the claimant and the respondent
No.1. It was further pleaded that the vehicle was insured
under liability only policy. Except the risk of third party
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MFA No. 1046 of 2018
there is no coverage of risk of the loader and unloaders. It
was further pleaded that the driver of the lorry was not
having a valid driving licence to drive such class of vehicle.
Hence, sought for dismissal of the petition.
Respondent No.1 did not appear before the Tribunal
and hence he was placed ex-parte. Petition against
respondent No.2 was dismissed.
5. On the basis of the pleadings of the parties, the
Tribunal framed the issues and thereafter recorded the
evidence. On behalf of the claimant, claimant himself was
examined as PW1, Dr.G.Thippeswamy as PW2 and
Dr.Nagabhushan D.M. as PW3 and got exhibited
documents namely Ex.P1 to Ex.P15. On behalf of the
respondents, one witness was examined as RW1 and got
exhibited documents namely Ex.R1 & Ex.R2. The Tribunal,
by the impugned judgment, inter alia, held that the
claimant earlier filed ECA No.57/2014 before the MACT,
Challakere and the said petition has been dismissed, he
cannot file another petition by suppressing the said fact
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MFA No. 1046 of 2018
and hence dismissed the claim petition. Being aggrieved,
the claimants have filed this appeal.
6. Learned counsel for the claimants has raised the
following contentions:
(i) Firstly, the Tribunal has wrongly dismissed the
claim petition only on the ground that the claimant has
filed earlier one more claim petition in ECA No.57/2014,
the same was dismissed by the Tribunal and that has not
been challenged.
(ii) Secondly, ECA No.57/2014 is filed by one
Thippesha, S/o.Basanna and that is not filed by the
present appellant/claimant. The Tribunal wrongly relied
on the judgment and dismissed the claim petition. Hence,
he sought for allowing the appeal.
7. On the other hand, learned counsel for the
Insurance Company has raised the following contentions:
(i) Firstly, the claimant has claimed that he is
working under the second respondent as a hamali and the
petition has been dismissed as against the second
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MFA No. 1046 of 2018
respondent. Therefore, the claim petition itself is not
maintainable.
(ii) Secondly, the policy is in the name of the first
respondent and the vehicle stands in the name of the
second respondent. Therefore, the Insurance Company is
not liable to pay the compensation. The Tribunal, after
considering the evidence, has given a finding that the
claimant has failed to prove the employer-employee
relationship. Hence, there is no error in the order passed
by the Tribunal. Hence, he sought for dismissal of the
appeal.
8. Heard the learned counsel for the parties. Perused
the judgment and award and the original records.
9. The case of the claimant is that he was working
under respondent No.2 in his lorry bearing registration
No.MYH-7534 as a hamali. On 22.08.2012, at about 4.30
p.m. the claimant was engaged as a hamali in the said
lorry along with a cleaner and driver from Kadabanakatte
village towards Nayakanahatti village. When the vehicle
came near Gowdagere gate, at that time, the driver of the
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MFA No. 1046 of 2018
said lorry drove the same at a high speed and in a rash
and negligent manner and toppled down the lorry. Due to
the accident, the claimant sustained grievous injuries.
After recovering from the injury, claimant filed a claim
petition. The Tribunal dismissed the claim petition on the
ground that the claimant has earlier filed ECA No.57/2014
before the MACT, Challakere and the same has been
dismissed and the second petition on the same cause of
action is not maintainable. In fact, ECA No.57/2014 is
filed by another claimant Thippesha, S/o.Basanna, who
was also traveling in the lorry. Therefore, it is very clear
that the claim petition in ECA No.57/2014 is filed by one
Thippesha, S/o.Basanna and it is not filed by the appellant
herein. The Tribunal wrongly relied on ECA No.57/2014
and given a wrong finding that ECA No.57/2014 is filed by
the appellant herein. Under these circumstances, the
matter requires to be remitted back to the Tribunal for
fresh consideration.
10. Accordingly, I pass the following order:
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MFA No. 1046 of 2018
(i) Appeal is allowed.
(ii) The order dated 06.06.2017 passed by the
Tribunal in ECA No.47/2015 is set aside.
(iii) The matter is remitted back to the Tribunal
to re-consider the matter afresh, in
accordance with law.
(iv) All the contentions of the parties are left
open.
(v) The parties are directed to appear before the
Tribunal on 29.09.2023, without any further
notice.
Sd/-
JUDGE
CM/-
