Karnataka High Court

Branch Manager vs Suresh on 14 December, 2023

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                                                      NC: 2023:KHC:45945
                                                  MFA No. 1098 of 2018




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 14TH DAY OF DECEMBER, 2023

                                       BEFORE
                 THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                 MISCELLANEOUS FIRST APPEAL NO. 1098 OF 2018


                BETWEEN:

                     BRANCH MANAGER
                     SRHIRAM GENERAL INS. CO. LTD.,
                     3-8, RIICO INDUSTRIAL AREA,
                     SITAPURA, JAIPUR,
                     RAJASTAN 302022
                     NOW REP BY ITS:

                     LEGAL MANAGER
                     SRHIRAM GENERAL INS. CO. LTD.,
Digitally            NO.5/4, 3RD FLOOR, S.V. ARCADE
signed by JAI
JYOTHI J             BELEKALHALLI MAIN ROAD,
Location:            OPP BANNERGHATTA ROAD,
HIGH COURT
OF                   LIMB POST, BANGALORE 76.
KARNATAKA


                                                           ...APPELLANT
                (BY SRI. PRADEEP B.,ADVOCATE)

                AND:

                1.   SURESH
                     S/O GANGANNA
                     NOW AGED ABOUT 25 YEARS,
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                                             NC: 2023:KHC:45945
                                        MFA No. 1098 of 2018




     R/AT GANGONDANAAHLLI,
     GOLLARAHATTI, HEBBUR HOBLI,
     TUMKUR TALUK - 572136.

2.   GANGAMALLAIAH
     S/O LATE PUTTAIAH
     R/AT KODIPALYA, SATENAHALLI,
     GUBBI TALUK,
     TUMKUR DIST, PIN - 572221.


                                               ...RESPONDENTS
(BY R1 AND R2 SERVED AND UNREPRESENTED)


      THIS   MFA   IS    FILED   U/S   30(1)    OF   WORKMEN
COMPENSATION       ACT    AGAINST      THE   JUDGMENT      AND
AWARD DATED 14.03.2017 PASSED IN ECA NO.92/2014
ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL
JUDGE, & MACT, TUMKUR, AWARDING COMPENSATION OF
RS.1,18,273/- WITH INTEREST @ 12% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.

      THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Aggrieved by the award passed in ECA. No. 92/2014

dated 14.03.2017 the insurance company has preferred

this appeal on the file of the II Addl. Senior Civil Judge &

MACT, Tumakuru.

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2. The claimants have filed the claim petition

under section 10 of the Workmen's Compensation Act

seeking compensation for the injuries sustained by the

claimant in the course of employment. It is the case that

the Respondent No.1 is the owner of the Tata 407 bearing

Reg.KA-01-D-710 in which the claimant was working as a

cleaner. On 21.05.2012 during the course of employment,

when he was returning to Bangalore, his driver drove the

same in a rash and negligent manner and dashed to the

Tractor Trailor. As a result left leg of the claimant was

fractured and the immediately after the accident he was

admitted to the hospital for treatment. He had spent huge

amount towards treatment. The Respondent-insurance

company has filed their objections stating that the

claimant has not issued the mandatory legal notice to the

R-2. The Respondent No.1 has violated the policy

conditions of the insurance policy by allowing the persons

to travel in his vehicle as gratuitous passengers and

overloaded the vehicle. The driver of the Respondent No.1

vehicle had no valid and effective driving license as on the

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date of the accident, to drive the said vehicle. Therefore

R-2 is not liable to pay the compensation. The court below

has held that there is an employer employee relationship

between the workmen and the Respondent No.1. The

vehicle in which the employee was traveling was insured

by the insurance company and as such the insurance

company is liable to the pay the compensation. When it

comes to the compensation, court had granted an amount

of Rs.1,18,273/-, in that as per the evidence of the doctor,

as the implants are inside as they were not removed and

they are infected, the doctor had deposed that he requires

an amount of Rs.30,000/- to Rs.35,000/- and the court

below had granted an amount of Rs.38,580/- towards

medical expenditure. Altogether, compensation of an

amount of Rs.1,18,273/- is awarded by the Tribunal.

3. Learned counsel for the Appellant-insurance

company submits that under the Workmen Compensation

Act they are not entitled for future medical expenses. Till

31.05.2010 under the Act, they are not even entitled for

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the medical expenses and after the amendment on

31.05.2010 the employee is entitled for the medical

expenses. He submits that the question of granting future

medical expenses does not arise, as there is no such

component as per the Act. He further submits that the

name of the insured is Sri Ravikumar, but the owner of the

employer of the claimant, is one Gangamallaiah. He

submits that there is no employer employee relationship

between the insured Ravikumar and the workman and as

such they are not liable to pay the compensation. He has

relied on Section 147 of the MV Act and submits that as

they have not insured they are not liable to pay the

compensation.

4. Though notice is served on the Respondents no

vakalath is filed on their behalf. Having heard the learned

counsel on either side, perused the entire material on

record. It is the case of the claimant that there is an

employer employee relationship between the Respondent

No.1 and the workmen. He was working as a cleaner in

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the lorry owned by the Respondent No.1. As such the

lorry is insured by the insurance company. Before the

Tribunal they have filed the written statement and it is not

their case that said vehicle is not insured by them, and the

name of the insured is different. The only ground taken

by them is the driving license and about notice not given.

Neither they have adduced any evidence nor they have

pleaded. The court below considering all these issues,

considering the evidence on record, has held that the as

there is existing insurance policy, the insurance company

is liable to the pay the compensation. At the earliest point

of time, respondents have not taken any plea. They have

admitted that they have insured the said vehicle, had they

have taken such a stand before the court below, the

claimant would have taken appropriate steps. In that

regard, having kept quite and accepted all the contentions

of the claimant with regard to the policy to the vehicle.

Now at this point of time, it is not open to the insurance

company to raise all these pleas without even their being a

pleading. In that view of the matter, this court is not able

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to appreciate the contention of the learned counsel for the

insurance company.

5. Coming to the liability and aspect of future

medical expenses, as per the subsequent amendment in

2010, now the employee is entitled for the medical

expenses. The claimant had sustained injuries, operation

was done, there are implants and for removing those

implants, he require to under go future operation. And

after filing of the petition and for removing those implants,

it may require six months. So they cannot claim the

medical expenses by the date of the filing of the petition.

In view of the same, the contention of the insurance

company cannot be accepted that they are entitled for

future medical expenses. Once, they are entitled for

medical expenses and the evidence shows that said

accident, the injuries sustained and for the operation

which is already done, they require further amounts for

removing the implants.

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6. In view of the same, this court finds no reasons

to interfere. As far as the medical expenses for an amount

of Rs.38,580/- is concerned, do not carry any interest.

7. Accordingly, appeal of the insurance company is

Allowed-in-part.

(a) The amount in deposit by the Insurance Company shall be forthwith transmitted to the Tribunal.

(b) The Registry is directed to return the Trial Court Record to the Tribunal along with the certified copy of the order passed by this court forthwith without any delay.