Karnataka High Court
The Area Manager vs Nazeersab S/O Peersab on 1 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:14047
MFA No. 22721 of 2011
C/W MFA No. 22722 of 2011
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.22721/2011(WC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 22722 OF 2011
IN MFA.NO.22721/2011:
BETWEEN:
THE AREA MANAGER,
THE RELIANCE GENERAL INSURANCE
COMPANY LTD., NO. 1 AND 2, 1ST FLOOR,
MAGANUR COMMERCIAL COMPLEX,
NEAR KSRTC BUS STAND, CHITRADURGA,
REPRESENTED BY ITS DEPUTY MANAGER,
NO.28, EAST WING, 5TH FLOOR,
CENTENARY BUILDING, M.G. ROAD,
BANGALORE.
...APPELLANT
(BY SRI G. N. RAICHUR, ADVOCATE)
Digitally
AND:
signed by
SUJATA
SUBHASH 1. SRI NAZEERSAB S/O. PEERSAB,
PAMMAR AGE: MAJOR, OCC: NIL,
R/O: RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI.
2. SRI SAHEED KHAN
S/O. ANWARULLA KHAN SURI,
AGE: MAJOR, OCC: NOT GIVEN,
R/O: PATHANWADI, NEAR MASJID,
HONNALLI, DAVANAGERE.
...RESPONDENTS
(BY SRI PRUTHVI K. S., ADVOCATE FOR R1;
R2 IS SERVED)
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NC: 2023:KHC-D:14047
MFA No. 22721 of 2011
C/W MFA No. 22722 of 2011
THIS MFA IS FILED UNDER SECTION 30(1) OF THE
WORKMENS COMPENSATION ACT, 1923, PRAYING TO CALL FOR THE
RECORDS IN W.C.A.NF.37/2010 ON THE FILE F LABOR OFFICER AND
COMMISSIONER FOR WORKMEN'S COMPENSATION, HAVERI, AND
PERUSE THE SAME AND SET ASIDE THE JUDGMENT DATED
07.04.2011 AND ETC.,
IN MFA.NO.22722/2011:
BETWEEN:
THE AREA MANAGER,
THE RELIANCE GENERAL INSURANCE
COMPANY LTD., NO. 1 AND 2, 1ST FLOOR,
MAGANUR COMMERCIAL COMPLEX,
NEAR KSRTC BUS STAND, CHITRADURGA,
REPRESENTED BY ITS AUTHORISED OFFICER,
NO.28, EAST WING, 5TH FLOOR,
CENTENARY BUILDING, M.G. ROAD,
BANGALORE.
...APPELLANT
(BY SRI G. N. RAICHUR, ADVOCATE)
AND:
1. SRI JABEER SHET S/O. ABDUL SALAM,
AGE: MAJOR, OCC: NIL,
R/O: RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI.
2. SRI SAHEED KHAN
S/O. ANWARULLA KHAN SURI,
AGE: MAJOR, OCC: NOT GIVEN,
R/O: PATHANWADI, NEAR MASJID,
HONNALLI, DAVANAGERE.
...RESPONDENTS
(NOTICE TO R1 IS HELD SUFFICIENT;
R2 IS SERVED)
THIS MFA IS FILED UNDER SECTION 30(1) OF THE
WORKMENS COMPENSATION ACT, 1923, PRAYING TO CALL FOR THE
RECORDS IN W.C.A.NF.38/2010 ON THE FILE F LABOR OFFICER AND
COMMISSIONER FOR WORKMEN'S COMPENSATION, HAVERI, AND
PERUSE THE SAME AND SET ASIDE THE JUDGMENT DATED
07.04.2011 AND ETC.,
-3-
NC: 2023:KHC-D:14047
MFA No. 22721 of 2011
C/W MFA No. 22722 of 2011
THESE APPEALS, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.22721/2011 and MFA No.22722/2011 are
filed by the insurance company challenging the common
order and award passed in WCA NF. No. 37/2010 and
38/2010 on the file of the Labour Officer and
Commissioner for Workmen's Compensation, Haveri.
2. It is stated that the claimant Nazeer Sab was working
as a cleaner and claimant Jabeer shet was working as
Hamal in the lorry bearing No.KA-17/A-3993 under the
employment of the respondent No.1 before the tribunal
and respondent No.2 before this Court and they have met
with accident and suffered injuries out of and during the
course of employment. Therefore, filed claim petition
before the learned Commissioner and learned
Commissioner allowed the said two petitions and granted
compensation of Rs.1,96,541/- and Rs.1,96,541/-
respectively along with interest at 12% p.a.
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3. Heard the learned counsel for the parties and
perused the material on record.
4. The learned counsel for the appellant-insurance
company submitted that both the claimants are not
employees working as a cleaner and hamal respectively
under the employment of respondent No.1 in the lorry
bearing No.KA-17/A-3993. Therefore, there is no
relationship of employer and employee. Hence, petitions
filed by the claimants are not maintainable and prays to
set aside the order and award passed by the learned
Commissioner. Further, submitted that the risks of the
claimants are not covered under the insurance policy.
Hence, insurance company is not liable to pay
compensation and indemnify the employer and also
challenged the judgment of the tribunal on the quantum of
compensation as it is exaggerated one.
5. In order to prove that the claimants are working as a
cleaner and Hamal respectively, the claimants are relying
on the documentary evidence Ex.P.1-complaint lodged
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before the police. Except oral evidence of the claimants,
there was no other evidence produced before the learned
Commissioner. Therefore, complaint-Ex.P1 is considered
which is in Marati language after getting it true translation
of the same in Kannada language, it is revealed that the
claimant, Nazeer sab was working as a cleaner in the lorry
under the employment of the respondent No.2. But, the
name of the claimant Jabeer seth is not found in the
complaint as he was working as hamal in the lorry.
Further, in the course of cross examination, the claimant
Jabeer seth has admitted that his name is not found in
complaint to prove that he was working in the lorry as
Hamal. Upon perusal of the complaint, it is proved that
claimant Nazeer sab was working as cleaner in the lorry
and met with accident but so far as Jabeer seth is
concerned there is no evidence that he was working as
hamal under the employment of respondent No.2.
Therefore, so far as claimant Jabeer seth is concerned,
there is no evidence that he was employee under the
respondent No.2 as employee in the lorry. Hence, there is
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no relationship of employer and employee between the
respondent No.2 and claimant Jabeer seth. Therefore,
claim petition filed by the claimant Jabeer seth is liable to
be set aside. Hence, order and award passed by the
learned Commissioner so far as Jabeer seth is concerned is
liable to be set aside and accordingly set aside.
6. But, in so far as Nazeer sab is concerned, it is proved
that he was working as cleaner in the lorry under the
employment of respondent No.2. Therefore, the claimant's
petition is maintainable. But, so far as quantum of
compensation is concerned, the matter is reconsidered for
the reasons below stated.
7. From the medical evidence on record including
evidence of PW.2-doctor proves that claimant Nazeer sab
has suffered old united fracture of L.5 vertebra bone. The
doctor has stated that claimant has suffered 55% of
physical disability. But, tribunal has taken it as 45%
physical disability is on higher side. Therefore, considering
the nature of job of claimant Nazeer sab that he was
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cleaner and considering the nature of injury sustained and
percentage of disability stated by the doctor, it is just and
proper to take 25% functional disability affecting earning
capacity of the claimant Nazeer sab.
8. Therefore, so far as this is concerned, the quantum
of compensation is re-determined by holding other
parameters as held by the Commissioner in tact and
accordingly, re-determined as below:
Rs.3,500/-X60/100X25/100X207.98=Rs.1,09,189-00
9. Accordingly, the claimant Nazeer sab is entitled for
compensation of Rs.1,09,189-00 along with interest at
12% per annum from the date of accident till realization.
Therefore, the appeal in MFA No.22721/2011 is liable to
be allowed in part.
10. Accordingly, I proceed to pass the following:
ORDER
i) MFA No.22721/2011 is allowed in part.
NC: 2023:KHC-D:14047
ii) The judgment and award passed in WCA
NF. No.37/2010 dated 07.04.2011 by Labour
Officer and Commissioner for Workmen's
Compensation, Haveri is modified in respect of
Nazeer sab and he is entitled for compensation of
Rs. 1,09,189-00.
iii) MFA No.22722/2011 is allowed. Judgment
and award passed in WCA NF. No.38/2010 dated
07.04.2011 by Labour Officer and Commissioner
for Workmen's Compensation, Haveri in respect of
Jabeer seth is set aside.
iv)The amount deposited in MFA
No.22721/2011 is transmitted to the tribunal.
v)sThe amount in deposit in MVC
No.22722/2011 is refunded to the appellant-
insurance company.
vi) Draw award accordingly.
SD/-
JUDGE
HMB
CT-ASC
