Karnataka High Court
M Jayaram Shetty vs Ramesh on 4 December, 2023
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NC: 2023:KHC:43733
MFA No. 7876 of 2017
C/W MFA No. 5904 of 2017
MFA No. 5995 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 7876 OF 2017
C/W
MISCELLANEOUS FIRST APPEAL NO. 5904 OF 2017
MISCELLANEOUS FIRST APPEAL NO. 5995 OF 2017
IN MFA NO. 7876 / 2017
BETWEEN:
MR. ASHWATH SHETTY @ RAVI
S/O BABU RAI
AGED ABOUT 22 YEARS
R/AT PANIYAL HOUSE
UJIRE, BELGHANGADY TALUK,
Digitally
signed by D.K. - 574234
JAI JYOTHI J
Location:
HIGH
COURT OF
KARNATAKA ...APPELLANT
(BY SRI.K. ANANDARAMA., ADVOCATE)
AND:
1. MR.M.J.JAYARAM SHETTY
S/O SHRINIVAS SHETTY
AGED ABOUT 51 YEARS
M/S MASTER COLOR DIGITAL GRAPHICS,
109/110, 1ST FLOOR
IBROSE COMMERCIAL COMPLEX,
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NC: 2023:KHC:43733
MFA No. 7876 of 2017
C/W MFA No. 5904 of 2017
MFA No. 5995 of 2017
JAIL ROAD, KODIYALBAIL,
MANGALORE TALUK.
D K DISTRICT - 575001.
(RC OWNER OF THE TATA PICK UP
BEARING REG. NO.KA-19-C-7718)
2. UNITED INDIA INSURANCE CO. LTD.,
SALDHANA BUILDING,
BRIDGE ROAD, BALAMATTA,
MANGALORE TALUK
D K DISTRICT - 575001.
(INSURERE OF T HE TATA PICK UP BEARING
REG. NO. KA-19-C-7718)
...RESPONDENTS
(BY SRI.P.B. RAJU .,ADVOCATE FOR R2;
R1- SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT AND AWARD DATED24.06.2017
PASSED IN ECA.NO.12/2014 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND M.A.C.T.,
BELTHANGADI, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
IN MFA NO. 5904 / 2017
BETWEEN
1. UNITED INDIA INSURANCE CO. LTD
SALDHNHA BUILDING,
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NC: 2023:KHC:43733
MFA No. 7876 of 2017
C/W MFA No. 5904 of 2017
MFA No. 5995 of 2017
BRIDGE ROAD, BALMATTA,
MANGALORE TALJUK,
REPRESENTED BY ITS:
THE REGIONAL MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
MOTOR T.P. DEPARTMENT,
REG OFFICE KRISHI BHAVAN,
5TH FLOOR, NRUPATHUNGA ROAD,
BANGALORE-560001
...APPELLANT
(BY SRI. : P.B. RAJU., ADVOCATE)
AND
1. MR.RAMESH
S/O LATE KRISHNAPPA MOOLYA,
AGED ABOUT 42 YEARS
R/AT NOOJARLODI HOPUSE,
BADAGA, KAJEKAR VILLAGE & POST,
BANTWAL TALUK, D.K-575002
2. MR. M.J. JAYARAM SHETTY
S/O SHRINIVAS SHETTY,
AGED ABOUT 51 YEARS
M/S MASTER COLOUR DIGITAL GRAPHIS,
NO.109/110, IST FLOOR,
IBROSE COMMERCIAL COMPLEX,
JAIL ROAD, KODIYALBAIL,
MANGALORE TALUK-575003
........RESPONDENTS
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NC: 2023:KHC:43733
MFA No. 7876 of 2017
C/W MFA No. 5904 of 2017
MFA No. 5995 of 2017
(BY SMT. NEERAJA KARANTH., ADVOCATE FOR R2;
R1- SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 30(1) OF THE EMPLOYEES
COMPENSATION ACT, AGAINST THE JUDGMENT AND
AWARD DATED: 17.01.2017 PASSED IN ECA.NO.80/2014
ON THE FILE OF THE COMMISSIONER FOR EMPLOYEES
COMPENSATION AND III ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, MANGALURU, D.K., AWARDING
COMPENSATION OF RS. 14,75,673/-WITH INTEREST AT
6% P.A. FROM THE DATE OF THE PETITION TILL THE
DATE OF ITS REALISATION.
IN MFA NO. 5995 / 2017
BETWEEN :
M. JAYARAM SHETTY
S/O SRINIVAS SHETTY
M/S. MASTER COLOR DIGITAL GRAPHICS
109/110, 1ST FLOOR,
IBROSE COMMERCIAL COMPLEX,
JAIL ROAD, KODIALBAIL
MANGALRU, D.K.DISTRICT - 575001.
...APPELLANT
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NC: 2023:KHC:43733
MFA No. 7876 of 2017
C/W MFA No. 5904 of 2017
MFA No. 5995 of 2017
(BY SMT. NEERAJA KARANTH., ADVOCATE)
AND
1 . RAMESH
S/O LATE KRISHNAPPA MOOLYA
AGED 42 YEARS,
R/O NOORJALODI HOUSE,
BADAGA, KAJEKAR VILLAGE & POST,
BANTWAL TALUK,
D.K.DISTRICT- 574214.
2 . UNITED INDIA INSURANCE CO. LTD
SALDANA BUILDING,
BRIDGE ROAD,
BALMATTA
MANGALURU TALUK,
D.K.DISTRICT - 575001.
... RESPONDENTS
(BY SRI. P.B. RAJU., ADVOCATE FOR R2;
R1- SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 30(1) OF EMPLOYEES
COMPENSATION ACT AGAINST THE JUDGMENT AND
AWARD DATED: 17.01.2017 PASSED IN ECA.NO.80/2014
ON THE FILE OF THE COMMISSIONER FOR EMPLOYEES
COMPENSATION & III ADDITIONAL SENIOR CIVIL JUDGE,
& JMFC, MANGALURU, D.K., AWARDING COMPENSATION
OF RS.14,75,673/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
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NC: 2023:KHC:43733
MFA No. 7876 of 2017
C/W MFA No. 5904 of 2017
MFA No. 5995 of 2017
THESE APPEALS, COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the dismissal of the ECA No.12/2014,
dated 24.06.2017, by the Principal Senior Civil Judge And
MACT, Belthangady, the claimant are before this Court.
i) MFA NO.7876/2017 (ECA NO.12/2014):
2. It is the case of the employee that respondent
No.1 before the court below is the RC owner of Tata pick
up lorry and respondent No.2 is the insurer of the said
lorry. It is the case of the claimant that on 14.04.2012 at
about 3.30 p.m., when the claimant was working as a
coolie, loader / underloader in the said vehicle and was
proceeding from Mangalore to Shivamogga, the driver of
the said lorry lost control over the vehicle and dashed to a
tree resulting in grievous injury to the claimant. It is
further contended that the claimant was aged 19 years as
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on the date of the accident and was working as a coolie
loader / unloader earning monthly income of Rs.10,000/-.
The petition was listed before the court below mainly on
the ground that it is the case of the workman that he was
working as a coolie or loader. Whereas the owner as PW-2
has deposed that he employed the claimant as a cleaner
and he was also doing the work of loading and unloading.
The owner has also stated that as on the date of the
accident he had sent one Pushparaj as the driver, one
Ramesh as loader/unloader and the claimant was also in
the vehicle. He has not stated that in what capacity he
was traveling in the said vehicle at the time of the
accident. The court below observing that there is no clarity
in what is the duty discharged by the claimant and in what
capacity he was traveling at the time of accident and he
cannot be termed as a workman as defined under Section-
3 of the Employees Compensation Act, 1923 (for brevity
ECA Act) and dismissed the petition.
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3. Learned counsel for the appellant submits that
more on a hyper-technical ground the Tribunal had
dismissed the petition. He submits that Section-2(d)(d) of
the ECA Act, of 1923 defines who is an employee. As per
Sec 2(dd) (ii) (C) employee compensation Act 1923 a
person recruited as a driver, helper, mechanic, cleaner or
in any other capacity in connection with the motor vehicle
is an 'employee'. He submits that even as per the charge-
sheet also the claimant was shown as a witness as well as
insured in the said accident. He submits that both the
workman as well as the employer and their evidence is
consistent that the claimant was working as a
loader/unloader. He further submits that the court below
erred in dismissing the petition.
4. Learned counsel for the respondent -
insurance company submits that there are several
contradiction in the evidence of PW-1 and PW-2. The
Tribunal had rightly dismissed the petition. As they failed
to prove the employer/employee relationship no grounds
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are made out seeking interference in the said reasoned
order passed by the Tribunal.
5. Having heard the learned counsel on
either side, perused the entire material on record. In this
case though the workman has stated that he is working as
a coolie or loader, whereas the employer stated that he is
a cleaner and also doing loading/unloading. In this
statement no other inference is possible, but the fact that
the claimant was working as a loader/unloader.
Considering the charge-sheet wherein it is shown that the
claimant is insured and also cited as a witness, this Court
comes to a conclusion that there is employer-employee
relationship exists between the parties and the Tribunal
erred in giving such a finding. In view of the same this
Court holds that the employer employee relationship is
proved by adducing cogent evidence.
6. When it comes to the compensation as the
claim petition was dismissed no such exercise is done by
the court below. Hence the matter is remanded to the
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court below for the limited purpose of computing the
compensation. The parties without further notice shall
appear before the court below on 19.12.2023 and from
that date within a period of five months the Tribunal shall
decide the matter and pass an order in accordance with
law.
ii) MFA NO.5904/2017 C/W. MFA NO.5995/2017 :
7. Aggrieved by the order passed in ECA
No.80/2014, dated 17.01.2017 both the insurer and the
owner are before this Court. Insurer appeal is MFA
No.5904/2017 and owner appeal is MFA No.5995/2017.
8. The petition was filed seeking compensation of
an amount of Rs.10,00,000/- from the owner and the
insurer. The Tribunal has held that the accident had taken
place during the course of the employment and the owner
and insurer are jointly and severally liable to pay the
compensation. The disability is considered at 60%, but the
salary was taken at Rs.10,000/-. Learned counsel submits
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that the accident had taken place in the year 2014 as per
the notification issued by the Central Government the
income should have been taken at Rs.10,000/- p.m. and
compensation of an amount of Rs.11,21,400/- should have
been granted as compensation. The court below had
granted total compensation Rs.14,75,673/-, out of the
same a sum of Rs.4,00,000/- was directed to be paid by
owner of the vehicle - respondent No.2 with interest at
6%.
9. Learned counsel for the insurance company
submits that as per the Central Government notification
the income is Rs.8,000/-, but the court below had taken at
Rs.10,000/- which is not correct. Further, he does not
dispute the fact that the interest has to be taken at 12%,
but the court below had granted only 6% interest.
Considering the same, in the light of the notification for
the year 2014 the income is taken at Rs.8,000 x 60 x 60%
x 186.90 it comes to Rs.5,38,272/-. On this amount, the
workman is entitled for 12% interest. Then the
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remaining Rs.3,54,273/- are the medical expenses, as per
the amendment to explanation Section-2A of employees
which is w.e.f 18.01.2010 the medical expenses has to be
borne by the employer. In view of the same, the medical
expenses of Rs.3,54,273/- insurance company is liable
to pay and the same would not carry any interest.
Accordingly, the appeal of the insurance company is
Allowed by reducing the compensation from
Rs.14,75,673/- to Rs.8,92,545/-. An amount of
Rs.5,38,272/- is payable at 12% interest per annum. The
medical expenses of Rs.3,54,273/- the insurance company
is liable to pay without interest. Accordingly, the owner's
appeal is Allowed.
i) As far as MFA 7876 / 2017 is concerned, the
parties shall appear before the court below on
19.12.2023 the court below shall decide the
compensation which the employee is entitled
within a period of five months from the date of
receipt of the copy of the order.
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ii) Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court forthwith
without any delay.
iii) The amount in deposit shall be forthwith
transmitted to the court below. In case of any
excess amount in deposit, the insurance
company is at liberty to withdraw.
iv) No costs.
Pending miscellaneous petitions, if any, shall stand
closed.
SD/-
JUDGE
JJ
