The Divisional Manager vs Smt. T. Shivamma W/O Late Siddappa
2023 Latest Caselaw 24 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
      DATED THIS THE 2ND DAY OF JANUARY, 2023

                          BEFORE
         THE HON'BLE MR JUSTICE R.NATARAJ
 MISCELLANEOUS FIRST APPEAL NO.23585/2011 (WC)
                       C/W
          M.F.A.CROB. NO.952/2013 (WC)

IN M.F.A.No.23585/2011:

BETWEEN:

THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
BELLARY, REP. BY ITS
ASST. MANAGER, REGIONAL OFFICE,
SUMANGALA COMPLEX, 2ND FLOOR,
LAMINGTON ROAD, HUBLI.                   ... APPELLANT

(BY SRI G.N.RAICHUR, ADV.)

AND

1.    SMT. T. SHIVAMMA W/O LATE SIDDAPPA
      AGE: 29 YEARS, OCC: HOUSEHOLD,
2.    MINOR. DEVAYYA S/O LATE SIDDAPPA
      AGE: 10 YEARS, OCC: NIL,
3.    MINOR. SANTOSH S/O LATE SIDDAPPA
      AGE: 8 YEARS, OCC: NIL,
4.    SRI. SIDDAPPA (DECEASED FATHER)
      AGE: 52 YEARS, OCC: NIL,
5.    SMT. UMAKSHAMMA W/O K SIDDAPPA
      AGE: 50 YEARS, OCC: HOUSEHOLD,
      (DECEASED MOTHER)

ALL ARE R/O JANTAKALLU VILLAGE,
TQ. GANGAVATHI, DIST. KOPPAL
                             2




SINCE THE RESPONDENTS 2 AND 3 ARE MINORS
REPRESENTED BY THEIR NATURAL GUARDIAN
MOTHER RESPONDENT NO.1
SMT.T.SHIVAMMA

6.   SRI. R. M. SHIVARUDRAYYA
     S/O R. M. TIPPESWAMY
     AGE: MAJOR, OCC: OWNER OF LORRY
     NO. KA-34/A-599, R/O WARD NO. 25,
     NEAR WATER TANK, KOTE,
     BELLARY.                          ...RESPONDENTS

(BY SRI Y.LAKSHMIKANT REDDY, ADV. FOR R1, R4 AND R5,
    R2 AND R3 ARE MINORS REPRESENTED BY R1,
    NOTICE TO R6 HELD SUFFICIENT)

      THIS MFA FILED U/S 30(1)OF WC ACT, AGAINST THE
JUDGEMENT AND AWARD DATED:24-01-2011 PASSED IN WC NO.
43/2009, ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION KOPPAL DIST,
AWARDING COMPENSATION OF RS.3,63,965/- ALONG WITH
INTEREST AT THE RATE OF 12% FROM THE DATE OF PETITION
TILL DEPOSIT.

IN M.F.A.Crob.952/2013:

BETWEEN:

1.   SMT. T. SHIVAMMA W/O LATE SIDDAPPA
     AGE: 31 YEARS, OCC: HOUSEHOLD WORK,

2.   MINOR. DEVAYYA S/O LATE SIDDAPPA
     AGE: 13 YEARS, OCC: NIL,

3.   MINOR. SANTOSH S/O LATE SIDDAPPA
     AGE: 10 YEARS, OCC: NIL,

4.   SRI. SIDDAPPA
     AGE: 54 YEARS, OCC: NIL,

5.   SMT. UMAKSHAMMA W/O K SIDDAPPA
     AGE: 52 YEARS, OCC: HOUSEHOLD,
                             3




ALL ARE R/O JANTAKALLU VILLAGE,
TQ. GANGAVATHI, DIST. KOPPAL.         ...CROSS OBJECTORS

(BY SRI Y.LAKSHMIKANT REDDY, ADV.)

AND

1.    SRI R M SHIVARUDRAYYA
      S/O R M TIPPESWAMY
      OCC: LORRY OWNER BEARING
      REGISTRATRION NO. KA 34/A-599
      R/O. WARD NO. 25, NEAR WATER TANK,
      FORT, BELLARY.

2.    THE DIVISIONAL MANAGER,
      M/S. THE ORIENTAL INSURANCE CO. LTD.,
      BELLARY.                          ... RESPONDENTS

(BY SRI G.N.RAICHUR, ADV. FOR R2,
    NOTICE TO R1 DISPENSED WITH)

     THIS MFA CROB. FILED UNDER ORDER XLI RULE 22 OF CPC
AGAINST    THE  ORDER    DATED   24.01.2011  PASSED   IN
W.C.No.43/2009 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN'S COMPENSATION, KOPPAL
DISTRICT, KOPPAL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND     SEEKING    ENHANCEMENT      OF
COMPENSATION.


     THIS APPEAL AND MFA CROB. COMING ON FOR FINAL
HEARING ON 15.11.2022 AND THE SAME HAVING BEEN HEARD
AND RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

The insurer has filed MFA No.23585/2011 challenging

the liability imposed upon it by the Commissioner for

Workmen's Compensation (henceforth referred to as "the

Commissioner") to pay the compensation determined in

W.C.No.43/2009 by the judgment and award dated

24.01.2011.

2. The claimants have also filed MFA Crob.952/2013

seeking enhancement of the compensation awarded by the

Commissioner in W.C.No.43/2009.

3. The claim petition filed before the Commissioner

discloses that the claimants are the legal heirs of Siddappa

who was employed as a cleaner in a lorry bearing registration

No.KA-34/A-599. They claimed that on 03.08.2008,

Siddappa was on duty as a cleaner and the lorry was parked

at railway goods shed for loading cement. However, since

there was no stock of cement, the driver of the lorry parked

it at Mruthyunjay Nagar and the driver of the lorry paid

money to Siddappa to have lunch and he slept in the

transport office. During the night hours, when Siddappa was

crossing the railway track, he was ran over by a train. The

said Siddappa died at the spot. The claimants claimed that

the accident in question arose in the course and out of

employment. They claimed that he was 30 years old at the

time of the accident and was earning a sum of Rs.4,000/-

p.m. Hence, they filed a claim petition claiming

compensation from the owner and insurer of the truck.

4. The claim petition was opposed by the insurer

who contended that the death did not arose out of or during

course of employment and therefore, it was not liable to pay

any compensation. It claimed that the vehicle in question

was not involved in any accident that resulted in the death of

the deceased and therefore, it was not liable to indemnify the

owner.

5. The owner of the vehicle also opposed the claim

petition and contended that Siddappa was employed as a

cleaner and that he was ran over by a moving train while he

was crossing the railway track. He admitted that the

deceased Siddappa was paid Rs.4,000/- p.m. However, he

contended that the vehicle in question was insured and

therefore, he was not liable to pay any compensation.

6. Based on these rival contentions, the claim

petition was set down for trial. The claimants were examined

and they marked the documents. The insurer also examined

one of its officials. Based on the oral and documentary

evidence, the Commissioner held that the accident occurred

during and out of the course of employment and considering

the income of the deceased at a sum of Rs.3,500/-, awarded

a sum of Rs.3,63,965/- and directed the insurer to pay

compensation along with interest @ 12% p.a. with effect

from 30 days from the date of the accident. Being aggrieved

by the same, the present appeal and the cross objection are

filed.

7. Learned counsel for the insurer contended that

even if it is assumed that the accident occurred during the

course of employment but it did not occur out of employment

and therefore, neither the owner nor the insurer were liable

to pay any compensation to the claimants. He submitted

that the proper remedy for the claimant was to approach the

Railway Claims Tribunal for compensation.

8. The learned counsel for the claimants on the

other hand, contended that the deceased was employed in

the vehicle as on the date of the accident and therefore, the

accident occurred during the course of employment. In so

far as the question whether the accident occurred out of

employment, the learned counsel submitted that the

deceased after attending nature call was returning back to

the vehicle and therefore, it was out of employment. He

contended that the deceased was earning a sum of

Rs.4,000/- p.m. as salary and the Commissioner committed

an error in considering the monthly income at a sum of

Rs.3,500/-.

9. I have considered the submissions made by the

learned counsel for the claimants as well as the learned

counsel for the insurer.

10. The Hon'ble Apex Court in SHAKUNTALA

CHANDRAKANT SHRESHTI VS. PRABHAKAR MARUTI

GARVALI AND ANOTHER (CDJ 2006 SC 971) summarised

the principles attracting Section 3 of the Employees'

Compensation Act, which are (i) there must be a causal

connection between the injury and the accident and the work

done in the course of employment, (ii) the onus is upon the

applicant to show that it was the work and the resulting

strain which contributed to or aggravated the injury, (iii) if

the evidence brought on record establishes a greater

probability which satisfies a reasonable man that the work

contributed to the causing of the personal injury, it would be

enough for the workman to succeed, but the same would

depend upon the facts of each case.

11. Therefore, the claimants were bound to pass the

twin test namely that the death was during the course of

employment and also out of employment, to sustain a claim

for compensation under the Employees' Compensation Act,

1923.

12. In the case on hand, it is undisputed that the

deceased was employed in the vehicle in question as a

cleaner. The death occurred during the night time when the

deceased was crossing the railway track and was ran over by

a train. Therefore, it is impossible to accept the contention

of the claimants that the death arose "out of employment",

as the vehicle was stationed at the stockyard and the driver

of the vehicle slept at the transport office. Therefore, when

the vehicle in question was stationary, it is difficult to accept

the contention that the accident occurred out of employment.

An insurer is only bound to cover the risk of death arising out

of and in the course of the employment by an employee.

13. In the case on hand, there is absolutely no

evidence to indicate that the death arose out of employment

of the deceased. Under the circumstances, the finding of the

Commissioner that the death arose out of the employment of

the deceased warrants interference.

14. There is no pleading or evidence to establish how

the death arose "out of employment" involving the vehicle in

question and therefore, it is appropriate to permit the

claimants to lead further evidence to establish that the death

occurred out of the employment. Hence, the following

ORDER

(i) The M.F.A.No.23585/2011 is allowed.

(ii) The impugned order fastening liability on the insurer to pay the compensation awarded by the Commissioner is set aside and the case is remitted back to the concerned Court to ascertain whether the death arose "out of employment" of the deceased.

(iii) The parties shall appear before the concerned Court on 10.01.2023 to lead any further evidence.

            (iv)    In     view        of         the      above,
       M.F.A.Crob.952/2013        does      not     survive      for

consideration. Accordingly, it is dismissed.

(Sd/-) JUDGE

Jm/-