Karnataka High Court
The Claim Manager vs Smt Lakshmamma @ Lakshmi on 10 January, 2023
Bench: Hanchate Sanjeevkumar
-1-
MFA No. 7263 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 7263 OF 2015 (WC)
BETWEEN:
THE CLAIM MANAGER
TATA AIG GENERAL INSURANCE CO. LTD.
6TH FLOOR, KHANIJA BHAVAN,
WEST ENTRANCE, RACE COURSE ROAD,
BENGALURU-01
NOW AT:
TATA AIG GENERAL INSURANCE CO. LTD.
Digitally signed
by JAI JYOTHI J JP. & DEVI JMABHUKESHARI ARCADE, NO.69,
Location: HIGH MILLER'S ROAD, BANGALORE-560052.
COURT OF
KARNATAKA BY ITS MANAGER
...APPELLANT
(BY SRI. O MAHESH, ADVOCATE, THROUGH VIDEO
CONFERENCE)
AND:
1. SMT LAKSHMAMMA @ LAKSHMI
AGED ABOUT 42 YEARS
W/O LATE RAJA
R/AT NO.88, 3RD CROSS, SANTHI LAYOUT,
RAMAMURTHYNAGAR,
BENGALURU-560042.
2. SRI. RAGHAVENDRA
MAJOR
E CROSS, MUNESHWARA BLOCK,
PALACE GUTTAHALLI,
MALLESHWARAM,
BANGALORE-560003.
-2-
MFA No. 7263 of 2015
...RESPONDENTS
(BY SRI. K.N. HARISH BABU, ADVOCATE FOR R1, R2-NOTIDE
H/S V/O DT:21/06/2018)
THIS MFA FILED U/S 30(1) OF E.C. ACT AGAINST THE
JUDGMENT AND AWARD DATED 7.8.2015 PASSED IN
E.C.A.NO.61/2014 ON THE FILE OF THE 12TH ADDITIONAL
SMALL CAUSES JUDGE, MEMBER, MACT, BENGALURU,
AWARDING A COMPENSATION OF RS.7,64,185/- WITH
INTEREST @ 12% P.A FROM THE DATE OF INCIDENT i.e.,
16.11.2009 TILL ITS REALIZATION.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-30(1) of the
Employees Compensation Act, 1923 (hereinafter referred
to as 'E.C. Act' for brevity) by the appellant-insurance
company, calling in question the judgment and award
dated, passed in E.C.A.No.61/2014, on the file of the
Motor Accident Claims Tribunal, Bengaluru, SCCH-8,
(hereinafter referred to as 'the Tribunal' for brevity),
disputing the relationship of employer-employee between
the deceased and the second respondent.
Brief facts:
MFA No. 7263 of 2015
2. The deceased was working as a driver with the
first respondent in an autorickshaw bearing registration
No.KA-02-AA-8889, by getting monthly income of
Rs.4,000/- with bata of Rs.100/- per day. On 16.09.2011
at about 2.30 a.m., when the deceased was proceeding in
the autorickshaw bearing registration No.KA-02-AA-8889,
as he reached Manjunatha Layout, 2nd Cross Junction, R.M.
Nagar, Bengaluru, he lost control over the said
autorickshaw and dashed against the electric poll. As a
result, the autorickshaw was turned turtle and the
deceased came under the autorickshaw and died on the
spot.
3. Hence, a claim petition was filed by the legal heir
- claimants of the deceased under Section-3 of the E.C.
Act., claiming compensation for the death of the deceased
in the road traffic accident. The Tribunal on appreciating
the materials on record, allowed the claim petition in part,
and awarded a compensation of Rs.7,64,185/-, along with
MFA No. 7263 of 2015
interest at 12% per annum from the date of petition till
the date of realisation. The Tribunal held respondent
therein, were jointly and severally held liable to pay the
compensation.
4. Heard arguments of the learned counsel for the
appellants-insurance company and the learned counsel for
respondent-claimant and perused the materials on record.
5. The learned counsel for the appellant submitted
that in the present case there no relationship of the
employer-employee between respondent Nos.2 and 3.
There is no evidence to prove that the deceased was
working as a driver under employer - respondent No.2.
Furthermore, in the complaint, and the enclosed
panchanama, the claimant being the mother of the
deceased has given statement that her deceased son was
working as Mason. Therefore, on all these grounds, argued
that the deceased was not working a Driver was not
MFA No. 7263 of 2015
employee of respondent No.2. Therefore, prays to set-
aside the judgment and award passed by the Tribunal.
6. On the other hand, the learned counsel for the
claimant - respondent submitted that the deceased was
working as a Mason and also earning by driving
autorickshaw as the earning from the mason avocation
was not sufficient. Therefore, was working as driver in the
autorickshaw under the employment of respondent No.2.
Therefore, submitted that even if in the complaint and
enclosed panchanama the claimant being mother of the
deceased, has stated that the deceased was working as
Mason, but the deceased was also working as driver in the
autorickshaw. Therefore, submitted that the Tribunal is
correct in holding that the relationship of employer-
employee is proved. Therefore, prays to dismiss the
appeal.
MFA No. 7263 of 2015
7. Considering the facts and circumstances
involved in the case, when the claimant has stated that
her son the deceased was working as a driver in the
autorickshaw under employment of respondent No.2, but
respondent No.2 stated to be employer of the deceased
was not examined. In this type of cases, when it is stated
that the deceased was working as driver in the
autorickshaw, the documentary evidence cannot be
expected. More so, the claimant has stated before the
Police that her son was working as a Mason but before the
Tribunal has given evidence as the deceased was working
as a autorickshaw driver.
8. Therefore, under these circumstances, the
owner of the autorickshaw atleast should have been
examined to prove the relationship of employer-employee
between him and the deceased and the evidence could
have established whether respondent No.2 is the owner of
the autorickshaw and has engaged the service of the
MFA No. 7263 of 2015
deceased as driver. Therefore, on all these grounds in
order to give one more opportunity to the claimant to
establish / prove the relationship of employer-employee by
summoning and examining respondent No.2 before the
Tribunal, the case is to be remanded to the Tribunal.
Therefore, the judgment and award passed by the Tribunal
is liable to be set-aside. Hence, the appeal is allowed and
all the contentions of the parties are kept open.
9. Accordingly, I pass the following:
ORDER
i. The appeal is Allowed.
ii. The impugned the judgment and award dated,
passed in E.C.A.No.61/2014, on the file of the
Motor Accident Claims Tribunal, Bengaluru,
SCCH-8, is set-aside.
iii. The matter is remanded to the Tribunal. The
parties shall appear before the Tribunal on
MFA No. 7263 of 2015
23.02.2023, without expecting any further
notice in this regard.
iv. The Tribunal shall consider the matter afresh
and dispose of the same in accordance with
law, within in a period of SIX months from
23.02.2023.
v. The parties are at liberty to adduce further
evidence and file additional material if so
advised.
vi. The claimant is not entitled for interest from
the date of filing of the appeal till today, i.e.,
the date of this order.
vii. The amount in deposit by the Insurance
company shall be transferred to the Tribunal to
make refund of the amount to the insurance
company.
viii. Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
MFA No. 7263 of 2015
copy of the order passed by this Court forthwith
without any delay.
ix. Draw award accordingly.
x. No order as to costs.
Sd/-
JUDGE
JJ
