Karnataka High Court

Sri Puttaswamyk vs The Manager on 24 November, 2023

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                                                        NC: 2023:KHC:45703
                                                    MFA No. 6276 of 2017




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 24TH DAY OF NOVEMBER, 2023

                                         BEFORE
                     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                MISCELLANEOUS FIRST APPEAL NO. 6276 OF 2017 (WC)
                BETWEEN:

                      SRI.PUTTASWAMY K,
                      S/O CHENNAIAH,
                      AGED ABOUT 33 YEARS,
                      R/AT SIRGOOR,
                      AVATHI HOBLI,
                      CHIKKAMAGALURU TALUK AND DISTRICT-577101.

                                                              ...APPELLANT
                (BY SRI.GIRISH B. BALADARE.,ADVOCATE)

                AND:

                1.    THE MANAGER,
                      THE ORIENTAL INSURANCE CO LTD.,
                      BRANCH OFFICE,
Digitally             K.M.ROAD,
signed by JAI
JYOTHI J              CHIKKAMAGALURU CITY-577101.
Location:
HIGH COURT
OF              2.    SRI.ROHAN REBELLO,
KARNATAKA
                      S/O ALWYN REBELLO,
                      KABBINAKHAN ESTATE,
                      MALLANDURU POST,
                      CHIKKAMAGALURU TALUK AND DISTRICT-577101.

                                                           ...RESPONDENTS
                (BY SRI.A.RAVISHANKAR.,ADVOCATE FOR R1)
                R2 SERVED AND UNREPRESENTED.
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                                         NC: 2023:KHC:45703
                                      MFA No. 6276 of 2017




     THIS MFA IS FILED U/S 30(1) OF WORKMEN
COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD
DATED 06.02.2017 PASSED IN ECA NO.329/2014 ON THE FILE
OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE, & JMFC,
CHIKKAMAGALURU, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.

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

                       JUDGMENT

Aggrieved by the dismissal of E.C.A.No.329/2014, on

the file of the II Additional Senior Civil Judge and JMFC,

Chikkamangaluru, dated 06.02.2017. The workman is

before this Court.

2. The employee has filed a petition U/Sec.22 of the

Employees Compensation Act, seeking compensation in

respect of the injuries sustained by him in an accident that

occurred during the course of employment. It is the case

of the Insurance Company that due to rash and negligent

driving of the petitioner, the accident has occurred and

therefore, he is not entitled for any compensation. The

Court below has observed that in the criminal proceeding

he was examined as PW.1 and during the course of cross

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examination, he had categorically admitted that on

account of his rash and negligent driving of tractor, a case

came to be registered against him on 30.10.2012 and

pleaded guilty and paid a fine of Rs.750/-. The Court

below has held that the claimant is not entitled for

compensation as he is at fault.

3. The learned counsel for the appellant is present.

The learned counsel for the Insurance Company submits

that the order passed by the Court below is a well

considered one and no grounds are made out seeking

interference with the same.

4. Having heard the learned counsels for either side,

this Court perused the material on record.

5.This is an application filed U/Sec.22 of the

Employee's Compensation Act and not an application

U/Sec.166 of the Motor Vehicles Act, had it been a petition

filed U/Sec.166 if there is a mistake on the part of the

claimant and he has contributed to the accident and there

is no negligence on the part of the offending vehicle. Then

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in that case he is not entitled for compensation, but the

same will not apply in this case.

6. At this juncture it is appropriate to look into

Section 3 of the Employee's Compensation Act - 1923

reads as under :

3. Employer's liability for compensation.--(1) If personal injury is caused to a 2[employee] by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

Provided that the employer shall not be so liable--

(a) in respect of any injury which does not result in the total or partial disablement of the 2[employee] for a period exceeding 3[three] days;

(b) in respect of any 4[injury, not resulting in death 5[or permanent total disablement], caused by] an accident which is directly attributable to--

(i) the 2[employee] having been at the time thereof under the influence of drink or drugs, or

(ii) the willful disobedience of the 2[employee] to an order expressly given, or to a rule

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expressly framed, for the purpose of securing the safety of employee's, or

(iii) the willful removal or disregard by the 2[employee] of any safety guard or other device

which he knew to have been provided for the purpose of securing the safety of 6 [employees]

9[(2) If a[employee] employed in any employment specified in Pat A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a2[employee], whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a2[employee] whilst in the service of one or more employers in any employment specified in Part C of Schedule III for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and,

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unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment:

1[Provided that if it is proved,--

(a) that a 2[employee] whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-

section for that employment, and

(b) that the disease has arisen out of and in the course of the employment;

the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section:

Provided further that if it is proved that a2[employee] who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub-section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose

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out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section.]

3[(2A) If a2[employee] employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employment was under more than one employer, all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just.]

(3) 4[The Central Government or the State Government] after giving, by notification in the Official Gazette, not less than three months' notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III, and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and thereupon the provisions of sub- section (2) shall apply 5[in the case of a notification by the Central Government, within the territories to which this Act extends or, in case of a notification by the State Government, within the State] 6*** as if such diseases had

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been declared by this Act to be occupational diseases peculiar to those employments.]

(4) Save as provided by 7[sub-sections (2), (2A)] and (3) no compensation shall be payable to a2[employee] in respect of any disease unless the disease is 8*** directly attributable to a specific injury by accident arising out of and in the course of his employment.

(5) Nothing herein contained shall be deemed to confer any right to compensation on a2[employee] in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a2[employee] in any Court of law in respect of any injury--

(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner;

(b) if an agreement has been come to between the 1[employee] and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.

7. A bare reading of Section 3 of the Employees

Compensation Act it is clear that the employees liability for

compensation will arise as enumerated under the said

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proviso and when the same takes place during the course

of employment. In this case there is no dispute about the

fact that the accident had taken place during the course of

employment. In that view the matter, the Court below

went wrong in holding that the petition cannot be

maintained. In view of the above findings as compensation

was not determined this Court deems it appropriate to

remand the matter to the Court below for the specific