The Manager vs Manju @ Manjappa
2023 Latest Caselaw 6767 Kant

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                                                         NC: 2023:KHC:34879
                                                        MFA No. 334 of 2019




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 25TH DAY OF SEPTEMBER, 2023

                                           BEFORE
                            THE HON'BLE MR JUSTICE C M JOSHI
                    MISCELLANEOUS FIRST APPEAL NO. 334 OF 2019 (WC)
                   BETWEEN:

                   THE MANAGER,
                   M/S. SHRIRAM GENERAL INSURANCE
                   COMPANY LTD.,
                   10003-E, 8 RIICO INDUSTRIAL AREA,
                   JAIPUR,
                   RAJASTHAN-302 022.

                   NOW REPRESENTED BY
                   M/S. SHRIRAM GENERAL INSURANCE
                   COMPANY LTD.,
                   NO.5/4, 3RD FLOOR,
                   S.V. ARCADE, BILAKAHALLI,
                   BANNERUGHATTA MAIN ROAD,
                   IIMB POST,
                   BANGALORE-560 078
                   REPRESENTED BY ITS ASSIT. MANAGER.
Digitally signed                                               ...APPELLANT
by T S
NAGARATHNA         (BY SRI B C SHIVANNE GOWDA, ADVOCATE)
Location: High
Court of
Karnataka          AND:

                   1 . MANJU @ MANJAPPA,
                       S/O. KEPPA HANUMANTHAPPA,
                       AGED ABOUT 43 YEARS,
                       R/AT KADAJJI VILLAGE,
                       DAVANAGERE TALUK.
                   2 . RAMESH. K. S.
                       S/O. K. C. SIDDAPPA,
                       AGED ABOUT 29 YEARS,
                       R/AT DOOR NO. 411,
                       RING ROAD,
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                                      NC: 2023:KHC:34879
                                     MFA No. 334 of 2019




   NIJALINGAPPA BADAVANE,
   DAVANAGERE.

    NOW AT MASETTENAHALLI VILLAGE,
    DAVANAGERE TALUK AND DISTRICT.
3 . RANJITHA
    S/O. K.C. SIDDAPPA,
    MAJOR,
    R/AT MASETTENAHALLI VILLAGE,
    DAVANAGERE TALUK AND
    DISTRICT-583 131.
4 . SRINIVASA,
    S/O. DASAKARIYAPPA,
    AGED ABOUT 33 YEARS,
    R/O MASETTENAHALLI VILLAGE,
    DAVANAGERE TALUK AND
    DISTRICT-583 131.
5 . ANANDAPPA,
    S/O. PARASHURAMAPPA,
    AGED ABOUT 44 YEARS,
    R/O DOOR NO.1879/413,
    SHEKHRAPPA NAGAR,
    "B" BLOCK,
    DAVANAGERE-583 131.
                                          ...RESPONDENTS
(BY SRI HAREESH BHANDARY T, ADVOCATE FOR R-1;
    SRI SHUBHAM, ADVOCATE FOR SRI B.C. SEETHARAMA
    RAO, ADVOCATE FOR R-2;
    NOTICE TO R-3 & R-4 HELD SUFFICIENT V/O DATED
    05.03.2021;
    R-5 IS SERVED.)

     THIS MFA IS FILED UNDER SECTION 30(1) OF
WORKMENS COMPENSATION ACT, 1923, AGAINST THE
JUDGMENT AND AWARD DATED:17.10.2018 PASSED IN ECA
NO.10/2017 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE &
MEMBER, MACT-IV DAVANAGERE, AWARDING COMPENSATION
OF RS.4,21,296/- WITH INTEREST @ 8% P.A. FROM
01.03.2016 TILL ITS REALIZATION.
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                                           NC: 2023:KHC:34879
                                          MFA No. 334 of 2019




     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                       JUDGMENT

Being aggrieved by the judgment and award in ECA

No.10/2017 passed by learned Principal Senior Civil Judge

and Member, MACT-IV, Davanagere, dated 17-10-2018,

the Insurance Company has approached this Court in

appeal.

2. The brief facts are as below:

On 01.02.2016 as per the directions of respondent

No.1 the petitioner while unloading the electric poles from

lorry bearing Reg.No.KA-17/B-8916 at Ramanagara, the

chain pulley cut down and the electric pole fell on the

hands of the petitioner and sustained injuries to his four

fingers. Immediately he was shifted to Government

Hospital, Ramanagara and after first aid, he was taken to

BGS Global Hospital, where he took treatment as inpatient

from 01.02.2016 to 02.02.2016, underwent operation and

spent an amount of Rs.2 Lakhs towards medical expenses.

NC: 2023:KHC:34879 MFA No. 334 of 2019

It was further contended that, this fact was intimated to

the respondents orally. Inspite of it, the respondents did

not arrange for hospital expenses and therefore, petitioner

issued legal notice on 14.01.2017 to the respondents,

which was refused by the respondents. Before the

accident, the petitioner was hale and healthy, doing coolie

work and as per the directions of respondent No.1, he was

earning Rs.8,000/- per month and bata of Rs.100/- per

day. Due to the accident, his four fingers of right hand

were amputated and as such he is unable to lift heavy

articles, and he is permanently disabled. The respondent

No.1 is the owner of the offending lorry; the respondent

No. 1 to 4 are the employers; and respondent No.5 is the

insurance Company; the Insurance Policy is in force and

he was working under respondent No.1 as an employee

and there is a relationship of employee and employer

between the petitioner and respondent No.1 to 4. The

Ramanagara Police have registered the case against the

respondents in Crime No.65/2016 and submitted the final

report. Therefore, he prayed for adequate compensation.

NC: 2023:KHC:34879 MFA No. 334 of 2019

3. After receipt of notice, the respondents appeared

through their respective counsels. The respondent No.1

filed the objection statement denying all the allegations

made in the petition and contending that the respondent

No.1 to 4 are not having any factory to prepare the

electric poles and inspite of it, the petitioner has made

false allegation against the respondents and the

respondent No.1 do not know the petitioner. The alleged

incident took place on 1.2.2016, but case is registered on

04.03.2016 on the false statement of the petitioner by

Ramaanagar Police Station. The final report submitted by

Ramanagara Police against these respondents is false and

baseless and they have challenged the same before this in

Criminal Petition No. 6041/2017, which is pending for

adjudication. It was further submitted that, the respondent

No.1 to 4 are not the owners of the factory as stated by

the petitioner and there is no relationship of employee and

employer between the petitioner and respondent No. 1 to

4 as the respondent No.1 is the owner of Lorry bearing

Reg.No. KA-17/A-8916 and he had insured the Lorry

NC: 2023:KHC:34879 MFA No. 334 of 2019

bearing Reg. No. KA-17/A-8916, with respondent No.5. As

per the say of the petitioner, if any incident took place

involving the offending lorry, it is covered with the

Insurance Policy as on the date of accident and thereby

respondent No.5 is liable to pay the compensation. Hence,

prayed to dismiss the petition.

4. The respondent Nos. 2 to 4 have adopted the

objection statement filed by respondent No.1.

5. The respondent No.5-Insurance Company filed its

objections statement contending that, as per the

averments of complainant, police records and petition the

petitioner never worked as a labour under the employment

of respondent No.1 at any point of time. It is contended

that, There was no employer and employee relationship

between the respondent No.1 and the petitioner. The

injuries sustained by the petitioner are not during the

course of employment with respondent No.1 in Lorry

bearing Reg.No. KA-17/A-8916 and thereby it is not liable

to pay any compensation. It was further contended that,

NC: 2023:KHC:34879 MFA No. 334 of 2019

the alleged accident occurred on 1.02.2016, but the

complaint was lodged on 4.03.2016, after lapse of 31 days

and the driver of lorry had no driving licence to drive the

particular class of vehicle as on the date of accident and as

such, the owner of the vehicle has violated the terms and

conditions of the policy and provisions of Section 5 of IMV

Act and the offending lorry had no permit and FC on the

date of accident. The owner of the vehicle has violated the

terms and conditions of the policy. It was submitted that,

the petition is not maintainable and the petitioner is not

entitled to any compensation against it and it is not

liable to pay any interest as per the decision reported in

2007(1) CLR 683 in National Insurance Co. Ltd. Vs.

Mubasir Ahmed & another. Hence, prayed to dismiss the

petition.

6. On the basis of the above pleadings, the Tribunal

framed the following issues:

"1. Whether the petitioner proves that he has sustained injuries while working as coolie under the employment of respondent No.1. As per the directions of respondent No.1 on 31.1.2016 the said petitioner

NC: 2023:KHC:34879 MFA No. 334 of 2019

went to respondent No.1 factory to load 80 electric poles, after loading he went to unloading the electric poles in Lorry bearing No. KA-17/A-8916 on 1.2.2016 at about 10.00, Ramanagara taluk, Hunsanahalli village, he unloading the electric poles with the help of chain pulley, at that time the chain pulley cut down, the electric poles fell down on the petitioner hand and legs and thereby petitioner sustained grievous injuries?

2. Whether the petitioner proves that there is a relationship of employee and employer between himself and respondent No.1?

3. Whether the respondent No.5 proves that it is not liable to pay any compensation, if policy terms and conditions are violated by respondent No.1?

4. Whether the petitioner is entitled for compensation? if so, at what quantum and from whom?

5. What order or award?"

7. The petitioner was examined as PW1 and the

Doctor who treated the petitioner was examined as PW2

and Exs.P1 to 7 were marked. The official of respondent

No.5 was examined as RW1 and Ex.R1 was marked.

8. After hearing both the sides, the Tribunal held

Issue Nos. 1 and 2 in the affirmative, issue No.3 in the

negative and answering issue No.4 partly in the

affirmative, awarded the compensation of Rs.4,21,296/-

NC: 2023:KHC:34879 MFA No. 334 of 2019

(4800 x 50% x 175.54) together with interest at 8% p.a.

from 1-3-2016 till the payment and fastened the liability

on the respondent No.5.

9. Being aggrieved by the said judgment and award,

the respondent No.5-Insurance Company has approached

this Court in appeal contending that there was no such

relationship between the petitioner and respondent Nos. 1

to 4 and there is no evidence on record to show that the

petitioner was being paid a sum of Rs.8,000/- per month.

It is contended that there is inordinate delay of 31 days in

filing the complaint by the petitioner and in fact,

petitioner has sustained injury for some other reason in

the factory belonging to respondent 2 to 4 and in order to

claim compensation he has filed a false complaint against

respondent Nos. 1 to 5. It is contended that even though

the petitioner has admitted categorically that he was not

working with respondent Nos. 1 to 4, the finding given by

the Tribunal was perverse and therefore, it is liable to be

set aside. It is contended that the petitioner has admitted

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NC: 2023:KHC:34879 MFA No. 334 of 2019

that he was not working as coolie in the factory premises

belonging to respondent Nos. 1 to 4 and therefore, the

finding of the Tribunal is perverse and erroneous. It is

contended that the disability assessed by the Tribunal is

also wrong and incorrect and therefore, the appeal

deserves to be allowed.

10. On issuance of notice, the respondent No.1

herein, who is the petitioner has appeared through his

counsel. Respondent No.1, owner who is respondent No.2

in this appeal has also appeared through his counsel. The

other respondents did not appear despite service of notice.

11. While admitting the appeal, this Court has

framed the following substantial question of law:

(i) Whether the Court below is justified in holding

that the claimant has proved the relationship of Master

and servant between the claimant and respondent

No.1?

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NC: 2023:KHC:34879 MFA No. 334 of 2019

12. After hearing the arguments by both the sides

the following second substantial question of law also

arises for consideration:

(ii) Whether the place of the accident can be

termed to be a public place within the meaning of

the Motor Vehicles Act and the Tribunal was

justified in fastening the liability on respondent

No.5/appellant herein.

13. The learned counsel appearing for the appellant-

Insurance company has contended that the petitioner has

not produced any evidence to show that there existed the

relationship of employee and employer between the

petitioner and respondent Nos.1 to 4. He contended that

oral testimony of PW1 alone is not sufficient enough and

therefore, the Tribunal has erred in holding that there

existed such relationship. The second prong of the

argument of the learned counsel for the appellant is that

the lorry was inside the cement factory and the petitioner

has sustained injury within the premises and it was not a

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NC: 2023:KHC:34879 MFA No. 334 of 2019

public place. It is contended that the insurance policy

issued by the company did not cover the accident occurred

in a private place and therefore, the petition as against

respondent No.5 is not maintainable. He also contended

that there is a delay in filing the complaint and therefore,

the appeal deserves to be allowed.

14. It is the case of the petitioner that he was

working as a coolie On the lorry bearing No. KA.17-B-8916

and the driver of the lorry had called him to work as

coolie. Though the petitioner has not produced any

documentary evidence to establish the relationship of

employee and employer between himself and the

respondent Nos. 1 to 4, the testimony of PW1 has not

been rebutted by any cogent evidence by respondent Nos.

1 to 4. It is evident that the petitioner had issued a notice

to the respondent No.1 to 4 as per Ex.P6 and the

respondent Nos. 1 to 4 had refused the said notice. It is

also pertinent to note that the petitioner had lodged a

complaint to the police stating that he was working as a

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NC: 2023:KHC:34879 MFA No. 334 of 2019

coolie in the factory by name Karisiddeshwara Factory

which was engaged in the production of the cement

electrical poles. It is also relevant to note that the police

after registering the case, investigated the matter and

ultimately filed chargesheet against the respondent Nos. 1

to 4. Though the respondent Nos. 1 to 4 contended that

they had challenged the said chargesheet before this Court

in Crl.P.No.6041/2017, there is no sufficient rebuttal

evidence which would falsify the chargesheet. It is

relevant to note that the evidence produced by the

petitioner in the form of FIR and chargesheet at Exs.P1

and P2 clearly establish that the evidence on record was

not effectively rebutted by the respondents. Obviously,

the testimony of the official of respondent No.5- Insurance

Company could not be sufficient enough to rebut the

investigation made by the Investigating Officer in this

case. Therefore, I do not find any perversity in the finding

of the Tribunal that there existed the relationship of

employer and employee between the respondent Nos. 1 to

4 and the petitioner.

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NC: 2023:KHC:34879 MFA No. 334 of 2019

15. The second prong of the argument by the learned

counsel appearing for the appellant-Insurance company is,

the place of incident which has occurred in the factory

premises. A perusal of the FIR and the chargesheet show

that the incident had occurred on 01-02-2016 at

about 10.00 a.m. near Hunasanahalli. The chargesheet

also discloses that the accident had not occurred in the

factory premises, but it was at Hunasanahalli. Obviously,

electric poles were unloaded in a public place to lay the

electric lines. Therefore, the contention of the learned

counsel for the appellant that the accident has taken place

inside the factory is not sustainable. Even if we hold that

the incident has taken place inside the factory premises as

contended by the learned counsel for the appellant, the

decision in the case of Pandurang Chimaji Agale and

another Vs. New India Life Insurance Company

Limited, Pune and others1 rendered by the Full Bench of

the Bombay High Court lays down that:

1988 SCC Online Bombay 29:1988 Mah. Law Journal 344

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NC: 2023:KHC:34879 MFA No. 334 of 2019

"That for the purposes of Chapter VIII of the Act the expression "public place" will cover all the places including those of private ownership where members of public have an access whether free or controlled in any manner whatsoever. The place where the accident occurred was a public place within the meaning of Section 95 of the Motor vehicles Act and consequently the Insurance Company was equally liable to pay compensation to the claimants as ascertained by the Tribunal."

16. The said judgment is affirmed and followed by

the decision in the case of Cholamandalam MS General

Insurance Company Limited vs. Priyanka K. Mayekar

and others2. A perusal of these two decisions would

invariably show that the Full Bench decision of the Bombay

High Court has been reiterated by various High Courts,

namely, Madras High Court in the case of National Insurance

Company Limited Vs. Ammaiyappan, Delhi High Court in

the case of Ramesh Kumar Maini Vs. United India

Insurance Company Limited, the Division Bench of Madhya

Pradesh High Court in the case of Rajendra Singh Vs.

Tulasabai and by the full Bench of Madras High Court in the

case of United India Insurance Company Limited vs.

2022 SCC ONLINE Bombay 3789

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NC: 2023:KHC:34879 MFA No. 334 of 2019

Parvati Devi, and also the by the Full Bench of the Bombay

High court in the case of Forbes Forbes Campbel and

Co.,Ltd., Vs. Vilasrao Deshmukh. Therefore, the 'public

place' as defined in Section 2(24) of the Motor Vehicles

Act, include the premises within the place where the

vehicles will be moving.

17. In view of the above authoritative finding, the

arguments by learned counsel appearing for the appellant

would not hold any water.

18. A perusal of the impugned judgment would show

that the Tribunal has considered the evidence available on

record in the form of police papers at Exs.P1 to P5 and

also the oral testimony of PW1 which goes unrebutted. A

perusal of the testimony of PW1 would show that the

petitioner has reiterated that he was working on the said

lorry and he had cautioned the employer that the pulley

had worn out and even then suitable precautionary

measurers were taken by the employer. Under these

circumstances, the testimony of PW1 had gone unrebuted

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NC: 2023:KHC:34879 MFA No. 334 of 2019

and also the investigation papers clearly shows that their

existed the relationship of employee and employer, the

conclusions reached by the Tribunal are fully justifiable.

The delay in filing the complaint to the extent by 31 days

would not be of much of relevance in view of the fact that

petitioner had sustained amputation of four fingers of his

hand. Obviously, he was under treatment and therefore

there cannot be any doubt that the delay in filing the

complaint has been sufficiently explained by him. The

medical records also show that the accident had taken

place on 01.02.2016. Sofar as the interest is concerned,

the policy being a motor policy, interest cannot levied as if

it is Workmen's policy. The determination of the

compensation was initiated by filing petition. Hence, the

interest is payable from the date of the petition, as per

terms of policy. The decision in the case of National

Insurance Co. Ltd. Vs. Mubsir Ahmed & another3 is

not clear as to whether a workmen's policy was involved

2007(1) CLR 683

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NC: 2023:KHC:34879 MFA No. 334 of 2019

or a motor policy was involved. For these reasons, I do

not find any merit in the appeal. The substantial questions

of law raised are answered accordingly against the

appellant.

19. In the result, the appeal is to be allowed in

part, only in respect of the date of levy of interest, which

shall be from date of petition. The impugned judgment and

award is modified to the said extent.

The amount if any, which is in deposit shall be

transmitted to the Tribunal forthwith.

Sd/-

JUDGE

tsn*