Karnataka High Court
Devendra vs M R Madhukar on 1 April, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2024:KHC:13075
MFA No. 7641 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
MISCELLANEOUS FIRST APPEAL NO.7641 OF 2016 (WC)
BETWEEN:
DEVENDRA
S/O AJJAPPA,
AGED ABOUT 25 YEARS,
R/O BILICHODU VILLAGE,
JAGALUR TALUK.
...APPELLANT
(BY SRI. SREE HARSHA.A.K., ADVOCATE)
AND:
1. M.R.MADHUKAR
S/O N.K.RAJASHEKHAR,
AGED ABOUT 49 YEARS,
OWNER OF LORRY BEARING
REG. NO. KA-17/A-9646,
PROPRIETOR,
Digitally signed by MADHU TRANSPORT, R/O NO.250,
THEJASKUMAR N RMC ROAD, SHEKHARAPPA NAGARA,
Location: HIGH DAVANGERE-577 002.
COURT OF
KARNATAKA
2. THE ORIENTAL INSURANCE CO. LTD.,
REP. BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, THILUVALLY COMPLEX,
P.B.ROAD, DAVANAGERE-577 002.
...RESPONDENTS
(BY SRI. D.P.MAHESH., ADVOCATE FOR R1;
SRI. O.MAHESH., ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF THE EMPLOYEE'S COMPENSATION ACT,
1923, AGAINST THE JUDGMENT AND AWARD
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NC: 2024:KHC:13075
MFA No. 7641 of 2016
DATED:09.03.2016 PASSED IN ECA.NO.98/2014 ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDE, MEMBER MACT-IV,
DAVANAGERE.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
DISMISSAL, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.Sree Harsha.A.K., learned counsel for the appellant
has appeared in person.
Sri.O.Mahesh., learned counsel for respondent No.2 has
appeared through video conferencing.
Though the appeal is listed today for dismissal, it is heard
finally.
2. For the sake of convenience, the parties shall be
referred to as per their status and ranking before the Tribunal.
3. It is the case of the claimant that on the 17th day of
August 2010 at about 9:30 p.m., he was working as a driver
under the instructions of respondent No.1 who appears to be
the owner of the lorry Reg. No.KA-17/A-9646. He was driving
the lorry from Davanagere to Hubli and the lorry was carrying
paddy bags. After crossing Motebennur village near Haveri on
P.B. road he lost the control over the lorry and hit the divider.
NC: 2024:KHC:13075
Due to which the lorry got turtled and he sustained grievous
injuries on his right head, left leg and all parts of the body.
Contending that he is entitled for compensation, the claimant
fled claim petition.
After the issuance of the notice, the respondents
appeared through their counsel. The first respondent did not
file objections. The second respondent filed objections and
denied the averments made in the claim petition. It is
contended that the accident occurred due to rash and negligent
driving of the claimant. Among other grounds it prayed for the
dismissal of the claim petition.
Based on the above pleadings, the Tribunal framed the
issues, parties led evidence and marked the documents. The
Tribunal vide Judgment dated:09.03.2016 rejected the claim
petition. It is this Judgment that is called into question in this
Appeal on several grounds as set-out in the Memorandum of
appeal.
4. Learned counsel for the appellant submits that the
Judgment of the Tribunal is contrary to the evidence on record
and law.
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Next, he submits that the Tribunal has erred in
concluding that the claimant has not proved the relationship of
employer and employee.
A further submission is made that the Tribunal has not
considered that the lorry belonging to the first respondent at
the time of accident and the claimant was under the
employment of the first respondent.
Learned counsel vehemently contended that the Tribunal
has erred in concluding that the claimant himself was negligent
in driving the lorry.
Lastly, he submits that viewed from any angle the
rejection of the claim petition is unsustainable in law. Counsel
therefore, submits that the appeal may be allowed.
Counsel Sri.O.Mahesh., justified the judgment of the
Tribunal and submits that the appeal is devoid of merits and
the same may be rejected.
Heard, the contentions urged on behalf of the respective
parties and perused the appeal papers and also the records
with utmost care.
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5. The point that requires consideration is whether the
Tribunal is justified in rejecting the claim petition.
6. The facts are sufficiently stated and do not require
reiteration. It is the specific case of the claimant is that he was
a driver under the first respondent - M.R.Madhukar, who is the
owner of the lorry bearing Reg. No.KA-17/A-9646.
Suffice it to note that the claimant was examined as PW1
and he states that he lost control over the lorry and hit the
divider. An attempt is made on behalf of the claimant to
contend that the cleaner accompanied him in the lorry and he
made a complaint about the accident. In this Court also he has
adhered to the said contention.
Perused the records with utmost care. One Mahesha gave
a complaint on 17.08.2010. The claimant specifically contended
that he was accompanied by a Cleaner. However, he has not
been examined. He has not examined the owner also. The
claimant relied on disability certificate issued by one
Dr.Nagabhushan. However, the claimant has not examined the
doctor also. Furthermore, the police records reveals that the
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claimant was driving the vehicle in a rash and negligent manner
and hit the divider of the road by losing control over the lorry.
Counsel Sri.Sree Harsha., in presenting his argument
strenuously urged that the owner has given a surety. Assuming
for a while that the surety was given by the owner, that does
not prove the relationship between the claimant and the first
respondent as employer and employee. In the absence of the
evidence of the cleaner, the owner and the doctor, it is hard to
believe that it's a genuine case. It is not in dispute that the
claimant himself lost control over the lorry and hit the divider
and caused accident. If that be so, rejection of claim petition is
just and proper. I find no reasons to interfere with the
Judgment of the Tribunal.
For the reasons stated above, the appeal is devoid of
merits and it is liable to be rejected.
7. Resultantly, the Miscellaneous First Appeal is
rejected.
Sd/-
JUDGE
MRP
