Karnataka High Court
Laxmi W/O. Mahantesh Kammar vs Makbulsab S/O Khatibsab Mulla on 9 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:3132
MFA No. 24733 of 2012
C/W MFA.CROB No. 929 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO. 24733 OF 2012 (WC)
C/W
MFA CROSS OBJ NO. 929 OF 2013
IN M.F.A. NO. 24733 OF 2012
BETWEEN:
THE MANAGER,
NATIONAL INSURANCE CO., LTD.,
HUBLI,
REP. THROUGH ITS REGIONAL OFFICE,
ARIHANT PLAZA, 2ND FLOOR,
KUSUGAL ROAD, KESHWAPUR, HUBLI.
...APPELLANT
(BY MISS. VINAYA KUPPELLUR, ADVOCATE FOR
SRI. N.R. KUPPELLUR, ADVOCATE)
AND:
1. SMT. LAXMI
BHARATHI W/O. MAHANTESH KAMMAR,
HM AGE: 23 YEARS, OCC: HOUSEHOLD,
Digitally signed by R/O: HUBLI.
BHARATHI H M
Date: 2024.02.21
11:58:58 +0530
2. KUMARI. PRIYANKA
D/O. MAHANTESH KAMMAR,
AGE: 3 YEARS,
BEING MINOR REP.
BY 1ST RESPONDENT MOTHER.
3. SMT. MANAVVA
W/O. DODDAMANAPPA KAMMAR,
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O: HUBLI.
4. SRI. MAKBULSAB
S/O. KHATIBSAB MULLA,
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MFA No. 24733 of 2012
C/W MFA.CROB No. 929 of 2013
(OWNER OF THE LORRY NO. KA-39/3822)
SINCE DECEASED BY HIS L.R.S.,
4(a). SMT. BIBIJEHAR
W/O. MAKBULSAB MULLA,
AGE: 45 YEARS, OCC: HOUSEHOLD,
4(b). SMT. KOUSARBANU
W/O. KHAYUMKHAN JAHAGIRDAR,
AGE: 27 YEARS, OCC: HOUSEHOLD,
4(c). SRI. ASIFAHAMMAD
S/O. MAKBULSAB MULLA,
AGE: 25 YEARS,
4(d) KUMAR NIYAZAHAMMAD
S/O. MAKBULSAB MULLA,
AGE: 23 YEARS,
4(e). KUMAR LTAF AHAMAD
S/O. MAKBULSAB MULLA,
AGE: 20 YEARS,
4(f). KUMAR IMBERNAWAZ
S/O. MAKBULSAB MULLA,
AGE: 18 YEARS,
4(g). KUMAR SHAHANAWAZ
S/O. MAKBULSAB MULLA,
AGE: 17 YEARS,
BEING MINRO REP. BY RESP. NO.4(a)
4(h). KUMAR. SHABAZ
S/O. MAKBULSAB MULLA,
AGE: 12 YEARS,
BEING MINRO REP. BY RESP.NO. 4(a)
ALL ARE R/O: MEHABOOB SUBANI NAGAR,
SAUNSHI VILLAGE, TQ: KUNDAGOL,
DIST: DHARWAD.
...RESPONDENTS
(BY SMT. SHAILA BELLIKATTI, ADVOCATE FOR R1-R3;
R2 IS MINOR REP. BY R1;
SRI. J.S. SHETTY, ADVOCATE FOR R4 (C-F);
R4 (A), (B) SERVED;
R4G AND R4H MINORS REP. BY R(A))
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MFA No. 24733 of 2012
C/W MFA.CROB No. 929 of 2013
THIS M.F.A. IS FILED U/S.30(1) OF THE W.C.ACT 1923,
AGAINST THE JUDGEMENT AND AWARD DATED:31.08.2012, PASSED
IN WCA/F:NO.79/2009 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, SUB-DIVISION-2,
HUBLI, AWARDING THE COMPENSATION OF RS.3,70,632/- WITH
INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF PETITION
TILL ITS DEPOSIT.
IN MFA CROSS OBJ NO. 929 OF 2013
BETWEEN:
1. SMT. LAXMI
W/O. MAHANTESH KAMMAR,
AGE: 25 YEARS, OCC: HOUSE HOLD WORK,
R/O: HUBLI.
2. KUMARI. PRIYANKA
D/O. MAHANTESH KAMMAR,
AGE: 5 YEARS, OCC: STUDENT,
BEING MINOR REP. BY CROSS OBJECTOR NO.1
3. SMT. MANAVVA
W/O. DODDAMANAPPA KAMMAR,
AGE: 54 YEARS, OCC: HOUSE HOLD WORK,
R/O: HUBLI.
...CROSS OBJECTORS
(BY SMT. SHAILA BELLIKATTI, ADVOCATE)
AND:
1. SRI. MAKBULSAB
S/O. KHATIBSAB MULLA,
(OWNER OF THE LORRY NO. KA-39/3822)
SINCE DECEASED BY HIS LRS.
1(a). SMT. BIBIJEHAR
W/O. MAKBULSAB MULLA,
AGE: 46 YEARS, OCC: HOUSEHOLD,
1(b). SMT. KOUSARBANU
W/O. KHAYUMKHAN JAHAGIRDAR,
AGE: 28 YEARS, OCC: HOUSEHOLD,
1(c). SRI. ASIFAHAMMAD
S/O. MAKBULSAB MULLA,
AGE: 26 YEARS,
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MFA No. 24733 of 2012
C/W MFA.CROB No. 929 of 2013
1(d) KUMAR NIYAZAHAMMAD
S/O. MAKBULSAB MULLA,
AGE: 24 YEARS,
1(e). KUMAR ALTAFAHAMAD
S/O. MAKBULSAB MULLA,
AGE: 22 YEARS,
1(f). KUMAR IMBERNAWAZ
S/O. MAKBULSAB MULLA,
AGE: 20 YEARS,
1(g). SRI. SHAHANAWAZ
S/O. MAKBULSAB MULLA,
AGE: 19 YEARS,
BEING MINRO REP. BY RESP. NO.4(a)
1(h). SRI. SHABAAZAMMAD
S/O. MAKBULSAB MULLA,
AGE: 14 YEARS,
BEING MINOR REPRESENTED
BY RESPONDENT NO. 1(a)
NATURAL GUARDIAN MOTHER
ALL ARE R/O: MEHABOOB SUBANI NAGAR,
SAUNSHI VILLAGE, TQ: KUNDAGOL,
DIST: DHARWAD.
2. THE MANAGER,
NATIONAL INSURANCE CO., LTD.,
DIVISIONAL OFFICE, HUBLI,
...RESPONDENTS
(BY MISS. VINAYA KUPPELLUR, ADVOCATE FOR
SRI. N.R. KUPPELLUR, ADVOCATE FOR R2;
R1 (A) (B) (C) (D) (E) (F) (G) SERVED;
R (H) IS MINOR REP. R1(A))
THIS MFA CROB IN MFA No.24733/2012 IS FILED UNDER
ORDER XLI RULE 22 (1) OF CPC., AGAINST THE ORDER DTD:
31.08.2012 PASSED IN WCA/F.NO.79/2009 ON THE FILE OF THE
LABOUR OFFICER AND COMMISSIONER FOR WORKMENS
COMPENSATION, SUB-DIVISION-2, HUBLI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
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MFA No. 24733 of 2012
C/W MFA.CROB No. 929 of 2013
THESE M.F.A. AND MFA CROB, COMING ON FOR ADMISSION,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Miss. Vinaya Kuppelur representing
Sri.N.R.Kuppelur and Smt.Shaila Bellikatti, learned counsel
for the parties.
2. These two matters arise out of judgment and award
passed by the Commissioner for Workmen's Compensation
(hereinafter for short 'CWC') in WCA/F No.79/2009 dated
31.08.2012.
3. Facts in brief which are utmost necessary for disposal
of the appeal and cross objection are as under:
4. Mahantesh Kammar alleged to be the cleaner of lorry
bearing No. KA-29/3822 lost his life in road traffic accident
that occurred on 30.05.2009.
5. He lost his life on 01.06.2009 despite best treatment.
Claimants being dependants of said Mahantesh Kammar
laid a claim before CWC stating that Mahantesh lost his life
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during the course of employment and therefore they are
entitled for compensation.
6. CWC on contest allowed the claim petition in part and
granted sum of Rs.3,70,632/- and fastened the liability on
the insurance company.
7. Being aggrieved by the same, insurance company is
in appeal and so also the claimants have filed cross
objection for enhancement of compensation.
8. Having heard the parties in detail, this court has
perused the material on record meticulously.
9. On such perusal of the material on record, death of
Mahantesh Kammar is not in dispute, who lost his life on
account of the accidental injuries sustained by him, being
the inmate of the lorry bearing No.KA-39/3822. Injured
was shifted to hospital, he lost his life on 01.06.2009.
10. Dependants claim that Mahantesh was working as
cleaner in the lorry belonging to first respondent who is
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the owner of the lorry. He remained exparte and did not
contest the claim petition.
11. Insurance company contested the claim petition by
filing detailed written statement.
12. CWC recorded the evidence of the parties.
13. Clear suggestions were made in the cross
examination to the claimant witness that the lorry carrying
more than 20 to 30 persons for a marriage party and the
deceased is not a cleaner as is claimed by them.
14. Learned CWC has ignored the said aspect of the
evidence on record and has directed that insurance
company is liable to pay the compensation.
15. Being aggrieved by the same, Insurance company
filed appeal contending that insurance company was not
expected to place negative proof on record and therefore,
approach of the CWC is incorrect and sought for allowing
the appeal.
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16. Per contra, Smt.Shaila Bellikatti contended that the
claimants being mother, wife and children of the deceased
not having necessary information regarding proof of
income of the deceased to place on record and therefore,
sought for allowing the appeal.
17. Per contra, Sri.J.S.Shetty, learned counsel for respondent
Nos.4(c) to 4(f) contended that in the event, this Court is
holding that there is no employer and employee relationship,
then the whole claim petition needs to be dismissed as CWC
has no jurisdiction to entertain the claim of the claimants.
18. At this stage, Smt.Shaila Bellikatti, learned counsel
contended that in such event, the claimants be reserved with
the liberty of filing a claim petition under Motor Vehicles Act.
19. Having heard the parties in detail, this Court perused the
material on record, meticulously.
20. On such perusal of the material on record, respondent
No.1, who is the owner of the lorry did not choose to contest
the claim petition before CWC and he was placed ex-parte, as
he did not appear before the Court despite service of notice.
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21. Claimants have failed to place on record any material
evidence, so as to establish that deceased was a cleaner in the
lorry bearing No.KA.29/3822.
22. Insurance Company has cross - examined in detail PW1,
by suggesting that claimant was not a cleaner in the lorry.
Learned CWC in the impugned order has referred to said cross -
examination while deciding issue No.5. Specifically, he has also
dealt with regard to the fact that respondent No.1 is the
transport operator and no details are forthcoming as to how
many lorries does respondent No.1 is possessing. But as could
be seen from the police records, there were, 20 to 30
passengers in the lorry at the time of accident. Such a
suggestion has been made to PW1 but learned CWC has stated
that no records have been produced by the Insurance Company
and therefore, Insurance Company is liable to pay the
compensation.
23. How a negative proof can be produced by the Insurance
Company is not dealt by learned CWC in the impugned order.
All that the Insurance Company could do is to cross - examine
PW1, based on the material placed on record.
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24. In the first place, to invest the jurisdiction in CWC, it is
the bounden duty of the claimants to establish that deceased
was an employee under respondent No.1. No material is
produced in this regard. Respondent No.1 conveniently,
remained absent before CWC.
25. Under such circumstances, claimant should have
examined the driver of the lorry or summoned respondent No.1
to establish that he was working under respondent No.1 as a
cleaner. Material evidence available on record especially, the
police records would go to show that in the very complaint
itself, it has been mentioned that lorry has been hired for
attending a marriage. It is also found from the very complaint
averments that after participating in the marriage, 20 to 30
passengers were returning in the lorry and at that juncture,
because of the rash and negligent driving of the driver, the
accident has occurred. Police after thorough investigation, has
filed charge sheet against the driver of the lorry as could be
seen from the material placed on the record.
26. Under such circumstances, it was incumbent on the part
of CWC to ascertain, whether the deceased was a cleaner in the
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lorry or not. When there is no material placed on record to
establish that the deceased was a cleaner in the lorry, CWC did
not get jurisdiction to enquire into the claim made by the
claimants.
27. Further, as could be seen from Ex.P.5 which is the
inquest mahajar, the employment of the deceased has been
shown as blacksmith and said information is provided by the
claimants themselves.
28. Under such circumstances, in the absence of any proper
proof that deceased was working as the cleaner of the lorry of
respondent No.1, the claim petition before CWC needs to be
dismissed.
29. Having said thus, for the accidental death of Mahantesh
Kummar, the claimants would be entitled to receive the
compensation by filing a claim petition under the provisions of
Motor Vehicles Act.
30. Sri.N.R.Kuppellur, learned counsel and Sri.J.S.Shetty,
learned counsel, however, contends that such a course is not
open for the claimants as they have chosen to file a claim
petition before CWC.
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31. If a claim petition under the provision of Indian Motor
Vehicles Act which filed seeking condonation of delay by the
claimants, Insurance Company and owner of the lorry are
entitled to put forth their respective defenses as is available to
them, including the question of limitation and liability of the
Insurance Company.
32. Reserving the liberty for the claimants to approach the
Motor Accident Claim Tribunal, following :
ORDER
i. Appeal is allowed.
ii. Claim Petition stands dismissed. In view of
the fact that claimants have failed to establish
that there existed an employer and employee
relationship between respondent No.1 and the
claimant.
iii. Amount in deposit is ordered to be returned to
the Insurance Company, under due
identification.
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iv. In view of the dismissal of the claim petition,
MFA Crob.No.929/2013 is also dismissed.
v. No order as to costs.
Sd/-
JUDGE
HMB-Upto para 15
KAV-Para 16 to end.
