Karnataka High Court
Thippesha vs Thimmasetty on 29 July, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:29762
MFA No. 2055 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 2055 OF 2018 (WC)
BETWEEN:
THIPPESHA
AGED ABOUT 20 YEARS
S/O GIRIYAPPA
COOLIE, R/O NAKIKERE VILLGE
HOSADURGA TALUK-577 527
CHITRADURGA DISTRICT.
...APPELLANT
(BY SRI. R SHASHIDHARA .,ADVOCATE)
AND:
1. THIMMASETTY
S/O MALLA SETTY
MAJOR, R/O DOMBADAHALLY VILLAGE
MUGTHIHALLY POST, CHIKKAMAGALURU TALUK
Digitally signed by AND DISTRICT-577 101.
HEMALATHA A
Location: HIGH 2. THE DIVISIONAL MANAGER
COURT OF
KARNATAKA UNITED INDIA INSURANCE CO LTD.,
MMK COMPLEX, AKKAMAHADEVI ROAD
DAVANAGERE-577 001
...RESPONDENTS
(BY SRI. O MAHESH., ADVOCATE FOR R2:
NOTICE TO R1 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED:22.01.2018
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NC: 2024:KHC:29762
MFA No. 2055 of 2018
PASSED IN ECA.NO.1/2016 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, MACT, HOSADURGA, DISMISSING THE
CLAIM PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
ORAL JUDGMENT
1. This appeal under Section 30(1) of the Employees
Compensation Act, 1923 (hereinafter referred to as 'the
Act') has been filed by the claimant being aggrieved by the
judgment dated 22.01.2018 passed by Senior Civil Judge
& MACT, Hosadurga in ECA No.1/2016.
2. Facts giving rise to the filing of the appeal briefly
stated are that the claimant was working as a labourer
under respondent No.1, who is the owner of the tractor
bearing No.KA-18-T-1945. On 05.02.2004, when the
claimant was working as a labourer in the said tractor, the
tractor met with an accident at Shirangunda Village,
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Chikkamagaluru. As a result, claimant sustained multiple
injuries and was hospitalized.
3. The claimant filed a petition under Section 22 of the
Act seeking compensation. It was pleaded that he spent
huge amount towards medical expenses, conveyance, etc.
4. On service of notice, the respondent No.2 appeared
through respective counsel and filed written statement in
which the averments made in the petition were denied.
Respondent No.1 did not appear before the Tribunal and
was placed exparte.
5. On the basis of the pleadings of the parties, the
Commissioner framed the issues and thereafter recorded
the evidence. The claimant, himself was examined as PW-
1 and got exhibited documents namely Ex.P1 to Ex.P6. On
behalf of the respondents, one witness was examined as
RW-1 and got exhibited document namely Ex.R1. The
Tribunal, by the impugned judgment, inter alia, dismissed
the claim petition. Being aggrieved, this appeal has been
filed.
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6. The learned counsel for the claimant has submitted
that the petitioner was working as a labourer under
respondent No.1. On 05.02.2004, when the claimant was
working as a labourer in tractor-trailer bearing KA-18-T-
1944-45 belonging to respondent No.1 and when the
claimant and others went to load cement bags from the
shop to respondent No.1, the tractor did not start and the
driver asked the claimant and others to push the tractor
and when they were pushing, the tractor started and the
driver of the tractor could not control and as a result, the
right forearm of the claimant got entangled in between the
tyre and mudguard and as such, he sustained grievous
injuries. It is not in dispute that the claimant was working
under respondent No.1. This aspect has not been
considered by the Tribunal. Even in the FIR, it is clearly
stated that the claimant was working under respondent
No.1. Without considering the evidence of PW-1 and
materials available on record, the Tribunal has erred in
dismissing the claim petition. Hence, he sought for
allowing the appeal.
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7. The learned counsel for the Insurance Company has
submitted that claimant is the resident of Nakikere Village,
Hosadurga. As per FIR, the accident occurred at
Chikkamagaluru and claimant has taken treatment at
Government Hospital, Holalkere, which is about 150 kms,
away from Chikkamagalur. The complaint has been lodged
after 16 days from the date of accident. Therefore, it is
clear that in order to make a false claim, the claimant has
pleaded that he was working under respondent No.1 and
he sustained injuries during the course of employment.
The Tribunal after considering the evidence of the parties
has rightly dismissed the claim petition on the ground that
the claimant has failed to prove the relationship of
employer and employee between himself and respondent
No.1. Hence, he sought for dismissal of appeal.
8. Heard the learned counsel for the parties and
perused the judgment and award passed by the Tribunal.
9. The substantial question of law that arises for
consideration is "whether the claimant has proved the
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relationship of employer and employee between himself
and respondent No.1.?"
10. The specific case of the claimant is that on
05.02.2004, when the claimant was working as a labourer
in tractor-trailer bearing KA-18-T-1944-45, the said
tractor met with an accident at Shirangunda Village,
Chikkamagaluru and as a result, claimant sustained
multiple injuries and was hospitalized. As per the records
produced by the claimant, the claimant took treatment at
Government Hospital, Holalkere, which is about 150 kms
away from Chikkamagalur. It is clear that he is a
permanent resident of Nakikere Village, Chitradurga. The
complaint has been lodged after 16 days from the date of
the accident. He has not examined the doctor regarding
nature of injuries and disability suffered by him.
11. Therefore, considering the evidence of PW-1 and
RW-1 and materials available on record, this Court is of
the opinion that the Tribunal has rightly come to the
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conclusion that the claimant has failed to establish the
relationship of employer and employee between claimant
and respondent No.1. Consequently, the Tribunal is
justified in dismissing the claim petition. The substantial
question of law framed by this Court is answered
accordingly. Hence, the appeal is liable to be dismissed.
12. Accordingly, the appeal is dismissed.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
DM
