Karnataka High Court
Smt. Laxmibai And Ors vs Chandrakant And Anr on 31 July, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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NC: 2024:KHC-K:5494
MFA No. 201523 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
MISCL. FIRST APPEAL NO.201523 OF 2017 (ECA)
BETWEEN:
1. SMT. LAXMIBAI
W/O LATE GURULINGAPPA,
AGE: 40 YEARS, OCC: HOUSEHOLD
2. SHIVAKUMAR
S/O LATE GURULINGAPPA
AGE: 25 YEARS, OCC: STUDENT
3. ANIL S/O LATE GURULINGAPPA,
AGE: 23 YEARS, OCC: STUDENT,
ALL ARE R/O. AMBALAGA, TQ: ALAND,
DIST: GULBARGA-585316.
Digitally signed
by RENUKA
Location: HIGH ...APPELLANTS
COURT OF (BY SRI ANAND V. TURE, ADVOCATE)
KARNATAKA
AND:
1. CHANDRAKANT
S/O SOMASHEKHAR,
AGE: MAJOR,
OCC: BUSINESS AND OWNER
OF TATA DCM 407 OPEN GOODS VEHICLE
BEARING REG NO.KA-32/2919,
R/O. AMBALAGA VILLAGE,
TQ: ALALD, DIST: GULBARGA-585316.
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NC: 2024:KHC-K:5494
MFA No. 201523 of 2017
2. THE NATIONAL INSURANCE CO. LTD.
THROUGH ITS DIVISIONAL OFFICE,
BY ITS DIVISIONAL MANGER,
1ST FLOOR, BILGUNDI COMPLEX,
MAIN ROAD, OPP: MINI VIDHANA SOUDHA,
GULBARGA-585102.
...RESPONDENTS
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADV. FOR R1;
SMT. PREETI PATIL MELKUNDI ADV. FOR R2)
THIS MFA IS FILED U/S. 30(1)(A)OF EMPLOYEES
COMPENSATION ACT, PRAYING TO ALLOW THE APPEAL BY
MODIFYING THE IMPUGNED JUDGMENT AND AWARD DATED
09.06.2017 PASSED BY THE LEARNED SENIOR CIVIL JUDGE
AND COMMISSIONER FOR EMPLOYEE'S COMPENSATION ALAND
IN E.C.A. NO.14/2013 AND CONSEQUENTLY BYE PLEASED TO
AWARD COMPENSATION OF RS.5,00,000/- WITH INTEREST
@12% PER ANNUM FORM THE DATE OF PETITION TILL
DEPOSIT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
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NC: 2024:KHC-K:5494
MFA No. 201523 of 2017
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA)
1. Whether the Commissioner was justified in
dismissing the claim petition on the basis of the evidence
of the wife of deceased that the claimant was an
agriculturist and he was therefore not an employee of the
1st respondent is the substantial question of law that arises
for consideration in this appeal?
2. The fact that the accident occurred on 05.01.2013 in
which the Gurulingappa the husband of the claimant was
killed is not in dispute.
3. It was stated by the claimants that Gurulingappa was
working as a labourer and had been engaged for loading
and unloading the goods in the vehicle and the accident
occurred when the goods vehicle in which he was traveling
hit a milestone and as a result of which Gurulingappa
sustained fatal injuries and died on the spot and a case
was also registered against the driver of the truck.
NC: 2024:KHC-K:5494
4. The fact that the vehicle was insured in not in
dispute.
5. The Insurance Company however took up the
contention that there was no relationship of employer and
employee and there was no evidence adduced to establish
the said fact. It was highlighted that the owner of the
truck, though entered appearance, did not chose to file
any objections nor did he produce any documents to
establish the relationship and therefore the claim that
Gurulingapa was a labourer would have to be rejected.
6. The Tribunal on the basis of following deposition of
wife came to the conclusion that Gurulingappa was not a
labourer. The said deposition of wife is as follows;
"MAzÀĪÀgÉ JPÀgÉ d«ÄãÀÄ EgÀÄvÀÛzÉ. ¸ÀzÀj ºÉÆ®ªÀÅ ªÉÆzÀ°UÉ £À£Àß
UÀAqÀ£À ºÉ¸Àj£À°èvÀÄÛ. CªÀgÉà ¸ÀévÀB ¸ÁUÀĪÀ½ ªÀiÁqÀÄwÛzÀÝgÀÄ. £À£Àß
UÀAqÀ¤UÉ ¸ÀévÀB ºÉÆ® EzÀÄÝzÀjAzÀ CªÀgÀÄ MPÀÌ®ÄvÀ£À ªÀiÁqÀÄwÛzÀÝgÀÄ.
1£Éà JzÀÄgÀÄzÁgÀgÀÄ £ÀªÀÄä Hj£ÀªÀgÉà EgÀÄvÁÛgÉ. ZÁ®PÀ£ÀÄ ¸ÀAUÀtÚ
AiÀiÁgÀAzÀÄ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è. PÀ®è¥Àà vÀAzÉ UÀÄgÀÄ°AUÀ¥Àà ºÀUÀÎzÀ
£À£Àß CtÚ£ÁUÀ¨ÉÃPÀÄ. ¸ÀzÀj C¥ÀWÀvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è £À£Àß UÀAqÀ
UÀÄgÀÄ°AUÀ¥Àà ªÀÄvÀÄÛ PÀ®è¥Àà MnÖUÉ ªÁºÀ£ÀzÀ°è ºÉÆÃUÀÄwÛzÀÝgÀÄ JAzÀgÉ
NC: 2024:KHC-K:5494
£À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è. CfðAiÀÄ°è J£ÀÄ §gÉ¢zÉ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è.
CzÉà jÃw ªÀÄÄRå «ZÁgÀuÉAiÀÄ ¥ÀæªÀiÁt ¥ÀvÀÛzÀ°è J£ÀÄ §gÉ¢gÀÄvÀÛzÉ
JAzÀÄ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è."
7. As could be seen from the said deposition the wife of
the deceased Gurulingappa did state that they owned one
and half acres and previously the land stood in the name
of her husband and he was himself cultivating the land.
She has also stated that since her husband owned the
land, he was cultivating the same. From this statement it
cannot be inferred that he had not been engaged in the
task of loading and unloading and that he was an
agriculturist and was only cultivating his land.
8. A realistic view of a family, which owns just one and
half acres of land, will have to be taken into consideration
while considering the possibility of owner of one and half
acres engaging himself in other avocations. Merely,
because a person owns one and half acres and there is an
admission by his widow that he was cultivating the land,
that would not by itself exclude the possibility of that
NC: 2024:KHC-K:5494
person engaging himself in the task of loading and
unloading in order to augment his income. The Tribunal
therefore has committed a serious illegality in
misconstruing the evidence of the wife of the deceased.
9. As far as the arguments that the owner of the truck
though entered appearance did not contest the
proceedings is concerned, at the outset, it is to be stated
here that if a respondent/employer in a proceeding under
the Employees Compensation Act, does not dispute the
assertion of the claimant that the deceased was his
employee, in the normal circumstances, it will have to be
assumed that the assertion of the claimant was admitted.
10. The Insurance Company which entered appearance
did not establish with any acceptable evidence that there
was a collusion between the claimants and the owner of
the truck. Unless, there was clear evidence adduced to
establish collusion by the Insurance Company, the
argument of the Insurance Company that the claimant will
NC: 2024:KHC-K:5494
have to be non-suited because of collusion cannot be
accepted.
11. In this case, the fact that an accident occurred and
Gurulingappa was killed in the accident cannot be in
dispute. The police records, post mortem report and also
the IMV report establish this fact. A presumption would
have to be drawn, in the absence of any evidence by the
owner of the vehicle or the insurer, that Gurulingappa was
engaged the task of loading and unloading the vehicle and
he was not a stranger. As a consequence the order of the
tribunal will have to be set aside.
12. The claimants contended that the deceased was
earning a sum of Rs.6,000/- per month which is not
denied by the employer. The accident being of the year
2013, the wages of Rs.6,000/- stated by the claimants
cannot be in serious dispute especially when the notional
income as determined by the Karnataka State Legal
Service Authority is Rs.7,000/-.
NC: 2024:KHC-K:5494
13. As provided under Section 4 of the Employees
Compensation Act, therefore, the claimants will be entitled
for Rs.5,35,470/- (Rs.3,000/- x 178.49).
14. The said amount was carry interest at 12% per
annum from 05.02.2013. The insurer shall deposit the
said amount within a period of four weeks from today.
In that view of the matter, the appeal is allowed in
part.
Sd/-
(N.S.SANJAY GOWDA)
JUDGE
MSR
