Karnataka High Court
The Claim Manager vs Eramma on 7 March, 2024
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NC: 2024:KHC:9527
MFA No. 1910 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 1910 OF 2017
BETWEEN:
THE CLAIM MANAGER
ROYAL SUNDARAM ALLIANCE INSURANCE
COMPANY LIMITED
SUNDARAM TOWERS, NO.45 & 46,
WHITES ROAD, CHENNAI-600 014
NOW AT
ROYAL SUNDARAM ALLIANCE INSURANCE
COMPANY LTD
SUBRAMANIAM BUILDING, II FLOOR, NO.1,
CLUB HOUSE ROAD,
ANNA SALAI CHENNAI-600 002
...APPELLANT
(BY SRI. O MAHESH.,ADVOCATE)
Digitally signed AND:
by SUVARNA T
Location: HIGH 1. ERAMMA
COURT OF AGE 53 YEARS,
KARNATAKA W/O REVANNA
RESIDING AT JANATHA HOUSE, NADUVALAPALYA
KASABA HOBLI,
GUBBI TALUK-572113
2. REVANNA
AGE 63 YEARS,
S/O LATE KADAIAH
RESIDING AT JANATHA HOUSE, NADUVALAPALYA
KASABA HOBLI,
GUBBI TALUK-572113
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MFA No. 1910 of 2017
3. H G SURESH
MAJOR,
HEBBUR TUMKUR-572101
...RESPONDENTS
(BY SRI.K.R. RAMESH.,ADVOCATE FOR R1;
R3 IS SERVED & UNREPRESENTED V/O DTD. 10.07.2019;
R1 IS TREATED AS LR OF DECEASED R2)
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT AND AWARD DATED 03.01.2017 PASSED IN
ECA.NO.10/2014 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND JMFC, GUBBI, AWARDING COMPENSATION
OF RS. 6,50,730/- WITH INTEREST AT 12% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
THIS APPEAL, COMING ON FOR DISMISSAL, THIS
DAY, THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
Aggrieved by the order passed in ECA No.10/2014,
dated 03.01.2017, by the Principal Senior Civil Judge &
JMFC, Gubbi, the insurance company is before this court.
2. A petition is filed by the respondents herein
under Section-10 of the Workmen's Compensation Act
claiming compensation for the death of the workman in
the accident on 09.12.2014 while he was working under
respondent No.1 as the driver of the Mahindra Goods
vehicle. It is the case of the claimant that he was
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appointed as a driver about one year prior to the accident
and the owner of the vehicle was paying an amount of
Rs.6,000/- p.m., apart from the daily bata of Rs.100/-. On
19.12.2011 while the deceased was driving the Mahindra
goods vehicle as per the instructions of the owner at that
time some unknown vehicle driven by its driver in a high
speed came in a rash and negligent manner and dashed
against the Mahindra-Goods vehicle and caused the
accident. As a result, the deceased sustained injuries and
while he was being shifted to the General Hospital
Tumkur, he succumbed to the injuries on the way to the
hospital.
3. The owner of the vehicle remained exparte
before the court below and the insurance company had
filed the written statement. Insurance Company admitted
issuance of policy but according to them there is no
relationship of employer-employee between the deceased
and the first respondent. The deceased was travelling in
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the goods vehicle as a gratuitous passenger, as such the
insurance company is not liable to pay the compensation.
4. On behalf of the legal representatives, PW-1 is
examined and Exhibits-P1 to P7 are marked. On behalf of
the respondents RW-1 was examined and Exhibits-R1 to
R4 were marked. The court below considering the income
of the deceased at Rs.6,000/- p.m., and by deducting 50%
and by applying the factor of 216.91 had granted
compensation of an amount of Rs.6,15,730/-. The court
below observed that there is a policy in force at the time
of the accident and the evidence on record discloses that
the driver of the lorry had a valid Driving license to drive
the vehicle. Therefore, respondent No.2 being the insurer
is liable to pay the compensation. Aggrieved thereby the
insurance company is before this court.
5. Learned counsel for insurance company submits
that there is no positive evidence on record to show that
there is employer-employee relationship between the
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deceased and the first respondent. No cogent evidence
was adduced before the court below. The court below had
blindly saddled the liability on the insurance company
though it is specifically pleaded and proved that the
deceased driver had no valid driving license by adducing
cogent, oral as well as documentary evidence such as
Exhibits-R1 to R4. It is submitted that the court below
failed to consider the evidence in its proper perspect and
the Insurance Company is not liable to pay the
compensation.
6. The appeal was admitted on the following
substantial questions of law:
i) Whether the Tribunal / Commissioner
was justified in holding that the deceased was
under employment of insured when insurer
specifically denied and claimant as well as
insured failed to prove the same by conclusive
positive legal evidence in respect thereof?
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ii) Whether the judgment / order of the
Tribunal / Commissioner would be sustainable
in the light of the grounds raised in the above
appeal?
iii) Whether the order / award of the
commissioner is otherwise opposed to law,
facts, material evidence and circumstances of
the case on hand?
7. Learned counsel appearing for the respondents
/ claimants submits that the court below had rightly basing
on the evidence held that there is a employee-employer
relationship and there is a valid insurance policy as such
the insurance company is liable to pay the compensation.
He had relied on the judgment of this court in the case of
CLAIM MANAGER SRI RAM GENERAL INSURANCE
COMPANY LIMITED VS. A LAKSHMI AND OTHERS1
wherein this court had considered Exhibit-P9 the MLC
Register which states that the deceased was taken to the
hospital on 03.05.2014 and it is stated in the history that
MFA NO.2187/2017, DATED 26.08.2022
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the patient was brought to the hospital and died while
taking treatment. It is stated in the MLC register that the
deceased was working as loader and unloader in the Tata
ACE vehicle. Considering the said entry in the MLC register
in the above case this court has held that the insurance
company is liable to indemnify the respondent-owner. It is
submitted that the court below had rightly held that there
is employer-employee relationship between the parties.
8. Having heard the learned counsel on either
side, perused the entire material on record. In this case
the accident had taken place on 19.12.2011. Immediately
after the accident the workman was shifted to the hospital,
by the time he reached the hospital he succumbed to the
injuries. Basing on the complaint a crime was registered
i.e., Exhibit-P1 dated 19.12.2011 i.e., on the date of the
accident itself. It is the case of the insurance company
that the deceased was not working with the respondent-
employer and they have not examined the employer. The
employer remained absent. In these circumstances it
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would be very difficult for the claimant to examine the
owner of the vehicle and to prove the employer-employee
relationship. The vehicle in which the claimant was
travelling is a Mahindra goods vehicle. According to the
respondent - insurance company, the deceased was a
gratuitous passenger. The complaint that was given
immediately shows that the deceased was the driver of the
vehicle. According to the Insurance Company he is a
gratuitous passenger. No positive evidence is let in by the
insurance company in this regard. The complaint which is
given immediately after the accident shows that he is a
driver of the vehicle.
9. As per Exhibit-R3 he was having a driving
license to drive an auto rickshaw till 2026, to drive a cab
authorised, to drive a transport vehicle and also a Light
Motor Vehicle (Non-Transport). The driver was driving a
Mahindra Goods Vehicle and it cannot be said that the
driver was not having valid and effective driving license to
drive the vehicle.
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10. Under these circumstances, it is proved that he
was working as driver with the first respondent and the
court below had rightly granted compensation. This court
finds no reasons to interfere and accordingly the appeal
being devoid of merits is Dismissed.
i) Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court forthwith
without any delay.
ii) The amount in deposit shall be transferred to
the Tribunal forthwith.
iii) No costs.
Pending miscellaneous petitions, if any, shall stand
closed.
SD/-
JUDGE
JJ
