Karnataka High Court
The Manager vs Sri Subramanya on 28 May, 2024
1
MFA.13/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
MFA NO.13 OF 2018 (WC)
BETWEEN:
THE MANAGER
UNITED INDIA INSURANCE CO. LTD.
M.G.ROAD, MANDYA
THROUGH ITS REGIONAL OFFICE
UNITED INDIA INSURANCE CO.
5TH FLOOR, HUDSON CIRCLE
BANGALORE - 560 001
REP. BY ITS DEPUTY MANAGER
MR.AJAY KUMAR SINHA ... APPELLANT
(BY SRI.B.C.SEETHARAMA RAO, ADV.)
AND:
1. SRI. SUBRAMANYA
AGED ABOUT 41 YEARS
S/O SRI.KENGAIAH
R/O MADARAHALLI VILLAGE
C.A.KERE HOBLI
MADDUR TALUK
MANDYA DISTRICT - 573 101
2. SRI.SANJEEVA MURTHY
MAJOR IN AGE, NO.23
BABASAHEBARA PALYA
8TH DIVISION, KENGERI TOWN
BENGALURU - 560 060
OWNER OF LORRY NO.KA 05/A-9459
... RESPONDENTS
(R2 SERVED UNREPRESENTED
SERVICE OF NOTICE TO R1 HELD SUFFICIENT
VIDE ORDER DATED 31.08.2023)
2
MFA.13/2018
THIS MFA IS FILED UNDER SECTION 30(1) OF
EMPLOYEES COMPENSATION ACT AGAINST THE JUDGMENT
AND AWARD DATED 26.09.2017 PASSED IN ECA NO.07/2015
ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT,
MADDUR, AWARDING COMPENSATION OF RS.49,915/- WITH
INTEREST @ 12% P.A. FROM THE DATE OF ACCIDENT TILL
DEPOSIT.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.04.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the Insurance Company has
challenged the judgment and award dated 26.09.2017
in E.C.A.No.07/2015 passed by the Senior Civil Judge
and M.A.C.T., Maddur ('the Tribunal' for short).
2. The appellant was 2nd respondent, 1st
respondent was the petitioner and 2nd respondent was
the 1st respondent before the Tribunal. For the sake of
convenience, the rank of the parties shall be referred
to as per their status before the Tribunal.
3. Brief facts of the case are, petitioner was
working as loader/unloader under the first respondent,
who is the owner of the lorry bearing registration
No.KA-05/A-9459; on 01.06.2006 at about 3.00 a.m.,
while the petitioner was loading the sand to the lorry
at Koodlur village of Channapatna Taluk, the driver of
the lorry drove the lorry in a rash and negligent
manner, due to which the petitioner fell down from the
lorry and sustained fracture of left leg and fracture of
pubic and ischial rami. He had taken treatment at
Government Hospital, Mandya and also Government
Hospital, Channapatna. Claiming that he was earning
Rs.4,000/- per month and daily allowance of Rs.40/-,
injuries and disablement, he approached the
Commissioner for Workmen's Compensation, Mandya,
in W.C.A.No.35/2007. Subsequent to establishment of
the Workmen's Compensation Tribunal, the matter was
transferred to the Tribunal.
3(a). The claim was opposed by the Insurance
Company denying the averments made in the claim
petition. The Tribunal after holding enquiry and by
taking the evidence by the impugned judgment
assessed the compensation of Rs.49,915/-with interest
at 12% per annum and directed the Insurance
Company to deposit the award amount. Aggrieved by
the same, the Insurance Company has filed this appeal
on various grounds.
4. Heard the arguments of Sri.B.C.Seetharama
Rao, learned Counsel for the Insurance Company. The
petitioner and the owner of the lorry are served and
unrepresented
5. It is the contention of the learned counsel for
the Insurance Company that malicious claim is made
before the Tribunal as there was no accident as
proposed by the petitioner. When the petitioner was
brought to the hospital, he has informed that he was
hit by JCB. There was no mention of lorry. The lorry
was not involved in the accident. This aspect is not
considered by the Tribunal and sought for interference.
6. I have given my anxious consideration to the
arguments addressed on behalf of the Insurance
Company and perused the records.
7. The sole ground of appeal is that the claim is
fictitious, the petitioner has sustained injuries in an
accident involving JCB, not the lorry in question. The
Tribunal records are made available. It is the specific
case of the petitioner that while he was loading the
sand, the lorry was suddenly moved, due to which, he
fell down from the lorry and sustained injuries.
8. Learned counsel for the Insurance Company
has brought to the notice of this court, the admission
made by the petitioner that he has reported the history
of the accident at the time of admission to the hospital.
MLC register extract is relied at Ex.R3. The material
on record points out that Channapatna Rural Police
have registered a case in Crime No.220/2006 against
the driver of the lorry for the offences punishable
under Sections 279 and 337 of IPC read with Section
134(a) and (b) of the Motor Vehicles Act. Mahazar was
conducted, lorry was seized. The petitioner has relied
on Ex.P3/wound certificate and MLC extract of
Government Hospital, Channapatna as per Ex.P4.
9. Police investigation culminated in filing charge
sheet against the driver of the lorry in
C.C.No.123/2007 for the offences punishable under
Sections 279 and 338 of IPC read with Section 134(a)
and (b) of the M.V.Act. The driver has pleaded guilty
and paid fine before learned JMFC, Channapatna. The
charge sheet allegations are that the petitioner was the
loader of the lorry and due to sudden movement of the
lorry, he fell down and sustained injuries. Extract of
Ex.P4 is also relied upon by the Insurance Company as
per Ex.R3. Ex.R4 is the MLC extract with reference to
the petitioner indicating that on 25.07.2006 he was
admitted to the hospital for treatment with a history of
'road traffic accident' on 01.06.2006 near
Channapatna. The petitioner was also treated at
Government Hospital, Mandya. The extract pertaining
to the District Hospital, Mandya is made available as
per Ex.R3, which refers as follows:
"H/o RTA on 01.06.2006 at around 3
a.m., when he was loading sand to the
lorry, hit by JCB, near Chennapatna, then
he said he was not consulted doctor,
directly came here."
The case pleaded is that he was treated at Government
Hospital, Mandya, thereafter at Government Hospital,
Channapatna. It is the respondent, who is pleading
that there was no accident as alleged in the complaint.
10. RW-1/C.Gajedra is the Branch Manager of the
Insurance Company, whose evidence explains that the
accident was due to hit by JCB and not the lorry. He
has relied upon Ex.R1/Insurance Policy and complaint
filed to the Superintendent of Police, Ramanagara
District as per Ex.R2 and the MLC extract issued by the
Government Hospital, Mandya and Channapatna as per
Exs.R3 and R4. The cross-examination of the Branch
Manager though denies all these aspects, the records
produced by the petitioner at Ex.P3/wound certificate
issued by the Government Hospital, Channapatna
refers the alleged road traffic accident on 01.06.2006
at 3.00 a.m. near Channapatna. Ex.P4/MLC extract is
the same extract relied upon by the Insurance
Company. The information furnished to the medical
officer, who received the petitioner in the Government
Hospital, Mandya, was that the petitioner was hit by
JCB near Channapatna. Further, the petitioner himself
has produced Ex.P2 marked before the Commissioner
for Workmen's Compensation as outpatient slips issued
by the Government Hospital, Mandya as well as
Government Hospital, Channapatna. In Government
Hospital, Mandya, it is informed that the petitioner was
hit by JCB. When the documents relied upon by the
petitioner himself explains that he was hit by JCB, he
has to explain the occurrence of the accident involving
the lorry as well as JCB.
11. On a careful perusal of the cross-examination
of the petitioner, who is examined as PW-1, specific
defence is taken that he has not suffered any injury
having hit by lorry. It is elicited in the cross-
examination that on 01.06.2006, while the petitioner
was coming on the Channapatna road, sand was being
loaded from the JCB. It goes to show that the
petitioner was not on the lorry at the time of accident.
JCB was used as loader and the petitioner being
pedestrian on the road, hit by JCB. The owner and
insurer of the JCB are not made as parties in this case.
12. PW-2/Dr.Manjunath is the treated doctor and
his evidence speaks of the injury and disability suffered
by the petitioner. According to him, in Exs.P2 to P4,
he has written "RTA on 01.06.2006 at around 3.00
a.m. near Channapatna hit by JCB." It is the
petitioner, who furnished this information to him. The
Doctor has also specifically stated before the Tribunal
that the petitioner sustained injury due to hit by JCB.
13. PW-3/B.H.Kenchegowda, the eyewitness
claims that while the petitioner was working in the
lorry, he fell down from the lorry as the lorry suddenly
moved without any indication. On the contrary, in his
cross-examination, he has admitted that he and the
petitioner were managing the loading of sand to the
lorry, JCB was at a distance of 10 feet and it is the
JCB, which was loading the sand to the lorry and not
by him or the petitioner. It goes to demonstrate that
at an undisputed point of time, the petitioner informed
the treating Doctor that he was hit by JCB. The claim
of the petitioner is controverted by the Insurance
Company through the documents relied upon by the
petitioner himself. When the petitioner sustained
injury due to hit by JCB, the prosecution papers speaks
contrary that the petitioner fell down from the lorry.
Hence, the alleged accident involving the lorry is not
explained and the petitioner has sustained injuries on
account of fall from lorry, but it was due to hit by JCB.
Therefore, the petitioner has to make claim against the
JCB, as the lorry bearing No.KA-05/A-9459 is not
involved in the accident. Under such circumstances,
the petitioner is not entitled to claim compensation
against the owner of the lorry as loader being
pedestrian on the road.
14. I have carefully perused the impugned
judgment. The Tribunal referred to oral and
documentary evidence which point out that the
petitioner has sustained injury due to hit by JCB, but is
not appreciated. When the petitioner has not
sustained any injury involving the lorry, remedy is not
available to him to seek relief against the lorry. Hence,
the impugned judgment is erroneous and calls for the
interference. The grounds urged by the Insurance
Company merit consideration and the impugned
judgment fails to stand to its reasoning. In the result,
the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and award passed by
the Tribunal is set aside;
(iii) The claim petition stands dismissed.
(iv) The amount in deposit shall be returned to
the Insurance Company.
Sd/-
JUDGE
KNM/-
CT:HS
