Karnataka High Court
Cholamandalam Ms Gic Ltd vs Saleem on 11 June, 2025
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MFA No. 8308 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 8308 OF 2019 (ECA)
BETWEEN:
CHOLAMANDALAM MS GIC LTD.,
16/1/44 (14), 1ST FLOOR,
SR COMPLEX, BENDOORWELL ROAD,
MANGALORE-575 002
PRESENTLY AT: 6TH FLOOR,
GOLDEN HEIGHTS BUILDING,
NEAR SUJATHA THEATRE,
RAJAJI NAGAR, BENGALURU-10
...APPELLANT
(BY SRI. MURALIDHARA N., ADVOCATE)
AND:
1. SALEEM
S/O HAMZA,
Digitally AGED ABOUT 31 YEARS
R/AT HN HOUSE, NELLIGUDDE,
signed by MIYARU, KARKALA TALU,
SUVARNA T UDUPI DISTRICT-574 104
Location:
HIGH 2. SMT. RATHIKALA
COURT OF W/O BABU,
KARNATAKA AGED ABOUT 43 YEARS
R/AT VELLACHIMAVILAI HOUSE,
MADICHAL, PO KUJITHURAI,
VILAVAMAKODE TALUK,
KANYAKUMARI DISTRICT-629 163
...RESPONDENTS
(BY SRI.PRATHEEP K.C., ADVOCATE FOR R1
R2- SERVED AND UNREPRESENTED)
THIS MFA FILED U/S. 30(1) OF EMPLOYEES COMPENSATION
ACT, AGAINST THE JUDGMENT AND AWARD DATED: 15.06.2019,
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MFA No. 8308 of 2019
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PASSED IN ECA NO.3/2014, ON THE FILE OF THE SENIOR CIVIL
JUDGE AND COMMISSIONER FOR EMPLOYEES COMPENSATION,
KARKALA, AWARDING COMPENSATION OF RS.9,11,175/- WITH
INTEREST AT THE RATE OF 12 PERCENT P.A., FROM 15.11.2010 TILL
REALIZATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
07.03.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CAV JUDGMENT
Aggrieved by the award passed in ECA No.03/2014 dated
15.06.2019 by the Senior Civil Judge and Commissioner for
Employees Compensation, Karkala, the Insurance Company is
before this Court questioning the liability.
2. The parties are referred to as arrayed before the Trial
Court.
3. The respondent No.1 herein had filed a petition under
section 3 and 4 of Workmen's Compensation Act, claiming
compensation for the injuries sustained by him while he was
working as compressor operator under the 1st respondent who
is insured with the 2nd respondent-Insurance Company.
4. The facts of the case are that the petitioner was
working as compressor operator under respondent No.1 since 6
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years. On 15.11.2010 at about 1.30 p.m., when the petitioner
was working as compressor operator because of the vibration of
the compressor, one stone slipped and fell on his body, due to
that the left upper limb below elbow bone smashed and the
bone of both lower limbs was fractured and the petitioner had
lost his conscious immediately. He regained conscious after
three days of the accident. Because of the injuries the
petitioner had amputation of his left upper limb. The
respondent No.1/employer filed written statement denying the
petition averments and it is stated that the petitioner was never
under his employment and on the said date he had come to the
spot on his own as a curious on looker. He was not a
compressor operator or workmen under respondent
No.1/employer. It is stated that on the said date, the employer
has hired the compressor from third party. Hence, there is no
question of hiring the petitioner as compressor operator. The
insurance company had filed the written statement and they
have also denied the liability stating that they have not insured
the compressor and they have insured only the tractor and the
case was registered against the driver for not having a valid
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driving license, even on that count also the insurance company
is not liable to pay the compensation.
5. The tribunal had granted compensation of an amount
of Rs.9,11,175/- and held that it is the duty of the employer/R-
1 to prove that there was no employer-employee relationship
and he has not stepped into the witness box to prove the
contentions and just filing written statement is not sufficient to
discharge the burden. The Tribunal has also not considered the
stand taken by the Insurance Company that the compressor is
not insured. The tribunal observed that it is mentioned in the
insurance policy i.e., Ex.R-2 IMT 47 i.e., drilling rigs attached to
tractor, for that also premium is collected. Hence, the
Insurance Company is liable to pay the compensation.
6. Learned counsel appearing for the Insurance Company
submits that the insurance company is not liable to pay the
compensation as the petitioner has failed to establish the
employee and employer relationship. The case is registered
against the driver of the tractor that he was not having a valid
driving license. He had relied on the Judgment of the three
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Judges Bench of this court in the case of Gadhilingappa alias
Gadhilinga and Anr Vs. K. Guleppa K. Lingappa and Anr1
When the policy is in respect of tractor or crushing machine,
ploughing machine or any other instrument attached to the
tractor cannot be considered to be attachment to tractor and so
as the person sitting on it. Learned counsel further submits
that the order passed by the tribunal needs to be set aside as
the tribunal had failed to consider the factual as well as the
legal aspects.
7. Learned counsel for the petitioner/respondent submits
that the employer without even entering the witness box
cannot say that he has failed to establish that there is no
employer-employee relationship. The tribunal has held that
there was an employer-employee relationship and had rightly
granted the compensation and there are no grounds to
interfere with the well considered order passed by the tribunal.
8. Having heard the learned counsels on either side,
perused the entire material available on record. The claim
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petition is filed under Section 3 and 4 of the Workmen
Compensation Act. The first requisite for filing an application
under the Workmen Compensation Act is the relationship
between employer and employee that the accident had taken
place during the course of employment and the valid insurance
policy. Here in this case, the court had observed that employer
has not adduced any evidence. When the claim petition is filed,
the initial burden lies on the claimant to show that there is an
employer-employee relationship. This court has perused the
exhibits that are filed on behalf of the claimant i.e, Ex.P-1 to
Ex.P-13. None of these exhibits disclose anything with regard
to the employment of the petitioner. The tribunal without any
basis had fastened the burden on the employer and presumed
that the claimant is working with the respondent
No.1/employer from the last several years. This observation of
the tribunal needs to be interfered by this court as said
observation is without any basis and without any evidence.
Under these circumstances, this court deems it appropriate to
give an opportunity to the claimant to adduce the evidence in
this regard and also the insurance company and all the
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question of liability and quantum are kept open and the parties
are at liberty to adduce the evidence in support of their case.
Accordingly, this court is passing the following:
i. The impugned order passed in
ECA.No.3/2014 dated 15.06.2019 by the
Senior Civil Judge and Commissioner for
Employees Compensation, Karkala is set
aside and the matter is Remanded Back to
the Tribunal for fresh consideration.
Accordingly, the appeal is Allowed.
ii. Both the parties are at liberty to adduce
evidence before the tribunal and tribunal
shall consider all the questions involved in
this case afresh.
iii. Without further reference, the parties shall
appear before the tribunal on 23.06.2025
and the Tribunal shall decide the case as
expeditiously as possible but not later
than six months.
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v. The amount in deposit by the insurance
company shall be forthwith transferred to the
MACT.
vi. The Registry is directed to return the Trial
Court Record to the Tribunal along with the
certified copy of the order passed by this
court forthwith without further delay.
vii. No costs.
Pending miscellaneous petitions, if any, shall stand
closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
TS
