Basavaraj v. the Division Manager New India Assurance Co. Ltd.

Karnataka HC10 Jul 2013MFA/10896/2007

Case brief

AI extract

What is this about?

In a miscellaneous first appeal under the Workmen's Compensation Act, the High Court observed that the Additional Commissioner violated natural justice by passing an order without notifying the appellant of the hearing date. The appeal was allowed in part, setting aside the impugned order and remitting the matter for disposal after affording the appellant an opportunity to lead evidence and cross-

What did the court decide?

The order dated 12.9.2006 was set aside and the matter remitted to the Additional Commissioner for disposal after affording the appellant an opportunity to cross-examine and lead evidence.

Basavaraj Vs the Division Manager New India… — Service and Employment | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA

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CIRCUIT BENCH AT GULBARGA

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DATED THIS THE 10^TH DAY OF JULY 2013

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BEFORE

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THE HON’BLE MR.JUSTICE S. ABDUL NAZEER

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MISCELLANEOUS FIRST APPEAL NO.10896/2007 (WC)

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Between:

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Basavaraj, S/o Nagashetty Chanda, Aged about 65 years, Occ;Working, R/o H.No.7-8-534, KHB Colony, Bidar. …. Appellant.

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(By Sri Harshavardhan R.Mali Patil, Adv.)

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And:

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1 The Division Manager, New India Assurance Co. Ltd., Gulbarga.

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2 Eswaramma, W/o late Vijayakumarswamy, Aged about 24 years, Occ; Household, R/o Omnnagar, Sedam Road, Gulbarga.

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3 Pooja, D/o late Vijayakumarswamy, Aged about 5 years, Occ; Nil, Under the guardianship of Natural mother Smt.Eswaramma, Respondent No.2, R/o Omnnagar, Sedam Road, Gulbarga.

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4 Veeraiah, S/o late Vijayakumarswamy, Aged about 3 years, Occ; Nil, Under the guardianship of Natural mother Smt.Eswaramma, Respondent No.2, R/o Omnnagar, Sedam Road, Gulbarga. …. Respondents.

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(By Sri S.S.Aspalli, Adv. for R1

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Sri Jayanandayya, Adv. for R2 to R4)

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This Miscellaneous First Appeal is filed under Section 30(1) of Workmen’s Compensation Act against the order dated 12.9.2006 in (LOB.WCA.61/2001) LOB/WCA/Misc.1/2005 on the file of the Additional Commissioner for Workmen’s Compensation, Gulbarga, etc.

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This Miscellaneous First Appeal coming on for Further Orders this day, the Court delivered the following:

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JUDGMENT

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In this case, the appellant has called in question the validity of the order dated 12.9.2006 in LOB.WCA.Misc.No.1/2005 (LOB/WCA/61/2001) passed by the Additional Commissioner for Workmen’s Compensation, Gulbarga.

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One Vijayakumaraswamy was the husband of the second respondent and father of respondent Nos.3 and 4. Respondent Nos.2 to 4 filed the claim petition before the Commissioner for Workmen’s Compensation and Labour Officer, Gulbarga (for short ‘the Commissioner’) against the appellant and United India Insurance Company Limited in WCA.CR.61/2001 seeking compensation on account of the death of Vijayakumarswamy in the course of the employment. According to them, Vijayakumarswamy was employed with the first respondent as a driver of heavy passenger vehicle bearing No.KA-38/9000. An application for amendment of the claim petition was filed by the claimants under Order 6 Rule 17 of the

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Code of Civil Procedure. The amendment sought was for deletion of the name of the second respondent-Insurance Company and in its place to insert the name of ‘New India Assurance Company Limited’. They have also sought for addition of paragraph 2 to the claim petition, which states that the deceased was working as a driver at the time of his death. The New India Assurance Company Limited issued cover note No.4412 valid from 7.12.1999 to 6.12.2000 from D.O.140300, Star Trade Centre, Junction of Sodawala Lane, Borivali (W), Bombay-400092. The application was allowed by the Commissioner and an amended claim petition was filed on 29.8.2002.

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Notice of the claim petition was served on the appellant and the first respondent herein. The first respondent herein has filed the objections to the petition denying the petition averments. It has contended that the vehicle in question was not insured with them. The appellant herein has not contested the case before the Commissioner.

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The Commissioner passed an order dated 12.9.2006

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awarding compensation of Rs.2,20,507/- with interest thereon in accordance with the provisions of the Workmen’s Compensation Act,1923.

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The first respondent filed an application dated 26.4.2005 in case No.LOB.WCA.Misc.1/05 before the Commissioner seeking modification of the order dated 6.4.2004. In the application, the second respondent contended that the Divisional office of New India Assurance Company Limited, Bombay, has informed the office of New India Assurance Company Limited, Gulbarga, through their letter dated 6.4.2005 that the vehicle in question was neither insured with them nor have they issued cover note No.4412. The cover note produced by the claimants is a fake document.

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The said application was opposed by the appellant herein by filing objections on 6.12.2005. The Additional Commissioner for Workmen’s Compensation by his order dated 12.9.2006 has allowed the application and has modified the previous order dated 6.4.2004.

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As noticed above, the appellant herein has assailed the said order in this appeal.

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The contention of the appellant is that the order impugned is violative of the principles of natural justice. The appellant was not provided with reasonable opportunity to contest the matter before the Additional Commissioner for Workmen’s Compensation and Labour Court, Gulbarga (for short ‘Additional Commissioner’). It is argued that on 7.3.2006, the case was posted before the Commissioner for petitioner’s evidence on 21.3.2006. On that day, evidence was let in on behalf of the Insurance Company. It was posted for crossexamination on 4.4.2006 and thereafter to 17.4.2006 and 25.4.2006.On 25.4.2006, since PW1 was not cross-examined, the Commissioner has recorded that no cross-examination on behalf of the petitioner. The case was posted to 3.5.2006 for the evidence of the respondent. However, the matter was not posted before the Commissioner on 3.5.2006. On the other hand, on 11.7.2006, the matter was posted before the Additional Commissioner. The appellant could not appear before the Additional Commissioner on

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the said day as he had no notice of the proceedings nor was he aware of the transfer of the case before the Additional Commissioner. Thereafter, the order was passed on 12.9.2006.

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Secondly, it is argued that cover note of the policy was produced by the claimants before the Commissioner. The Branch Office of the second respondent at Bombay sent a letter dated 6.4.2005 to the first respondent. In the said letter, there is a reference to the cover note No.4412 valid from 7.12.1999 to 6.12.2000. In the letter, they have stated that the vehicle is not insured in their office. If they had not issued the cover note, question of referring the number of the cover note in their letter dated 6.4.2005 does not arise. All these points could not be highlighted, as the appellant had no opportunity to defend the matter before the Additional Commissioner.

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On the other hand, learned Counsel appearing for the first respondent submits that the cover note produced by the claimants before the Commissioner was a fake document. The letter sent by

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the Bombay Office dated 6.4.2005 has clearly stated so. That is why the first respondent was compelled to make an application for modification of the order dated 6.4.2004. The Additional Commissioner on proper appreciation of the facts and circumstances of the case has rightly recalled the earlier order. It is argued that sufficient opportunity was given to the appellant to contest the case before the Commissioner. Except filing the statement of objections, he has not appeared before the Commissioner. Therefore, the order does not call for interference.

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I have carefully considered the arguments of the learned

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Counsel made at the Bar and perused the materials placed on record.

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As noticed above, the proceedings was initiated at the first instance before the Commissioner for Workmen’s Compensation, Gulbarga. He passed an order awarding compensation on 6.4.2004. An application was filed by the first respondent for modification of the said order before the Commissioner. The appellant herein entered appearance in the said case through his learned Advocate on

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31.1.2006. He has filed written statement on 7.3.2006. The matter

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was posted on 21.3.2006. On that day, the first respondent has examined a witness as P.W1 on its behalf. The matter was posted for cross-examination of P.W1 on 4.4.2006. Since no representation was made on behalf of the appellant herein, the matter was posted for cross-examination on 17.4.2006 and again on 25.4.2006. On 25.4.2006, since P.W1 was not cross-examined, cross-examination of P.W1 was taken as ‘nil’ and the matter was posted for evidence of the respondents to 3.5.2006. However, the matter was not posted on 3.5.2006. On the other hand, the matter was taken up by the Additional Commissioner on 11.7.2006 and on that day, since there was no representation on behalf of the appellant, the matter was posted for orders on 12.9.2006 and on that day, the impugned order was passed by the Additional Commissioner. It is clear that all along the matter was pending before the Commissioner. The written statement was filed on 7.3.2006. The first respondent has let in evidence on 21.3.2006 and the matter was posted for his crossexamination on 4.4.2006 and thereafter on 17.4.2006. Again, the matter was posted on 25.4.2006. Since the appellant did not appear

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on the said date, his cross-examination was taken as ‘nil’ and thereafter the matter was posted to 3.5.2006. However, the matter was not taken up on the said date. As stated above, the matter was posted before the Additional Commissioner on 11.7.2006. The appellant was not issued with any notice informing him the date of hearing. When the matter was not taken up on 3.5.2006 and it was taken up on 11.7.2006 before the Additional Commissioner, the Additional Commissioner ought to have notified the appellant, the date of hearing and posting of the case before him.

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The contention of the appellant is that the cover note is not a fake document as contended by the other side. It is argued that it is only on the basis of a letter issued by the Bombay office of the second respondent dated 6.4.2005, the first respondent has filed the application for modification of the order dated 6.4.2004. The first respondent has not produced the original of the said letter before the Commissioner. A xerox copy of the said letter has been marked in the evidence. It is further argued that the appellant has a good case on merits.

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Having regard to the facts and circumstances of the case, I am of the view that the order passed by the Additional Commissioner dated 12.9.2006 without notifying the appellant the next date of hearing is violative of the principles of natural justice. I am also of the view that the appellant should be granted an opportunity to contest the matter before the Additional Commissioner.

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In the result, the appeal succeeds and it is accordingly allowed in part. The order dated 12.9.2006 passed by the Additional Commissioner for Workmen’s Compensation and Labour Court, Gulbarga, is hereby set aside. The matter is remitted back to the Additional Commissioner for Workmen’s Compensation, Gulbarga. The parties are directed to appear before the Additional Commissioner for Workmen’s Compensation on 3.9.2013 at 3.00 p.m. without any further notice from the Additional Commissioner. The appellant is permitted to cross-examine P.W1 and also to lead his evidence before the Additional Commissioner. The Additional

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Commissioner is directed to dispose of the matter in the light of the observations made above and in accordance with law. Registry is directed to send the records to the Additional Commissioner for Workmen’s Compensation, Gulbarga forthwith. Parties are directed to bear their own costs.

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Sd/JUDGE.

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BMM/-

Basavaraj v. the Division Manager New India Assurance Co. Ltd.

Case brief

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Basavaraj v. the Division Manager New India Assurance Co. Ltd.

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