Partly allowed

Hajilal@ Ijilal v. Ilyas Ahmed

Karnataka HC11 Sept 2019MFA/101576/2016

Case brief

AI extract

What is this about?

High Court allowed part of an appeal regarding employees compensation. It ordered remand to the Commissioner to reconsider liability based on driving licence documents that were previously produced but overlooked, and to revise compensation quantum based on correct income figures.

What did the court decide?

Appeal allowed in part; matter remanded to Commissioner for fresh consideration on liability and quantum of compensation based on documents filed.

Hajilal@ Ijilal Vs Ilyas Ahmed — Pension and Retirement Benefits | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF SEPTEMBER 2019

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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M.F.A.NO.101576 OF 2016 (WC)

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BETWEEN

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HAJILAL @ IJILAL S/O ALLAUDDIN AJANAL AGE:57 YEARS, OCC. SERVICE, R/O RAILWAY QUARTERS, B-30, NEAR RAILWAY STATION, RANEBENNUR, DIST. HAVERI.

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... APPELLANT

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(BY SRI. DINESH M KULKARNI, ADVOCATE)

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AND

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ILYAS AHMED S/O RAJESAB SHEKSANADI, AGE:MAJOR, OCC. OWNER OF VEHICLE, R/O HALE KOTE ONI, RANEBENNUR, TQ. RANEBENNUR, DIST. HAVERI

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SHRI RAM GENERAL INSURANCE CO.LTD., BY ITS AUTHORIZED OFFICER, E-8, EDIP RICO SITAPUR, JAIPUR, RAJASTHAN-22.

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... RESPONDENTS

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(BY SRI. NAGARAJ C KOLLOORI, ADV., FOR R2; R1- NOTICE HELD SUFFICIENT)

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THIS M.F.A. IS FILED U/S.30(1) OF THE EMPLOYEES’ COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED:15.04.2016, PASSED IN ECA.NO.84/2014, ON THE FILE OF THE I-ADDITIONAL SENIOR CIVIL JUDGE & EMPLOYEES’ COMPENSATION COMMISSIONER, HUBBALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Though this appeal came up for admission, with

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the consent of the learned counsel for parties, it is heard finally.

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This appeal is filed by the claimant assailing the judgment and award passed in ECA No. 84/2014, dated 15.04.2016 by the I-Additional Senior Civil Judge and Commissioner for Employees’ Compensation, Hubballi (hereinafter referred to as “the Commissioner” for short).

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The rankings of the parties before the

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Commissioner are retained for brevity.

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The claimant filed a claim petition under Section 22 of the Workmen’s Compensation Act (hereinafter referred to as “the Act” for short) and Rule 20 of the Workmen’s Compensation Rules (hereinafter

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referred to as “the Rules”) claiming compensation of Rs.8,92,000/- inter alia contending that the son of the claimant Bashasab was working as a cleaner of the Truck bearing registration No.KA-27/A-6207 under respondent No.1/ the owner of the said truck and there was a relationship of employer and employee between the 1^st respondent and the deceased Bashasab and as per the direction of respondent No.1, said Bashasab was proceeding in the said truck on 21.06.2013. When they were on the way to Hubballi on NH-4, the said truck was parked near ACC cement and Fertilizer godown, Kundagol Cross and at that time, the 1^st respondent, being the driver of the lorry, instructed the deceased to go on the top of the lorry and cover the goods loaded in lorry by tarpaulin, since it was raining. On his instructions, said Bashasab went on the top of the lorry to cover the goods and at that time, he came into contact with High Tension Electricity cable, due to which, he fell down and sustained injuries and died on

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the spot. Hence, the claimant filed claim petition seeking compensation on various heads.

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In pursuance to the notice, the 1^st

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respondent appeared before the Commissioner and filed his statement of objections by admitting the accident in question and death of deceased and also admitted that the deceased was working under him as a cleaner and he was paying Rs.7,000/- as a monthly salary to the deceased. He further contended that the vehicle was duly insured with respondent No.2/insurer and if any liability is there, the same shall be fastened on respondent No.2/insurer and hence, prayed for dismissal of the petition.

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The 2^nd respondent/insurer also appeared before the Commissioner through his counsel and filed statement of objections by denying the factum of accident and contended that the death of the deceased was not occurred during the course of his employment

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and denied the jural relationship between the deceased

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and the 1^st respondent as employer and employee. It is further contended that the deceased was not taken due care and caution and himself contributed for his death.

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It is further contended that the deceased was an unauthorized passenger in the goods vehicle and hence prayed for dismissal of the petition.

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Based upon the rival contentions of the

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parties, the Commissioner framed the following issues:

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«ªÁzÁA±ÀUÀ¼ÀÄ

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CfðzÁgÀgÀÄ vÁªÀÅ ªÀÄÈvÀ ¨ÁµÁ¸Á§ Cd£À® FvÀ£À CªÀ®A©vÀgÉAzÀÄ ºÁUÀÆ ¸ÀzÀj ªÀÄÈvÀgÀÄ 1£ÉÃ JzÀÄgÀÄzÁgÀ°è QèÃ£Àgï JAzÀÄ PÉ®¸À ªÀiÁqÀÄwÛgÀÄªÁUÀ GAmÁzÀ C¥ÀWÁvÀ¢AzÁzÀ UÁAiÀÄUÀ½AzÀ ªÀÄÈvÀ¥ÀnÖgÀÄvÁÛ£É JAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÄªÀgÉÃ?

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CfðzÁgÀgÀÄ ªÀÄÈvÀ¤UÉ CªÀ£À ªÀÄÈvÀ ¸ÀªÀÄAiÀÄzÀ°è EzÀÝ ªÀAiÀÄ¸ÀÄì ºÁUÀÆ ªÀiÁ¹PÀ ªÉÃvÀ£À gÀÆ.8,500/- ºÁUÀÆ ¢£À¨sÀvÉå gÀÆ.50/gÀAvÉ ºÉÆA¢zÀÝgÉAzÀÄ gÀÄdÄªÁvÀÄ¥Àr¸ÀÄªÀgÉÃ?

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CfðzÁgÀgÀÄ PÁAiÉÄÝAiÀÄrAiÀÄ°è ªÀÄÈvÀ£À ¸Á«UÁV £ÀµÀÖ ¥ÀjºÁgÀzsÀ£À ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ? ºÁVzÀÝgÉ ¸ÀzÀj £ÀµÀÖ ¥ÀjºÁgÀzsÀ£ÀzÀ ªÉÆvÀÛªÉµÀÄÖ?

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CfðzÁgÀjUÉ £ÀµÀÖ ¥ÀjºÁgÀzsÀ£À ¤ÃqÀ®Ä AiÀiÁgÀÄ ¨ÁzsÀå¸ÀÜgÀÄ?

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wÃ¥ÀÄð K£ÀÄ?

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In order to substantiate his contention, the claimant examined himself as P.W.1 and got marked seven documents as Ex.P.1 to Ex.P7. The respondent/ insurer not let in any evidence except marking the insurance policy as Ex.R.1, with consent. After considering the evidence on record, the Commissioner answered Issue No.1 in affirmative, Issue No.2 partly in affirmative, Issue No.3 & 4 in affirmative and allowed the petition in part and awarded compensation of Rs.4,55,440/-, however fastened the liability on the owner of the vehicle and absolved the insurance company. Assailing the judgment and award passed by the Commissioner, the claimant preferred this appeal

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both on the issue of quantum of compensation and absolving the insurance company from its liability.

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The counsel for the appellant Sri. Dinesh M

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Kulkarni has strenuously argued that the claimant has established the fact that the deceased was cleaner and

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was working under respondent No.1. It is contended that though the deceased was getting Rs.8,000/- per month as salary and Rs.50/- per day batta and respondent No.1, who is the owner of the offending vehicle, admitted the relationship of employer and employee between him and the deceased and was paying Rs.7,000/- per month as a salary, but there is no reason for the Commissioner to reduce the salary of the deceased to Rs.4,000/- per month, which is very meager. Even the Courts, in accident cases occurred during the year 2013, use to consider the income of Rs.7,000/- per month for an unskilled labour, but the Commissioner has considering only Rs.4,000/- as income of the deceased, which is very meager, that too

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as against the documentary as well as oral evidence on record. Hence, prayed for enhancing the compensation. The learned counsel has further contended that though the documents i.e. Driving Licence, Registration Certificate of the vehicle and other documents were produced by the 1^st respondent before the Commissioner, the Commissioner while fastening the liability has wrongly held that no Driving Licence was produced before the Court and there was a violation of policy condition and absolved the respondent/insurance company from its liability, which is not correct. The learned counsel has also filed I.A.No.1/2019 under Order XLI Rule 27 of the Code of Civil Procedure, 1908, (hereinafter referred to as “CPC” for short) seeking permission to produce additional documents before this Court and prayed for allowing the application as well as appeal.

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Per contra, the learned counsel appearing for

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the respondent/insurer Sri. Nagaraj C Kolloori has

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argued that there was no document produced by the claimant before the Commissioner to show that the 1^st respondent was holding any effective driving licence as on the date of the accident. Therefore, the Commissioner has rightly absolved the liability of the insurer and fastened it on the owner of the vehicle and has also contended that the copy of the driving licence produced before the Court was not attested by any of the authorities.

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At this stage, the learned counsel for the appellant/claimant has contended that a copy of the driving licence has been obtained from the Commissioner, which was available in Lower Court records and during the course of arguments, the learned counsel has also brought to the notice of this Court that the driving licence, permit and relevant documents were produced by the respondent No.1 before the Commissioner on the application filed by the insurance company. In spite of producing the driving

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licence by respondent No.1, the Commissioner has wrongly held that there is no document produced and has wrongly fastened the liability on the owner of the vehicle, which is not correct. Hence, prayed for allowing I.A. No.1/2019.

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Learned counsel for the respondent/insurer has contended that if this Court allows this appeal regarding fastening of the liability in view of nonadmitting document by the Commissioner, which was produced before the Commissioner, then the matter requires to be remanded back to the Commissioner for fresh consideration both on the issue of quantum as

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well as liability including the contention that the deceased not died in road traffic accident and he died due to electrocution.

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Per contra, the learned counsel for the appellant/claimant contended that the Commissioner has already given finding in respect of death of the

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deceased during the course of his employment and therefore, the question of reopening the findings of the Commissioner in this regard cannot be allowed as the insurer not filed any appeal. Hence, the counsel for claimant also agreed for remanding the matter to the Commissioner only on the point of fastening the liability and considering the documents produced by respondent No.1 before the Commissioner. Hence, looking to the documents produced before this Court and upon considering the rival contentions and the arguments advanced by the learned counsel for parties, the points that arise for consideration of this Court are as under:

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1. Whether the Commissioner is not justified in fastening the liability on respondent No.1/owner of the vehicle on the ground of non-production of driving licence of respondent No.1?

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2. Whether the appellant has made out a case for allowing I.A.No.1/2019 filed under Order XLI Rule 27 of CPC?

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What order?

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14. The claimant has established before the

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Commissioner that the deceased/Bashasab, while working as a cleaner in a lorry bearing registration No. KA-27/A-6207belonging to respondent No.1, was on the way to Hubballi and the said lorry was parked near ACC Cement and Fertilizers godown, Kundagol Cross, at that time, on the instruction of respondent No.1, who was the driver of the said truck, he went on the top of the lorry to cover the goods by tarpaulin by which time he was electrocuted by coming into contact with a high tension electric cable, he fell down from the lorry, sustained injuries and died on the spot. After considering the evidence on record and statement of objections of respondent No.1 admitting the relationship between respondent No.1 and the deceased and also death of the deceased during the course of his employment, the Commissioner answered Issue No.1 in affirmative in favour of the claimant. Though the learned counsel for the insurer has contended that they

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want to challenge even the relationship and cause of death of the deceased during the course of his employment in case this Court remand the matter back to the Commissioner for fresh consideration, in my considered view, once the Commissioner given his findings on the fact that the deceased died on the spot during the course of his employment by sustaining accidental injuries due to electrocution and as the respondent No.1 himself lodged complaint before the Police and as the death of deceased was registered in UDR and even in the pleadings, the respondent No.1 has not disputed the death of deceased due to electrocution, but the dispute is only regarding jural relationship of the deceased, on which the Commissioner has already given his findings, therefore the question of reopening the findings of the Commissioner that the deceased died due to the injuries sustained during the course of his employment is not required to be reopened. The matter requires to be

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remanded back to the Commissioner only for the purpose of considering the documents produced by the 1^st respondent before the Commissioner. On perusal of the Lower Court Records, which reveals that the advocate for insurance company filed I.A. No.5 under Order XI Rule 14 of CPC on 22.12.2015 seeking directing to the 1^st respondent to produce documents viz., driving licence of the driver, registration certificate of the vehicle, fitness certificate and permit copy of the lorry. Thereafter the case was adjourned by the Commissioner. Later, on 10.02.2016 the counsel for respondent No.1 Sri. PNG filed notarized copies of two documents. The same was received by the Commissioner. Thereafter, the case was adjourned on three hearing dates and on 09.03.2016, the counsel for insurance company filed I.A. under Section 170 of the Motor Vehicles Act for taking available ground and to produced the insurance policy and with the consent of the parties, it was marked and no oral evidence was let

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in. But while passing the judgment and award, the Commissioner, while considering the liability aspect, held that the respondent No.1 not produced the driving licence pertaining to the driver of the vehicle, which is not correct, since the said documents were already available on record, which were produced by the counsel for respondent No.1 before the Commissioner along with memo dated 10.02.2016, wherein it reveals that a notarized copy of insurance policy, notarized copy of permit, computerized pollution under check centers certificate, a copy of the driving licence pertaining the 1^st respondent, who himself was the driver at the time of the alleged incident and even though the said documents were produced before the Court, the Commissioner has not considered them. If the said documents were considered by the Commissioner, the liability would have been fastened on the insurer. Therefore, these documents are very necessary for the appellant to produce before the Court, even otherwise,

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the same were produced and not admitted by the Commissioner in evidence. Therefore, for the purpose of considering the said documents, the matter requires to be remanded back to the Commissioner for fresh consideration in respect of liability issue apart from the quantum of compensation as the claimant’s counsel submitted that the 1^st respondent admitted the payment of Rs.7,000/- per month made by him to the deceased as a salary. The Commissioner without any cause or sufficient reason reduced the income to Rs.4,000/- per month. Therefore, on these two points regarding fastening of the liability in view of the documents filed on 10.02.2016 as well as I.A No.1/2019 filed before this Court and also on the quantum of compensation, the matter requires to be remanded back to the Commissioner. However, the prayer of the respondent/insurer regarding jural relationship and death of the deceased during the course of his employment cannot be considered. Accordingly,

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I.A.No.1/2019 is allowed and the appeal filed by the claimant is allowed in part.

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The judgment and award passed by the Commissioner in respect of Issue No.2 to 4 is remanded back for fresh consideration.

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Both the parties are directed to appear before the Commissioner on 15.10.2019 without any further notice. However the Commissioner shall issue notice to the 1^st respondent.

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Further, the Commissioner is directed to dispose of the matter in accordance with law, within a period of three months from 15.10.2019 and the parties shall co-operate with the Commissioner in speedy disposal of the matter.

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Sd/JUDGE

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yan

Hajilal@ Ijilal v. Ilyas Ahmed

Case brief

What is this about?

What did the court decide?

Hajilal@ Ijilal v. Ilyas Ahmed

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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