Allowed

The Divisional Manager v. Sri Shivamurthy

Karnataka HC24 Jan 2020MFA/20590/2008

Case brief

AI extract

What is this about?

The High Court allowed the insurer's appeal against a Workmen's Compensation award. The Court set aside the finding of an employer-employee relationship due to conflicting FIR evidence and dismissed the claim as barred by time, rejecting the lack of documentary proof for minority or disability.

What did the court decide?

The impugned award dated 07.06.2008 in WCA No.152/2007 passed by the Workmen's Compensation Commissioner is set aside. The claim petition against the appellant is dismissed. The amount in deposit shal

The Divisional Manager Vs Sri Shivamurthy — Contract and Commercial Disputes | Karnataka HC (2020)

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MFA NO.20590/2008

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 24^TH DAY OF JANUARY, 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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MISCELLANEOUS FIRST APPEAL NO.20590/2008 (WC)

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BETWEEN:

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THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., KARWAR BY ITS REGIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE NO. 44/45 4^TH FLOOR LEO SHOPPING COMPLEX RESIDENCY ROAD, BANGALORE 560 025 REPRESENTED BY ITS DEPUTY MANAGER

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... APPELLANT

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(BY SRI. P H PAWAR, ADV.)

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AND:

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SRI SHIVAMURTHY S/O. HUSSAINAPPA ILAGERI AGED 19 YEARS, UNDER THE GUARDIANSHIP OF HIS NATURAL BROTHER VEERANNA S/O. HUSSINAPPA ILAGERI R/AT MALAGITTI, TQ. KUSHTAGI DIST. KOPPAL.

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SRI VEERANNA S/O. HUSSAINAPPA ILAGERI AGED ABOUT 27 YEARS OCC: NIL, R/AT MALAGATTI TQ. KUSHTAGI, DIST.KOPPAL

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MFA NO.20590/2008

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SRI ATUL MAHABALESHWARA AGED: MAJOR OCC: OWNER OF TIPPER NO. KA 30/1318, R/AT BAAD KARWAR, DIST. KARWAR.

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... RESPONDENTS

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(BY SRI. S. C. HIREMATH, ADV. FOR R1 & R2; R3 – ABATED)

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THIS MFA IS FILED UNDER SECTION 30(1) OF THE WORKMEN’S COMPENSATION ACT, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 07.06.2008 PASSED IN W.C.A.152/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN’S COMPENSATION AT KOPPAL.

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

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JUDGMENT

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This appeal of the Insurer arises out of the award dated 07.06.2008 in WCA No.152/2007 passed by the Workmen’s Compensation Commissioner, Koppal District, Koppal (for short ‘the Commissioner’).

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By the impugned award, the Commissioner has awarded compensation of

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MFA NO.20590/2008

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Rs.1,74,720/- to the claimants payable by the appellant-Insurer for the death of one Krishnappa.

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The appellant was the 2^nd respondent. Respondents 1 and 2 were claimants 1 and 2 and respondent No.3 was respondent No.1 before the Commissioner. For the purpose of convenience, parties will be referred to henceforth with their ranks before the Commissioner.

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On 11.03.1995 at about 4.00 pm, when

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one Krishnappa, S/o. Hussainappa Ilageri, was digging the mud from a hillock called Siddaragudda situated in the jurisdiction of Karwar Rural Police Station, that collapsed on him and he died.

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The claimants filed WCA No.152/2007 on 05.01.2005 contending that they were the dependent brothers of Krishnappa and due to his death, they have suffered loss of dependency. They contended that, at the time of unfortunate

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MFA NO.20590/2008

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incident, their parents were not alive and they were solely depending upon Krishnappa. They claimed that Krishnappa was working under respondent No.1 in lorry bearing No.KA-30/1318 and that lorry was being used for digging and transportation of the mud and the lorry was insured with the 2^nd respondent at the time of accident. Therefore, they claimed that respondents No.1 and 2 are liable to pay the compensation.

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Respondent No.1 did not contest the claim petition. Respondent No.2 contested the claim petition denying the relationship between the claimants and Krishnappa, jural relationship between Krishnappa and 1^st respondent and death of Krishnappa due to use of motor vehicle.

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2^nd respondent further contended that the claim petition was barred by time and there

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MFA NO.20590/2008

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were no grounds to entertain the said petition. The 2^nd respondent disputed its liability.

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The parties adduced evidence. The

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Commissioner on hearing both the parties, by the impugned award held that, since the claimant No.1 was minor and claimant No.2 was physically challenged person, they had sufficient cause for filing the claim petition after ten years. The Commissioner further held that the accident

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occurred when Krishnappa was engaged in loading the mud to the lorry, therefore, there was employer and employee relationship between respondent No.1 and the deceased and the accident occurred during the course of employment.

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The Commissioner computed the income of the deceased at Rs.5,000/- per month, applied the relevant factor of 224.00 and awarded

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MFA NO.20590/2008

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compensation of Rs.1,74,720/- as aforesaid and fastened the liability on the Insurer.

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This Court admitted the appeal to

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consider the following substantial questions of

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law:

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i. Having regard to the evidence on record and facts and circumstances of the case, whether the finding of the Commissioner that deceased Krishnappa Hussainappa Iliger was employee under respondent No.3 herein is contrary to judgment of the Hon’ble Supreme Court in Oriental Insurance Co. Ltd. V/s. Premalata Shukla ?

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ii. Whether the Commissioner acted contrary to Sections 10 and 22 of the Employee’s Compensation Act, 1923 in entertaining the claim petition after 12 years of the accident?

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iii. Whether the Commissioner acted contrary to Section 147 of the Motor Vehicles Act, 1988 in foisting the liability on the appellant?

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MFA NO.20590/2008

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Relying on Ex.P1 – FIR, learned counsel for the appellants submits that, as per the claimants’ own document Ex.P1, the deceased was employed under one Deepak Keshava Nayak and not under 1^st respondent. Therefore, he submits that the Commissioner’s finding that the deceased employee under the 1^st respondent is perverse and contrary to the judgment of the Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd., Vs. Premalata Shukla¹ .

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Regarding delay, learned counsel for the Insurer submits that the claimants did not adduce any evidence in proof of their minority or physical disability, much less they being the dependants of the deceased at the time of accident. Therefore, he submits that the finding of the Commissioner with regard to the explanation for delay was totally baseless.

1 (2007) 13 SCC 476

MFA NO.20590/2008

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Insofar as substantial question No.3, he submits that, as per the claimants’ own document, victim died while digging the hillock due to collapsing of the hill and that had no nexus with the motor vehicle insured by the Insurer. He submits that, therefore his death is not covered under the risks mentioned in Section 147 of the Motor Vehicles Act.

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Per contra, Sri. S. C. Hiremath, learned counsel seeks to support the impugned award on the ground that the 1^st respondent himself did not dispute the jural relationship, therefore, the Insurer cannot question that.

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Regarding delay, he submits that there was no reason to disbelieve the oral evidence of claimant No.2 regarding the minority of claimant No.1 and the physical disability of claimant No.2.

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Regarding the liability of the Insurer, he submits that the 1^st respondent himself did not

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MFA NO.20590/2008

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dispute that the vehicle insured was deployed in digging and transportation of the mud, therefore, there was no reason for the Commissioner to disbelieve his evidence.

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Reg. delay:

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Admittedly the accident occurred on 11.03.1995 and claim petition was filed after about 10 years on 05.01.2005. Section 10(1) of the Workmen’s/Employees Compensation Act, 1923 (hereinafter referred to as ‘the Act’, for short), bars the Commissioner from entertaining the claim petition after two years of occurrence of the death. Fifth proviso to Section 10, however, states that the Commissioner may entertain the delayed claim petition, if he is satisfied that there was sufficient cause for the claimants to prefer the claim petition after the prescribed time.

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The reasons assigned by the claimants for entertaining the petition after delay of 10

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MFA NO.20590/2008

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years was that the 1^st claimant was the minor and the 2^nd claimant was physically challenged person. Absolutely no document was produced to show that the claimant No.1 was minor and claimant No.2 was physically challenged. Except for the self-serving statement of the claimants, no document like birth certificate, school certificate and medical certificate were produced in proof of the grounds urged.

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PW1 in his evidence admitted that the deceased had two other sisters. They did not come before the Court making any claim. The claimants suppressed the age of the said sisters. Though the claimants claimed that their parents were not alive at the time of the accident, nothing was produced to substantiate the said contention.

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In the claim petition claimants contended that they were the sole dependents. But they did not produce any documents like

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MFA NO.20590/2008

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survivorship certificate to establish the relationship with the deceased or to show that there were nobody to file the claim petition as their next friend.

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Despite the 2^nd respondent disputing the grounds urged for delay, the Commissioner basing only on the self-serving testimony of PW1 comes to the conclusion that the claimants were minor and physically disabled and therefore 10 years delay can be condoned.

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The Commissioner was expected to appreciate the evidence on record in an objective manner and he was not expected to go by his subjective satisfaction. The claimants did not even produce inquest mahazer to show that, except the claimants, the deceased was not survived by any other heirs and the claimants were related to the deceased.

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MFA NO.20590/2008

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In the circumstances, the finding of the Commissioner that there was sufficient reason for the claimants to file the claim petition after ten years is contrary to Sections 10 and 22 of the Act.

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Reg. Jural Relationship:

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The claimants contended that the deceased was employed under the 1^st respondent in his lorry for fetching the mud and the incident occurred during the course of such employment. To substantiate their contention, they relied on Ex.P1 – FIR and complaint and Ex.P2 – spot mahazer.

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The complaint was filed by one Parashuram Y. Shahapur. In the complaint, he stated that, himself and deceased Krishnappa and four others were employed under one Deepak Keshava Nayak as coolies. He states that, on 11.03.1995 at 4.00 pm, they had gone to the scene of occurrence in the lorry bearing No.KA-

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MFA NO.20590/2008

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30/1318 belonging to their employer Deepak

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Keshava Nayak. Thus, it is clear that, as per the complaint itself, the victim was the employee under Deepak Keshava Nayak and not under the 1^st respondent.

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Though it was said that the lorry belonged to Deepak Keshava Nayak, the employer, the claimants did not adduce any evidence to show that, during the relevant time, Deepak Keshava Nayak was the registered owner of the lorry. Contrary to that, claimants themselves impleaded the 1^st respondent as the registered owner of the lorry. When their own document – Ex.P1 militates against the claimants with regard to jural relationship, the Commissioner contrary to the said evidence holds that there was jural relationship between the 1^st respondent and the deceased.

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MFA NO.20590/2008

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In Premalata Shukla’s case referred to supra, the Hon’ble Supreme Court held that, when the document produced by the claimant itself goes against the party producing that, the Court cannot rely on only one part of it and exclude the other part. Therefore, the finding of the Commissioner with regard to the jural relationship is contrary to the ratio in Premalata Shukla’s case.

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Reg. Section 147 M.V. Act.

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As per the complaint – Ex.P1 itself, the accident occurred due to collapsing of the hillock on the victim while excavating the mud and not due to the use of the motor vehicle. Therefore, the Commissioner acted contrary to Section 147 of the Motor Vehicles Act in foisting the liability on the Insurer.

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Answering the substantial questions 1 to 3 accordingly, appeal is allowed.

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MFA NO.20590/2008

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The impugned award dated 07.06.2008 in WCA No.152/2007 passed by the Workmen’s Compensation Commissioner, Koppal, against the appellant herein is hereby set aside.

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The claim petition in the said case against the appellant herein is dismissed. The amount in deposit shall be refunded to the appellant.

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[Sd/-] JUDGE

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gab/-

The Divisional Manager v. Sri Shivamurthy

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Sri Shivamurthy

Case brief

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