Allowed

The Bajaj Aliance Insurance Co. Ltd. v. Neelappa S/O Siddappa

Karnataka HC23 Jan 2020MFA/21494/2008

Case brief

AI extract

What is this about?

The Karnataka High Court allowed the appeal of an insurer against a workmen's compensation award. The Court held that the Commissioner erred in finding an employer-employee relationship because the First Information Report did not disclose the claimant was a loader or that goods were being carried, contradicting the Supreme Court principle in Premalata Shukla that parties cannot resile from admitt

What did the court decide?

The impugned award dated 15.07.2008 is set aside, the claim petition before the Commissioner is dismissed, and the amount in deposit is refunded to the appellant.

The Bajaj Aliance Insurance Co. Ltd. Vs Neelappa S/O Siddappa — Insurance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 23^rd 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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MFA NO.21494 OF 2008 (WC)

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BETWEEN

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THE BAJAJ ALIANCE GENERAL INSURANCE COMPANY LTD V A KALBURGI MANSION LAMINGTON ROAD,HUBLI BY ITS ASST. MANAGER LEGAL/AUTHORISED SIGNATORY

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... APPELLANT

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(BY SRI. S K KAYAKAMATH, ADV.)

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AND

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NEELAPPA S/O SIDDAPPA DODDAYYAPPANAVAR R/O: KORALAHALLI TQ: MUNDARGI

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S MALLESHANAYAK SHANKARNAYAK AGE: MAJOR R/O: ANKLUTANDE POST: HAKKANDI TQ: HUVINAHADAGALI DIST: BELLARY

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... RESPONDENTS

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(BY SRI. MALLIKARJUNSWAMY HIREMATH, ADV. FOR R1 NOTICE TO R2 SERVED)

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: 2 : MFA No.21494/2008

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THIS MFA IS FILED UNDER SECTION 30(1) OF THE WORKMEN’S COMPENSATION ACT 1923 AGAINST THE JUDGMENT AND AWARD DATED 15.07.2008 PASSED IN WCA/NF.NO.34/2006 ON THE FILE OF THE COMMISSIONER, HUBLI DIVISION-1, HUBLI.

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THIS APPEAL COMING ON FOR FINAL 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 15.07.2018 in WCA/NF.No.34/2006 passed by the workmen’s compensation Commissioner (for short “the Commissioner”) Hubali Sub Division-I, Hubballi. By impugned award, the Commissioner has granted compensation of Rs.96,447/- to the claimant payable by the appellant insurer.

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On 17.10.2005 at 12.30 p.m. three wheeler Bajaj Tempo bearing temporary registration No.KA-26/TRM 693/GDG/05-06 met with an accident at Korlahalli-Mundaragi road within Mundaragi taluk limits. One Hanumanth N Lamani filed complaint before Mundaragi police

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: 3 : MFA No.21494/2008

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as per Ex.P.1 which was registered under Crime No.153/2005 by the said police. The complainant alleged that the driver of the said vehicle picked up several persons from Madlapur village onwards at several stages and when the vehicle was proceeding near Koralahalli cross, accident took place due to rash and negligent driving of the vehicle by the driver. The complainant further alleged that 14-15 passengers suffered injuries in the accident.

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At the relevant time, respondent No.2 herein was registered owner of the vehicle and the vehicle was insured by the appellant.

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Respondent No.1 herein filed claim petition in WCA/NF.No.34/2006 against the appellant and the second respondent claiming that at the time of accident he was working under the second respondent as loader and he was carrying goods in the vehicle. He further claimed that in the accident he suffered

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: 4 : MFA No.21494/2008

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grievous injuries and permanent physical disability and owner and insurer were liable to pay him compensation of Rs.3,00,000/- with interest.

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The appellant contested the claim petition denying the relationship of employer and employee. The appellant further contended that the claimant was traveling in the vehicle as unauthorized passenger, therefore, it is not liable to indemnify the damages.

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The appellant and respondent No.1 herein adduced evidence in the proceedings before the Commissioner. The Commissioner on hearing both side by the impugned award held that since respondent No.2 herein did not dispute the jural relationship the same is proved.

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So far as injuries and disability; relying on the evidence of PW.1-claimant and PW.2-Medical Officer the Commissioner held

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: 5 : MFA No.21494/2008

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that claimant suffered 35% loss of earning capacity, and was earning Rs.3,000/per month, applied 153.09 relevant factor and granted compensation of Rs.96,447/-.

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Challenging the said award insurer is in appeal before this Court. This Court admitted the appeal to consider the following substantial question of law.

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“Having regard to the material on record and facts and circumstances of the case, whether the finding of the Commissioner that the claimant was the employee under respondent No.1 before him is contrary to the judgment of the Hon’ble Supreme Court in Oriental Insurance Co. Ltd. V/s. Premalata Shukla (2007) 13 SCC 476 ?”

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Sri.S.K.Kayakmath, learned counsel for appellant submits that FIR-Ex.P.1 itself

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: 6 : MFA No.21494/2008

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discloses that there were no goods in the insured vehicle, though the claimant contends that he was traveling with goods as a loader. He further submits that complaint shows that driver picked up several persons as paid passengers and they were all unauthorized passengers. He contends that since there was no whisper in EX.P.1 about vehicle carrying goods or loaders, the Commissioner was in error in holding that the claimant was working under the insured as a loader.

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In support of his contention he relies upon the judgment of the Hon’ble Supreme Court in Oriental Insurance Co. Ltd. V/s. Premalata Shukla¹ .

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Per contra Sri.Mallikarjunswamy Hiremath, learned counsel for the first respondent/claimant seeks to justify the award

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1 (2007) 13 SCC 476

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: 7 : MFA No.21494/2008

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on the ground that complainant in his further statement names the claimant as loader and cleaner, therefore, Ex.P.1-Complaint and FIR cannot be blown out of proportion. He further submits that since insured/respondent No.2 himself did not dispute the jural relationship it is not open to the insurer to question that. He further submits that on question of fact the Commissioner is a last authority and this Court cannot interfere with such finding.

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According to the claimant he was employed as loader/cleaner by the insured in the vehicle in question. The said vehicle was a goods vehicle. The complaint and FIR the claimant’s own documents do not whisper anything about any goods being carried in the vehicle at the time of the accident. It does not even refer to any cleaner or loader in the vehicle.

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: 8 : MFA No.21494/2008

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The accident occurred on 17.10.2005. The alleged further statement of complainant was recorded on 29.10.2005 i.e. more than 10 days. Such further statement being statement of living person not admissible in evidence.

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The claimant did not examine the complainant Hanumanth Lamani to explain omissions in the complaint. Further he did not examine the insured to prove that claimant was employed under him as loader or cleaner.

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In Premalata Shukla ’s case referred to supra the Hon’ble Supreme Court in para 13 and 14 of the judgment held as follows:

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“ 13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that, the other contents contained in the

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: 9 : MFA No.21494/2008

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rest part thereof had not been proved . Both the parties have relied thereupon. It was marked as an exhibit as both the parties intended to rely upon them.

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14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise.”

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(emphasis supplied)

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Thus it was held that once the

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document is admitted in evidence on behalf of a party, later he cannot turn around or resile from the statement made therein. As already pointed out, complaint and FIR did not mention anything about any goods being carried in the offending vehicle or presence of cleaner in the vehicle.

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: 10 : MFA No.21494/2008

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Therefore, it was not open to the claimant to contend that statement made in those documents cannot be relied or they were not proved.

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Under the circumstances, the Commissioner acted contrary to the judgment in Premalata Shukla ’s case in holding that there was a relationship of employee and employer between the claimant and the insured and the accident occurred during the course of employment. Answering the substantial question of law accordingly appeal is allowed.

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The impugned award dated

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15.07.2008 in WCA/NF.No.34/2006 passed by the workmen’s compensation Commissioner, Hubali Sub Division-I, Hubali against the appellant herein is set aside. The claim petition in WCA/NF.No.34/2006 against the insurer/the second respondent before the Commissioner is hereby dismissed.

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: 11 : MFA No.21494/2008

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The amount in deposit shall be refunded to

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the appellant.

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(Sd/-)

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Vb/-

The Bajaj Aliance Insurance Co. Ltd. v. Neelappa S/O Siddappa

Case brief

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What did the court decide?

The Bajaj Aliance Insurance Co. Ltd. v. Neelappa S/O Siddappa

Case brief

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