Allowed

Biliyappa Gowda v. M/S Konark Hiring Service

Karnataka HC22 Dec 2020MFA/3623/2013

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal challenges an award exonerating an insurance company of liability in a workmen's compensation case. The High Court held summary proceedings insufficient if key evidence like an insurance policy is not produced. It allowed the production of the policy ex parte and remanded the matter for fresh evidence and decision.

What did the court decide?

The appeal is allowed; the impugned award is set aside and the matter is remanded to the Commissioner/Civil Court to decide afresh.

Biliyappa Gowda Vs M/S Konark Hiring Service — Writ and Judicial Review | Karnataka HC (2020)

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MFA.NO.3623/2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF DECEMBER, 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.3623/2013 (WC)

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BETWEEN:

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BILIYAPPA GOWDA S/O RAMEGOWDA AGED ABOUT 66 YEARS R/O HEBBALA BYLU YADOOR POST HOSANAGARA TALUK – 577 448

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NAGAMMA W/O BILIYAPPA GOWDA AGED ABOUT 61 YEARS HEBBALA BYLU YADIYUR POST

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HOSANAGARA TALUK – 577 448 ... APPELLANTS

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(BY SRI.SIRAJIN BASHA, ADVOCATE FOR M/S. JUSTICE LAWYERS)

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AND:

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M/S.KONARK HIRING SERVICE B-9, 4/2, SECTOR-1 YASHI

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NEW BOMBAI – 400 703

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THE NEW INDIA ASSURANCE CO. LTD., MALLAPPA COMPLEX, B.H.ROAD SHIMOGA – 577 201 ... RESPONDENTS

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(BY SRI.G.NARAYANA RAO, ADVOCATE FOR R2; R1 IS HELD SUFFICIENT V/O DATED:08.03.2017)

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MFA.NO.3623/2013

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THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 03.07.2012 PASSED IN WCA/F/CR-5/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SHIMOGA DISTRICT, SHIMOGA, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING COMPENSATION OF COMPENSATION.

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

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JUDGMENT

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Aggrieved by the order exonerating respondent No.2 of liability of indemnifying the damages caused to the appellants due to death of their son Upendra in the accident, the claimants have preferred the above appeal.

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On 25.07.1995 when the claimants’ son Upendra was traveling in bus MH-4-G-1012 near South Magavadi Railway Cross within the limits of Ghameri village, the said bus met with an accident and he died. At the time of accident, respondent No.1 was the registered owner of the said bus.

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The appellants filed WCA/F/CR No.5/2007

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before the Workmen's Compensation Commissioner, Shivamogga against the respondents claiming that

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MFA.NO.3623/2013

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deceased Upendra was working under respondent No.1 as a conductor in the bus bearing No.MH-4-G-1012. They claimed that the accident arose out of and during the course of employment and they were the dependants of the deceased. They further claimed that the bus was insured with respondent No.2, therefore, respondent Nos.1 and 2 were liable to pay compensation and claimed compensation of Rs.4,00,000/- from the respondents.

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Respondent No.1 though served did not appear

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before the Commissioner and contest the matter. Respondent No.2 contested the case denying the jural relationship, occurrence of the accident and the dependency of the appellants. Respondent No.2 claimed that it had not issued any policy covering the said vehicle.

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The Commissioner after recording the evidence and hearing the parties by the impugned award held that the accident arose out of and during the course of employment. The Commissioner assessed the

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MFA.NO.3623/2013

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wages of the deceased at Rs.3,000/- per month applied 216.91 factor and awarded compensation of Rs.86,764/-. The Commissioner further held that the claimants have failed to establish that respondent No.2 had issued any policy covering the risk in respect of the vehicle involved in the accident and therefore, exonerated respondent No.2.

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Aggrieved by the said order, the above appeal is filed. This Court admitted the appeal to consider the following substantial question of law:

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“Whether the Insurance Company was required to produce reference and copies of records instead of outright denial regarding issuance of policy ?”

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Before this Court, the appellants have filed I.A.No.1/2018 under Order XLI Rule 27 read with Section 151 of CPC seeking leave of the Court to produce the Xerox copy of the policy purportedly issued by respondent No.2 company covering the vehicle involved in the accident as additional evidence. In the affidavit filed in support of application, it is stated that

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MFA.NO.3623/2013

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the claimants had produced the Xerox copy of the insurance policy before the Commissioner, but, the Commissioner declined to mark the document.

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Heard both side and perused the records

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produced before the Commissioner and before this Court.

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Under Section 30 of the Employee’s

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Compensation Act, 1923 (‘the Act’ for short) an appeal preferred under Section 30 can be admitted only if any substantial question of law is involved in the matter. The appellants in their appeal memo did not formulate

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any substantial question of law. This Court however on hearing the parties formulated the aforesaid substantial question of law.

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The appellants went before the

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Commissioner claiming that respondent No.1 had taken Insurance policy from respondent No.2 to cover the vehicle involved in the accident. Under such circumstances, the initial burden was on them to prove

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MFA.NO.3623/2013

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that the vehicle was insured with respondent No.2. To substantiate that contention they did not produce any documents.

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Though in the affidavit filed in support of I.A.No.1/2018 before this Court it is contended that the Trial Court declined to mark the documents, the deposition of the claimants shows that no such document was attempted to be marked in the evidence.

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The Officer of the second respondent who was examined before the Commissioner only produced the correspondence made between their Shivamogga Branch and Mumbai Divisional Office who said to have issued the policy. No official from Mumbai Divisional Office was examined before the Commissioner to assert that they have not issued any policy covering the vehicle involved in the accident.

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Claiming that the Mumbai office of the second respondent had issued the policy, the appellants have produced Xerox copy of the policy along with IA-

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MFA.NO.3623/2013

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I/2018 filed under Order XLI Rule 27 of CPC. The second respondent has not filed any objection to the said application.

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Learned counsel for the second respondent during the course of arguments opposed the application on the ground that the application is not covered under any of the circumstances contemplated under Order XLI Rule 27 of CPC. As already observed, the records do not show that the appellants tried to mark the Xerox copy of the policy, but the commissioner declined that. The document was not at least confronted to second respondent witness. However Order XLI Rule 27(b) of CPC states that the Appellate Court can permit production of the document, if it is required for pronouncing the judgment or for any other substantial cause .

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If the production of document is not allowed and the appellants are not permitted to lead evidence on the said document, they will be put to injustice and that is the substantial cause. Section 25 of the Act

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MFA.NO.3623/2013

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shows that the proceedings before the Commissioner were summary proceedings.

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The second respondent produced Ex.R.4 the purported notice issued by the office at Shivmogga to the first respondent calling upon them to produce the particulars of the policy. But the policy was allegedly issued by Mumbai Branch and no official of the said branch was examined. The notice Ex.R.4 was not issued by the Mumbai Office/Branch.

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Under the aforesaid circumstances, to make substantial justice to the parties, this Court finds it just and proper to give an opportunity to the claimants to prove the documents produced before this Court in accordance with law. Since appellants had not impleaded the Mumbai Divisional Office which allegedly issued the policy, the copy of which is produced before this Court, that branch requires an opportunity to verify the said document. Therefore for that purpose the appellants are required to implead the said branch after taking particulars from the second respondent.

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MFA.NO.3623/2013

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Accordingly, the appeal is allowed. The impugned award is hereby set aside and the matter is remanded to the jurisdictional Commissioner/Civil Court.

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The claimants shall implead the concerned Divisional Office of the New India Assurance Company Ltd, Mumbai. Thereafter the Commissioner/trial Court shall give opportunity to both side and decide the matter afresh in accordance with law.

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The Commissioner shall consider the admissibility of the copy of the Insurance policy produced before this Court by the claimants in accordance with law.

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Sd/JUDGE

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KG/Akc

Biliyappa Gowda v. M/S Konark Hiring Service

Case brief

What is this about?

What did the court decide?

Biliyappa Gowda v. M/S Konark Hiring Service

Case brief

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