Allowed

The Oriental Insurance Company Limited v. Sri Laxman

Karnataka HC9 Dec 2020MFA/5996/2010

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal allowed by the High Court of Karnataka set aside a Workmen's Compensation award. The Court held the deceased driver was not employed by his mother and his surviving family members did not qualify as dependents under the Act, dismissing the claim petition.

What did the court decide?

Impugned award set aside and claim petition dismissed. Deposit to be refunded to the insurer.

The Oriental Insurance Company Limited Vs… — Pension and Retirement Benefits | Karnataka HC (2020)

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M.F.A.NO.5996/2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 09^TH 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.5996 OF 2010

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BETWEEN:

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THE ORIENTAL INSURANCE COMPANY LIMITED., WILSON GARDEN BANGALORE – 27 THROUGH ITS REGIONAL OFFICE LEO SHOPPING COMPLEX #44/45, RESIDENCY ROAD BANGALORE – 560 025 REP. BY ITS DEPUTY MANAGER SMT. SUDHA GANESH. … APPELLANT

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(BY SRI. B.C. SEETHARAMA RAO.,ADVOCATE)

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AND:

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SRI LAXMAN AGED ABOUT 56 YEARS S/O LINGAIAH DRIVER IN POLICE DEPARTMENT

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SRI. L.GIRISH AGED ABOUT 25 YEARS S/O SRI LAXMAN

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SMT. L. RENUKA AGED ABOUT 29 YEARS D/O LAXMAN

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ALL ARE RESIDING AT NO.1194 3^RD CROSS, RAMAMANDIRA ROAD KAVERIPURA, KAMAKSHIPALYA BANGALORE – 79.

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M.F.A.NO.5996/2010

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SMT. LAXMIDEVAMMA AGED ABOUT 44 YEARS W/O LAXMAN R/AT NO.65/2, RAMMANDIR ROAD KAVERIPURAM KAMAKSHIPALYA BANGALORE – 560 079. … RESPONDENTS

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(BY SMT. BHUSHANI KUMAR., ADV. FOR R1 V/O DATED:19.02.2015 NOTICE TO R4 IS HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED:21.05.2020 PASSED IN WCA:FC:CR:52/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN CPMPENSATION, SUB DIVISION-1, BANGALORE AWARDING A COMPENSATION OF RS.4,27,140/- WITH INTEREST @ 12% P.A.

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THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:

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J U D G M E N T

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Aggrieved by the award granting compensation of Rs.4,27,140/- with interest to respondent Nos.1 to 3 under the Workmen's Compensation Act, the appellant/ Insurer has preferred this appeal.

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Respondent Nos.1 to 3 were the claimants, respondent No.4 was the first respondent and the appellant was the second respondent in WCA/FC/CR-

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M.F.A.NO.5996/2010

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52/2007 before the Workmen's Compensation Commissioner, Sub-divison-I, Bengaluru.

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For the purpose of convenience the parties are referred to henceforth with their ranks before the Commissioner.

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Claimant No.1 and respondent No.1 are husband and wife. Claimants Nos.2 and 3 are their son and daughter. Deceased N.Ramanjaneya was their another son. Respondent No.1 was the registered owner of Tata Sumo No.KA-01 AB 2700. Respondent No.2 was the Insurer of the said vehicle at the relevant time. On 26.11.2006 at about 3.00 a.m when N.Ramanjaneya was driving the aforesaid vehicle, that met with an accident near Kudlu cross on National Highway No.48 within the jurisdiction of Kadur Police Station, Magadi Taluk. In the said accident, Ramanjaneya died.

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Claimants filed claim petition in WCA/FC/CR No.52/2007 before the Workmen's Compensation Commissioner, Bengaluru claiming that the deceased

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M.F.A.NO.5996/2010

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was employed under respondent No.1 as the driver and they were his dependents and claimed compensation of Rs.8,00,000/-.

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Respondent No.1 did not appear and contest

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the petition despite service of notice. Respondent No.2 - Insurer contested the petition denying the jural relationship between respondent No.1 and the deceased, the occurrence of the accident during the course of employment and out of employment, dependency of the claimants on the deceased and their liability.

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On behalf of the claimants, the first claimant was examined as PW.1. On behalf of the second respondent its Officer was examined. The Commissioner on hearing the parties by the impugned award rejected the defence of respondent No.2 and awarded compensation of Rs.4,27,140/- with interest payable by respondent No.2 the Insurer.

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M.F.A.NO.5996/2010

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Aggrieved by the said order, the above

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appeal is preferred. This Court admitted the appeal to consider the following substantial questions of law:

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i) “In holding that there was a jural relationship of the employee and employer between deceased N.Ramanjaneya and his mother Lakshmi Devamma, whether the Commissioner acted contrary to the evidence on record ? and

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ii) Whether the finding of the Commissioner that the claimants were the dependants of the deceased N.Ramanjaneya is contrary to Section 2(1)(d) of the Workmen’s Compensation Act?”.

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Sri B.C.Seetharama Rao, learned counsel for

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the Insurer assails the impugned award on the following grounds:

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i) Since claimant No.1 was employed in the Police department, claimant No.2 was major brother and claimant No.3 was the married sister of the deceased, they were not the dependents within the meaning of Section 2(d) of the Workmen's Compensation Act, 1923 (‘the WC Act’ for short).

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ii) Claimant No.1’s own admission in his evidence and the claimants’ own documents Exs.P1-1, P1-3 and P1-7 showed that there was no relationship of employer and employee between respondent No.1 and the deceased. Therefore the award passed by the Commissioner was perverse.

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In support of his arguments, he relied upon the judgment of the Hon'ble Supreme Court in Gottumukkala Appala Narasimha Raju and others vs. National Insurance Co.Ltd. and another¹ .

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Per contra, Smt.Bhushani Kumar, learned

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counsel for the claimants seeks to justify the impugned award on the following grounds:

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i) Claimant No.1 was employed in the Police Department. He had to maintain his family consisting of himself and his children which was not possible for him out of his meager salary, therefore he was partly depending on the earning of his deceased son, thus, he is covered under Section 2(d)(iii)(b) of the WC Act.

1 (2007)2 T.A.C.385

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ii) There was no legal bar for the mother to employ her son as driver in the vehicle owned by her and she did not dispute that. Therefore, the Commissioner’s finding regarding jural relationship does not warrant any interference.

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In support of her contentions, she relies on the following judgments:

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i) United India Insurance Company vs. Prakash Shankar Gurav and another² ;

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ii) Oriental Insurance Company Ltd vs. Hanumant and another³

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Regarding question No.1

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Section 2(d)(iii)(b) and (d) of the Act read as follows:

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“Dependant’’ means any of the following relatives of deceased [employee], namely:-

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i) a widow, a minor [legitimate or adopted] son, an unmarried [legitimate or adopted] daughter or a widowed mother; and

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ii) if wholly dependant on the earnings of the [employee] at the time of his death, a son

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2 2006 ACJ 747

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3 2006 ACJ 251

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or a daughter who has attained the age of 18 years and who is infirm;

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iii) if wholly or in part dependant on the earnings of the [employee] at the time of his death,-

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a) a widower,

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b) a parent other than a widowed mother,

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c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter [legitimate or illegitimate or adopted] if married and a minor or if widowed and a minor,

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d) a minor brother or an unmarried sister or a widowed sister if a minor,”

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Reading of the above provisions makes it clear

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that under the Act only a parent other than widowed mother if wholly or partly depending on the earnings of the deceased employee and a minor brother or an unmarried sister or a widowed sister are dependents. In the case on hand, claimant No.2 was admittedly major brother and claimant No.3 was a married sister. Therefore both of them did not fall under the definition of ‘dependents’ under Section 2(d)(iii) (d) of the Act.

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So far as claimant No.1, in his affidavit filed in lieu of chief examination he stated that he was the driver in the Police Department. In his crossexamination he admitted that he was drawing a salary of Rs.15,000/- per month from his employment. He further admitted that he is left with 4 years service and after retirement he gets pension. He did not produce any material to show that his salary was only Rs.15,000/- per month.

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Further claimant No.1 admitted in evidence that he purchased the vehicle in the name of his wife as he was getting some rebate in the interest on the bank loan if vehicle was purchased in the name of woman. That also shows his financial stability.

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In his chief examination, nowhere he stated what were his other obligations or commitments for which he was depending upon the income of his deceased son. The term ‘dependency’ used in Section 2(d) of the WC Act is relatable to the dependency of claimant alone and not to the dependence of his

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dependents. Therefore, there is no merit in the contention that the first claimant was depending on the income of the deceased to maintain his other family members, thus he was covered under the definition of ‘dependant’

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If that contention is rejected, the whole claim of the claimants falls under Section 22(1A) of the WC Act which bars the settlement of any application by the Commissioner other than the application made by the dependents of the workman. Therefore the Commissioner acted contrary to Section 2(d)(iii)(b) and (d) of the WC Act in holding that the claimants were the dependents.

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Regarding substantial question No.2.

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The claimants contended that the deceased was employed under respondent No.1 as driver in the vehicle in question and the accident and the consequential death arose out of employment and during the course of employment. Whereas the Insurer claimed that respondent No.1 was the mother of the

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deceased and denied his employment under her in the vehicle as driver. In the entire petition, nowhere the relationship between the claimants and first respondent was disclosed. Thereby there was suppression of the material fact obviously for purpose of making wrongful gains.

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PW.1 in his cross-examination stated that

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he does not know when the deceased joined the employment of the first respondent, he does not know how much salary he was drawing and he has not produced any record to show that deceased was receiving wages from the first respondent. At one stretch in the cross-examination he went to the extent of saying that he does not know respondent No.1. Later in cross-examination he states that he is residing with respondent No.1 in Patakenahalli since about 10 years and she is his wife.

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PW.1 himself admitted that he purchased

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the vehicle in the name of his wife to gain some rebate in the interest and he was the guarantor to the bank

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loan for the vehicle. He also admitted that he himself was issuing cheques for remittance of monthly instalments of the vehicle loan. He admitted that he has nominated the first respondent as nominee for his service benefits.

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Further, PW.1 claimed that he purchased

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the vehicle out of the joint family income. In that event, the vehicle becomes their joint family property and deceased becomes the joint owner of the vehicle. The theory of employment of the deceased in his own vehicle as paid driver does not inspire confidence of the Court.

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Neither in the inquest mahazar nor in the complaint it was stated that the deceased was employed in the vehicle as paid driver. Even the claimants’ own documents do not disclose the same. The Commissioner

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also ignored the fact that as per the evidence of claimant-PW.1 respondent No.1 was only a name lending owner. It was not the case of PW.1 that he employed his son as the driver. Ignoring such fatal

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admissions of the claimants’ witness, the Commissioner proceeded to hold that respondent No.1 had employed the deceased in the vehicle as driver. Therefore the finding of the Commissioner that the deceased was employed as driver under respondent No.1 is unsustainable.

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In the judgments relied upon by the learned counsel for the claimants it was held that there was no legal bar for engaging a son as employee. There cannot be any dispute with regard the said proposition. But that does not dispense the burden of the claimants to prove that the deceased was employed under the father or mother as a paid driver. In the case on hand the said fact was not proved. Therefore, the said judgments are not applicable.

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The Hon'ble Supreme Court in Appala Narasimha Raju’s case held that in the absence of any specific contract, the wife employing the husband as driver looks absurd. Based on the facts of the said case, it was held that the claimants had concocted the

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story of husband and wife living separately and setting up the case of employer and employee. The view taken by the Hon'ble Supreme Court in the said case regarding requirement of proof of jural relationship and bonafides of parties applies to this case also.

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In this case also, claimant No.1 initially claimed that he was living separately from respondent No.1/wife. That was apparently for the purpose of claiming compensation. The records abundantly show that the claimants suppressed the material fact with an intention for making wrongful gains. Therefore the finding of the Commissioner that there was relationship of employer and employee is contrary to the evidence on record and suffer perversity. Answering the substantial question of law Nos.1 and 2 accordingly the appeal is allowed. The impugned award of the Commissioner is hereby set aside.

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The claim petition of the claimants is dismissed.

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The amount in deposit shall be transmitted to the

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jurisdictional Commissioner/Court to refund the same to the Insurer/appellant.

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Sd/JUDGE

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