Allowed

The Manager v. Manjunath

Karnataka HC23 Dec 2020MFA/7150/2010

Case brief

AI extract

What is this about?

Appeal under the Workmen's Compensation Act against an award granting compensation for a road accident. The High Court allowed the appeal, holding the finding of mandatory employer-employee relationship impermissible due to lack of a valid driving license for the heavy vehicle involved.

What did the court decide?

The impugned award of the Commissioner is set aside. The claim petition is rejected. Amount in deposit refunded to the Insurer.

The Manager Vs Manjunath — Writ and Judicial Review | Karnataka HC (2020)

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M.F.A.NO.7150/2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD 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.7150/2010 (WC)

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BETWEEN:

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THE MANAGER, NEW INDIA INSURANCE CO. LTD, ‘INDOSEM HOUSE’ 2^ND FLOOR, NO.327/5, MYSORE ROAD, BENGALURU 560 025. BY DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD, VINAY COMPLEX, VANIVILAS ROAD, BASAVANAGUDI, BENGALURU 560 004. BY ITS MANAGER. … APPELLANT (BY SRI O. MAHESH, ADV.)

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AND:

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MANJUNATH, S/O GOVINDAPPA, AGED 29 YEARS, NO.21, CHENNANAYAKANAPALYA, II STAGE, MUNIYAPPA PALYA, DODDABIDARAKALLU, BENGALURU 560 073.

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K. SHIVALINGAPPA, S/O NINGAIAH, MAJOR, MYLARAHALLINAGESWARA TRADERS, T.K.MAIN ROAD, HEBBUR, TUMKUR ROAD, TUMKUR. … RESPONDENTS

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(BY SRI RAVISHANKAR AND R.JAYAPRAKASH, ADVS. FOR R2 ABSENT)

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M.F.A.NO.7150/2010

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THIS MFA IS FILED UNDER SECTION 30(1) OF WC ACT AGAINST THE JUDGMENT DATED 11.01.2020 PASSED IN WCA/NFC/CR-89/2007 ON THE FILE OF THE LABOUR OFFICER & COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB DIVISION-1, BENGALURU AWARDING A COMPENSATION OF RS.5,16,672/- 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 of the Workmen's Compensation Commissioner, Sub-division-I, Bengaluru in WCA/NFC/CR 89/2007 granting the compensation of Rs.5,16,672/- with interest payable by the appellantInsurer, the above appeal is preferred.

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Appellant was respondent No.1. Respondent No.1 was the claimant and respondent No.2 was respondent No.2 in WCA/NFC/CR 89/2007 before the Commissioner. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the Commissioner.

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On 04.06.2007 at 7.00 p.m. when the

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claimant was allegedly driving the canter bearing

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M.F.A.NO.7150/2010

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No.KA-06-A-7026, an accident took place between the said vehicle and tempo bearing No.KA-04-A-7665. In the said accident, the claimant suffered injuries. Respondent No.2 was the registered owner of the canter bearing No.KA-06-A-7026.

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The claimant filed the claim petition before the Commissioner against respondent Nos.1 and 2 contending that at the time of accident he was working under respondent No.2 as driver in canter bearing No.KA-06-A-7026, the accident arose out of and during the course of employment. He further claimed that respondent No.2 was paying him monthly wages of Rs.7,500/- and in the accident, he suffered total loss of earning capacity. Thus, he claimed compensation of Rs.10,00,000/-.

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Respondent No.1 contested the claim petition denying the jural relationship between the claimant and respondent No.2, occurrence of the accident during the course of employment, the injuries and the disability of the claimant and it’s liability to pay

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M.F.A.NO.7150/2010

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the compensation. Respondent No.1 further contended that at the time of accident, the claimant was not holding valid driving licence, therefore, it was not liable to indemnify the compensation.

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In support of his claim, the claimant got himself examined and produced copies of the first information report, charge sheet, sketch of scene of offence, spot mahazar, motor vehicle Inspector’s report, wound certificate, discharge summary and medical bills. He also examined the doctor who treated him.

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Respondent No.2 neither cross-examined the claimant’s witness nor let in his evidence. Respondent No.1 insurer examined its manager and produced the copy of the policy and the driving license extract of the claimant.

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The Commissioner after hearing the parties,

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by the impugned award granted compensation of Rs.5,16,672/- holding that the accident arose out of and during the course of employment and due to the injuries

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M.F.A.NO.7150/2010

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suffered in the accident, the claimant suffered 100% loss of earning capacity.

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The Commissioner further held that the

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claimant was earning Rs.7,500/- per month as wages. Having regard to Section 4(1) of the Workmen's Compensation Act, 1923 limited that to Rs.4,000/-, applied 215.28 factor and awarded the compensation of Rs.5,16,672/-.

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Aggrieved by the said award, respondent No.1

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Insurer has preferred the above appeal. This Court admitted the appeal to consider the following

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substantial question of law;

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“Whether the findings of the Commissioner that there was jural relationship of employer and employee between respondent Nos.1 and 2 suffers perversity?”

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Despite granting sufficient opportunity,

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respondent No.2 i.e., vehicle owner’s Counsel did not

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M.F.A.NO.7150/2010

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appear or address arguments. Respondent No.1 though served did not appear to contest the matter.

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Sri O.Mahesh, learned counsel for the appellant reiterating the grounds of appeal submits that admittedly the claimant was driving canter vehicle bearing No.KA-06-A-7026 which was a heavy goods vehicle. The minimum document to prove the employment to drive such vehicle was the driving license of the claimant which he failed to produce and evaded to produce.

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Relying on Ex.R1-2, the extract of driving

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license of the claimant, Sri O.Mahesh, learned counsel submits that the claimant was holding license to drive only light motor vehicle (non-transport), the policy as well as Motor Vehicle Inspector’s report and other documents show that the vehicle was a heavy goods vehicle. He submits that the Commissioner without meeting the contention regarding driving license and without any evidence on record proceeded to hold that the jural relationship was proved and fastened the

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M.F.A.NO.7150/2010

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liability to Insurer which was contrary to the evidence on record.

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Claimant PW.1 in his cross-examination said that at the time of the accident, he was holding driving license to drive the class of vehicle which was involved in the accident, but that was lost. Though he said that he will produce the driving licence during the next date of hearing, he did not produce that. Except the self serving testimony of the claimant which was disputed, there was nothing to show that the claimant was employed under respondent No.2 as paid driver.

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As rightly pointed out by the learned counsel for the appellant-Insurer, to be employed as a driver in a particular class of vehicle, the minimum document required is the driving license. When the claimant failed to produce such driving license, the Commissioner was not justified in holding that respondent No.2 had employed him in that vehicle as paid driver.

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M.F.A.NO.7150/2010

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Therefore, the finding of the Commissioner

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that there was jural relationship of employee and employer between the claimant and respondent No.2 before him suffers perversity. The substantial question of law is answered accordingly. The appeal is allowed.

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The impugned award of the Commissioner dated 11.01.2010 passed in WCA/NFC/CR 89/2007 is hereby set aside.

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The claim petition is rejected.

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The amount in deposit shall be transmitted to the jurisdictional Commissioner/Court for the purpose of refunding the same to the Insurer.

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Sd/JUDGE

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akc

The Manager v. Manjunath

Case brief

What is this about?

What did the court decide?

The Manager v. Manjunath

Case brief

What is this about?

What did the court decide?

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