Allowed

The Oriental Insurance Co. Ltd. v. Mohd Nazeer S/O Mohd Sab

Karnataka HC25 Nov 2020MFA/7447/2010

Case brief

AI extract

What is this about?

The High Court of Karnataka owed a Miscellaneous First Appeal by the insurer against a compensation award under the Workmen's Compensation Act. The court set aside the lower award, dismissing the claim petition due to lack of evidence proving the jural relationship between the claimant and the respondent.

What did the court decide?

The impugned award dated 29.04.2010 is set aside. The claim petition is dismissed. Amount in deposit, if any, shall be refunded.

The Oriental Insurance Co. Ltd. Vs Mohd Nazeer S/O… — Service and Employment | Karnataka HC (2020)

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M.F.A.NO.7447/2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF NOVEMBER 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.7447/2010(WC)

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFFICE, TEJAS COMPLEX SAYYAJIRAO ROAD, MYSORE CITY NOW REP. BY ITS REGIONAL OFFICE NO.44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD CROSS, BANGALORE REP. BY ITS AUTHORIZED SIGNATORY …APPELLANT

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(BY SRI B.C.SHIVANNE GOWDA FOR SRI A.M.VENKATESH, ADVOCATES)

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AND:

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MOHD. NAZEER S/O MOHD. SAB AGED ABOUT 34 YEARS R/AT NO.175, 2^ND CROSS SHANTHINAGAR MAHADEVAPURA MAIN ROAD MYSORE DISTRICT

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SYED JAVEED S/O SYED MOIUDDIN R/AT NO.1333, KABIR ROAD 2^ND CROSS, MANDI MOHALLA MYSORE …RESPONDENTS

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(R2 IS SERVED & UNREPRESENTED R1 IS HELD SUFFICIENT V/O DTD:25.08.2014)

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THIS MFA IS FILED UNDER SECTION 30(1) OF WORKMENS’ COMPENSATION ACT PRAYING TO SET ASIDE

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M.F.A.NO.7447/2010

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THE ORDER DATED 29.04.2010 PASSED BY THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, MYSORE DISTRICT, MYSORE IN WCA/NFC/CR-159/2008.

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

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J U D G M E N T

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Aggrieved by the award dated 29.04.2010 in WCA/NFC/CR/159/2008 passed by the Workmen's Compensation Commissioner, Mysore, the insurer has preferred the above appeal.

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Appellant was respondent No.2, respondent No.1 was the claimant and respondent No.2 was respondent No.1 in the proceedings before the Commissioner. For the purpose of convenience, the parties will be referred to henceforth with their ranks in the proceedings before the Commissioner.

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On 06.10.2008 at 2.30 p.m. when the

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claimant and others were traveling in Toyota Qualis Car bearing No.KA-09/P-501 near Bilikere Mysore road, Hullenahalli gate within the limits of Bilikere police station, Mysore District, lorry bearing No.KA-12-7097 hit

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M.F.A.NO.7447/2010

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the claimant’s car and caused the accident. Respondent No.1 was the registered owner of the said car. Regarding the accident, the wife of respondent No.1 filed the complaint as per Ex.P1. Bilikere Police registered the case in Crime No.264/2008 of their police station and charge sheeted the driver of the lorry. The car was insured with respondent No.1.

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The claimant filed the claim petition before the Commissioner contending that he was employed under respondent No.1 as driver in the said car. He further claimed that in the accident, he suffered grievous injuries, he was earning wages of Rs.200/- per day and suffered permanent disability. He further claimed that respondent No.1 was paying him daily wage of Rs.200/and allowance of Rs.50/- and thus claimed compensation of Rs.8,00,000/-.

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Respondent No.1 contested the petition denying the jural relationship. He further claimed that on the date of the accident since the family was traveling to

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M.F.A.NO.7447/2010

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attend to a marriage, the claimant voluntarily drove the vehicle and not as an employee.

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Respondent No.2 contested the petition denying the jural relationship, occurrence of the accident, injury suffered by the claimant. Respondent No.2 further contended that the claimant was not holding driving license and he was not entitled to any compensation from the insurer.

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The claimant got himself examined as PW.1.

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On his behalf one Dr.Pundalikrao Herale was examined to prove disability. On his behalf, Exs.P1 to P8 were marked. No evidence was adduced by the respondents.

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The Commissioner on hearing the parties by the impugned award granted compensation of Rs.53,838/- payable by the insurer. The Commissioner held that the claimant proved the jural relationship and disability was proved by the evidence of the doctor. The Commissioner assessed the loss of earning capacity at

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M.F.A.NO.7447/2010

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15%, wages at Rs.3,000/- per month applied 199.40 factor and awarded compensation of Rs.53,838/-.

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This Court admitted the appeal to consider the following substantial question of law:

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“Having regard to the material on record, whether the Commissioner was justified in holding that there existed jural relationship of employer and employee between the claimant and respondent No.1?”

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The claimant contended that respondent No.1

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employed him as driver to drive the car bearing No.KA-09/P-501. Respondent No.1 in his statement of objections disputed the said fact and claimed that on illfate day, the claimant was voluntarily driving the vehicle and not as paid driver. On respondent No.1 disputing such jural relationship, the burden was on the claimant to prove the jural relationship.

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When the claimant claimed that he was

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professional driver, minimum evidence he was required to produce was his driving license. But he did not produce the same. Contrary to that, in his cross-

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M.F.A.NO.7447/2010

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examination itself, he admitted that at the time of the accident, he was not holding driving license. He admitted that he has not produced the driving license.

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The Commissioner proceeds to hold that jural

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relationship is established only on the ground that in the complaint filed by the wife of respondent No.1, she has stated that the claimant was driving the vehicle. But nowhere in the complaint, it was stated that the claimant was employed as driver by her husband. She was not even examined by the complainant as a witness. Therefore, the Commissioner was in error in drawing inference only on the ground of the complainant’s statement in the complaint that the claimant was driving the vehicle.

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Except the self serving testimony of the

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claimant which was denied by respondent No.1 in the cross-examination, absolutely there was no material to show that the claimant was employed under respondent No.2 as driver. When the claimant was not even holding any driving license and in the light of the above

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M.F.A.NO.7447/2010

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discussion, the Commissioner was wholly unjustified in holding that the jural relationship was proved and assuming jurisdiction to decide the claim petition under the Workmen’s Compensation Act, 1923.

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Answering the substantial question of law accordingly, the appeal is allowed.

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The impugned award dated 29.04.2010 in WCA/NFC/CR/159/2008 passed by the Workmen's Compensation Commissioner, Mysore is hereby set aside. The claim petition is dismissed.

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The amount in deposit if any shall be refunded to

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the appellant.

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Sd/JUDGE

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KSR

The Oriental Insurance Co. Ltd. v. Mohd Nazeer S/O Mohd Sab

Case brief

What is this about?

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The Oriental Insurance Co. Ltd. v. Mohd Nazeer S/O Mohd Sab

Case brief

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