Allowed

Kenchamma W/O Late Anjinappa v. Smt Obamma W/O Suryanaika

Karnataka HC22 Jan 2021MFA/1055/2013

Case brief

AI extract

What is this about?

Four appeals challenging the dismissal of workmen compensation claims by the Labour Commissioner. The court held that the Commissioner erred in finding no employer-employee relationship, as the claims were proved to be valid. The appeals were allowed and the impugned order set aside.

What did the court decide?

All four appeals allowed; impugned judgment of Commissioner set aside; insurance company directed to deposit compensation amount within four weeks.

Kenchamma W/O Late Anjinappa Vs Smt Obamma W/O… — Writ and Judicial Review | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF JANUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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M.F.A.No.1055/2013

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C/W M.F.A.Nos.1051/2013, 1053/2013, 1054/2013(WC)

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M.F.A.No.1055/2013:

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BETWEEN:

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1 . KENCHAMMA W/O LATE ANJINAPPA AGED ABOUT 35 YEARS

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2 . GANGADHARA S/O LATE ANJINAPPA AGED ABOUT 24 YEARS

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3 . BASAVARAJ SON OF LATE ANJINAPPA AGED ABOUT 21 YEARS

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4 . ROOPA D/O LATE ANJINAPPA AGED ABOUT 17 YEARS MINOR REPRESENTED BY NATURAL GUARDIAN/MOTHER SMT. KENCHAMMA

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5 . MOTAMMA @ CHOWDAMMA W/O EARABASAPPA AGED ABOUT 69 YEARS

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ALL ARE RESIDENTS GOWDAGONDANAHALLI VILLAGE JAGALUR TALUK – 577 528 ..APPELLANTS

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(BY SRI D P MAHESH, ADVOCATE)

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AND:

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1 . SMT. OBAMMA W/O SURYANAIKA OWNER OF TRACTOR TRAILOR NO-KA 17-Y 7391-9392 R/O M D COLONY JAGALUR TOWN -577528.

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2 . THE MANAGER NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, CHAMARAJPET DAVANAGERE-577001 ..RESPONDENTS

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(BY SRI L SREEKANTA RAO, ADVOCATE FOR R-2, R-1 – SERVED)

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THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED:26.11.2012 PASSED IN WCA/KAD/KNP/CR-295/2004 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, DAVANAGERE DISTRICT, DAVANAGERE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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IN MFA No.1051/2013

BETWEEN:

VASANTH KUMAR

S/O CHANNABASAPPA AGED ABOUT 29 YEARS R/O GOWDAGONDANAHALLI VILLAGE, JAGALUR TALUK – 577 528. ..APPELLANT

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(BY SRI D P MAHESH, ADVOCATE)

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AND:

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1 . SMT. OBAMMA WIFE OF SURYANAIKA OWNER OF TRACTOR-TRAILOR NO.KA-17-Y-7391-9392 RESIDENT OF M D COLONY JAGALUR TOWN – 577 528.

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2 . THE MANAGER NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE CHAMARAJ PET DAVANAGERE – 577001. ..RESPONDENTS

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(BY SRI L SREEKANTA RAO, ADVOCATE FOR R-2, R-1 – SERVED)

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THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED:26.11.2012 PASSED IN WCA/KAD/KNP/CR-290/2004 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, DAVANAGERE DISTRICT, DAVANAGERE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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IN MFA No.1053/2013

BETWEEN:

SANNA OBANNA

SON OF MUDDAPPA AGED ABOUT 34 YEARS R/O GOWDAGONDANAHALLI VILLAGE JAGALUR TALUK – 577 528. ..APPELLANT

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(BY SRI D P MAHESH, ADVOCATE)

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AND:

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1 . SMT. OBAMMA W/O SURYANAIKA OWNER OF TRACTOR-TRAILOR NO KA-17-Y-7391-9392 RESIDENT OF M D COLONY JAGALUR TOWN – 577 528.

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2 . THE MANAGER NATIONAL INSURANCE CO. LTD DIVISIONAL OFFICE CHAMARAJPET DAVANAGERE – 577 001. ..RESPONDENTS

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(BY SRI L SREEKANTA RAO, ADVOCATE FOR R-2)

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THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED:26.11.2012 PASSED IN WCA/KAD/KNP/CR-293/2004 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, DAVANAGERE DISTRICT, DAVANAGERE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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IN MFA No.1054/2013

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BETWEEN:

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B GADERAPPA SON OF MUDDAPPA

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AGED ABOUT 34 YEARS R/O GOWDAGONDANAHALLI VILLAGE, JAGALUR TALUK – 577 528. ..APPELLANT

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(BY SRI D P MAHESH, ADVOCATE)

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AND:

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1 . SMT. OBAMMA W/O SURYANAIKA OWNER OF TRACTOR-TRAILOR NO KA-17-Y-7391-9392 RESIDENT OF M D COLONY JAGALUR TOWN – 577 528.

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2 . THE MANAGER NATIONAL INSURANCE CO. LTD DIVISIONAL OFFICE CHAMARAJPET DAVANAGERE – 577 001. ..RESPONDENTS

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(BY SRI L SREEKANTA RAO, ADVOCATE FOR R-2, R-1 -SERVED)

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THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED:26.11.2012 PASSED IN WCA/KAD/KNP/CR-294/2004 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, DAVANAGERE DISTRICT, DAVANAGERE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THESE APPEALS COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These are the four appeals directed against the Judgment and order dated 26.11.2012 passed in KAD/KNP/CR.Nos.295/2004, 290/2004, 293/2004 and 294/2004 by the Workmen’s Compensation Commissioner, Davanagere, wherein claim petitions came to be dismissed. Being aggrieved by the said Judgment claimants have preferred these appeals and

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details are as under:

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SL.NO.	MFA NO.	MVC NO.
1.	1055/2013	295/2004
2.	1051/2013	290/2004
3.	1053/2013	293/2004
4.	1054/2013	294/2004

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This is a second round of litigation before this court. Earlier MFAs filed is as under:

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SL.NO.	MFA NO.	MVC NO.	AMOUNT
1.	1273/2006	295/2004	Rs.2,49,576/-
2.	1285/2006	293/2004	Rs. 85,129/-
3.	1289/2006	290/2004	Rs.1,61,280/-
4.	1282/2006	294/2004	Rs. 46,852/-

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MFAs filed in the first round of litigation stated above came to be allowed and matter stood remanded to the Commissioner, Workmen Compensation, Davanagere. The operative portion of the order passed by this court is as under:

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“For the above reasons, all the appeals are allowed and the impugned order of the Commissioner is set-aside and the matter stands remitted to the W.C. Commissioner for fresh consideration as regards employer-employee relationship is concerned and after recording evidence of both sides in this regard, the Commissioner shall dispose of the matter within three

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months from the date of receipt of a copy of this order.

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The amount in deposit be refunded to the appellant in all these cases. The commissioner shall not be influenced by any of the observations made herein above but shall proceed to record a finding independently based on the evidence to be adduced by the parties.”

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The operative portion of the impugned Judgment and order passed by Commissioner, Workmen

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Compensation, Davanagere is as under:

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“:DzÉÃ±À:”

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MAzÀÄ, ªÀÄÆgÀÄ & £Á®Í£ÉÃ CfðzÁgÀgÀÄ ºÁUÀÆ ªÀÄÈvÀ ªÀÄvÀÄÛ MAzÀ£ÉÃ ¥ÀæwªÁ¢ ªÀÄzsÉå PÁ«ÄðPÀ-ªÀiÁ°ÃPÀ ¸ÀA§AzsÀ«zÀÝ §VUÉ£À CA±ÀªÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸À®Ä CfðzÁgÀgÀÄ «¥sÀ®gÁzÀÝjAzÀ MAzÀÄ, ªÀÄÆgÀÄ & £Á®Ì£ÉÃ CfðzÁgÀgÀÄ ºÁUÀÆ ªÀÄÈvÀ ªÀÄvÀÄÛ MAzÀ£ÉÃ ¥ÀæwªÁ¢ ªÀÄzsÉå PÁ«ÄðPÀ-ªÀiÁ°ÃPÀ ¸ÀA§AzsÀ«gÀÄªÀÅ«®èªÉAzÀÄ wÃªÀiÁð¤¹ ¸ÀzÀj ¥ÀæPÀgÀtUÀ¼À «ZÁgÀuÉAiÀÄ£ÀÄß ªÀeÁUÉÆ½¹ DzÉÃ²¹zÉ.

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Rað£À §UÉÎ AiÀiÁªÀÅzÉÃ DzÉÃ±À«gÀÄªÀÅ¢®è.”

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The substance in all the three cases are

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dismissed as there was no relationship of employer’ and employee’.

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In order to avoid confusion and overlapping parties are addressed in accordance with the rankings held by them before the Commissioner.

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All the earlier four appeals were preferred by the National Insurance Company wherein they challenged the Judgment and order dated 15.11.2005 passed by the Commissioner, Workmen Compensation, Davanagere.

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Thus, on the earlier occasion the claim petitions were allowed by the learned Commissioner granting compensation to the claimants as stated above.

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Being aggrieved by the Judgment and order dated 15.11.2005 the insurance company came in appeals. The main grievance of the insurance company was there was lack of relationship between the employer’ and employee’ and the accident dated 09.05.2004 has no connection with the concept of employer’ and employee’. Hence, the order passed in all the four cases are to be set aside.

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The substance of the case is on the date of incident the persons were part of marriage group and were going in the tractor and trailer bearing No.KA17/T-7391-7392 and accident occurred when the said vehicle turned turtle. Hence claimants filed claim petitions seeking compensation contending that they are coolies under the owner of tractor and trailer. As such commissioner should have taken note of the charge which goes to show that persons were

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traveling as passengers to attend function and none of them were employed under the owner of tractor and trailer.

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This court framed substantial question of law as under:

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“Whether the Workmen Compensation Commissioner has ignored material evidence placed on record and thereby has come to the conclusion about the nonexistence of relationship of the employer and the employee and thus the order of the Workmen Compensation Commissioner is perverse and illegal?”

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This question applies to all the appeals. The main bone of contention between the parties is with regard to relationship of employer’ and employee’.

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Learned counsel for appellants Sri.D.P.Mahesh would submit in the rural side people normally does not maintain records regarding employees. The accident occurred due to rash and negligent driving of the tractor and trailer and the accident dated 09.05.2004 occurred at 3 P.M. Gowdagondanahalli Cross, Jagaluru, Davanagere in the course of and out of employment. Learned counsel would further submit all the claimants were employees, unskilled workers under the tractor owner. They suffered injuries due to accident in the course of and out of employment and contention of the insurance company that they were passengers and were traveling to attend the marriage function is not correct.

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Learned counsel Sri.Sreekanta Rao for respondent would submit that a criminal case was registered against the driver of the tractor and trailer for rash

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and negligent driving and case was registered in Crime No.87/2004 for the offences punishable under Section 279, 337, 338, 304A of IPC and 134AB and 187 of the Indian Motor Vehicles Act.

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On perusal of the charge sheet at Col. No.7 which is relied upon by learned counsel Sri.Sreekanta Rao for respondent wherein it is stated the said persons who suffered injuries were traveling in the tractor owned by accused as they were returning from the marriage function and while going to Gowdagondanahalli via Jagalur-Kottur Road the accident happened and there was serious injuries to three and death of one.

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The definition of the term employee is defined under Section 2(dd) as under:

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“employee” means a person, who is –

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(i) a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II; or

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(ii) (a) a master, seaman or other members of the crew of a ship,

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(b) a captain or other member of the crew of an aircraft, (c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,

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(d) a person recruited for work abroad by a company,

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and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India; or

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(iii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or

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after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to any employee who has been injured shall, where the employee is dead, include a reference to his dependants or any of them;]

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(e) “employer” includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of [an employee] are temporarily lent or let on hire to another person by the person with whom the [employee] has entered into a contract of service or apprenticeship, means such other person while the [employee] is working for him.

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The word `employment’ is self explanatory.

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Learned counsel Sri.Sreekanta Rao also submits that only one person is entitled for compensation basing on the seating capacity for a tractor which is only one.

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The scope of present remand is as under:

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The operative portion of the order shows that the claim petitions were dismissed as the claimants failed to prove employer’ and employee’ relationship and same is considered while framing substantial question of law. The liability to pay compensation to the insurer, workman or in case of his death in an accident to the dependent would crop up when the accident occurs in the course of and out of employment. The aspects that are essential to be present in order to claim compensation under the Workmen’s Compensation Act is person who suffered injuries or who succumbs to the injuries should have

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sustained them in an accident arising in the course

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and out of employment. The term “course” means duration and out of employment means due to employment.

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It is necessary to mention Section 3 –Employer’s liability for compensation -

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(1) If personal injury is caused to [an employee] by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

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Provided that the employer shall not be so liable—

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(a) in respect of any injury which does not result in the total or partial disablement of the [employee] for a period exceeding [three] days;

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(b) in respect of any [injury, not resulting in death [or permanent total disablement], caused by] an accident which is directly attributable to—

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(i) the [employee] having been at the time thereof under the influence of drink or drugs, or

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(ii) the wilful disobedience of the [employee] to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employee’s, or (iii) the wilful removal or disregard by the [employee] of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of [employees]

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The term accident means unforeseen event. The action that occurs without any design for example when a workman is engaged in employment and if he is murdered he may be murdered from the point of accused. Insofar as workman is concerned the fatal accident occurred without his knowledge because if he had previous knowledge of the same he would not have offered himself as a victim. So in such an event that happened without design but insofar as statutes are concerned be it Motor Vehicles Act, IPC and others they point at but accident happened due to negligence.

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In this connection Sections 279, 337, 338 and 304A of IPC further Section 137 of The Motor Vehicles Act, 1988 deals with the matter of negligence. Negligence is breach of legal duty to take care. A person is bound to take care of himself and others. It cannot be stated that part of negligence would take serious significance when a claim petition is presented under the provisions of the Motor Vehicles Act and what is considered under the Workmen Compensation Act, is an accident that occurs out of and in the course of employment.

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With this preamble regarding accident, the bone of contentions between the parties is that the claimants say that at the time of accident they were coolies under the owner of the tractor who is accused and they were traveling in the said tractor.

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Per contra, the insurance company contends that

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the claimants and the deceased were traveling in the said tractor and trailor as invitees to the marriage and after attending the marriage they were returning. Attending a marriage cannot be compelled to coolie work.

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A case was registered in Crime No.87/2004. The complainant is one Basavarajappa S/o Palappa, aged 55 years R/o Gowdagondanahalli Village, Jagaluru Taluk. It is stated that on 09.05.2004, he was supposed to attend a marriage at Guddadalinganahalli Village and he traveled in the tractor belonging to first respondent-Obamma. On the same day after the marriage, after finishing coolie work, (1)Anjanappa, (2)Gaderappa, (3)Kadappa, (4)Obanna, (5)Prakasha, (6)Sanna Obanna, (7)Shivanna (8)Basavaraja (9)Nagaraja and (10)Siddeshi (11)Vasantha Kumar (12)Mahanthesh, (13)Chowdappa and

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(14)Basavarajappa were traveling and the accident occurred because of rash and negligent driving of the driver of the tractor and several persons suffered injuries and caused the death of one Anjanappa.

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It is thus the substance of FIR is complainant had gone to attend a marriage function and the other persons were returning after completing their coolie work when the accident happened. The petitioners in case No.KAD/KNP/CR No.295/2004 are the legal representatives of deceased Anjanappa, in case No.290/2004 the petitioner is Vasantha Kumar, in case No.293/2004 the petitioner is Sanna Obanna and in case No.294/2004 the petitioner is one Gaderappa. Said persons in the list of persons have sustained injuries in the accident.

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FIR is filed under Section 154 of Cr.P.C., Charge sheet or final report is filed under Section 173 of Cr.P.C. After the crime is registered, investigation is conducted and result of investigation is the final report or the charge sheet, which may induct a person as accused so the accused has committed the offence or there was no proof.

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After the final report is there, the first act that gains significance is cognizance of offence. This cognizance is considered under Section 190 of Cr.P.C. which is as under:

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Section 190. Cognizance of offences by Magistrates .

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(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence--

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(a) upon receiving a complaint of facts which constitute such offence;

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(b) upon a police report of such facts;

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(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

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(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

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Thus, upon a police report or otherwise, the Court having competent jurisdiction receives the charge sheet and on perusal of the same, cognizance is taken. The word `cognizance’ means to deal with, in the sense Court has to consider that it is a fit case to deal with, whether the accused is guilty or innocent. On the other hand charge sheet may be on

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several persons, what counts is, against whom the cognizance is taken.

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On detailed perusal of Section 190 Cr.P.C., it indicates cognizance is taken for the offence and not the offender. This could be understood by reading Section 319 of Cr.P.C., which reads as under:

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Section 319: Power to proceed against other persons appearing to be guilty of offence :

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(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

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(2) Where such person is not attending the Court, he may be arrested or

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summoned, as the circumstances of the case may require, for the purpose aforesaid.

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(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

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(4) Where the Court proceeds against any person under sub-section (1), then

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(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

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(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

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A person who is not named as an accused and appears to have committed the offence with the ingredients of the offence which the Court is trying, it can summon that person and ask him to face trial and at the same time the sections noted by the investigating officer cannot be glorified to be the final and conclusive indictment.

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They present the said facts which come under realm of the Court it is for the Court to look into the offence. Whether the offence is committed in case offence by whom, whether by all the accused or some of the accused or none of the accused or somebody other than the accused or some body along with the accused. Thus when the Court proceeds to deal with this kind of act, it is cognizance. In this connection Col.No.17 of the final report provides gist of substance of the complaint. According to this when the

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complainant was returning after attending the marriage function at Guddadalinganahalli, on 09.05.2004, in a tractor bearing No.KA-17 T- 7391/7392 on Jagaluru-Kottur road, near Gowdagondanahalli Cross the accident happened because of rash and negligent driving of the driver and because of this accident, the persons stated above had sustained injuries and one Anjinappa succumbed to injuries. Stage of the Criminal case is not known.

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Person who works for gain for his livelihood is an employee. There are glorification of the names. Primarily a delisting word is used `coolie’, thereafter labour, thereafter a workmen, thereafter employee, official and a bureaucrat. Whatever the name, the employee works for remuneration which may be paid monthly, weekly, daily or hourly basis. Only thing the

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act was entrusted by the employer to the employee and the duration. In other words if the vehicle was provided to return by the employer that duration also covered in the course.

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The connection between the nature of duty and the cause of death even if a casual connection between the two can be shown by the dependants of the deceased to claim compensation.

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In rural side, more particularly in case of a rustic villager, they will be connected with a systematic activity wherein one person gets work done by another person for remuneration paid periodically or as per the understanding. It is regrettable no account is maintained with regard to gratuity or provident fund etc. It is at this juncture it is called as unsecured employment.

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In rural side the employment in the unorganized sector if they work, they will get money, if no work, then no money.

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Finally assigning the above reasons, I find that the learned Commissioner committed a serious error in holding absence of relationship between the employer’ and employee’.

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Insofar as the amount of compensation, the same does not come within the domain of the Court as this Court remanded previously to find out the existence of relationship of employer’ and employee’. There are serious infirmities and irregularities and the judgment and order passed by the learned Labour Commissioner and Commissioner for Workmen Compensation, Davanagere, dated 26.11.2012 suffers from perversity regarding finding

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on the relationship of employer’ and employee’. Hence it is liable to be set aside. Substantial Question of law is answered accordingly.

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Hence, the following:

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ORDER

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MFA No.1055/2013, 1051/2013, 1053/2013 and 1054/2013 are allowed and

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the judgment and order passed by the Labour Commissioner and Commissioner

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for Workmen Compensation, Davanagere District, Davanagere dated 26.11.2012 in Case No.KAD/KNP/CR-295/2004, 290/2004, 293/2004 & 294/2004 is hereby set aside.

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In the result, the appellants are entitled for the compensation that was earlier granted to them by

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Commissioner for Workmen Compensation by

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Judgment and order dated 15.11.2005.

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Insurance company is directed to deposit the compensation amount with interest @ 12% p.a. within

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four weeks from the date of receipt of certified copy of

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this order.

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Sd/JUDGE

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SBN/KMV

Kenchamma W/O Late Anjinappa v. Smt Obamma W/O Suryanaika

Case brief

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Kenchamma W/O Late Anjinappa v. Smt Obamma W/O Suryanaika

Case brief

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