Partly allowed

The Oriental Insurance Co. Ltd. v. L Kumar S/O M Lakshmana

Karnataka HC29 Jun 2021MFA/982/2013

Case brief

AI extract

What is this about?

The Karnataka High Court allowed an appeal filed by an insurance company challenging a workmen's compensation award. The court held that the commissioner erred in fastening liability on the insurer when the facts established the claimant was an employee of the vehicle lessee, not the insured employer.

What did the court decide?

The liability of the Insurance Company is exonerated; liability is fastened on the third respondent (vehicle lessee). Previous judgment modified.

The Oriental Insurance Co. Ltd. Vs L Kumar… — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.982/2013(WC)

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE LEO SHOPPING COMPLEX 44/46, RESIDENCY ROAD BENGALURU. … APPELLANT

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(BY MRS. HARINI SHIVANAND, ADVOCATE)

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AND:

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1 . L.KUMAR S/O M.LAKSHMANA AGED ABOUT 29 YEARS R/AT No.137, NEW No.1918, SANJEEVININAGAR, SAHAKAR NAGAR POST BENGALURU- 560092

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2 . THE MANAGING DIRECTOR

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M/S. T.C.I. FINANCE LTD., HEAD OFFICE NO 1-7-293 P.B. No.20, M.G.ROAD, SECUNDERBAD BRANCH OFFICE AT NO 47, SINGASANDRA VILLAGE, BEGUR HOBLI HOSUR MAIN ROAD, BENGALURU (OWNER OF THE BAJAJ TEMPO GOODS TRAVELLER BR.NO.KA-05-B-5339)

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3 . SRI PAUL JACOB S/O JAMS NO.104, RAMACHANDRAPURA JALAHALLI CROSS POST, JALAHALLI BENGALURU-560 013.

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4 . SRI V.T. KESHAV S/O DR. M.THIMMEGOWDA RAMANATHA KRUPA NO.63, 7^TH CROSS MARUTHI CO-OPERATIVE SOCIETY BASAVESHWARANAGARA WEST OF CHORD ROAD BENGALURU-560 079. … RESPONDENTS

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(BY MR.B.M.HALASWAMY, ADVOCATE FOR R2; R4-SERVED; V/O DATED 30.08.2016

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SERVICE OF NOTICE IN R/O R3 IS HELD SUFFICIENT)

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THIS M.F.A IS FILED UNDER SECTION 30(1) OF WC ACT AGAINST THE JUDGMENT DATED 30.10.2012 PASSED IN WCA/NFC/CR-42/2004 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUBDIVISION-2, BENGALURU, AWARDING A COMPENSATION OF Rs.67,200/- WITH INTEREST.

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THIS M.F.A. COMING ON FOR ADMSSION THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though this appeal is listed for admission today, with the

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consent of learned counsel appearing for the appellant/Insurance Company, the same is taken up for final disposal.

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This appeal is filed by the appellant/Insurance Company challenging the Judgment and Award dated 30.10.2012 passed in No.WCA/NFC/CR-42/2004 on the file of the Commissioner for Workmen’s Compensation, Bengaluru, (‘the Commissioner’ for short) questing the liability.

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The factual matrix of the case is that the

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claimant/respondent No.1 herein was working with respondent No.3 – Sri Paul Jacob S/o. Jams as Cleaner and when the vehicle was met with an accident he has sustained the injuries. Hence, he has filed the claim petition before the Commissioner.

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In order to substantiate his contention, he examined himself as P.W.1 and got examined the Doctor as P.W.2 and the Doctor has assessed the disability of 20% and in respect of the particular limb 7% and he was aged about 29 years.

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The Tribunal after appreciating the oral and documentary evidence allowed the claim petition granting an amount of Rs.67,200/- and fastening the liability against the Insurance Company. Hence, the present appeal is filed.

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The main contention of the Insurance Company before this Court is that the claimant has admitted that he was not working under the first respondent and the salary was paid by the third respondent and there was no agreement between him and the first respondent and further admits that he was working under the instructions of third respondent and in spite of the same has been considered by the Commissioner in page 15 of the judgment and came to the conclusion that he was working with the third respondent, who is having lease-cum-sale vehicle agreement but committed an error in fastening the liability on the Insurance Company. Hence, the main contention and substantial question raised before this Court is that the Tribunal has committed an error in awarding the compensation and fastening the liability on the Insurance Company even though there was no employer and employee relationship between the insured and the first respondent.

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The learned counsel for the appellant would vehemently contend that there is a separate agreement between the first and the third respondent while handing over the vehicle for lease-cum-sale agreement, wherein, it is the duty upon the third respondent to take the policy in respect of the employees,

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who were working under him. Hence, the Insurance Company is not liable to pay the compensation. Hence, fastening the liability on the Insurance Company is erroneous.

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The claimant in spite of service of notice did not choose to appear and contest the matter. The learned counsel, who is appearing for respondent No.2 also not, appeared before this Court. This Court on the earlier occasion passed an order that, ‘If counsel for respondent No.2 does not appear on the next date of hearing, the matter will be heard on merits in his absence’.

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Having heard the arguments of learned counsel appearing for the appellant/Insurance Company and on perusal of the grounds urged in the appeal and the materials available on record, the substantial questions that would arise for consideration of this Court are:

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(i) Whether the Commissioner has committed an error in fastening the liability on the Insurance Company in spite of the Commissioner came to the conclusion that there was no relationship has been established between the claimant and the first respondent?

(ii) What order?

Point No.(i):

Having heard the appellant’s counsel and on perusal of the award passed by the Commissioner in page-15 of the award discussed in detail and came to the conclusion that there was no relationship established between respondent No.1 and the claimant and also came to the conclusion that the claimant himself has admitted that he was working with the third respondent. The commissioner also considered Ex.R-2-2, wherein, the service contract was entered between respondent No.1 and respondent No.3. Respondent No.3 took the vehicle on lease-cum-sale basis and he had employed the claimant and when the said fact has been noticed by the Commissioner and came to the conclusion that the claimant was not an employee of the first respondent, no doubt, there is a contract of indemnity between the first respondent and the second respondent and unless a relationship has been established as workman and employee between respondent No.1 and the claimant, the Commissioner ought not to have fastened the liability on the Insurance Company in view of the contract of indemnity. Hence,

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the Insurance Company has established that there is no any relationship between the first respondent and the claimant as employer and employee. Hence, the Commissioner ought to have fastened the liability on respondent No.3, when the Commissioner had come to the definite conclusion that the claimant was the employee of the third respondent. Hence, there is a force in the contention of the Insurance Company that the Commissioner has committed an error in fastening the liability on the Insurance Company. Hence, it requires interference of this Court.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The liability fastened on the Insurance Company is set aside and the liability of the Company is exonerated and respondent No.3 in this appeal and also in the claim petition is liable to pay the compensation amount. Hence, the Judgment and Award dated 30.10.2012 passed in No.WCA/NFC/CR-42/2004 on the file of the

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Commissioner for Workmen’s Compensation, Bengaluru, has been modified fastening the liability on the third respondent.

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(iv) The amount in deposit, if any, is ordered to be refunded on proper identification in favour of the appellant.

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Sd/JUDGE

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cp*

The Oriental Insurance Co. Ltd. v. L Kumar S/O M Lakshmana

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co. Ltd. v. L Kumar S/O M Lakshmana

Case brief

What is this about?

What did the court decide?

What the court decided

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