Allowed

The Oriental Ins. Co.Ltd. v. Gangappa S/O : Chanapa Narasannavar

Karnataka HC2 Sept 2022MFA/20884/2013

Case brief

AI extract

What is this about?

Halmatha J allowed the appeal in a workmen's compensation matter, modifying the previous award to fasten liability on the vehicle owner rather than the insurer, noting the lack of an established employer-employee relationship and material regarding the claimant's status. The insurer's deposit was ordered refunded.

What did the court decide?

The liability on the insurer is exonerated and the liability is fastened on the vehicle owner to pay compensation. The amount deposited by the insurer is to be refunded.

The Oriental Ins. Co.Ltd. Vs Gangappa S/O… — Pension and Retirement Benefits | Karnataka HC (2022)

¶1

¶2

MFA No. 20884 of 2013

¶3

IN THE HIGH COURT OF KARNATAKA

¶4

DHARWAD BENCH

¶5

DATED THIS THE 2^ND DAY OF SEPTEMBER, 2022

¶6

BEFORE

¶7

THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO. 20884 OF 2013 (WC-)

¶8

BETWEEN:

¶9

THE ORIENTAL INSURANCE. CO.LTD. MERCHANTS CO.OP.BANK LTD. BAILHONGAL TQ : BAILHONGAL DIST : BELGAUM NOW REPRESENTED BY ITS ADMINISTRATIVE OFFICER, ORIENTAL INSURANCE CO., LTD. REGIONAL OFFICE HUBLI

¶10

…APPELLANT

¶11

(BY SRI. RAJASHEKHAR S ARANI, ADVOCATE)

¶12

AND:

¶13

GANGAPPA S/O : CHANAPA NARASANNAVAR AGE : 37 YEARS, OCC : NIL R/O : CHIKOP TQ : SAUDATTI.

¶14

Digitally signed by JMAMATHA J MAMATHALocation: DharwadDate: 2022.09.05 14:42:51 +0530

¶15

VITTAL BALAPPA NAIKER AGE : MAJOR, OCC : BUSINESS, and OWNER OF GOODS VEHICLE R/O : SUTAGATTI. TQ : BAILHONGAL DIST : BELGAUM.

¶16

…RESPONDENTS

¶17

(BY SRI. NAGARAJ J.APPANNAVAR, ADV. FOR SRI LAXMAN T MANTAGANI, ADV. FOR R1, NOTICE TO R2 IS HELD SUFFICIENT)

¶18

¶19

MFA No. 20884 of 2013

¶20

THIS APPEAL IS FILED UNDER SECTION 30 (1) OF THE W.C. ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED 12.12.2012 PASSED IN W.C.F.No.107/2010 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMENS COMPENSATION, SUB-DIVISION-II, HUBLI, AWARDING THE COMPENSATION OF Rs.1,54,859/- WITH INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF PETITION AND SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF ORDER.

¶21

THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶22

JUDGMENT

¶23

Though this matter is listed for admission, with the consent of learned counsel appearing for the parties, the matter is taken up for final disposal.

¶24

Heard the learned counsel appearing for the appellant/Insurance Company and the learned counsel appearing for the respondents.

¶25

The Insurance Company in the present appeal has challenged the judgment and award dated 12.12.2012 passed by the Commissioner for Workmen's Compensation (for short 'the Commissioner') in WCA NF-107/2010 contending that the Commissioner has committed an error in coming to the conclusion that the claimant was working as Hamali in the

¶26

¶27

MFA No. 20884 of 2013

¶28

vehicle in which he was travelling which met with an accident and it is specifically contended that the Commissioner was not justified in saddling the liability on the Insurance Company although the claimant was travelling as an unauthorised passenger in the goods vehicle and the same was not covered under the insurance policy and erroneously came to the conclusion that he was a workman and even the owner of the vehicle has also not filed any statement of objections and also not stepped into the witness box admitting the relationship of employer and employee. The learned counsel would also vehemently contend that the contents of Ex.P.1 and Ex.P.2 clearly show that the injured person was travelling as an unauthorised passenger in the said goods vehicle. It is also contended that the Commissioner has utterly failed to take into consideration that there was no driving licence to drive the goods vehicle and not giving any finding with regard to the said fact in spite of specific contention being taken and led the evidence of RTO to that effect. Hence, he submits that the impugned judgment and award of the Commissioner calls for interference of this Court.

¶29

¶30

MFA No. 20884 of 2013

¶31

Per contra, learned counsel for the respondents would submit that the claimant was working as a Hamali in the said vehicle and Insurance Company has not placed any material before the Court to show that he was proceeding as an unauthorised passenger as contended by the Insurance Company and hence, the Commissioner has rightly come to the conclusion that there exists the relationship of employer and employee. Hence, he submits that the impugned judgment and award of the Commissioner does not call for any interference.

¶32

Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, the main contention of the Insurance Company is that the claimant was proceeding as an unauthorised passenger. The learned counsel for the appellant also brought to the notice of this Court the document Ex.P.11. In terms of Ex.P.11, the complainant has made the allegation against the driver of the goods vehicle stating that he was proceeding along with cattle with two other persons and the other persons were also travelling in the said vehicle. The name of this claimant was also mentioned in the said complaint. The learned counsel also brought to the notice of this Court that while filing the charge-

¶33

¶34

MFA No. 20884 of 2013

¶35

sheet (Ex.P.6) the police have invoked Section 3 of the Motor Vehicles Act to show that the driver of the vehicle was not having valid driving licence to drive the vehicle.

¶36

Having perused the contents of the complaint, the name of the claimant was mentioned in the complaint but nowhere in the complaint it is stated that he was working as Hamali in the said vehicle and apart from that charge-sheet is also marked wherein also the specific allegation is made against the driver of the vehicle that he was carrying the cattle and that he drove the vehicle in a rash and negligent manner. On perusal of the complaint and the charge-sheet which came into existence immediately after the accident, it is clear that along with the cattle the driver was carrying passengers in the vehicle. Apart from that, the owner of the vehicle has not been examined before the Commissioner though he was a party to the proceedings and he did not choose to appear and contest the matter and he was placed exparte. In order to establish the relationship of the employer and the employee between the owner and the claimant, no material are placed before the Court and hence it is the duty cast upon the claimant to place material before the Court that he was working as Hamali in

¶37

¶38

MFA No. 20884 of 2013

¶39

order to saddle the liability on the Insurance Company and unless the relationship of employer and employee is established, the question of fastening the liability on the Insurance Company does not arise. However, the owner has not disputed the claim made by the claimant before the Commissioner.

¶40

The Insurance Company has examined the Superintendent of RTO as RW-2 wherein he admits that goods vehicle is a transport vehicle and the driver of the said vehicle was having the driving licence till 23.12.2008 and the accident occurred on 28.04.2010 and subsequently the licence was renewed on 11.05.2010 and as on the date of the accident there was no driving licence. When such being the material on record and when there was no material to establish that there was relationship of employer and employee and also the fact that the driver of the vehicle was not having any valid driving licence, the Commissioner ought not to have saddled the liability on the Insurance Company and when the owner has not opposed the claim, the Commissioner ought to have fastened the liability on the owner inspite of saddling the liability on the Insurance Company. Hence, the impugned judgment and

¶41

¶42

MFA No. 20884 of 2013

¶43

award of the Commissioner requires to be modified to that extent.

¶44

In view of the above discussions, I pass the

¶45

following:

¶46

ORDER

¶47

i) The appeal is allowed,

¶48

ii) The judgment and award dated 12.12.2012 passed by the Labour Officer and the Commissioner for Workmen's Compensation, Sub-Div. 2, Hubballi, in W.C.A/NF-107/2010 is modified fastening the liability on the owner to pay the compensation to the claimant and the liability of the insurer is exonerated.

¶49

iii) The amount deposited by the Insurance Company is ordered to be refunded to it on proper identification.

¶50

iv) The registry is directed to send back the TCR forthwith.

¶51

(Sd/-) JUDGE

¶52

¶53

List No.: 1 Sl No.: 31

The Oriental Ins. Co.Ltd. v. Gangappa S/O : Chanapa Narasannavar

Case brief

What is this about?

What did the court decide?

The Oriental Ins. Co.Ltd. v. Gangappa S/O : Chanapa Narasannavar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Indo Farm Equipment Ltd., Vs Andappa S/O Ningappa Naregal

The Oriental Insurance Co. Ltd., Vs Gajanan S/O. Vasudev Malawade

Yallappa Pandappa Kadavgol Vs Smt Shantawwa D/O Gangappa Lavakki

Sharada W/O. Giriya Naik, Vs Jananeshwar Kemu Gaonkar

Sudha W/O Nagesh Jadhav, Vs Manjunath Basappa Sambargi

Khatunbi W/O Moulasab Shabar, Vs Dadesab S/O Dawalsab Sannakki