Allowed

The Oriental Insurance Co.Ltd., v. Section Officer Mescom

Karnataka HC16 Dec 2022MFA/5217/2017

Case brief

AI extract

What is this about?

This appeal challenged a compensation award against an insurance company for a deceased worker. The High Court held that the Tribunal erred in concluding the deceased was the contractor's employee, noting salary payments were made by the Main Employer. Consequently, the contract of indemnity between the insurer and the main employer was not activated.

What did the court decide?

The impugned judgment and award are modified to exonerate the Insurance Company; the Main Employers (MESCOM) are directed to pay compensation with interest within six weeks.

The Oriental Insurance Co.Ltd., Vs Section Officer Mescom — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF DECEMBER, 2022

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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.5217/2017 (WC)

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BETWEEN:

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THE ORIENTAL INSURANCE CO.LTD., LAKSHMI SHOPPING COMPLEX, SUBHAS ROAD, KOPPA, NOW REP. BY THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, BENGALURU. LEO SHOPPING COMPLEX, NO.44/45, RESIDENCY ROAD, REPRESENTED BY ITS DEPUTY MANAGER, BENGALURU-560025.

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… APPELLANT

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(BY SRI S.Y. SHIVALLI, ADVOCATE)

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AND:

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SECTION OFFICER MESCOM, CHIKKAMAGALURU, N.R.PURA DIVISION, N.R.PURA-577 101.

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THE EXECUTIVE ENGINEER, MESCOM, CHIKKAMAGALURU-577 101.

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SRI N.K. SATHISHA, S/O KALASAPPA GOWDA, AGED ABOUT 50 YEARS, PROPRIETOR, LAKSHMI ELECTRICAL, NILUVAGILU, HARIHARAPURA HOBLI, KOPPA TALUK, CHIKKAMAGALURU-577 126.

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SRI KRISHNAMURTHY, S/O NAGAPPA GOWDA, AGED ABOUT 55 YEARS, COOLIE, H.HOSUR VILLAGE & POST, KOPPA TALUK-577126.

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… RESPONDENTS

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(BY SRI H.V. DEVARAJU, ADVOCATE FOR R1 AND R2; SRI RAVIRAJ V.D., ADVOCATE FOR R3; SRI MADHUKAR NADIG, ADVOCATE FOR R4)

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THIS M.F.A. IS FILED UNDER SECTION 30(1)(a) OF EMPLOYEES COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED 07.10.2016 PASSED IN ECA.NO.37/2015 ON THE FILE OF THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHIKKAMAGALURU, AWARDING COMPENSATION OF RS.8,85,480/WITH INTEREST AT 12% P.A. ON AWARDED AMOUNT AFTER EXPIRY OF ONE-MONTH PERIOD FROM THE DATE OF ACCIDENT TILL ENTIRE REALIZATION.

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THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 02.12.2022, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed challenging the judgment and award dated 07.10.2016, passed in E.C.A.No.37/2015, on the file of the II Additional Senior Civil Judge and JMFC, Chikkamagaluru, (‘the Tribunal’ for short), questioning the liability fastened on the Insurance Company.

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The factual matrix of the case of the claimant before

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the Tribunal is that the claimant is the father of the deceased Shashi Kumar. The said Shashi Kumar was working under

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respondent No.3. The respondent No.3 is a contractor of electrical work under respondent Nos.1 and 2. That on 29.06.2013, the deceased Shashi Kumar was working under respondent No.3 and at that time he sustained injuries due to electrical shock. Immediately he was shifted to Government Hospital, Koppa and thereafter to Father Mullar Hospital, Mangalore and KMC Hospital, Mangalore. The doctor adviced that it is impossible to cure the injuries and hence he was brought back to home. That on 28.06.2014, the said Shashi Kumar was seriously ill and when he was shifted to Koppa Hospital, he succumbed to the injuries on his way to the hospital. Hence, the claim was made before the Tribunal.

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In pursuance of the claim notice, respondent No.4

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Insurance Company in the written statement admitted that respondent No.3 took the policy and contended that there is no relationship of employer and employee and respondent No.3 was not doing any work and case was registered against one Chandrashekhar and not against respondent No.3. Hence, the Insurance Company is not liable to pay the compensation. The respondent Nos.1 and 2 in their written statement contended that late Shashi Kumar was working under respondent No.3 and

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respondent No.3 is the contractor of respondent Nos.1 and 2. Hence, the Insurance Company is liable to pay the compensation. The claimant in order to substantiate the contention, examined himself as P.W.1 and got marked the documents at Exs.P.1 to 104. On the other hand, the respondent examined one witness as R.W.1. The Tribunal after considering both oral and documentary evidence placed on record, allowed the claim petition granting compensation of Rs.8,85,480/- and hence the present appeal is filed by the Insurance Company before this Court.

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The main contention of the appellant Insurance Company in this appeal is that the Tribunal committed an error in fastening the liability on the Insurance Company. The deceased was not an employee of respondent No.3 and no document is placed on record to show that work was entrusted to respondent No.3 by respondent Nos.1 and 2 and no salary slip is produced regarding salary paid by respondent No.3 and hence there was no employer and employee relationship between respondent No.3 and the deceased. It is contended that the hospital expenses is also borne by MESCOM and not by respondent No.3 and hence it is clear that the deceased is an

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employee of respondent Nos.1 and 2 and not employee of respondent No.3.

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Per contra, the learned counsel for the respondent would submit that the statement of the co-worker was recorded and though the charge-sheet was filed against the MESCOM Officer, the work was entrusted to respondent No.3 and in turn, the deceased was working with respondent Nos.1 and 2. MESCOM also not disputed the cause of death and also he was working within the premises of MESCOM. It is specific that the deceased was employed by N.K.Sathish i.e., respondent No.3. It is contended that they have not disputed that he was not an employee and for the first time, took the said defence in the appeal. No effort is made to prove the said contention raised in the defence.

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The learned counsel appearing for the MESCOM would contend that the incident was occurred in the premises of MESCOM and the amount was paid only on humanitarian ground and it is the duty of the contractor to provide security to the employees. The learned counsel would contend that in terms of Ex.P.7, the work was entrusted to respondent No.3. When such

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being the case, the Insurance Company is liable to pay the compensation.

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Having heard the respective learned counsel and also

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on perusal of the material available on record, the substantial question of law that arise for the consideration of this Court are:

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(i) Whether the Tribunal is justified in fastening the liability on the Insurance Company in coming to the conclusion that there was a relationship of master and servant between respondent No.3 and the deceased Shashi Kumar?

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(ii) What order?

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Point No.(i):

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Having perused the material available on record,

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including the pleadings, it is the claim of the claimant that the deceased was working under respondent No.3. The Insurance Company disputed the same in the written statement contending that no document is produced to prove the employer and employee relationship between the respondent No.3 and the deceased. The Insurance Company not disputed the issuance of the policy, but contended that the liability is subject to the terms

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and conditions of the policy. It is also contended that the charge-sheet has been registered against Chandrashekhar, who is a Junior Engineer of MESCOM and the allegation is very clear that while working under respondent Nos.1 and 2, the incident was taken place. Hence, it is clear that the deceased was not working under respondent No.3. The very contention of the learned counsel for the claimant that for the first time they have raised the dispute with regard to no relationship between them and the said contention cannot be accepted since the Insurance Company took the specific defence in paragraph No.4 of the written statement with regard to there was no relationship of employer and employee between the respondent No.3 and the deceased.

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The respondent Nos.1 and 2 have contended that the

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deceased was working under respondent No.3 and also no dispute that he died on account of electric shock while working. In the cross-examination of P.W.1 though he reiterated the contents of the claim petition in his chief evidence, but he categorically admitted in the cross-examination of the Insurance Company counsel that he read the contents of the documents, which have been produced before the Court. He categorically

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admits that his son has given the statement immediately after the incident that he was working under one Chandrashekhar. He also admits that his son was working with respondent Nos.1 and 2 as Operator and the said work was also within the premises of respondent Nos.1 and 2. He categorically admits that his son was getting salary from respondent Nos.1 and 2 from the said department. However, he denies that there was no relationship between his son and respondent No.3. The admission is very clear that he was getting salary from respondent Nos.1 and 2 department and also he was working under respondent Nos.1 and 2 and the incident was taken within the premises of respondent Nos.1 and 2. Though the claimant contend that his son was working under respondent No.3, no document is produced. However, the claimant relied upon the document Ex.P.7 and on perusal of Ex.P.7, respondent Nos.1 and 2 have issued the letter dated 12.08.2013 in favour of the police officer that work was entrusted to Sri Lakshmi Electricals. But he was under the control of respondent No.3. No doubt, in this letter details were given to the police, but no documents are placed with regard to the entrustment of work to respondent No.3, particularly the work which was done by the deceased.

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Except the document of Ex.P.7, no other material is placed on record.

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On the other hand, the respondent Insurance

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Company examined one witness as R.W.2 and according to him, there was no relationship between respondent No.3 and the deceased. It is suggested that the deceased was working with Lakshmi Electricals and the same was denied. But he is deposing the same personally based on the documentary evidence. The Junior Engineer, Chandrashekhar examined himself as R.W.1 and he reiterated the contents of the written statement and he was subjected to cross-examination. He admits that before filing the claim petition, notice was issued to him and also admits that no reply was given to him by his superior, but he claims that he has given the reply personally. The notice was confronted to him and got marked the document as Ex.P.104 and also reply as Ex.P.105. It is suggested that he was working with respondent No.3 and he admits the same. He also admits that he himself and staff on humanitarian ground have given Rs.1,20,000/- and apart from that they paid the medical expenses of Rs.45,000/- and he admits that in his reply he has not stated the same. He admits that he has not

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questioned the FIR and also admits that the case has been registered against him. It is suggested that he himself and the department have to pay the compensation and the said suggestion was denied. The document of Ex.R.3 is also confronted that he was acquitted.

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Having considered both oral and documentary evidence placed on record, it is clear that there is an admission on the part of P.W.1 that the deceased was getting salary from respondent Nos.1 and 2, i.e., from MESCOM. It is important to note that in Ex.P.1 statement of the deceased, he says that he was working from last two years with contractor Sathish and thereafter one month back Sathish told him to work with Junior Engineer Chandrashekhar by introducing him and he accepted the same and as per the instructions of the Junior Engineer he was working with him with one co-worker Sharath and both of them were doing station operator work. He also states that on 29.06.2013 at around 10.00 p.m., the Junior Engineer came and told to clear N.R.Pura Town F1 and F3 and accordingly he has done the same. In order to open GOS single blade he went near the same. The Junior Engineer gave instructions to open GOS single blade and he found that nut was not in order and he

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informed the same to the Junior Engineer. The Junior Engineer told him to open the same from GOS line, which is dummy and hence he removed the said nut and put the same to F3 and when he loosened the said nut, he could not get the same. The Junior Engineer instructed him to climb the electrical pole and before climbing the same he told the Junior Engineer to disconnect the line and the Junior Engineer told not to disconnect the line stating that the same is dummy and nothing will happen and at that time he had sustained the injuries.

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Having perused the statement, the statement is

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made by the deceased himself wherein he has categorically stated that earlier he was working with contractor Sathish and thereafter he was introduced to Junior Engineer Chandrashekar and on his instructions he was working with co-worker Sharath and incident was taken place. He gave the statement on the next day of the incident, but he died in 2014 after one year and the documents clearly discloses that the incident occurred on account of the negligence on the part of the Junior Engineer Chandrashekhar who gave instructions and charge-sheet was

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filed against him and merely because he has admitted, liability cannot be fastened on respondent No.3. The respondent Nos.1

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and 2 contend that work was entrusted to respondent No.3, but no documents are placed except addressing the letter to the police in terms of Ex.P.7. If really the work was entrusted to respondent No.3 as claimed by respondent Nos.1 and 2, they would have produced the documents of entrustment of work to respondent No.3 and all documentary evidence goes against respondent Nos.1 and 2. Hence, it is clear that afterthought the claimant made the allegation against respondent No.3 that deceased was working with respondent No.3 and in order to substantiate the same, no document is placed before the Court.

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The respondent No.3 did not contest the matter and he has not filed any written statement admitting that the deceased was working with him. The respondent Nos.1 and 2 took the specific defence that the deceased was working with respondent No.3 and the claimant has not examined respondent No.3. When respondent Nos.1 and 2 have entrusted the work to respondent No.3, ought to have placed the document and summoned and examined respondent No.3 and the same is not done. When the claimant pleads that the deceased was working with respondent No.3, he has to prove the same and burden is on the Insurance Company to rebut the case of respondent

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Nos.1 and 2 as well as the claimant. P.W.1 admitted that respondent Nos.1 and 2 were paying the salary from the department money. When such admission is elicited, the Tribunal failed to take note of the said admission and admitted facts need not be proved and no doubt in the cross-examination of the claimant, respondent Nos.1 and 2 got elicited that his son was working with respondent No.3, but direct admission was given by P.W.1 which is clear that respondent Nos.1 and 2 were making the payment out of their department money. All these material admissions are not discussed in detail by the Tribunal and committed an error in not appreciating the same and instead of fastened the liability on the Insurance Company in coming to the conclusion that the deceased was working with respondent No.3. When the Tribunal failed to consider the material admission available on record, this Court has to interfere with the findings of the Tribunal where there is a glaring error on the part of the Tribunal. Hence, there is a force in the contention of the learned counsel for the Insurance Company that the Tribunal committed an error in fastening the liability on the Insurance Company. Even though the relationship was not established between the deceased and respondent No.3 as their employer

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and employee and contract of indemnity of the Insurance Company would arise only if the same is established and the same is not established. Hence, the finding of the Tribunal requires to be set aside by answering the substantial question of law raised in this appeal and accordingly I answer point No.(i) in the affirmative.

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Point No.(ii):

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In view of the discussions made above, I pass the following:

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ORDER

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(i) The appeal is allowed.

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(ii) The impugned judgment and award of the Tribunal dated 07.10.2016, passed in E.C.A.No.37/2015, is modified exonerating the liability of the Insurance Company and respondent Nos.1 and 2 are directed to pay the compensation to the claimant.

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(iii) The respondent Nos.1 and 2 are directed to pay the compensation amount with interest within six weeks from today.

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

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(v) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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The Oriental Insurance Co.Ltd., v. Section Officer Mescom

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co.Ltd., v. Section Officer Mescom

Case brief

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What did the court decide?

What the court decided

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