Partly allowed

Sri Sridhar R v. Smt Jnanamma

Karnataka HC17 Nov 2023MFA/252/2017

Case brief

AI extract

What is this about?

This miscellaneous first appeal by a vehicle owner challenged an Employees Compensation Commission award. The High Court held that an employer-employee relationship existed based on the owner's admission. It further ruled that an insurance company is liable even if a driver with a non-transport license drives a transport vehicle, applying Mukund Dewangan.

What did the court decide?

Insurance Company directed to pay Rs.3,53,895/- to appellant and Rs.1,16,700/- to claimants within eight weeks; claimants entitled to withdraw full amount without security.

Sri Sridhar R Vs Smt Jnanamma — Contract and Commercial Disputes | Karnataka HC (2023)

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1 - NC: 2023:KHC:41252 MFA No. 252 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO.252 OF 2017 (WC)

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BETWEEN:

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SRI.SRIDHAR R., S/O.LATE RAJENDRAN, AGED ABOUT 44 YEARS, R/O GAYATHRI FORM, NO.5, 19/9, NEAR RAILWAY STATION, KARMALRAM, SARJAPURA MAIN ROAD, BANGALORE. (OWNER OF VEHICLE BEARING NO.KA-51/A-7158)

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…APPELLANT

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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(BY SRI. MAHESH A.S., ADVOCATE)

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AND:

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SMT. JNANAMMA, W/O LATE SHANMUGAM, AGED ABOUT 58 YARS.

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RELIANCE GENERAL INSURANCE COMPANY LIMITED, BANGALORE. POLICY NO:1415522338000287 VALID UPTO 28.10.2013.

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SMT.SUMATHI, W/O SHEKAR, D/O LATE SHANMUGAM, AGED ABOUT 40 YEARS.

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2 - NC: 2023:KHC:41252 MFA No. 252 of 2017

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SMT.VANITHA,

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D/O LATE SHANMUGAM, AGED ABOUT 32 YEARS.

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RESPONDENTS NO.1, 3 AND 4 ARE RESIDENCE OF SHANKARMUTT, 2^nd CROSS, HONNALI ROAD, SHIVAMOGGA - 577 201.

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…RESPONDENTS

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(BY SRI. K.S. RAJESH GOWDA, ADVOCATE FOR R1; VIDE ORDER DATED:05.09.2023, NOTICE TO R2 HELD SUFFICIENT;

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R3 AND R4 ARE SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 30(1) OF EMPLOYEES COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DATED:08.11.2016 PASSED IN ECA.NO.85/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND EMPLOYEES COMPENSATION COMMISSIONER, SHIVAMOGGA, AWARDING COMPENSATION OF RS.4,70,525/- WITH INTEREST AT 12% P.A. FROM 22.01.2013 TILL ITS REALIZATION.

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

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JUDGMENT

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This Appeal is filed by the Appellant aggrieved by

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the Award passed in ECA.No.85/2014, on the file of the II Addl. Senior Civil Judge, Shivamogga, dated 08.11.2016,

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whereby the Tribunal has granted meager compensation amount of Rs.4,70,525/-.

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3 - NC: 2023:KHC:41252 MFA No. 252 of 2017

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The claim petition was filed seeking

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compensation of an amount of Rs.48,00,000/- on account of the injuries suffered by the claimant. It is the case of the claimant that accident took place on 22.12.2012 and the son of the petitioner No.1 died. It is a case of the appellant herein that he is running a travel agency and deceased was working with him from the past one year and they used to pay salary of Rs.15,000/- and in addition to this, he used to get Rs.50 to 100/- as bata charges. As accident had taken place during the course of his employment, the employer as well as Insurance Company are jointly and severally liable to pay compensation. It is the case of the appellant herein before the Tribunal that the deceased was working with him from the last 2 to 3 months as a temporary driver and was getting an amount of Rs.3,500/- and the bata is paid by the customer, but not by him. The appellant's defence was that there is no employer and employee relationship between the parties and as such the application itself is not maintainable.

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4 - NC: 2023:KHC:41252 MFA No. 252 of 2017

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It is the stand of the Insurance Company that the

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deceased did have license to drive a Light Motor Vehicle/ non transport vehicle. But he was driving a transport vehicle as such the Insurance Company is not liable to pay the compensation. The Court below on the issue of the employer and employee relationship on the admission made by the owner of the vehicle that he has been working with him from the last 2 to 3 months and why he was driving the vehicle belonging to the owner of the vehicle the accident had taken place has held that there is employee and employer relationship. When it comes to the liability of the Insurance Company, the Court has held that as the driver was not having a driving license to drive a non-transport vehicle, the Insurance Company was absolved from the liability and held that owner of the vehicle is liable to pay the compensation.

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Learned counsel appearing for the appellant/

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owner of the vehicle submits that there is no employer and employee relationship and this aspect was not properly

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5 - NC: 2023:KHC:41252 MFA No. 252 of 2017

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appreciated by the Court below. It is submitted that when a petition is filed under Section 2 of the Employees Compensation Act, the burden lies on the petitioner to prove that there is employer and employee relationship between the parties. Apart from that it is submitted that the Court below went wrong in absolving the Insurance Company from the liability. It is submitted that this case is squarely covered by the Judgment of the Hon'ble Apex Court MUKUND DEWANGAN -VORIENTAL INSURANCE COMPANY LIMITED¹ ,. He submits that the Tribunal without appreciating any of the evidence on

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record and the legal position has granted compensation by exonerating the Insurance Company from the liability.

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Learned counsel for the claimant submit that the Court below had rightly considered the relationship between the parties i.e., employer-employee relationship and has rightly granted the compensation. He further submits that no grounds are made out for interfering with the well considered order passed by the Court below.

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1 (2017) 14 SCC 663

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6 - NC: 2023:KHC:41252 MFA No. 252 of 2017

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Though notice is served on the Insurance

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Company, there is no representation on their behalf.

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Heard the learned counsel on either side, perused the entire material on record. As far as the employer and employee relationship is concerned, this Court is not able to appreciate any of the submission made by the learned counsel for the appellant that there is no employee and employer relationship. There is a clear admission on the part of the appellant himself that the deceased was working from the last 2 to 3 months and he has been paying the salary. In that case, no other material is required from the employee to substantiate his case that there is a relationship between employer and employee. The Court below had rightly considered this aspect and held that there is a relationship of employer and employee.

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When it comes to the liability of the Insurance Company, the deceased was having a license to drive a Light Motor Vehicle/non transport vehicle, but he was

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NC: 2023:KHC:41252 MFA No. 252 of 2017

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driving a light motor transport vehicle and that cannot be a ground for the Court below to exempt the Insurance Company.

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In the light of the law laid down by the Hon'ble Supreme Court in the case of MUKUND DEWANGAN -VORIENTAL INSURANCE COMPANY LIMITED² , the Insurance Company is liable to pay the compensation. Accordingly, the appeal of the owner is partly allowed . By holding that there is an employee and employer relationship between the deceased and the appellant. The Insurance Company is liable to pay the compensation amount. Accordingly, appeal is partly allowed .

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This appeal is filed by the owner of the vehicle and this Court by an order dated 17.11.2023 had held that the Insurance Company is liable to pay the compensation, as such, this Court permitted the owner of the vehicle to withdraw the amount in deposit and directed the Insurance Company to deposit the amount within a period of eight (08) weeks.

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2 (2017) 14 SCC 663

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Retyped and replaced the page Nos.7 and 8 vide court order dated 24.06.2024.

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8 - NC: 2023:KHC:41252 MFA No. 252 of 2017

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Learned counsel for appellant submits that even before this order is passed, an amount of Rs.3,53,895/- which was deposited by the owner of the vehicle has already been withdrawn by the claimants.

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As such, the Insurance Company shall pay an amount of Rs.3,53,895/- to the owner of the vehicle and an amount of Rs.1,16,700/- to be paid to the claimants.

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i) The respondent - Insurance Company is liable to pay an amount of Rs.3,53,895/- to the owner of the vehicle and Rs.1,16,700/- to the claimants.

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ii) The insurance company shall pay the amount within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimant is entitled to withdraw the entire amount without furnishing any security.

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iii) Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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iv) No costs.

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Pending miscellaneous petitions, if any, shall stand

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closed.

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SD/JUDGE

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RMS, List No.: 1 Sl No.: 107, CT:SNN

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Retyped and replaced the page Nos.7 and 8 vide court order dated 24.06.2024.

Sri Sridhar R v. Smt Jnanamma

Case brief

What is this about?

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Sri Sridhar R v. Smt Jnanamma

Case brief

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