Allowed

Divisional Manager v. Lakshmana

Karnataka HC17 Jan 2023MFA/3575/2016

Case brief

AI extract

What is this about?

The High Court allowed appeals filed by an insurance company against compensation awards obtained by family members of a deceased victim and an injured party. The Court set aside the lower court awards and remanded the matter, allowing claimants to approach those liable for the rash driving or pursue claims under the Motor Vehicles Act against the lorry owner and insurer.

What did the court decide?

The appeals were allowed; awards were set aside; cases were remanded for fresh consideration with liberty to claim under the Motor Vehicles Act against the lorry owner and insurer.

Divisional Manager Vs Lakshmana — Property and Title | Karnataka HC (2023)

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MFA No. 1991 of 2016 C/W MFA No. 3575 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 1991 OF 2016 (WC)

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MISCELLANEOUS FIRST APPEAL NO. 3575 OF 2016 (WC)

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IN MFA NO. 1991/2016

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BETWEEN:

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, P.J.EXTENSION, AKKAMAHADEVI ROAD, DAVANAGERE-577 002.

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…APPELLANT

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(BY SRI. RAVISH BENNI.,ADVOCATE)

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AND:

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SMT. K. SUMA, W/O LATE K.RAJASHEKARAPPA, AGED ABOUT 42 YEARS, OCC: HOUSE HOLD WORK, R/O KARIGANUR VILLAGE, CHENNAGIRI TALUKA DAVANAGERE DISTRICT-577 219

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MFA No. 1991 of 2016 C/W MFA No. 3575 of 2016

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SRI. K.R. TEJASWINI, D/O LATE K. RAJASHEKARAPPA, AGED ABOUT 14 YEARS, STUDENT, R/O KARIGANUR VILLAGE, CHENNAGIRI TALUKA, DAVANAGERE DISTRICT-577 219.

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SRI. P.P. UJJANAPPA, S/O PATEL REVAPPA, AGED ABOUT 67 YEARS, OWNER OF THE TRACTOR AND TRAILER BEARING REGISTRATION NO.KA-16-T-7245-7246. R/O KALGERE VILLAGE, BARAMASAGARA HOBLI, CHITRADURGA TALUK-577 519.

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…RESPONDENTS

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(BY SRI. B. M. SIDDAPPA, ADVOCATE FOR R3; R1 AND R2 SERVED)

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THIS MFA IS FILED UNDER SECTION.30(1) OF THE EMPLOYERS COMPENSATION ACT, AGAINST THE JUDGMENT AND ORDER DATED 26.10.2015 PASSED ON ECA NO.17/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, CHANNAGIRI, AWARDING THE COMPENSATION OF RS.4,79,400/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE REALIZATION.

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IN MFA NO. 3575/2016

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BETWEEN:

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DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, P.J. EXTENSION, AKKAMAHADEVI ROAD, DAVANAGERE-577 002. D.L. NO.240801/31/11/01/0000/5548

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MFA No. 1991 of 2016 C/W MFA No. 3575 of 2016

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VALID FROM 9-9-2011 TO 8-9-2012 INSURED AT BRANCH OFFICE, DAVANAGERE.

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…APPELLANT

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(BY SRI. RAVISH BENNI.,ADVOCATE)

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AND:

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LAKSHMANA

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S/O. VIRUPAKSHAPPA,

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AGED 34 YEARS, COOLIE WORK, R/O. KALGERE VILLAGE, BARAMASAGARA HOBLI, CHITRADURGA TALUK.- 577 519

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P.R.UJANAPPA

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S/O. PATEL REVANNA,

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AGED 67 YEARS, OWNER OF TRACTOR AND TRAILER BEARING REGISTRATION NO.KA-16-T-7245-7246 R/O. KALGERE VILLAGE, BARAMASAGARA HOBLI, CHITRADURGA TALUK-577 519..

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…RESPONDENTS

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(BY SRI. B M SIDDAPPA FOR R3.,ADVOCATE

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R1 AND 2 ARE SERVED)

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MFA FILED U/S 30(1) OF EMPLOYEES COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED11.03.2016 PASSED IN ECA.NO.141/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, & CJM, COMMISSIONER FOR EMPLOYEES COMPENSATION, CHITRADURGA, AWARDING COMPENSATION OF Rs.93,600/- WITH INTEREST @ 12% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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

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MFA No. 1991 of 2016 C/W MFA No. 3575 of 2016

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JUDGMENT

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Both the appeals are filed by the Insurance company being aggrieved by the order passed in ECA No.17/2014 dated 26.10.2015 by the Senior Civil Judge and JMFC, Channagiri and order passed in ECA No.141/2014 dated 11.03.2016 by the Principal Senior Civil Judge, CJM and Commissioner for Employees Compensation (hereinafter referred to as 'Commissioner' for short), Chitradurga.

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The petitioners/claimants in E.C.A.No.17/2014 are the legal representatives of the deceased K.Rajashekarappa and the petitioner/claimant in E.C.A.No.141/2014 is the injured. The Commissioner allowed both the petitions with cost granting compensation to the petitioners/claimants fastening liability on the owner and the Insurer. Being aggrieved, the Insurance company has filed these petitions.

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The brief facts of the case are that on 14.04.2012, the respondent-owner of the Tractor and Trailor bearing Reg.No.KA-16/T-7245/7246 took the deceased

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MFA No. 1991 of 2016 C/W MFA No. 3575 of 2016

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K.Rajashekarappa and the injured Lakshmana in his tractor

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along with others as loaders and unloaders. On 15.04.2012 at about 12.30 a.m., near Idgamaidan, NH-4 road, Bharamasagara, the tyre of the Trailer bearing No.KA-16/T-7246 got punctured and another

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Tractor-cum-Trailer bearing Reg.No.KA-16A-2921/2922 was brought to the spot and when the deceased and the injured were shifting poles to another Trailer, a lorry bearing Reg.No.KA-904-D-830 came from Davanagere side driven by its driver in a rash and negligent manner and dashed against the parked trailer. Due to which, one Rajashekarappa sustained fatal injuries and succumbed to injuries on the same day. Therefore, the wife and children of the deceased K.Rajashekarappa filed claim petition in ECA No.17/2014 before the Senior Civil Judge and JMFC, Channagiri and the injured claimant-Lakshmana filed claim petition in ECA No.141/2014 before the Commissioner for Employees Compensation, Chitradurga, seeking compensation under Section 22 of the Employees Compensation Act, 1923 (for short ‘EC Act’). The Commissioner, allowed the claim petition in ECA No.17/2014 filed by the legal representatives of the deceased

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MFA No. 1991 of 2016 C/W MFA No. 3575 of 2016

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K.Rajashekarappa awarding total compensation of

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Rs.4,79,000/- with interest at the rate of 9% p.a. from the date of petition till realization. ECA No.141/2014 filed by the injured was allowed in part with cost by the Commissioner awarding compensation of Rs.93,600/- with interest a 12% p.a. from the date of petition, till the date of deposit. In both the cases, respondents-1 and 2, the owner and the insurer are jointly and severally liable to pay compensation.

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Heard arguments and perused the materials on

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record.

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Learned counsel for the appellants-Insurance Company submitted that in the present case the offending vehicle is a lorry bearing Reg.No.KA-04-D-830, which caused accident to the parked Trailer. But the claimants have filed claim petition against driver of the Tractor and Trailor only without filing claim petition against the driver and the insurer of the lorry. Therefore, he submitted that it amounts to payment of compensation by the non t ort feasor. Further, it is submitted that there is no relationship of employer and

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MFA No. 1991 of 2016 C/W MFA No. 3575 of 2016

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employee. The owner of the Tractor and Trailer has violated the policy condition by using his Tractor and Trailer for bringing poles for his land and not for agricultural purpose. Therefore, prayed for allowing the both the appeals by setting aside the judgment and award passed by the Commissioner dismissing the claim petition filed by the injured and also the claim petition filed by the legal representatives of the deceased.

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Learned counsel for respondent-owner of Tractor and Trailer, however, submitted that there is relationship of employer and the employee. Therefore, prays for dismissal of the appeals.

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In the present case, the driver of the lorry bearing registration No.KA-04-D-830 drove the vehicle in a rash and negligent manner from Davangere side and dashed against the parked Trailer. Due to accident, one person died and another person got injured when they were loading and unloading poles from one Trailer to another Trailer. However, the claim petition is filed against the owner and the insurer of the Tractor and Trailer bearing Reg. No.KA-16/T-7245-7246. The claimants

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MFA No. 1991 of 2016 C/W MFA No. 3575 of 2016

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have failed to implead the owner and the insurer of the Lorry as parties to the proceedings. There is no reason why the claimants have not proceeded against the owner and insurer of the lorry. The claimants can either to choose the provisions of EC Act or Motor Vehicles Act, 1988 (for short ‘MV Act’) for claiming compensation.

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At this juncture, learned counsel for the owner of the Tractor and Trailer submitted that if the case is remitted to the Commissioner for fresh consideration after impleading the owner and the insurer of the lorry, then the claimants would get justice. He further submitted that the claimants might have been mislead to claim against the owner and insurer of the Tractor and Trailer. With this, he prays for issuing direction to the claimants to claim compensation under the provisions of the MV Act against the owner and the insurer of the lorry.

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Considering the above, the claimant/s is/are at liberty to file claim petition against the owner and the insurer of the lorry invoking the provisions of the MV Act. Hence, I proceed to pass the following:

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MFA No. 1991 of 2016 C/W MFA No. 3575 of 2016

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ORDER

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i. The appeals are allowed .

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ii. The judgment and award in ECA No.17/2014 dated 26.10.2015 passed by the Senior Civil Judge and JMFC, Channagiri and the judgment and award passed in ECA No.141/2014 dated 11.03.2016 by the Principal Senior Civil Judge, CJM and the Commissioner for Employees Compensation, Chitradurga, are set aside.

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iii. MFA No.1991/2016 is remanded back to the Senior Civil Judge and JMFC, Channagiri, for fresh consideration in accordance with law.

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iv. MFA No.3595/2016 is remanded back to the Principal Senior Civil Judge, CJM and Commissioner for Employees Compensation, Chitradurga, for fresh consideration in accordance with law.

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v. Liberty is reserved to the claimant/s either to invoke provision under MV Act or Ees Compensation Act, 1923.

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vi. Liberty is reserved to the parties to lead oral or documentary evidence or both, if they are so advised.

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10 -

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MFA No. 1991 of 2016 C/W MFA No. 3575 of 2016

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vii. Parties shall appear before the Tribunal on 22.02.2023 , without expecting notice from the Commissioner.

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viii. The Commissioner shall decide the case and dispose of the matter within a period of four months from 22.02.2023, in accordance with law.

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ix. Office is directed to send back the trial Court records to the concerned Court.

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x. All the contentions are left open.

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xi. In case, the claimant/s chooses to invoke provisions of MV Act and if the claimant/s succeed, then the claimant/s are not entitled for interest from the date of accident till choosing provisions of MV Act.

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*xi (a) The amount deposited by the Insurance Company-appellant shall be refunded to the Insurance Company.

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Sd/JUDGE

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*Inserted vide court order dated 22.02.2023.

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List No.: 1 Sl No.: 29

Divisional Manager v. Lakshmana

Case brief

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Divisional Manager v. Lakshmana

Case brief

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