Allowed

The Divisional Manager v. Smt Sundamma

Karnataka HC12 Jun 2023MFA/4185/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka, while hearing appeals and a cross objection under the Workmen's Compensation Act, allowed the appeals against an award of Rs. 3.11 lakhs. The court set aside the lower tribunal's award and remanded the matter for fresh consideration to determine if the deceased was employed by the applicant or another party, as the employer remained absent and the evidence was unclear.

What did the court decide?

The appeals are allowed, impugned judgment and award set-aside, matter remanded to Tribunal for fresh consideration, and amount in deposit transmitted to Tribunal.

The Divisional Manager Vs Smt Sundamma — Service and Employment | Karnataka HC (2023)

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NC: 2023:KHC:20057 MFA No. 4185 of 2013 C/W MFA.CROB No. 110 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 4185 OF 2013 (WC)

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C/W

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MFA CROSS OBJECTION NO. 110 OF 2018

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IN MFA NO. 4185/2023

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BETWEEN:

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THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE NO.1, NEW SAYYAJI RAO ROAD, TEJAS COMPLEX, MYSORE, NOW REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, 44/45, RESIDENCY ROAD, BANGALORE - 25.

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Digitally signed BANGALORE - 25. by PAVITHRA B Location: HIGH COURT OF KARNATAKA (BY SMT. HARINI SHIVANANDA.,ADVOCATE)

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…APPELLANT

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AND:

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SMT. SUNDAMMA, MAJOR, W/O LATE SRI. SHAMBU LINGA SHETTY,

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SRI. OMRAJSHETTY, MAJOR, S/O LATE SRI. GANESH SHETTY,

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NC: 2023:KHC:20057 MFA No. 4185 of 2013 C/W MFA.CROB No. 110 of 2018

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SRI. SIDDASHETTY, MAJOR,S/O LATE SRI. GANESH SHETTY

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SRI. KEMPSHETTY, MAJOR,S/O LATE SRI. GANESH SHETTY,

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ALL THE PETITIONERS ARE R/O RAGHAVAPURA GRAMA & POST, GUNDLUPET, BEGUR HOBLI, PERMANENT RESIDENTS OF KENCHANA GUDDE GRAMA, JAYAPURA POST, MYSORE.

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SMT. MANJULA, MAJORW/O LATE SRI. GANESH SHETTY,

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SRI. OMRAJSHETTY, MAJOR,S/O LATE SRI. GANESH SHETTY,

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SRI. SIDDASHETTY, MAJOR,S/O LATE SRI. GANESH SHETTY,

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SRI. KEMPSHETTY, MAJOR,S/O LATE SRI. GANESH SHETTY,

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ALL ARE R/A RAGHAVAPURA, BEGUR HOBLI,CHAMRAJNAGARA TQ, ALSO R/A HAMPAPURA, KOULANDE HOBLI,NANJUNGUD TALUK, MYSORE DISTRICT - 571 301.

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SRI. SYED JAFFAR , MAJOR,S/O SYED RAKIB, 565/8, KODHALI,1ST DIVISION, HALE, SANTHE MALA,GUNDLUPETE - 571 111.

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…RESPONDENTS

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(BY SMT. SUMA KEDILAYA, ADVOCATE FOR R1 TO R4; SRI. H V BHANU PRAKSAH, ADVOCATE FOR R5; VIDEE ORDER DATED 4.10.17, SERVICE OF NOTICE IS HELD SUFFICIENT AND SERVED IN RESPECT OF R5 TO R8)

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THIS MFA IS FILED UNDER SECTION 30(1) OF WORKMEN'S COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED 31.01.2013 PASSED IN WC.NO.27A AND

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- 3 - NC: 2023:KHC:20057 MFA No. 4185 of 2013 C/W MFA.CROB No. 110 of 2018

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27B/2007 BEFORE THE COMMISSIONER FOR WORKMENS COMPENSATION MYSORE DISTRICT. AWARDING COMPENSATION OF RS.3,11,970/- WITH INTEREST AT 12 PERCENT P.A FROM 15.10.2006 TILL DEPOSIT.

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IN MFA.CROB NO. 110/2018

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BETWEEN:

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SMT. SUNDAMMA, AGED ABOUT 77 YEARS, W/O LATE SRI. SHAMBU LINGA SHETTY,

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SRI. OMRAJSHETTY, AGED ABOUT 18 YEARS S/O LATE SRI. GANESH SHETTY,

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SRI. SIDDASHETTY, AGED ABOUT 18 YEARS S/O LATE SRI. GANESH SHETTY

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KEMPA SHETTY, AGED ABOUT 15 YEARS S/O LATE SRI. GANESH SHETTY, (SINCE CROSS OBJECTOR NO.04 IS MINOR HE IS REPRESENTED BY HIS NEXT FRIEND, MOTHER, SMT. SUNDAMMA) ALL ARE RESIDING AT RAGHAVAPURA GRAMA & POST, BEGUR HOBLI, CHAMARAJNAGARA TALUK.

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ALSO RESIDING AT HAMPAPURA, KOULANDE HOBLI, NANJANGUD TALUK,MYSORE DISTRICT.

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…CROSS OBJECTORS

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(BY SMT. SUMA KEDILAYA, ADVOCATE)

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NC: 2023:KHC:20057 MFA No. 4185 of 2013 C/W MFA.CROB No. 110 of 2018

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AND:

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SRI. SYED JAFFAR, MAJOR, S/O SYED RAKIB, 565/8, KODHALI, 1ST DIVISION, HALE SANTHE MALA, GUNDLUPETE - 571 111.

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The DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD., DIVISONAL OFFICE, NO.1 TEJAS COMPLEX, MYSORE.

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SMT. MANJULA, MAJOR, W/O LATE SRI. GANESH SHETTY, RESIDING AT HAMPAPURA KOULANDE HOBLI, NANJANGUD TALUK, MYSORE DISTRICT.

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…RESPONDENTS

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(BY SMT. HARINI SHIVANANDA, ADVOCATE FOR R2; VIDE ORDER DATED 17.03.22 SRI. H V BHANUPRAKASH, ADVOCATE FOR R3; VIDE ORDE DATED 17.03.22, NOTICE TO R1 IS HELD SUFFICIENT)

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THIS MFA IS FILED UNDER U/O.41 RULE 22 OFC CPC R/W SEC. 30(1) OF WORKMEN'S COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED 31.01.2013 PASSED IN WC(FC)NO.27A ON THE FILE OF THE LABOUR OFFICER ND COMMISSIONER FOR WOMENS COMPENSATION, MYSORE, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL AND MFA CROB, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeals are filed by the claimants under Section 30(1) of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'WC Act' for short), challenging the judgment and award dated 31.01.2013 passed in WC.No.27A & 27B/2007 by the Commissioner for Workmen's Compensation, Mysore District, Mysore.

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The brief facts of the case are that on 15.09.2006, on the instructions of respondent No.1, the deceased went along with other loaders in a lorry bearing registration No.KA-10-2408 belonging to respondent No.1 to load the sand from Mallahalli Village. At about 1.00 p.m., due to sudden collapse of sand on the deceased, the deceased died on the spot. Immediately, his body was shifted to Government Hospital, Nanjangud for post mortem. The deceased was 30 years at the time of mishap and he is earning Rs.200/- as daily wages. Since the deceased was expired during the course of his employment, the claimants have filed claim petition under

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6 - NC: 2023:KHC:20057 MFA No. 4185 of 2013 C/W MFA.CROB No. 110 of 2018

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Section 10 of the Workmen's Compensation Act, 1923, seeking compensation.

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Heard the arguments on both sides and perused the records.

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The case of the claimants is that the deceased

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was loading the sand along with other loaders and coolies. The sand was collapsed on the deceased and the deceased died on the spot. In the spot sketch, it was shown that the lorry was standing 60 feet away from the place of the spot where the dead body of the deceased was found. The said fact is not shown in the spot mahazar. The charge sheet is filed against the owner of the land from where the sand was extracted.

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The owner of the lorry remained absent inspite of service of notice by the learned Commissioner. The claimants have deposed in their statements that the deceased was traveling in the lorry belonging to respondent No.9 but the complaint is vague in saying that

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NC: 2023:KHC:20057 MFA No. 4185 of 2013 C/W MFA.CROB No. 110 of 2018

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whether the deceased was engaged by respondent No.9. Then, the question whether the deceased was a loader/coolie employed by respondent No.9 would have to be considered. Under these circumstances, the role of loaders/coolies may be considered by accepting the documentary evidence on record proving that the deceased was working as a loader. Therefore, the owner of the land has to state whether respondent No.9 has engaged the deceased as a loader or not. But the lorry belongs to respondent No.9 which was very much present at the time of drawing spot sketch which means to say that the lorry was present when the mishap was occurred. Admittedly, respondent No.9 is the owner of the lorry. The evidence on record is silent with regard to whether the owner of land i.e. Shivappa has engaged the deceased or respondent No.9 has engaged the deceased. Therefore, the best person to answer this question is respondent No.9 who has to clarify whether the owner of land i.e. Shivappa has engaged the deceased or respondent No.9 has engaged the deceased since the respondent No.9 is party

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8 - NC: 2023:KHC:20057 MFA No. 4185 of 2013 C/W MFA.CROB No. 110 of 2018

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to the proceedings. As such, to prove the relationship of employer and employee, the matter requires to be remanded to the learned Commissioner/Tribunal for fresh consideration in accordance with law. Hence, the judgment and award passed by the Commissioner, Workmen's Compensation, Mysore District, Mysore is liable to be set aside. Whatever the observations made above shall not be construed as merits that are discussed in this matter, but it shall be considered only for the purpose of remanding the case. All the contentions are left open. The parties are directed to adduce any further evidence either oral or documentary, if they are so advised.

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Hence, I proceed to pass the following:

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ORDER

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i. The appeals are allowed .

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ii. The judgment and award dated 31.01.2013 passed by the Commissioner, Workmen's

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NC: 2023:KHC:20057 MFA No. 4185 of 2013 C/W MFA.CROB No. 110 of 2018

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Compensation, Mysore District, Mysore in WC.No.27A & 27B/2007 is hereby set-aside.

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iii. The matter is remanded to the Commission/Tribunal for fresh consideration in accordance with law.

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

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v. All the contentions are left open.

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vi. The amount in deposit is ordered to be transmitted to the Tribunal, forthwith.

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vii. Parties shall appear before the Commission on 20.07.2023 , without expecting notice from the Tribunal.

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viii. The Commissioner/Tribunal shall decide the case and dispose of the matter within a period of four months from 20.07.2023 , in accordance with law.

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SSD

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Sd/JUDGE

The Divisional Manager v. Smt Sundamma

Case brief

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The Divisional Manager v. Smt Sundamma

Case brief

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