Remanded

Smt Kantha v. Mr Murugeshan D

Karnataka HC7 Nov 2023MFA/9576/2017

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an award dismissing a compensation claim for a worker killed in a fatal road accident. The court held that the insurance company was liable as the deceased had worked for the owner for 10 years, despite the owner's prior death. The matter was remanded to determine the quantum of compensation.

What did the court decide?

The appeal was remanded to the MACT, Bengaluru (SCCH-13) to reconsider the claim petition specifically regarding the quantum of compensation.

Smt Kantha Vs Mr Murugeshan D — Pension and Retirement Benefits | Karnataka HC (2023)

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NC: 2023:KHC:39917 MFA No. 9576 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^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. 9576 OF 2017 (WC-D)

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BETWEEN:

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SMT.KANTHA W/O SRIRAMULU @ RAMULU AGED ABOUT 48 YEARS

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SRIRAMULU @ RAMULU S/O NATCHIYAPPAN AGED ABOUT 58 YEARS R/AT NO.28-B, KUNDALAPALLI VILLAGE, BEEMANDAPALLI POST KRISHNAPURI TALUK, DHARMAPURI DISTRICT TAMIL NADU STATE.

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…APPELLANTS

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(BY SRI.PUTTASWAMY C.,ADVOCATE)

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

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AND:

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MR MURUGESHAN D (DELETED SINCE DEAD) S/O DASSAPPA NAIDU

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1 A) SMT. SHANTHI, W/O MURUGESHAN, NO.129, KURUBARAPALLI VILLAGE, KRISHNAPURI TALUK, DHARMAPURI DISTRICT TAMIL NADU STATE(EXPARATE)

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NATIONAL INSURANCE CO LTD BRANCH OFFICE,

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2 - NC: 2023:KHC:39917 MFA No. 9576 of 2017

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NO.333, NAURADHA COMPLEX, KRISHNAGIRI TALUK, DHARMAPURI DISTRICT

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REPRSENTED BY THE REGIONAL MANGER, NATIONAL INSURANCE CO.LTD., REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX, M.G.ROAD, BENGALURU -01 (REPTD. BY ITS MANAGER)

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…RESPONDENTS

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(BY SRI.H.S.LINGARAJ .,ADVOCATE FOR R-2; NOTICE TO R- 1(A) IS HELD SUFFICIENT)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.30(1) OF EMPLOYEES COMPENSATION ACT, 1923 AGAINST THE JUDGMENT AND AWARD DT.11.05.2017 PASSED ON ECA NO.22/2014 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES, JUDGE & XXVIII ACMM, BENGALURU (SCCH-13), DISMISSING THE PETITION FOR COMPENSATION ETC.

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

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JUDGMENT

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This is an appeal filed by the claimant aggrieved by

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the award passed in ECA.No.22/2014 dated 11.05.2014 on

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the file of the II Addl. Small Causes Judge & XXVII ACMM

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& MACT, Bangalore.

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3 - NC: 2023:KHC:39917 MFA No. 9576 of 2017

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The claim petition was filed under section 22 of

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the Workmen Compensation Act, claiming compensation for the death of the deceased in the road traffic accident on 14.01.2014. The case of the claimants is that the Respondent No.1 is the owner of the Car and he is employer of the deceased. He was working under him as a driver for a monthly salary of an amount of Rs.12,000/and daily bata of an amount of Rs.100/-. On 14.01.2014 at about 10.15 a.m, while the deceased was driving the car which belongs to the Respondent No.1, the deceased lost the control of the car, as a result, deceased sustained several injuries and was shifted to the Hospital where he was declared as brought dead. The court below had dismissed the claim petition on the ground that as per the evidence with whom the deceased was working i.e, Murugeshan died on 11.05.2012 and considering the fact that owner of the vehicle has died much before the accident, the court has disbelieved the employer and employee relationship and dismissed the claim petition.

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4 - NC: 2023:KHC:39917 MFA No. 9576 of 2017

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Learned counsel for the claimant submits that

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the accident had taken place on 14.01.2014. It is their case that for more than 10 years prior to the accident the deceased was working as a driver with one Murugeshan. Insurance company has issued a policy on 20.12.2013 which is in force till 19.12.2014. He submits that they have issued the policy in the name of a dead person and as on the date of the accident, the policy was in force and it covers the risk of the driver. He submits that the deceased died while he was driving the vehicle. Notice was taken to the wife of the Respondent No.1 and even summons were issued from the court to examine her as witness. She failed to appear before the court. It is submitted that all these circumstances will prove that there is an employer and employee relationship between the deceased and Respondent No.1. He has relied on the Judgment of this court in the case of Sharada and another -Vs- D. Selvam and another¹ , wherein this

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1 2021 ACJ 2480

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5 - NC: 2023:KHC:39917 MFA No. 9576 of 2017

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court held that a conjoint reading of sections 150, 155 and 157 of MV Act provides that on the death of the insured, ownership of the vehicle gets transferred to the legal heirs of the registered owner/Insured with deemed transfer of insurance in the name of the person who has succeeded to the ownership and the liability of the insurance company will continue even if the owner of the vehicle dies or has infact died prior to the accident. He has also relied on another Judgment of this court in the case of New India Insurance Company Ltd. -Vs- Devaraj and others²

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and another Judgment of Hon'ble Apex Court in the case

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of Mallamma dead by LR's -Vs- National Insurance Co. Ltd., and others³ on the similar grounds, he submits that Tribunal went wrong in dismissing the claim petition.

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4. Learned counsel for the insurance company

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submits when the petition is filed under section 22 of the

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2 2016 ACJ 2464

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3 2014 ACJ 1266

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Workmen Compensation Act, the burden lies on the claimant to prove that there is employer and employee relationship exists between him and owner of the vehicle. He submits that in this case, according to them he is working with the person who died way back in the year 2012 and the Tribunal considering all these facts had rightly dismissed the claim petition.

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Having heard the learned counsels on either

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side, perused the entire material on record. In this case, the deceased while driving the vehicle belonging to Respondent No.1 met with an accident and died in the said accident. The said vehicle is insured by the RespondentInsurance company which is in effect from 20.12.2013 till 19.12.2014, which covers risk of the driver. There is a

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valid driving policy as far as the said vehicle is concerned. Now the insurance company denied the liability on the ground that there is no employer and employee relationship. The claimant-mother of the deceased has

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7 - NC: 2023:KHC:39917 MFA No. 9576 of 2017

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claimed that the deceased was working with the said employer for more than 10 years and wife of the deceased was also made a party, the court has also has sent summons to examine her as witness and also through substituted service, notice was taken on her. In-spite of the best efforts, the employer has failed to appear before the Court.

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6. The Insurance company is blowing hot and cold

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at the same time. At one stretch they say that the deceased was working under a person who died long back before the accident. On the other hand, they admit that

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they issued the policy after his death i.e, from 20.12.2013 to 19.12.2014 when he died on 11.05.2012. These two stands cannot go together. With regard to the issue of LMV transport and non transport is concerned, same is covered by the Judgment of the Hon'ble Apex Court in the case of Mukund Dewagan -Vs- Oriental Insurance Co.

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8 - NC: 2023:KHC:39917 MFA No. 9576 of 2017

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Ltd.,⁴ . Under the facts and circumstances considering the above referred facts and considering the judgment of

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this court relied on by the learned counsel for the claimant, this court comes to conclusion that the claimant was working under one deceased Murugeshan-Respondent No.1, as the vehicle is insured by the insurance company, they are liable to pay the compensation. Then coming to the compensation, no discussion was done by the court below. Therefore, this court deems it appropriate to remand this matter to the Tribunal only in so far as the quantum is concerned.

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(i) Accordingly, the appeal is remanded back to the MACT, Bengaluru (SCCH-13) to reconsider, the claim petition with regard to the quantum. The Tribunal shall consider and pass appropriate orders within a period of two months from 27.11.2023.

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4 AIR 2017 SC 3668

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NC: 2023:KHC:39917 MFA No. 9576 of 2017

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(ii) Without further notice, the parties shall appear before the Tribunal on 27.11.2023

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(iii) It is open for both the parties to raise their respective contentions, objections and adduce additional evidence if they choose to do so.

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(iv) The Registry is directed to return the Trial Court Record to the Tribunal along with the certified copy of the order passed by this court forthwith without any delay.

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SD/JUDGE

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TS List No.: 1 Sl No.: 116

Smt Kantha v. Mr Murugeshan D

Case brief

What is this about?

What did the court decide?

Smt Kantha v. Mr Murugeshan D

Case brief

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