United India Insurance Company Limited Vs Sri Rama Bangera @ Rama Moolya

THIS MFA IS FILED U/S 30(1) OF W.C.ACT AGAINST THE JUDGMENT DATED:22.8.2013 PASSED IN WCA/F/26/2001 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISION-01, CHICKMANGALORE, AWARDING A COMPENSATION OF RS.4,23,580/- WITH INTEREST @ 12% P.A FROM 22.4.2001 TILL THE DATE OF DEPOSIT.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This is insurer's appeal against the judgment and award dated 22.08.2013 passed by the Workmen's Compensation Commissioner, Sub Division-1,

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Chikkamagaluru (for short 'Labour Commissioner').

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The parties are referred to as per their ranking before the Labour Commissioner.

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Brief facts of the case are that one Ganesh

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Kumar was the son of both the claimants. He died in an

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accident on 22.03.2001, while he was driving the car bearing registration No.KA:19/M-8372 belonging to respondent No.1. It was further contended that deceased Ganesh Kumar was an employee of respondent No.1 and as per his direction, working as driver of the car of respondent No.1 and he was earning Rs.4,500/- per month as salary, with Bata of Rs.50/- per day. The claimants assert that relationship between respondent No.1 and Ganesh Kumar was employer and employee. It is further case of the claimants that the said vehicle was insured with respondent No.2. The claimants being the parents of deceased and depending upon Ganesh Kumar, they are entitled for compensation. With these reasons, prayed to award compensation.

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4. Respondent No.1 contended before the Labour

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Commissioner that there was no relationship of an employer and employee between himself and deceased Ganesh Kumar. Prior to the accident, respondent No.1 had sold the said vehicle to Ganesh Kumar on 15.10.2000 and

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respondent No.1 had signed form No.29 and 30 to transfer of the vehicle in the name of Ganesh Kumar and he delivered the said vehicle to Ganesh Kumar along with form Nos.29 and 30 and H.P. clearance certificate of Harsha Finance, Mangalore in Form No.35. After filing of the petition, he came to know that Ganesh Kumar did not submit the form Nos.29 and 30 to RTO, Mangaluru and got transferred his name in the Registration certificate. He denied the contentions of the claim petition and prayed to dismiss the claim petition.

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The contention of respondent No.2 - insurer is

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in line with the contentions of respondent No.1. In addition to that respondent No.2 contended that deceased had no valid and effective driving license to drive the said vehicle. There was no employer and employee relationship between respondent No.1 and deceased - Ganesh Kumar. Therefore, it is not liable to pay the compensation and it also denied its liability to pay

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compensation on other technical grounds. With these reasons prayed to dismiss the claim petition.

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The Labour Commissioner framed necessary

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issues for determination.

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The claimant examined one witness and marked

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two documents as Exs.P1 and P2. Respondents have not led oral evidence but marked two documents as Ex.R1 & R2.

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After hearing both the parties, the Labour Commissioner by impugned order held that there exists relationship of employer and employee between deceased Ganesh Kumar and respondent No.1; Ganesh Kumar died during course of employment; and further held that Ganesh Kumar was receiving salary of Rs.4,500/- per month and bata of Rs.50/- per day. Applying the necessary factor, calculated the compensation and passed impugned award, directing respondents No.1 and 2 to pay the same.

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HC-KAR

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I have heard the arguments of learned counsel

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for the appellant as well as respondent No.2.

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This appeal was admitted to consider the following substantial question of law:

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i. Whether claimant prove that there exists employer and employee relationship between deceased Ganesh Kumar and Respondent No.1 - H. Ravindra Kini?

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Learned counsel for the appellant-insurer

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contended that the burden lies on the claimant to prove the existence of an employer and employee relationship between deceased Ganesh Kumar and respondent No.1. However, no reliable evidence was produced by the claimant to prove the said contention. The respondents have produced Ex.R1 - Hire purchase agreement and Ex.R2 - policy of insurance. These records reveal that, as on the date of the accident, deceased was owner of the said car. Due to the default of deceased he did not apply to RTO to change the name of owner in the Registration

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Certificate (for short 'RC') in his name. Ex-R1, bear signature of deceased. He took loan on the said vehicle and paid sale consideration to respondent No.1. These documents prove that deceased himself was owner of the said vehicle. Hence, claimants cannot maintain petition under Workmen Compensation Act. Ganesh Kumar was not at all an employee under respondent No.1. In the absence of proof of such a relationship, the question of liability to pay the compensation by the respondents do not arise. Therefore, it is prayed to allow the appeal and set aside impugned order.

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Learned counsel for respondent No.2 vehemently contends that undisputedly as on the date of the accident, deceased Ganesh Kumar was driving the said car; he met with accident and died. It is an admitted fact that as on that date, R.C of the said car was standing in the name of respondent No.1. It is the contention of the learned counsel for the claimant that the deceased was driving the car of respondent No.1 as his

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employee. However, there is no evidence on record to prove that the said vehicle was already sold in favour of Ganesh Kumar by respondent No.1 as contended by him. It is within his personal knowledge. To prove the said fact, neither he led oral or documentary evidence. Hence, he was unable to prove his contentions. He further contends that this is 2^nd round of litigation. The Labour Commissioner by order dated 29.07.2003 has allowed the claim petition and directed the respondents to pay the compensation. Said order was challenged by the insurer in MFA.No.7415/2003 (WC). The Division Bench of this Court vide order dated 30.08.2010, allowed the appeal and the matter was remanded to Labour Commissioner with a direction to permit the respondents to lead evidence. The said order revealed that photo copy of Hire purchase agreement cannot be relied upon to establish the sale transactions. After remand of the matter, both respondent Nos.1 and 2 failed to lead any evidence inspite of sufficient opportunity. There is no rebuttal evidence to

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the evidence of PW-1. Thus,, the Labour Commissioner by the impugned order again rightly allowed the claim petition. Hence, prayed to dismiss the appeal with heavy costs.

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I have anxiously gone through the materials available on record. Undisputedly, the accident had taken place on 22.03.2001 and on that day deceased Ganesh Kumar was driving the car bearing registration No.KA:19/M-8372. He sustained grievous injuries in the accident and succumbed to the injuries. PW-1 is the mother of the said deceased Ganesh Kumar and in her evidence she has reiterated the averments of claim petition. She has stated that her son was working with respondent No.1 and driving his car, and was earning Rs.4,500/- per month. In his cross-examination by respondent Nos.1 and 2, the said relationship was denied. She pleaded ignorance to the suggestion that respondent No.1 sold the said car to Ganesh Kumar and as on the date of the accident, Ganesh Kumar was the owner of the

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said car. It is pertinent to mention that as on the date of the accident, the Registration Certificate of the car was standing in the name of respondent No.1. It appears he did not inform concerned R.T.O office about sale of vehicle in favour of Ganesh Kumar.

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To rebut the evidence of PW-1, respondent No.1 did not enter the witness box without justifiable reasons although he had filed the objections. Unless he appeared before the Labour commissioner and lead evidence, whatever is stated in his written statement cannot be accepted as gospel truth. Hence, adverse inference shall be drawn. Had he entered witness box, claimant could have elucidated truth from him. It appears that to suppress the truth, he did not enter the witness box. Employee has already dead in the accident. The best witness available in this regard is respondent No.1. He did not lead evidence. Hence, respondent No.1 has not rebutted evidence of PW-1. The arguments of claimants holds water. The evidence of PW-1 is

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unrebutted. Hence it has to be accepted that there was an employer-employee relationship between respondent No.1 and deceased. The Labour Commissioner decided this claim petition vide order dated 29.07.2003, which was later challenged before this Court in MFA.No.7415/2013. It was heard and decided by the Division Bench of this Court by order dated 31.08.2010. It appears appellant had filed an application seeking permission to lead evidence before Labour Commissioner and it was dismissed. Considering the material available, the Division Bench observed that Ex.R-1 cannot be acceptable on the face of record. It requires to be proved. Appellant filed an application, and it was rejected. Hence, an opportunity shall be given to prove the contention of respondents, so the matter was remanded to provide an opportunity to the respondents to prove their contention of sale of the said car by the respondent No.1 to the deceased, the case was remanded.

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Paragraph No.15 of the said order reads as

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under: (I quote)

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"15. Though an application has been filed by the insurer for production of Hire purchase Agreement to show that there is no relationship of employer and employee between the deceased and the owner of the vehicle, the same has been rejected. If an opportunity is given to the insurance company to produce the said document by summoning the Financier, truth will come out. Hence, we are of the opinion that in order to give one more opportunity to the Insurance Company to produce necessary documents and to find out the true facts. We set aside the order dated 29.07.2003 and remand the matter back to the Commissioner for Workmen's Compensation, Chikkamagalur to reconsider the matter by providing necessary opportunity to the parties and pass fresh orders in accordance with law, within a period of six months from the date of receipt of a copy of this order. Accordingly, the appeal is allowed.

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Thereafter, the matter was remanded and pending before the Labour Commissioner. It appears both the respondents did not lead any evidence in support of their contention to prove that the said vehicle was sold to Ganesh Kumar and in this regard he had executed Ex.R1 with financer. There is no scrap of paper produced by respondent No.1 to prove that respondent No.1 sold the said car to Ganesh Kumar. Even he has not written any letter to the concerned RTO regarding sale of the car to Ganesh Kumar and change of name of Ganesh Kumar in the RC of the car. Undisputedly, RC stands in the name of respondent No.1. Therefore, contention of respondent No.1 that since the car was sold to Ganesh Kumar, and he was not the owner of the vehicle as on the date of the accident, cannot be accepted, as the said contention is not substantiated by respondent No.1 and 2.

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A very strange argument is advanced by the appellant that after remand it was duty of Labour Commissioner to suo moto summon witnesses and

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examine the witness. Appellant has filed an application seeking permission to lead evidence. To give an opportunity, this Court allowed the appeal and remanded the claim petition to enable respondents to lead evidence if any. However, the officers of the appellant did not avail

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the opportunity and lead evidence to prove their contentions. It is not the duty of adjudicating authority to suomoto summon the witnesses and examine them to prove contentions of the parties.

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Considering available materials, the Labour commissioner held that claimants proved that there existed an employer-employee relationship between deceased and respondent No.1 and awarded compensation in accordance with Employees Compensation Act. It is not in dispute that said vehicle has been insured with respondent No.2-appellant and it was in force. Hence, respondent No.2 is liable to pay compensation.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is dismissed .

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ii. The impugned order dated 22.08.02013 passed by the Labour Officer and Workmens' Compensation Commissioner, Sub-Divisio-1, Chickmagalur, in Case No.WCA/F/26/2001 is confirmed.

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iii. Send back the records to the labour commissioner along with the copy of this order.

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iv. The commissioner has properly appreciated materials available on record and awarded compensation. It does not call for any interference. Hence, substantial question of law is answered against appellant and if appellant has deposited any amount before this Court same shall be transmitted to Labour Commissioner for disbursement.

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iv. Send back trial Court records with copy of judgment to office of Labour Commissioner.

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(UMESH M ADIGA) JUDGE

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AG List No.: 1 Sl No.: 15

United India Insurance Company Limited v. Sri Rama Bangera @ Rama Moolya

Case brief

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United India Insurance Company Limited v. Sri Rama Bangera @ Rama Moolya

Case brief

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What the court decided

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