Smt.Latabai and Ors. Vs Sri.Ganesh and Anr. — Murder and Culpable Homicide | Karnataka HC (2025)

Smt.Latabai and Ors. Vs Sri.Ganesh and Anr. — Murder and Culpable Homicide | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Compensation of Rs.7,18,960/- with interest at 12% per annum from the date of expiry of 30 days from the date of the accident; Insurance Company directed to deposit the amount before the learned Commissioner within six weeks; Commissioner at liberty to apportion and disburse to the petitioners.

Issue for consideration

Whether the jural relationship of the employer and employee has been established? +1 more

Court's answer

The jural relationship of employer and employee between the deceased and respondent No.1 is established; the conclusion of the learned Commissioner that there is no evidence of the relationship is perverse, as it overlooks the contents of the FIR which came into existence spontaneously.

Ratio / Principle

The deceased was not travelling as a gratuitous passenger: the FIR, enjoying the benefit of spontaneity with no reason for the Police Constable to record incorrect information, and the statement of Raghunath (friend of respondent No.1) show the deceased was the spare driver; the PW1's version receives unstinted support from the police papers and remains unrebutted.

Key takeaways

Mere filing of a written statement denying employment is not enough; the contention had to be supported by evidence, and respondent No.1 ought to have entered the witness-box, whereas the testimony of PW1 and the police papers show the deceased was the employee of respondent No.1.ratio¶87
The plea that the deceased was under the influence of alcohol cannot be accepted: the post mortem report does not mention any alcohol, and the only assertion of drinking is the self-serving testimony of the accused Saleem, uncorroborated from other quarters.ratio¶97
Section 3(1)(b)(i) applies only in respect of injury not resulting in death or permanent total disablement; since what occurred was death and not injury, the provision invoked to deny compensation does not apply, and the Commissioner's conclusion that the petition is liable to be dismissed is not sustainable.

Detailed headnote1 paragraphs

Miscellaneous First Appeal (WC) under Section 30(1) of the Employees' Compensation Act against dismissal of ECA No.288/2014, wherein the claimants sought compensation for the murder of Bhimrao Madane, a spare driver, by the co-driver Saleem while the truck stood halted with a punctured tyre near Urse Toll-Naka. Held: (i) the jural relationship of employer and employee stood established — the spontaneous FIR and police papers, coupled with the unrebutted testimony of PW1, show the deceased was the spare driver and not a gratuitous passenger, and a bare written statement of denial without evidence, or examination by the owner, cannot displace it; the Commissioner's contrary finding is perverse; (ii) the plea that the deceased was under the influence of drink fails, the post mortem report disclosing no trace of alcohol and the only source being the self-serving statement of the accused driver; (iii) Section 3(1)(b)(i), which covers injury 'not resulting in death or permanent total disablement', cannot be invoked where death was caused, so the dismissal is unsustainable. Taking the notified wage of Rs.8,000/- per month under Section 4(1B), age 42 (factor 178.49) at 50%, compensation of Rs.7,13,960/- plus Rs.5,000/- funeral expenses, i.e., Rs.7,18,960/- with 12% interest from expiry of 30 days from the accident, was awarded; the insurer (ICICI Lombard) was directed to deposit within six weeks and the Commissioner to apportion and disburse.

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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 4^TH DAY OF APRIL, 2025

BEFORE

THE HON'BLE MR. JUSTICE C.M. JOSHI

MISCL. FIRST APPEAL NO.200343/2019(WC)

BETWEEN:

SMT. LATABAI W/O BHIMARAO MADANE, AGED ABOUT 39 YEARS, OCC: HOUSEHOLD WORK,

SRI. SURYAKANTH S/O BHIMARAO MADANE, AGED ABOUT 20 YEARS, OCC: STUDENT,

SRI. CHANDRAKANTH S/O BHIMARAO MADANE, AGED ABOUT 18 YEARS, OCC: STUDENT,

Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA

SONALI D/O BHIMARAO MADANE, AGED ABOUT 16 YEARS, OCC: STUDENT, APPELLANT NO. 4 BEING MINOR IS REP. BY HER NATURAL MOTHER AND M/G APPELLANT -1.

SMT. BAGUBAI W/O SHITARAM MADANE, AGED ABOUT 74 YEARS, OCC: NIL,

ALL ARE R/O TIKOTA, TQ. & DIST. VIJAYAPUR-586 101.

…APPELLANTS

(BY SRI S.S. MAMADAPUR, ADV.)

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AND:

SRI GANESH S/O JAYASING PATIL, AGED ABOUT 44 YEARS, OCC: BUSINESS, R/O RETARE DHARAN, TQ. WALVA, DIST. SANGLI-416 416.

THE MNAGER LEGAL, ICICI LOMBARD GENERAL INSURANCE CO. LTD., ICICI LOMBARD, HOUSE NO. 414, VEERASAVARKAR MARG, NEAR SIDDI VINAYAK TEMPLE, PRABHADEVI, MUMBAI-25, SUMMONS TO BE SERVED THROUGH, THE MANAGER LEGAL, ICICI LOMBARD GENERAL INSURANCE CO. LTD., KOTARIYA COMPLEX, COURT ROAD, KALABURAGI-585 101.

…RESPONDENTS

(BY SRI MANJUNATH MALLAYYA SHETTY, ADV., FOR R2; R1-SERVED)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) EMPLOYEE’S COMPENSATION ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 22.11.2018 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE AND COMMISSIONER FOR EMPLOYEE’S COMPENSATION, VIJAYAPURA, IN ECA NO.288/2014.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 01.04.2025 AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE C.M. JOSHI

CAV JUDGMENT

(PER: HON'BLE MR. JUSTICE C.M. JOSHI)

This appeal arises out of the judgment and award in ECA No.288 of 2014 dated 22.11.2018 by I Additional Senior Civil Judge and Commissioner for Employees Compensation, Vijayapura, (for short ‘the Commissioner’), wherein, the said petition came to be dismissed. The petitioners in the said ECA are the appellants before this Court.

The factual background of the case is as below:

a) The appellants/petitioners filed a claim

petition before the Commissioner for the Workmen’s Compensation Act, in the year 2014. Later, since the Senior Civil Judge was also designated as the Commissioner under the said Act, the case was transferred from the Labor Department to the Senior Civil Judge, Vijayapura. It is the case of the petitioners that on 22.03.2012, the deceased Bhimrao and his co-

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driver were proceeding in a truck bearing No.MH10/AQ-4582 after loading the scrap materials towards Gujarat. Since, it was the Hindu New Year i.e., Padwa Festival, they halted in their village and on the next day i.e., 23.03.2012, they proceeded towards Rajkot in Gujarat. The said the truck was driven by one Saleem and the deceased Bhimrao Madane was the spare driver. Near Kasegaon, after having meals, the deceased Bhimrao slept in the cabin of the said vehicle and Saleem was driving through Pune-Express Highway. Near Urse Toll-Naka, the tire of the said truck got punctured and therefore, they stopped the truck. The driver, Saleem in order to put Jack, went to the cabin of the truck and tried to wake up Bhimrao Madane, who was sleeping. Deceased Bhimrao replied that he will not come and as such, enraged by this, Saleem went and assaulted deceased Bhimrao with a wooden piece and came back to remove the puncture. After some time, again he went to the cabin and noticed that Bhimrao had died and therefore, he

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informed the owner, Raghunath Patil about the death of Bhimrao. As such, the said, Raghunath and another came to Talegaon Dhabade Police Station and a case of unnatural death was registered by the Police. After the post mortem, the Police ascertained that it was a murder and then they registered a FIR for the offence punishable under Section 302 of IPC. In the said FIR, it was stated that the said Saleem had admitted that he had beaten the deceased Bhimrao with a wooden piece and that he had committed the said offence. The petitioners contended in their petition filed under Section 22 of the E.C. Act that the deceased Bhimrao was under the employment of the respondent No.1 and he was murdered while he was on duty. The accident having occurred during the employment of the deceased Bhimrao, the respondent Nos.1 and 2, who are the owner and insurer of the vehicle, are liable to pay the compensation to the petitioners. They contended that the deceased was earning wages of Rs.6,000/- per month and a batta of Rs.100/- per day

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and was aged about 40 years. Therefore, they sought compensation from the respondent Nos.1 and 2.

b) In response to the notices, respondent Nos.1 and 2 appeared before the learned Commissioner and filed their written statements. The respondent No.1, the owner of the vehicle, denied each Para of the petition averments, specifically. Inter alia, he contended that the deceased and the petitioners are hailing from Maharashtra, i.e., Rethare Dharan Village and the voters’ list of the said village contains their names and they have landed and house properties and as such, the Commissioner has no jurisdiction. Therefore, he sought for a preliminary issue being framed regarding maintainability. Since the vehicle was insured with the respondent No.2, any liability to pay the compensation has to be fastened upon the respondent No.2.

c) The respondent No.2 - Insurance Company filed a written statement contending that there is a breach of the policy conditions by the respondent No.1

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and it denied the jural relationship of the employer and employee between the deceased Bhimrao and respondent No.1. It also denied that the death of the deceased had occurred during the course and arising out of the employment and therefore, the petitioners have no right to claim any compensation. It is contended that the deceased Bhimrao was neither the driver nor the workman as defined under Section 2(1) of the W.C. Act, and it is a pure case of murder. Therefore, it is contended that the respondent No.2 is not liable to pay the compensation to the petitioners. Inter alia, they also denied the age, income and occupation of the deceased and alleged that the deceased was not holding a valid and effective driving license.

d) On the basis of the above contentions, the Commissioner framed appropriate issues. The petitioner No.1 deposed as PW1 and Exs.P1 to P8 were marked in evidence. The official of the respondent No.2 was examined as RW1 and the copy of the policy

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was marked as Ex.R1. After hearing both the sides, the Commissioner held that the petitioners have failed to prove the relationship of the employer and employee and that the deceased was under the influence of the alcohol and therefore, the provisions of Sections 3(1)(b)(i) is attracted and as such, the petition is liable to be dismissed.

Being aggrieved by the dismissal of the petition,

the petitioners are before this Court in appeal.

The arguments by learned counsels appearing for

the petitioners and the respondent No.2 were heard. The respondent No.1 did not appear despite service of notice.

The learned counsel appearing for the appellants would contend that the testimony of the PW1 that there existed the relationship of employer and employee between the deceased and the respondent No.1 has not been rebutted by any cogent evidence by the respondents. He submits that mere denial of such relationship in the written statement would not suffice. But an evidence should have been let in by

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the respondents. He submits that the RW1 who is the official of the Insurance Company had no personal knowledge about the relationship and therefore, his testimony would not serve any purpose on the point. Further, he submits that the entire police records show that the deceased was the spare driver in the said truck and accordingly he was traveling in the said truck. It is submitted that even the statement of the owner of the vehicle was recorded by the Police while the investigation of the murder was going on. Therefore, when the police papers are also showing that there existed the relationship of employer and employee, it was not proper on the part of the Commissioner to hold that no such relationship existed. He further submits that the deceased was sleeping in the cabin. It is the say of the accused Saleem, that the deceased was under the influence of the alcohol. He points out that the P.M. report, which was conducted soon after the death of the deceased, do not show traces of any alcohol. Therefore, he contends that the deceased was under the influence of the alcohol cannot be accepted. Moreover, voluntary statement of the accused Saleem that the deceased

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Bhimrao was under the influence of the alcohol do not get any corroboration from other corners. Hence, he submits that the impugned judgment of the learned Commissioner in dismissing the petition is erroneous.

The learned counsel appearing for the appellants has placed reliance on the judgment in the case of M/s. United India Insurance Company Limited Bijapur Versus. Smt. Shamala and Others¹ , wherein, it was held that when an auto rickshaw driver, employed by owner of the vehicle was murdered by inmates of another vehicle for not allowing way for their vehicle, it was held that the death was in the course of the employment.

He further relied on the judgment of M/s. Oriental Insurance Company Limited Versus Sri

Murthaiah and Others,² in the said judgment it was held that when the cleaner-loader go for a wash after loading a vehicle, there being a death by drowning in the nearby reservoir, it was held that the incident falls within the purview

1 2019(2) KCCR 1898

2 2019(2) KCCR 985

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of the ‘accident’ and it was during the course of the employment. He also relied on the judgment rendered in the case POONAM DEVI AND OTHERS Verus ORIENTAL INSURANCE COMPANY LIMITED³ , wherein, it was held that when the deceased driver was driving a truck for an approximately 200 kelometers route, on a hot Summer day, stopped by a canal to fetch water and also to take a bath, unfortunately, he slipped in to the canal and died, the liability of the employer exists.

He further relied on the judgment in the case of The Divisional Manager, Oriental Insurance Co. Ltd., Belagam Versus Smt. Laxmibai @ Ramakka and Others⁴ , where again, when the driver on the instructions of the employer went to a factory for loading certain materials and since the main gate of the factory closed, he stopped the vehicle in front of the gate and got down and while opening the main gate came in contact of the live wire which had been on the gate and succumbed to the injuries, in such case also the employer is liable.

3 (2020)4 Supreme Court Cases 55

4 2015(1) KCCR 253

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He also relied on the judgment in the case of SHAKUNTALA CHANDRAKANTA SRISHTI v. PRABHAKAR MARUTHI GHARWALI AND ANOTHER,⁵

wherein it was held that when the driver of the lorry was waiting for his turn to enter the factory premises to unload the vehicle and he having slept overnight in the vehicle, on the next day morning he dying due to heart attack, it was held that the death was in accident during the course of the employment.

Per contra, learned counsel appearing for the respondent No.2 submits that the testimony of the RW1 is sufficient enough to rebut the testimony of the PW1. He contends that the burden of proving the fact that there existed the relationship of the employer and employee is on the petitioners. When the petitioners have not discharged their burden, it cannot be said that the respondent No.2 had to rebut such evidence. It is contended that the Commissioner has rightly considered the evidence on record. It is pointed out that the Commissioner has rightly

5 (2007) 11 Supreme Court Cases 668

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considered the contents of the FIR, which says that wherever the lorry was to stop, the deceased Bhimrao Madane used to consume alcohol and therefore, the evidence on record definitely show that the deceased was under alcohol and as such, the provisions of Section 3(1)(b((i) are attracted. Hence, he supports the impugned judgment.

There are two aspects, which need to be considered in this appeal, as below:

(1) Whether the jural relationship of the employer and employee has been established?

(2) Whether the deceased was under the alcohol during the course of the employment and as such, the provisions of Section 3(1)(1)(i) are attracted?

A perusal of the police papers would show that a case of unnatural death was registered initially and after the postmortem, it was ascertained that it was a murder and as such, the FIR came to be registered. In the said FIR, which was recorded by a Police Constable, he stated that when he

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was on duty in the Police Station, he came to know that there was an unnatural death. Therefore, he went to the spot and shifted the body of the deceased after the inquest for the purpose of postmortem to the nearby PHC. Thereafter, the owner and one Raghunath came there and they told that the deceased Bhimrao was the second driver in the truck and they were informed over phone by the said Saleem that Bhimrao had died in the cabin. He examined the body and later on enquiring the said Saleem, he came to know that the vehicle had punctured and when Saleem called the deceased Bheemrao to help him, he refused to help him in changing the tires, and therefore, Saleem had beaten the deceased with a wooden piece. It was also stated by the said Saleem that the deceased Bhimrao used to drink wherever they had the meals. The said complaint was investigated by the Police and ultimately a charge-sheet was filed against the driver.

In the entire police papers, it may be seen that the accused Saleem and the deceased Bhimrao were the two drivers on the said truck and they were driving the vehicle to

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Gujarat. No where, it was stated that Bhimrao Madane was a gratuitous passenger in the truck. It is pertinent to note that the respondent No.1 in his written statement gives details of the house and landed properties of the deceased in their village. It is also pertinent to note that the statement of the respondent No.1 and one Raghunath as recorded by the complainant - Police Constable and narrated by him in the FIR has the benefit of the spontaneity. There is no reason to disbelieve what was stated by the Police Constable in the FIR. Ultimately, the charge-sheet also shows the same. The inquest panchnama and the spot panchnama also show that the Medical Officer was informed about the background of the incident. It was stated in the post mortem report which is at Ex.P5 that the stomach did not have any traces of the alcohol. There is no such mention about the consumption of the alcohol in the post mortem report.

From the perusal of the above evidence, it is clear that the importance that could be attached to the FIR out of the spontaneity, with which it came into existence and there

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being no reason for the Police Constable to mention incorrect information in the FIR, the version of the PW1 gets an unstinted support from the police papers. There is no reason to believe that the deceased Bhimrao was traveling in the said truck as a gratuitous passenger. It is nobody's case either in the police-papers or by the petitioners that the deceased was traveling towards Gujarat for some other purpose. The friend of the respondent No.1, Raghunath had stated before the Police Constable that the deceased Bhimrao was the a spare driver. On the other hand, it is the case of the accused - Saleem that wherever the vehicle had stopped, the deceased Bhimrao used to drink alcohol. If his version is correct, then obviously, the post mortem report should have contained the traces of alcohol. Under these circumstances, the overwhelming evidence which is available in the form of the police-papers and the testimony of the PW1 remain unrebutted. It is worth to note that the testimony of the RW1 is bereft of any first hand information.

It must be observed that the mere filing of the written statement is not enough and there should be

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evidence in support of the contentions taken up in the written statement. The respondent No.1 having taken up the contention that the deceased was not an employee under him, he should have entered the witness-box and reiterated the said fact. The respondent No.2 - Insurance Company cannot be a better person to deny such relationship. On the other hand, the evidence of the petitioners in the form of the testimony of the PW1 and the police-papers show that the deceased was the employee of the respondent No.1. The admitted employee of the respondent No.1, i.e., Saleem, also did not deny that Bhimrao was not a spare driver.

Further, it is to be noted that the respondent No.1 has not cross-examined the petitioner or he has examined the other driver. Therefore, the rule of preponderance of probability required that the evidence on record has to be weighed. The learned Commissioner, though, refers to the rule of preponderance of probability, he do not weigh the evidence on record. Hence, the conclusion reached by the learned Commissioner that there is no evidence to show the jural relationship of the employer and employee is perverse

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and it overlooks the contents of the FIR, which has come into existence out of spontaneity and without there being any room for biased recording of the same.

The second aspect on which the petition came to

be dismissed by the Commissioner is the provisions of Section 3(1)(b)(i) of the Act. The said provision reads as below:

“3. Employer's liability for compensation.- (1) If personal injury is caused to a employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable –

(a) xxxx

(b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to—

(i) the *[employee] having been at the time thereof under the influence of drink or drugs, xxxx”

It is pertinent to note that the post mortem report does not mention about the alcohol. Except the self-

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serving testimony of Saleem, who says that the deceased Bhimrao did not help him in changing the Stephanie, he had taken shelter under the guise of the deceased consuming alcohol at every stop of the lorry. Therefore, the deceased was being under the alcohol cannot be accepted. It is also pertinent to note that Section 3(1)(b)(1) entails that if the injury is in furtherance of the act under the influence of the drink or the drug, the compensation is not payable. But, if it is death and not injury, I am afraid the provisions invoked to deny the compensation are applicable. The wordings of Section 3(1)(b)(i) are clear in that regard. For these reasons, the conclusions of the Commissioner that the petition is liable to be dismissed is not sustainable.

Once this Court has come to the conclusion that the petition is sustainable, the compensation has to be determined. The petitioners have stated that the deceased was earning Rs.6,000/- per month with Rs.100 per day as Batta. This amount comes to tune of Rs.9,000/- per month. It is relevant to note that there is no conclusive evidence to show the wages of the deceased. The notification issued by

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the Government of India under Section 4 (1B) of the Act notifies the wages at Rs.8,000/- per month. This Court see no reason not to accept the said amount. Under these circumstances, the compensation is determined as Rs.8,000/- x 50% x 178.49 = Rs.7,13,960/- by accepting the age of the deceased to be 42 years as mentioned in the post mortem report. In addition to it, as the petitioners are entitled for a sum of Rs.5,000/- towards the funeral expenses. Hence, the appeal has to be allowed. Consequently, the following:

ORDER

i) The appeal is allowed.

ii) The petitioners are entitled for a compensation of Rs.7,18,960/-, along with the interest at the rate of 12% per annum from the date of expiry of 30 days from of date of the accident.

iii) The Insurance Company is directed to deposit the compensation amount before

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the learned Commissioner, within a period of six weeks from the date of this judgment.

iv) The learned Commissioner is at liberty to apportion the compensation amount and disburse the same to the petitioners.

Sd/(C.M. JOSHI) JUDGE

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