United India Insurance Co.Ltd. Vs K Kallappa S/O. Devirappa

THIS MFA IS FILED U/SEC.30(1) OF WC ACT 1923, AGAINST THE JUDGMENT AND AWARD DTD:23.01.2013 PASSED IN CASE NO.LOB-2/CWC/CR/99/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMENS COMPENSATION, SUBDIVISION-2, BALLARI, AWARDING THE COMPENSATION OF RS.1,30,146/- WITH INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF PETITION AND SHALL BE DEPOSITED WITHIN 30 DAYS FROM THE DATE OF THE ORDER.

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HC-KAR

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This Miscellaneous First Appeal is filed by the

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Insurance Company, challenging the award passed in LOB-2:CWC:CR:99/2009 on the file of the Labour Officer and Workmen’s Compensation Commissioner, Sub-Division-

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2 Bellary.

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Brief facts, leading rise to the filing of this appeal, are as follows:

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The claimant suffered an employment injury while driving the tractor bearing Reg No.KA-34/T-7268, which belongs to the owner i.e. Durgadevirappa S/o Durgayankappa, and the said vehicle was insured as of the date of the accident, i.e. on 24.09.2008. It is contended that the claimant suffered a permanent disability, and filed

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HC-KAR

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a claim petition under Section 22 of the Employees Compensation Act, 1923.

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2.1. The owner appeared through counsel but did not file a statement of objections.

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2.2. The Insurance Company filed a statement of objections, denying the involvement of the vehicle in the alleged accident. It is contended that there is no employer and employee relationship between the claimant and the owner of the tractor. It is contended that the liability is subject to terms and conditions of the Insurance Policy. Hence, prays to dismiss the claim petition.

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2.3. The Commission based on the pleadings of the parties framed the relevant issues.

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2.4. The claimants to substantiate is claim, examined

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himself as PW1, examined the doctor as PW2 and marked 9 documents as Ex.P1 to P9. On the other, no documents were marled on behalf of the respondents.

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HC-KAR

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The Commissioner for Workmen’s Compensation,

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after recording the evidence of both parties and on assessing the verbal and documentary evidence, allowed the claim petition vide award dated 23.01.2013 and awarded compensation of Rs.1,30,146/- to the claimant. The appellant-Insurance Company, aggrieved by the award passed by the Labour Officer, and the Commissioner for Workmen’s Compensation, filed this Miscellaneous First Appeal.

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Heard the arguments of the learned counsel for

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the Insurance Company, and the Claimant.

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Learned counsel for the Appellant-Insurance Company submits that K.Kallppa has not filed a claim petition. She submits that someone has forged his signature, and falsely filed the claim petition in his name i.e. K.Kallappa. She further submits that there is no - employer and employee relationship between K.Kallappa and Durgadevirappa - owner. She also submits that the Insurance Company has filed an application for the

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HC-KAR

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production of additional evidence, seeking to produce the representation given by Kallappa, wherein the alleged K.Kallppa addressed a letter to the Labour Officer, Labour Court, Bellary, dated 22.01.2013. The original communication dated 22.01.2013 has been produced along with the application. She submits that I.A.No.3/2013 be allowed, and the matter be remitted to the Labour Officer, and the Commissioner for Workmen’s Compensation. Accordingly, prays to allow the appeal.

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Learned counsel for the claimant submits that

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the award passed by the Labour Officer may be set-aside and the matter be remitted to the Labour Officer and the Commissioner of Workmen’s Compensation, as the Insurance Company has produced the letter allegedly written by the claimant to the Labour Officer. He contends that the matter requires fresh consideration by the Labour Officer, and the Commissioner for Workmen’s Compensation.

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HC-KAR

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Heard the arguments of the learned counsel for

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both parties, and perused the records.

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This Court admitted the appeal for consideration of the following substantial questions of law:

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(i) Whether the claimant played a fraud on the system and the Insurance Company by misrepresenting himself as a Workman under the 2^nd respondent?

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(ii) Whether the Insurance Company has made out a sufficient grounds to allow the

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I.A.No.3/2013 ?

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(iii) What order and award ?

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Regarding substantial question of law No.(i)

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The claimant, to substantiate his claim, the

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claimant was examined as PW-1, examined one witness as PW-2 i.e., the doctor ,and marked nine documents as exhibits P1 to P9.

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HC-KAR

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The Insurance Company has taken a specific

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defence that there exists no relationship as an employer and employee between the respondent Nos.1 and 2 herein. It is further stated that the vehicle has been falsely implicated in the accident. The claimant, who is the son of the insured, has himself stated in a letter addressed to the Labour Officer dated 22.01.2013 that he did not file any case before the Court, that the signature on the claim petition is not his signature and he was not injured in the accident. He also states that he did not receive any medical treatment from the Doctor, and that the wound certificate produced by the claimant is bogus in nature. He has stated that he is having a Tractor and he is looking after it since 2007, and he is not an employee. His father is the owner and he is not an employee in it, and he does not receive a salary.

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As the said documents create a doubt in the mind of the Court regarding, whether K.Kallappa himself has filed a claim petition before the Labour Officer or

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somebody has forged the signature of K.Kallappa and filed a claim petition, the Insurance Company has produced an affidavit of one T.Sreenivas Reddy, who worked as an Advocate/investigator at Bellary. It is stated that, he conducted an investigation in case No.WC No.99/2009 at the instruction of the Insurance Company. He contacted K.Kallppa i.e., the claimant, during the course of his investigation to ascertain the truth. He came to know that the alleged claimant was not at all injured in the accident, and the claimant had not filed any application before the Labour Officer and Commissioner for Workmen’s Compensation, Bellary, and the application is bogus, and the signature on the application is also not his signature. The Insurance Company has filed an application for the production of an additional evidence. Here, the alleged claimant himself is disputing the existence of the employer employee relationship between the owner of the tractor and the claimant. The investigator has filed his affidavit. As there is a serious dispute regarding the filing of the claim

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petition by the alleged claimant, the matter requires consideration by the Labour Officer and the Commissioner for Workmen’s Compensation. The appellant-Insurance Company has stated that after the disposal of the case before the Commissioner, the Insurance Company came to know about the fraud, and stated that, they could not bring the actual facts regarding the fraud played by somebody i.e., by making the forgery of the signature of K.Kallappa, before the Commissioner. The investigating Officer has collected the said letter from K.Kallappa. It is stated that the said documents go to the root of the case as to whether the alleged claimant has really filed a claim petition. As there is a serious dispute regarding the alleged injury sustained by the alleged claimant, and also regarding the relationship as an employer and employee between respondent Nos.1 and 2, herein. As the Insurance Company could not produce the said documents before the Commissioner, the Insurance Company, immediately after filing the appeal, has filed an application for the production

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HC-KAR

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of additional evidence. The appellant-Insurance Company has made out grounds to allow I.A.No.3/2013. As observed above, and considering the proposed documents produced by the Insurance Company, it appears that there is a misrepresentation by the alleged claimant. The matter requires reconsideration. Accordingly, in view of the above discussion, I answer the substantial question of law No.1 in the affirmative.

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Regarding substantial question of law No.2

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As I already discussed in substantial question of law No.1, there is a serious dispute regarding the claim petition filed by the alleged claimant, the relationship of employer and employee between respondent Nos.1 and 2, herein and also about as the Investigating Officer, after the disposal of the claim petition by the Labour Officer, Commissioner for Workmen’s Compensation, investigated the matter. The alleged claimant, i.e. K.Kallappa, addressed a letter to the Labour Officer, Labour Court, Bellary, stating that his father is the owner of the tractor. He is not

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employed in it. and he is not getting any salary, and there

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is no employer employee relationship. He prays for the dismissal of the claim petition. Further, Sri.T.Sreenivas Reddy, who investigated the case, found that the alleged claimant had not filed a claim petition. As the Insurance Company has made the allegations against the alleged claimant that the fraud has been played, the matter requires reconsideration. Accordingly, the proposed documents go to the root of the case. In view of the above discussion, I answer the substantial question of law No.2 in the affirmative.

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Regarding substantial question of law No.3

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In view of the above discussion, I proceed to pass the following:

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ORDER

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(i) The Appeal is allowed.

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(ii) The Judgment and award dated 23.01.2013 passed in LOB-2:CWC:CR:99/2009 by the

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HC-KAR

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Labour Officer and Workmen’s Compensation Commissioner, Sub-Division-2, Bellary, is hereby set-aside.

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(iii) The claim petition is restored to its original file.

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(iv) I.A.No.3/2013 is allowed. The documents are taken on record. The Workmen’s Compensation Commissioner, is directed to provide an opportunity to the parties to lead evidence on the additional documents, and thereafter, pass an appropriate award in accordance with law.

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(v) The Commissioner is directed to dispose of the claim petition, without being influenced by any observations made in this Judgment.

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(vi) The Commissioner, is directed to keep the amount deposited by the Insurance Company in a Fixed Deposit for a period of one year or

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till the disposal of the claim petition which is earlier.

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(vii) In view of amendment to the Employees compensation, Act. The Principal District and Sessions Judge, Bellary, is directed to assign this case to the Commissioner for Workmen’s

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Compensation having jurisdiction. The Commissioner is directed to issue a notice to both parties, and thereafter pass an appropriate Judgment.

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