Smt Sheela Vs Smt Mamatha

MASTER DARSHAN, S/O LATE MANJUNATH, AGED ABOUT 12 YEARS, SINCE MINOR, REP. BY HIS MOTHER AND NATURAL GUARDIAN PETITIONER NO.1 R/AT SAGANIPURA VILLAGE, KURUVANGI POST, CHIKKAMAGALURU TALUK-577 101.

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…APPELLANTS

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(BY SRI VENKATE GOWDA K, ADVOCATE)

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AND:

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Digitally signed by NANDINI R Location: HIGH COURT OF KARNATAKA

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SMT. MAMATHA, W/O LATE D B CHANDRU, AUTO OWNER, R/AT LAKSHMINARAYANA SWAMY STREET, DANTARAMAKKI, CHIKMAGALUR-577 101.

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ORIENTAL INSURANCE CO. LTD., REP. BY ITS MANAGER, BASAVANAHALLI MAIN ROAD, CHIKMAGALUR-577 101.

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…RESPONDENTS

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(BY SMT. HARINI SHIVANANDA, ADVOCATE FOR R-2; NOTICE TO R-1 IS DEEMED TO BE SERVED V/O DATED 05.12.2023)

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HC-KAR

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THIS MFA IS FILED U/S 30(1) OF EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 18.01.2019 PASSED IN ECA.NO.16/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHIKKAMAGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE C M JOSHI

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ORAL JUDGMENT

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Heard learned counsel appearing for the appellants and the learned counsel appearing for respondent No. 2.

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This is a case where the petitioners in ECA No.16/2016 being aggrieved by the dismissal of the said ECA No.16/2016 on 18.01.2019 by the learned Principal Senior Civil Judge and CJM, Chikkamagaluru (hereinafter referred to as 'Commissioner' under EC Act), have approached this Court in appeal.

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The factual matrix of the case is that, the husband of the first petitioner by name Manjunath was working as a driver in the autorickshaw bearing registration No. KA.18.6881 belonging to the husband of

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respondent No.1. On 02.11.2015, when he was driving the

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said autorickshaw, it met with an accident and he sustained grievous injuries and immediately he was shifted to M.G. Hospital, Chikkamagalur and thereafter, on 03.11.2015 he was advised to go to higher facility and as such, he was shifted to WENLOCK Hospital, Mangalore. In spite of best efforts, he could not survive and he died on 09.11.2015. The petitioners contending that the deceased was an employee under the husband of respondent No.1, who also died subsequent to the accident in question, the respondent No. 1 is the owner of the autorickshaw and therefore, respondent No. 1 and the insurer are liable to pay the compensation to the petitioners, therefore, they filed the claim petition. They also contended that the deceased was earning ₹500/- per day, aged 32 years at the time of the accident and therefore, they are entitled for the compensation claimed in the petition.

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On issuance of notice, respondent No.1 did not appear before the Commissioner and as such, she was

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placed ex-parte. Respondent No. 2, Insurance Company, filed a detailed objections contending that the terms and conditions of the policy were violated and the compensation claimed is highly exorbitant and imaginary. It also contended that there is no material to show that there existed a relationship of the employee and employer and therefore, the petitioners have to prove this aspect conclusively. Inter alia, it also denied the age, occupation and income of the deceased.

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On the basis of the above contentions, the learned Commissioner framed appropriate issues. Petitioner No.1 was examined as PW1 and Exhibits P1 to P9 were marked. Two witnesses were examined on behalf of petitioners as PW2 and PW3 and Exhibits P10

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and P11 were marked through them. The officer of respondent No. 2 was examined as RW1 and Exhibits R1 to R5 were marked.

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After hearing the arguments, the learned Commissioner, answered the issues in the negative

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and dismissed the claim petition, on the ground that the

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petitioners have not proved the relationship of the employee and employer between the deceased and deceased husband of respondent No.1.

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Being aggrieved by the same, the petitioners have approached this Court in the appeal.

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The trial Court records of the enquiry have been

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secured and on issuance of notice, respondent No.2Insurance Company has appeared through its counsel.

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The learned counsel appearing for the

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appellants would contend that the petitioners have produced the medical records, including the case sheet of the hospitals, which clearly show that the deceased Manjunath had met with an accident concerning the autorickshaw which he was driving. He points out that the testimony of PW2, who was the passenger of the said autorickshaw on the said date, also establish that there was an accident. He further submits that the testimony of

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PW3 show that he is the brother of the husband of respondent No.1 and the husband of respondent No.1 being the RC Holder also died subsequent to the accident involved in the present case and as such, the testimony of

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PW3 could not have been brushed aside by the Commissioner. He contends that there is no contra evidence to show that the deceased Manjunath was not the employee of the husband of respondent No.1. Therefore, he contend that the relationship of employee and employer was proved by the petitioners with all available evidence and there being no denial by respondent No.1 who was placed exparte before the learned Commissioner, adverse inference has to be drawn against respondent No.1. Hence, he prays that the appeal be allowed.

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10 . Per contra, learned counsel appearing for respondent No.2- Smt. Harini Shivananda submits that though allegedly there was an accident involving the autorickshaw, whether deceased Manjunath had suffered

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injuries, no FIR was registered by the Police. She submits

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that there is no evidence to show that a police case was registered or any investigation was done in respect of the alleged accident and therefore, the reliance on the hospital records alone would not suffice to hold that there exists the relationship of employee and employer. Hence, it is contended that the impugned judgment rightly discards the hospital records and rightly it was held that there was no proof of the relationship of employee and employer between the deceased and husband of respondent No.1.

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Under these circumstances, the substantial question of law that arise would be, whether the Commissioner, is justified in discarding the testimony of PW3 and the hospital records; and to come to the conclusion that there existed no evidence in respect of the relationship of the employee and employer?

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A perusal of the testimony of the petitioner PW1 would show that the deceased Manjunath was an autorickshaw driver. She is an illiterate lady and she states

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that she has not lodged any complaint to the police. She denies the suggestion that there was no such accident involving the autorickshaw. She is unable to say in whose name the autorickshaw was registered and she doesn’t have any documentary evidence to show that there was such a relationship of employee and employer.

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The testimony of PW2 show that she speaks about the accident, but she is unable to say about the owner of the autorickshaw. She denies that she is related to the deceased Manjunath. Therefore, her testimony would not be of any help to throw light on the relationship of employee and employer.

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PW3 happens to be the brother of RC owner Chandru D.B. He states that his brother Chandru D.B., had employed the services of deceased Manjunath for more than 10 years. Therefore, he speaks about the existence of the relationship of employee and employer and except his oral testimony, there is nothing else on record. The cross-examination do not show any reason to

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discard his testimony. Except this there is nothing in the cross-examination which impeach his testimony.

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The perusal of the testimony of RW1 and the documents produced also would not throw any light in respect of the relationship of the employee and employer between the deceased and the said D.B. Chandru. On the other hand, Exs.R1 to R3 are the driving licence and such other material, which show that the deceased was having a valid driving licence.

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From the above evidence, it is clear that respondent No.1 has not entered the witness box. But on the other hand, she has been placed exparte. Therefore, adverse inference has to be drawn against respondent No.1. Be that as it may, the brother of the husband of respondent No.1 is examined as PW3. Obviously, the husband of respondent No.1, D.B. Chandru has died one month later to the accident. Therefore, there appears to be sufficient reason for non registration of a FIR by the police. The petitioners are the illiterates and they were

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engaged in treatment of the deceased Manjunath at Mangalore. The RC holder D. B. Chandru also died in the month of December 2015. Therefore, on behalf of either the petitioners or respondent No.1, there may be delay in intimating the same to the police. The police also had received the intimation about the MLC as may be seen from the case sheet of the District General Hospital at Chikkamagaluru. Exs.P10 and P11 show that the hospital had registered a medico legal case and obviously, police have received the intimation. But it is not known what happened with the said police intimation which was sent to them.

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Under these circumstances, the evidence

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available on record in the form of testimony of PW3 and the medical records at Exs.P10 and P11 coupled with the case sheet of WENLOCK hospital, Mangalore, which is at Ex.P9 would show that the deceased Manjunath died in the autorickshaw accident. Obviously, he was using the autorikchaw belonging to D.B. Chandru, who is none else

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than the husband of respondent No.1. Respondent No.1

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having not denied this aspect it is not open to the respondent No.2 to contend that there was no such relationship of employee and employer. Under these circumstances, the appreciation of the evidence by the learned Commissioner, appears to be incorrect. There was no reason to discard this evidence by the Commissioner. Hence, the substantial question of law raised above is answered in favour of the appellants herein. As a consequence, the compensation has to be calculated and awarded to the appellants.

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The records reveal that the deceased was aged

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32 years and therefore, the appropriate factor would be 203.85. As per the notification of the Government of India issued under Section 4(1B) of the Employees Compensation Act, the wages are fixed at ₹8,000/- per month. Therefore, the compensation is calculated as: ₹8,000/- x 203.85 x 50% =₹8,15,400/-. In addition to it, the petitioners are also entitled for funeral expenses of

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₹5,000/-. Hence, the appellants are entitled for a total

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compensation of ₹8,20,400/-.

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In the result, the appeal deserves to be allowed in part. Hence, the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) Impugned judgment and award passed by the Commissioner, is set aside.

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(iii) The appellants/petitioners are entitled for a total compensation of ₹8,20,400/- along with interest at 12% from the 30^th day of the accident till its payment to the petitioners from respondent No.2.

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(iv) The petitioner No.1 is entitled for 70% of compensation and the petitioner No.2 is entitled for 30% of compensation amount. Further, 30% of the entitlement of petitioner No.1 and entire compensation of petitioner No.2 be kept in Fixed Deposit for the term of 05 years or till attainment of majority by the petitioner No.2.

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Sd/(C M JOSHI) JUDGE

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tsn* List No.: 1 Sl No.: 79

Smt Sheela v. Smt Mamatha

Case brief

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Smt Sheela v. Smt Mamatha

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