Cholamandalam Ms Gic Ltd. Vs Saleem

CHOLAMANDALAM MS GIC LTD., 16/1/44 (14), 1^ST FLOOR, SR COMPLEX, BENDOORWELL ROAD, MANGALORE-575 002 PRESENTLY AT: 6^TH FLOOR, GOLDEN HEIGHTS BUILDING, NEAR SUJATHA THEATRE, RAJAJI NAGAR, BENGALURU-10

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…APPELLANT

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(BY SRI. MURALIDHARA N., ADVOCATE)

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AND:

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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SALEEM S/O HAMZA, AGED ABOUT 31 YEARS R/AT HN HOUSE, NELLIGUDDE, MIYARU, KARKALA TALU, UDUPI DISTRICT-574 104

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SMT. RATHIKALA W/O BABU, AGED ABOUT 43 YEARS R/AT VELLACHIMAVILAI HOUSE, MADICHAL, PO KUJITHURAI, VILAVAMAKODE TALUK, KANYAKUMARI DISTRICT-629 163

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…RESPONDENTS

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(BY SRI.PRATHEEP K.C., ADVOCATE FOR R1 R2- SERVED AND UNREPRESENTED)

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THIS MFA FILED U/S. 30(1) OF EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED: 15.06.2019,

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2 - NC: 2025:KHC:19973 MFA No. 8308 of 2019

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HC-KAR

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PASSED IN ECA NO.3/2014, ON THE FILE OF THE SENIOR CIVIL JUDGE AND COMMISSIONER FOR EMPLOYEES COMPENSATION, KARKALA, AWARDING COMPENSATION OF RS.9,11,175/- WITH INTEREST AT THE RATE OF 12 PERCENT P.A., FROM 15.11.2010 TILL REALIZATION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 07.03.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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CAV JUDGMENT

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Aggrieved by the award passed in ECA No.03/2014 dated 15.06.2019 by the Senior Civil Judge and Commissioner for Employees Compensation, Karkala, the Insurance Company is before this Court questioning the liability.

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The parties are referred to as arrayed before the Trial Court.

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The respondent No.1 herein had filed a petition under section 3 and 4 of Workmen’s Compensation Act, claiming compensation for the injuries sustained by him while he was working as compressor operator under the 1^st respondent who is insured with the 2^nd respondent-Insurance Company.

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The facts of the case are that the petitioner was working as compressor operator under respondent No.1 since 6

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3 -

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NC: 2025:KHC:19973 MFA No. 8308 of 2019

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HC-KAR

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years. On 15.11.2010 at about 1.30 p.m., when the petitioner was working as compressor operator because of the vibration of the compressor, one stone slipped and fell on his body, due to that the left upper limb below elbow bone smashed and the bone of both lower limbs was fractured and the petitioner had lost his conscious immediately. He regained conscious after three days of the accident. Because of the injuries the petitioner had amputation of his left upper limb. The respondent No.1/employer filed written statement denying the petition averments and it is stated that the petitioner was never under his employment and on the said date he had come to the spot on his own as a curious on looker. He was not a compressor operator or workmen under respondent No.1/employer. It is stated that on the said date, the employer has hired the compressor from third party. Hence, there is no question of hiring the petitioner as compressor operator. The insurance company had filed the written statement and they have also denied the liability stating that they have not insured

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the compressor and they have insured only the tractor and the case was registered against the driver for not having a valid

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HC-KAR

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driving license, even on that count also the insurance company

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is not liable to pay the compensation.

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The tribunal had granted compensation of an amount of Rs.9,11,175/- and held that it is the duty of the employer/R1 to prove that there was no employer-employee relationship and he has not stepped into the witness box to prove the contentions and just filing written statement is not sufficient to discharge the burden. The Tribunal has also not considered the stand taken by the Insurance Company that the compressor is not insured. The tribunal observed that it is mentioned in the insurance policy i.e., Ex.R-2 IMT 47 i.e., drilling rigs attached to tractor, for that also premium is collected. Hence, the Insurance Company is liable to pay the compensation.

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Learned counsel appearing for the Insurance Company submits that the insurance company is not liable to pay the compensation as the petitioner has failed to establish the employee and employer relationship. The case is registered against the driver of the tractor that he was not having a valid driving license. He had relied on the Judgment of the three

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5 - NC: 2025:KHC:19973 MFA No. 8308 of 2019

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HC-KAR

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Judges Bench of this court in the case of Gadhilingappa alias Gadhilinga and Anr Vs. K. Guleppa K. Lingappa and Anr¹

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When the policy is in respect of tractor or crushing machine, ploughing machine or any other instrument attached to the tractor cannot be considered to be attachment to tractor and so as the person sitting on it. Learned counsel further submits that the order passed by the tribunal needs to be set aside as the tribunal had failed to consider the factual as well as the legal aspects.

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Learned counsel for the petitioner/respondent submits that the employer without even entering the witness box cannot say that he has failed to establish that there is no employer-employee relationship. The tribunal has held that there was an employer-employee relationship and had rightly granted the compensation and there are no grounds to interfere with the well considered order passed by the tribunal.

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Having heard the learned counsels on either side, perused the entire material available on record. The claim

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1 AIR 2021 KAR 102

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HC-KAR

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petition is filed under Section 3 and 4 of the Workmen Compensation Act. The first requisite for filing an application under the Workmen Compensation Act is the relationship between employer and employee that the accident had taken place during the course of employment and the valid insurance policy. Here in this case, the court had observed that employer has not adduced any evidence. When the claim petition is filed, the initial burden lies on the claimant to show that there is an employer-employee relationship. This court has perused the exhibits that are filed on behalf of the claimant i.e, Ex.P-1 to Ex.P-13. None of these exhibits disclose anything with regard to the employment of the petitioner. The tribunal without any basis had fastened the burden on the employer and presumed that the claimant is working with the respondent No.1/employer from the last several years. This observation of the tribunal needs to be interfered by this court as said observation is without any basis and without any evidence. Under these circumstances, this court deems it appropriate to give an opportunity to the claimant to adduce the evidence in this regard and also the insurance company and all the

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NC: 2025:KHC:19973 MFA No. 8308 of 2019

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HC-KAR

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question of liability and quantum are kept open and the parties

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are at liberty to adduce the evidence in support of their case.

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Accordingly, this court is passing the following:

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i. The impugned order passed in ECA.No.3/2014 dated 15.06.2019 by the Senior Civil Judge and Commissioner for Employees Compensation, Karkala is set aside and the matter is Remanded Back to the Tribunal for fresh consideration. Accordingly, the appeal is Allowed.

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ii. Both the parties are at liberty to adduce evidence before the tribunal and tribunal shall consider all the questions involved in this case afresh.

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iii. Without further reference, the parties shall appear before the tribunal on 23.06.2025 and the Tribunal shall decide the case as expeditiously as possible but not later than six months.

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HC-KAR

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v. The amount in deposit by the insurance company shall be forthwith transferred to the MACT.

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vi. 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 further delay.

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vii. No costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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TS List No.: 1 Sl No.: 1

Cholamandalam Ms Gic Ltd. v. Saleem

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Cholamandalam Ms Gic Ltd. v. Saleem

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