Karnataka High Court
The Branch Manager vs Basamma W/O Appanna Kolari on 4 April, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 4TH DAY OF APRIL, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
MFA No.31389/2009(WC)
CONNECTED WITH
MFA No.31385/2009(WC)
MFA No.31386/2009(WC)
MFA No.31388/2009(WC)
MFA No.31384/2009(WC)
MFA No.31387/2009(WC)
IN MFA No.31389/2009
BETWEEN:
THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
BIJAPUR, REPRESENTED BY ITS
REGIONAL MANAGER
REGIONAL OFFICE
BANGALORE ... APPELLANT
(BY SRI SUDARSHAN .M, ADVOCATE)
AND:
1. SUKHADEV
S/O SHIVANINGAPPA MADAR
AGED ABOUT 21 YEARS
OCC: COOLIE
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
2
2. YAMANAPPA
S/O SHIVANINGAPPA MADAR
AGE: MINOR, REPRESENTED BY R1
OCC: NIL
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
3. BHAGAPPA
S/O BHIMARAO JAMADAR
AGED ABOUT 51 YEARS
OCC: BUSINESS
OPP SHANIVAR PET
RICKSHAW HOUSE
R/O KARAAD
DIST. SATAR(MAHARASTRA)
... RESPONDENTS
(BY SMT. RATHNA SHIVAYOGI MATH ASSTS.,
ADVOCATE FOR R1, R2-MINOR, REPRESENTED BY
R1, R3-SERVED)
MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
30(1) OF WC ACT AGAINST THE JUDGMENT AND AWARD DATED
12.03.09 PASSED IN WC NO.86/08 ON THE FILE OF
COMMISSIONER FOR WORKMEN'S COMPENSATION SUB
DIVISION-I AT BIJAPUR, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND AWARDING AMOUNT OF
RS. 3,44,855/-WITH INTEREST AT 12 % P.A.
IN MFA No.31385/2009
BETWEEN:
1. THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO.LTD.
BIJAPUR, REPRESENTED BY ITS
REGIONAL MANAGER
REGIONAL OFFICE
BANGALORE ... APPELLANT
(BY SRI SUDARSHAN .M, ADVOCATE)
3
AND:
1. BASAMMA
W/O APPANNA KOLARI
AGED ABOUT 46 YEARS
OCC: HOUSEHOLD WORK
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
2. PRAKASH
S/O APPANNA KOLARI
AGED ABOUT 24 YEARS
OCC: COOLIE
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
3. SANTOSH
S/O APPANNA KOLARI
AGED ABOUT 22 YEARS
OCC: COOLIE
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
4. BHAGAPPA
S/O BHIMARAO JAMADAR
AGED ABOUT 51 YEARS
OCC: BUSINESS
OPP: SHANIVAR PET
RICKSHAW HOUSE
R/O KARAAD, DIST. SATAR
(MAHARASTRA) ... RESPONDENTS
(BY SMT. RATHNA SHIVAYOGIMATH ASSTS., ADVOCATE FOR R1
TO R3, R4-SERVED)
MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD
DATED 12.03.2009 PASSED IN WCA.NO.WC/SR/90/2008 ON
THE FILE OF THE COMMISSIONER FOR WORKMEN'S
COMPENSATION SUB DIVISION-I, BIJAPUR DIST., BIJAPUR,
PARTLY ALLOWING THE CLAIM PETITION AND AWARDING THE
4
COMPENSATION OF RS. 2,67,907/- WITH INTEREST AT 12%
PER ANNUM.
IN MFA No.31386/2009
BETWEEN:
THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
BIJAPUR, REPRESENTED BY ITS
REGIONAL MANAGER
REGIONAL OFFICE
BANGALORE ... APPELLANT
(BY SRI SUDARSHAN .M, ADVOCATE)
AND:
1. DHARMANNA
S/O YELLAPPA MADAR
AGED ABOUT 51 YEARS
OCC: COOLIE
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
2. SABAWWA
W/O DHARMANNA MADAR
AGED ABOUT 46 YEARS
OCC: HOUSEHOLD WORK
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
3. BHAGAPPA
S/O BHIMARAO JAMADAR
AGED ABOUT 51 YEARS
OCC: BUSINESS
OPP: SHANIVAR PET
RICKSHAW HOUSE
R/O KARAAD, DIST. SATAR
(MAHARASTRA) ... RESPONDENTS
5
(BY SMT. RATHNA SHIVAYOGIMATH ASSOCIATES,
ADVOCATE FOR R1 & R2, R3-SERVED)
MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
30(1) OF WC ACT AGAINST THE JUDGMENT AND AWARD DATED
12.03.09 PASSED IN WCA NO.89/08 ON THE FILE OF THE
COMMISSIONER FOR WORKMEN COMPENSATION SUB-
DVIVISION-1 BIJAPUR, ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND AWARDING AMOUNT OF RS.3,79,592/-
WITH INTEREST AT 12% P.A.
IN MFA No.31388/2009
BETWEEN:
THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
BIJAPUR, REPRESENTED BY ITS
REGIONAL MANAGER
REGIONAL OFFICE
BANGALORE ... APPELLANT
(BY SRI SUDARSHAN .M, ADVOCATE)
AND:
1. SUKHADEV
S/O SHIVANINGAPPA MADAR
AGED ABOUT 21 YEARS
OCC: COOLIE
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
2. YAMANAPPA
S/O SHIVANINGAPPA MADAR
AGE: MINOR, OCC: NIL
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
6
3. BHAGAPPA
S/O BHIMARAO JAMADAR
AGED ABOUT 51 YEARS
OCC: BUSINESS
OPP: SHANIVAR PET
RICKSHAW HOUSE
R/O KARAAD, DIST. SATAR
(MAHARASTRA) ... RESPONDENTS
(BY SMT. RATHNA SHIVAYOGIMATH ASSTS., ADVOCATE FOR
R1 & R2, R3-SERVED)
MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
30(1) OF WC ACT AGAINST THE JUDGMENT AND AWARD DATED
12.03.09 PASSED IN WC NO.87/08 ON THE FILE OF THE
COMMISSIONER FOR WORKMEN COMPENSATION SUB-DVN.-1
BIJAPUR, ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND AWARDING AMOUNT OF RS.3,22,297/- WITH INTEREST AT
12% P.A.
IN MFA No.31384/2009
BETWEEN:
THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
BIJAPUR, REPRESENTED BY ITS
REGIONAL MANAGER
REGIONAL OFFICE
BANGALORE ... APPELLANT
(BY SRI SUDARSHAN .M, ADVOCATE)
AND:
1. KALLAWWA
W/O AMASIDH MADAR @ KOODAGI
AGEF ABOUT 46 YEARS
7
OCC: HOUSEHOLD WORK
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
2. SOMALINGA
S/O AMASIDH MADAR @ KOODAGI
AGE: MAJOR
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
3. YAMANAPPA
S/O AMASIDH MADAR @ KOODAGI
AGE: MAJOR
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
4. BHAGAPPA
S/O BHIMARAO JAMADAR
AGED ABOUT 51 YEARS
OCC: BUSINESS
OPP: SHANIVAR PET
RICKSHAW HOUSE
R/O KARAAD, DIST. SATAR
(MAHARASTRA) ... RESPONDENTS
MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
30(1) OF WC ACT AGAINST THE JUDGMENT AND AWARD DATED
12.03.09 PASSED IN WC/SR NO.91/08 ON THE FILE OF THE
COMMISSIONER FOR WORKMEN COMPENSATION SUB-DVN-1
BIJAPUR, ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND AWARDING AMOUNT OF RS.2,37,230/- WITH INTEREST AT
12% P.A.
IN MFA No.31387/2009
BETWEEN:
THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
BIJAPUR, REPRESENTED BY ITS
REGIONAL MANAGER
8
REGIONAL OFFICE
BANGALORE ... APPELLANT
(BY SRI SUDARSHAN .M, ADVOCATE)
AND:
1. BHARATHI
W/O SHARANAPPA MADAR
AGED ABOUT 23 YEARS
OCC: HOUSEHOLD WORK
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
2. PADMAVATHI
D/O SHARANAPPA MADAR
AGE: MINOR, REPRESENTED
BY R1/MOTHER
OCC: NIL
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
3. SIDDARAM
S/O SHARANAPPA MADAR
AGE: MINOR, REPRESENTED
BY R1/MOTHER, OCC: NIL
R/O MADABHAVI
TALUK & DISTRICT BIJAPUR
4. BHAGAPPA
S/O BHIMARAO JAMADAR
AGED ABOUT 51 YEARS
OCC: BUSINESS
OPP: SHANIVAR PET
RICKSHAW HOUSE
R/O KARAAD, DIST. SATAR
(MAHARASTRA) ... RESPONDENTS
MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
30(1) OF WC ACT AGAINST THE JUDGMENT AND AWARD DATED
12.03.09 PASSED IN WC/SR NO.88/08 ON THE FILE OF THE
9
COMMISSIONER FOR WORKMEN COMPENSATION SUB-DVN-1
BIJAPUR, ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND AWARDING AMOUNT OF RS.3,70,632/- WITH INTEREST AT
12% P.A.
THESE APPEALS COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
These appeals are filed by the insurer of the offending vehicle bearing Reg.No.MH-11/M-5575 involved in road traffic accident on 26.01.2008 questioning grant of compensation to the respondents as also the direction to discharge the award.
2. Heard. Perused records.
3. The contextual facts are:
a) Claim petitions were filed before the Commissioner for Workmen's Compensation by the legal heirs of victims who died in the motor vehicle accident. WC.SR.No.86/2008 is by Sukhadev and Kum.Yamanappa claiming to children of Seetavva S/o Shivaningappa; WC/SR No.87/2008 is by Sukhadev and Yamanappa 10 seeking compensation regarding death of their father Shivalingappa; WC/SR No.88/2008 is by Bharathi Padmavathi and Siddaram seeking compensation regarding death of Sharanappa; WC/SR No.89/2008 is by Dharmanna and Sabawwa seeking compensation regarding death of Muttappa their son; WC/SR No.90/2008 is by Smt.Basamma and Prakash and Santosh seeking compensation regarding death of Appanna; WC/SR No.91/2008 is by Smt.Kallavva, Somalinga and Yamanappa seeking compensation regarding death of Amasidh.
b) In each of the claim petitions they categorically averred that victims were employed by the owner of the offending vehicle name Bagappa S/o Bhimarao Jamadar and they brought him into party array as respondent No.2 while the insurer of the vehicle who is appellant in these appeals was brought as first respondent. In response notice of the claim petitions, the insured-owner of the vehicle entered appearance and filed written statement affirming and testifying to the contentions of the claimants 11 that the persons who died in the motor vehicle accident in respect of whose death claims were lodged, where his employees employed as coolies in relation to truck in question. He also averred he was paying them Rs.150/- per day as wages.
4. The insurance company however resisted claim describing the victims as unauthorised passengers travelling in goods vehicle. On this basis the appellant- insurance company sought dismissal of claim petition against it and also requested the Tribunal to saddle liability to discharge the award if any on the insured-owner of the vehicle.
5. In the enquiry that ensued before the Commissioner the claimants lead evidence reiterating that the victims died in course of employment under second respondent- owner of the vehicle and therefore they are entitled to compensation under the provisions of Workmen's Compensation Act. They also alleged accident was result of negligent driving of the truck by its driver under 12 employment of the second respondent. The insured-owner having not disputed the act of negligence attributed to the driver of the offending vehicle, virtually the contention of the claimants stood proved. The insurance company, which has disputed its liability did not lead any evidence. In negation of assertion of the claimants. However, the insurance company failed to prove what it urged in written statement that victims were not coolies working under the insured-owner of the vehicle but they were unauthorized passengers.
6. The learned member of the Tribunal held claimants had established the victims were employees of the insured-owner and the died in course of employment. It also held accident was result of negligence on the part of driver of the offending vehicle, which finding has reached finality. As the insured has not questioned the same. In fact, even the insurance company has not questioned the finding of the Tribunal regarding act of negligence of the driver of the offending vehicle. In this appeal moot 13 question raised by the insurance company is that the victims were unauthorised passengers carried in goods vehicle in contravention of permit granted and therefore there is violation of the terms of the insurance policy. In support of such contention learned counsel Sri.Sudarshan M., for the appellant wound contend that soon after occurrence of accident Kallawwa who is claimant in WC/SR No.91/2008 had lodged a report in which she had categorically averred that her that her husband Amasidh and others traveled in the goods vehicle as passengers. He would submit since report submitted by the Kallawwa is treated as complainant and FIR was registered, she and other claimants are bound by its contents and therefore prima facie it is shown that the victims were passengers and not the employees of the insured-owner. He read out to the complaint in which Kallawwa is alleged to have made a statement in her report that on 26.01.2008 they were waiting for bus to go to their village when they saw lorry in question reached spot. They requested him to carry them which he obliged and thus she her husband and 14 others traveled in the vehicle, which unfortunately was involved in the accident. Learned counsel submits this material evidence on record supports the plea of the insurance company and disproves that claimants were employees of the insurer. He gains support his contention relying upon the decision of the Apex Court in the case of Oriental Insurance company Limited vs Premalata Shukla and Others wherein the Apex Court opined if person relies on particular documents he will be bound by its contents and separate evidence is not necessary also opined that when a person relies on particular document he cannot rely on part of it and dispute part of the contents seeking proof. In view of such proposition of law we have to consider the entire evidence in its totality.
7. No doubt as rightly pointed out by the appellant counsel complaint which became FIR is submitted by Kallawwa in which it is averred that her husband Amasidh and others were waiting for bus and boarded the offending vehicle. But it is material to know in her ocular testimony 15 in the trial before the Tribunal she made categorical statement in unequivocal terms that she is not author of the complaint on which FIR was registered. She claims to be illiterate and knows no reading or writing. Though insurance company tried to impeach her testimony, she stood the test of cross-examination assertively contending that her husband and others were employees of the second respondent-owner of the vehicle and victims were travelling during the course of the employment. She has disowned the version she is author of the complaint came to be FIR.
8. Learned counsel for the claimants also pointed out that the complaint is not signed but thumb impression has been obtained from Kallawwa making it clear she is illiterate. Therefore it was incumbment on insurance company to have examined or lead evidence to show that the victims were passengers are not coolies under second respondent.
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9. Be that as it may we have evidence of six more witnesses who have in unison corroborated each other's testimony that the victims were employees of the second respondent and died during course of employment due to unfortunate accident. Besides we have direct material evidence from the insured-owner of the vehicle, the second respondent in the claim petition who admits that victims were his employees. As second respondent had in the same proceedings filed the written statement testifying correctness of the claimants statement and affirming to fact that victims were his employees, the insurance company did not summon him for examination. It must be noticed that in action for grant of compensation be it under Section 166 of M V Act or under provisions of Workmen's Compensation Act, primary liability is caused on the insured-owner/employer and statutorily on the insurance company which has provided insurance cover. Therefore unless it is shown there was collusion between claimants insured-owner, the statement of the insured-owner neither 17 can be ignored nor discarded. It needs to be given due credence. Had the insurance company has not impeached.
10. In this view I do not find Tribunal has committed any error in holding that victims were employees of the second respondent and upon their death in the motor vehicle accident during the course of employment claimants are entitled to compensation. The liability of the insurance company undoubtedly subsists under the provisions of Section 147 of the Act, irrespective of the nature of the policy insurance company was bound to discharge the award in terms of Workmen's Compensation Act and it has no escape. As no ground urged questioning quantum or the act of negligent attributed to the driver, the appeal of the insurance company fails.
11. In the result, all the appeals filed by the appellant- insurance company against the award of the Commissioner are dismissed, confirming the award passed by the Commissioner for Workmen's Compensation impugned in these appeals.
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The amount in deposit in each of these appeals are ordered to be transferred to the Commissioner for concerned for disbursement to the claimants.
Sd/-
JUDGE NB/Sdu