Karnataka High Court
The Divisional Manager vs Sri Pramoda on 10 April, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
MFA No.5251/2011 (WC)
C/w MFA Nos.5249/2011(WC), 5250/2011(WC),
5252/2011(WC) and 5253/2011 (WC)
IN MFA No.5251/2011 (WC) :
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
2ND FLOOR SUNDAR ARCADE
KSRTC BUS STAND
MYSORE - 570 001.
By
REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
5TH FLOOR KRISHI BHAVAN
NRUPATHUNGA ROAD,
HUDSON CIRCLE,
BANGALORE - 560 001.
BY ITS MANAGER ...Appellant
(BY SRI. O. MAHESH, ADV.)
2
AND:
1. SRI. PRAMODA
AGED ABOUT 26 YEARS
S/O. KULLEGOWDA
YERAHALLI VILLAGE,
KUTGAL HOBLI,
RAMANAGARA TALUK
RAMANAGAR DISTRICT - 571 401.
2. VARUNASHANKAR S.B. MAJOR,
S/O. G. SHIVANANDA
BESAGARAHALLI VILLAGE
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT - 571 401.
3. SMT. JAYAMMA, MAJOR,
W/O. DASAIAH,
NO.601/16, BESAGARAHALLI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 401.
... Respondents.
(BY SRI.M.Y. SREENIVASAN, ADV. FOR R-1,
SRI.H.R. MANJUNATHA, ADV. FOR R-2 AND R-3,)
THIS MFA IS FILED UNDER SECTION 30(1) OF
WORKMEN'S COMPENSATION ACT AGAINST THE JUDGMENT
AND AWARD DATED 22.09.2010 PASSED IN WCA.NO.LO-2M-
WCA/NFC/CR-80/2008 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISION-2, MANDYA AWARDING A COMPENSATION OF
RS.1,31,970/- WITH INTEREST.
3
IN MFA No.5249/2011 (WC) :
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO.LTD.,
2ND FLOOR SUNDAR ARCADE
KSRTC BUS STAND
MYSORE - 570 001.
BY
REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
5TH FLOOR KRISHI BHAVAN
NRUPATHUNGA ROAD,
HUDSON CIRCLE
BANGALORE - 560 001.
BY ITS MANAGER ...Appellant
(BY SRI.O. MAHESH, ADV.)
AND:
1. SRI. RAVINDRA S.K.
AGED ABOUT 27 YEARS,
S/O. DODDA KYATHEGOWDA,
SEERBILENALLI VILLAGE,
K.R. PETE TALUK,
MANDYA DISTRICT - 571 401.
2. VARUNASHANKAR S.B., MAJOR,
S/O.G. SHIVANANDA,
BESAGARAHALLI VILLAGE,
KOPPA HOBLI,
4
MADDUR TALUK,
MANDYA DISTRICT - 571 401.
3. SMT. JAYAMMA, MAJOR,
S/O. DASAIAH,
NO.601/16, BESAGARAHALLI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 401.
...Respondents.
(BY SRI.M.Y. SREENIVASAN, ADV. FOR C/R-1,
SRI.H.R. MANJUNATHA, ADV. FOR R-2 AND R-3)
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C.ACT
AGAINST THE JUDGMENT AND AWARD DATED 22.09.2010
PASSED IN LO-2M/WCA/NFC/CR-78/2008 ON THE FILE OF
THE LABOUR OFFICER AND COMMISSIONER FOR WORKMENS'
COMPENSATION, SUB DIVISION-2, MANDYA, AWARDING A
COMPENSATION RS.1,57,298/- WITH INTEREST.
IN MFA No.5250/2011 (WC) :
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
2ND FLOOR SUNDAR ARCADE,
KSRTC BUS STAND,
MYSORE - 570 001.
BY
REGIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
5TH FLOOR, KRISHI BHAVAN,
NRUPATHUNGA ROAD,
HUDSON CIRCLE,
5
BANGALORE - 560 001.
BY ITS MANAGER ...Appellant
(BY SRI.O. MAHESH, ADV.)
AND:
1. SRI. DANANJAYA,
AGED ABOUT 27 YEARS,
S/O. NANJEGOWDA,
CHOWDANAKUPPE,
HULIYURDURGA HOBLI,
KUNIGAL TALUK,
TUMKUR DISTRICT - 571 401.
2. VARUNASHANKAR S.B. MAJOR,
S/O. G. SHIVANANDA,
BESAGARAHALLI VILLAGE,
KOPPA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 401.
3. SMT. JAYAMMA, MAJOR,
W/O. DASAIAH
NO.601/16, BESAGARAHALLI VILLAGE,
KOPPA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 401.
...Respondents.
(BY SRI M.Y. SREENIVASAN, ADV. FOR R-1,
SRI.H.R. MANJUNATHA, ADV. FOR R-2 AND R-3)
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED 22.09.2010
PASSED IN LO-2-M/WCA-NFC-CR-79/2008 ON THE FILE OF
THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, SUB DIVISION - 2, MANDYA AWARDING A
COMPENSATION OF RS.1,57,298/- WITH INTEREST.
6
IN MFA No.5252/2011 (WC) :
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO.LTD.,
2ND FLOOR SUNDAR ARCADE
KSRTC BUS STAND
MYSORE - 570 001.
BY
REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
5TH FLOOR KRISHI BHAVAN
NRUPATHUNGA ROAD,
HUDSON CIRCLE
BANGALORE - 560 001.
BY ITS MANAGER ...Appellant
(BY SRI.O. MAHESH, ADV.)
AND:
1. K.B. PRASANNA
AGED ABOUT 21 YEARS
S/O. BASAVAIAH
NO.130/A, 12TH MAIN, 2ND CROSS
NAGENDRA BLOCK, BSK III STAGE
BANGALORE - 560 078.
2. VARUNASHANKAR S.B., MAJOR,
S/O. G. SHIVANANDA
BESAGARAHALLI VILLAGE,
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT - 571 401.
7
3. SMT. JAYAMMA, MAJOR,
W/O. DASAIAH,
NO.601/16, BESAGARAHALLI VILLAGE,
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT - 571 401. ...Respondents.
(BY SRI M.Y. SREENIVASAN, ADV. FOR C/R-1,
SRI.H.R. MANJUNATHA, ADV. FOR R-2 AND 3)
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED 22.09.2010
PASSED IN WCA.NO.LO-2M-WCA/NFC/CR-81 ON THE FILE OF
THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, SUB DIVISION - 2, MANDYA AWARDING A
COMPENSATION OF RS.1,90,293/- WITH INTEREST.
IN MFA NO.5253/2011 (WC):
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO.LTD.,
2ND FLOOR SUNDAR ARCADE
KSRTC BUS STAND
MYSORE - 570 001.
BY REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
5TH FLOOR KRISHI BHAVAN
NRUPATHUNGA ROAD,
HUDSON CIRCLE
BANGALORE - 560 001.
BY ITS MANAGER ...Appellant
(BY SRI.O. MAHESH, ADV.)
8
AND:
1. SRI GIRISHA
AGED ABOUT 23 YEARS,
S/O. BETTASWAMY,
SEEGEPALYA, HUTRIDURGA,
HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT - 572 101
2. VARUNASHANKAR S.B. MAJOR,
S/O.G. SHIVANANDA,
BESAGARAHALLI VILLAGE,
KOPPA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 401
3. SMT. JAYAMMA, MAJOR,
W/O. DASAIAH,
NO.601/16, BESAGARAHALLI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 401.
...Respondents.
(BY SRI.H.R. MANJUNATHA, ADV. FOR R-2 AND R- 3
R-1 SERVED.)
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED 22.09.2010
PASSED IN WCA.NO.LO-2M-WCA/NFC/CR-82 ON THE FILE OF
THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, SUB DIVISION -2, MANDYA, AWARDING A
COMPENSATION OF RS.1,07,520/- WITH INTEREST.
THESE MFAS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
These five appeals are directed against the judgment and award dated 22.09.2010 passed in following cases before the Commissioner for Workmen's Compensation granting the compensation as under:-
1. MFA No.5249/2011 CR No.78/2008 - Rs.1,57,298/-
2. MFA No.5250/2011 CR No.79/2008 - Rs.1,57,298/-
3. MFA No.5251/2011 CR No.80/2008 - Rs.1,31,970/-
4. MFA No.5252/2011 CR No.81/2008 - Rs.1,90,293/-
5. MFA No.5253/2011 CR No.123/2008 - Rs.1,07,520/-
2. Compensation is granted for the injuries sustained in the road traffic accident that occurred on 21.11.2006 at 7.00 p.m. when a lorry bearing Reg.No.KA-02 / 8682 10 carrying size stones capsized near Nilavagilu Village between Koppa and Maddur.
3. Petition in all the above appeals are allowed in part, by the Commissioner for Workmen's Compensation and granted compensation of Rs.1,57,298/-, Rs.1,57,298/-, Rs.1,31,970/-, Rs.1,90,293/- and Rs.1,07,520/- respectively together with interest at 7.5% p.a. from the date of petition till 22.09.2010 i.e, the date of order.
4. These appeals are by the Insurance Company challenging the grant of compensation to the respective respondents/claimants by the Commissioner for workmen's Compensation in respect of the accident stated above.
5. The learned counsel for the appellant Sri O. Mahesh, in his submissions would contend that 11 basically there was no relationship of employer and employees between the respective respondents to claim compensation under the Workmen's Compensation Act and that there are threshold bar. Secondly, the entire proceedings were vitiated by non-availability of the present owner of the Lorry, in the Policy that was said to have been issued earlier. Thirdly, there was discrepancy in the statement regarding the accident and sustaining of injuries and filing of the complaint that is said to be lodged after lapse of 20 days. Fourthly, employees of an organization are not third parties in the matter of insurance. Fifthly, the proceedings against the Insurance Company was initiated by the sale of the vehicle holding the policy. Further the claim has been made for attractive figures giving a go-by to the realities.
6. The learned counsel for the respondents M.Y. Srinivas would submit that there was no prejudice 12 of rule or carrying capacity in any manner. The compensation granted by the learned Commissioner for Workmen's Compensation in the above cases are as follows:-
a. MFA No.5249/2011 - Rs.1,57,298/- b. MFA No.5250/2011 - Rs.1,57,298/- c. MFA No.5251/2011 - Rs.1,31, 970/- d. MFA No.5252/2011 - Rs.1,90,293/- e. MFA No.5253/2011 - Rs.1,07,520/-
7. The claim of the petitioners before the Tribunal in all the above cases was that they were loaders and un- loaders working as coolies under their employer/owner of the lorry, which was insured with the appellant and they sustained injuries out of and in the course of employment.
8. Before adverting on the other aspects, it is necessary to mention that in all the above appeals, 13 there are three respondents. One appellant, invariably one claimant and the respondents before the Commissioner for Workmen's Compensation. The respondents before the Tribunal are the claimants. Subsequently, it was vehemently submitted that once the vehicle was sold that relieves the insurer of his liability, unless there was transfer of policy to the purchaser.
9. In this connection, the learned Counsel Sri.O. Mahesh, would submit that he is fortified by the provisions of Section 157 of the Motor Vehicles Act which I find is otherwise, the said provision of law is as under :-
157. Transfer of certificate of insurance --
(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the 14 ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. 1[Explanation.--For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance.] (2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance.15
10. A contextual reading of the said Section would indicate that whenever a vehicle is transferred from one person to another person in the manner known to law, the policy is deemed to have been transferred, quite rightly as policy without vehicle is like owner without ownership, which have no independent existence.
11. The said contention of the learned counsel cannot be accepted for the reason that when the vehicle is insured in respect of the accident that occurred during the validity period invariably the insurer has to bear the responsibility, unless he is exonerated of the other breach of conditions.
12. Insofar as the employer employees relationship is concerned it cannot be accepted as a matter of thumb rule that in all cases there are documents and records regarding their employment, more particularly, coolies 16 and masons. Reality is that such people strive to eke out their livelihood by carrying on coolie as labour and many of them would not know about the facilities such as Provident Fund, Gratuity, minimum wages so on and so far and in this connection, the second limb of argument of the Insurance Company is that even the register under the minimum wages is not maintained, that concludes that there was no relationship of employer and employee. The scope of this Act is not to bother about the penal circumstances of the Minimum Wages Act. It was canvassed by the learned counsel that employment is a privity of contract between the employer and the employee, but the said principle is appreciated. The learned counsel proceeds further and states that the contention of the learned counsel cannot be accepted that there was no relationship of employer and employee, because under the admitted circumstances, all employer employee relationship is 17 binding by privity of contract. The owner has come before the Commissioner and accepted that he had engaged them as workers. No such circumstances, can be accepted without producing a small piece of evidence/paper as material to substantiate the stand and ground of denial of relationship.
13. In my opinion, the said argument cannot be accepted without there being any material document to substantiate the contention of the Insurance Company.
14. Another submission made by the learned counsel for the Insurance Company is that the employers are not third parties, it is nobody's case that in a case for compensation before the Commissioner, it is a matter of right to recover the compensation from the employer, who is liable to compensate for the injuries sustained by an employee, when the accident occurs out of and in the course of employment. When such employer is liable to 18 pay compensation, it is the basic responsibility and a duty cast on him to comply with it, and when he is insured is liable, the Insurance Company invariably has to indemnify insofar as the relationship of employer and employee is concerned the scope, ambit and boundaries of these cases is to find out whether there was employer and employee relationship for the purpose of compensation.
15. Insofar as the discrepancies as stated in the submissions are that the complaint came to be lodged after 20 days. I am of the firm finding that the victims are not duty bound, but it cannot be said that to save their lives, for the rest of their lives to earn for their dependants, the delay in lodging the complaint would have occurred.
19
16. The contention of the appellant - Insurance Company is that delay of 20 days in lodging the FIR has no relevance in the light of medical treatment.
17. Insofar as the tenability of the claim of compensation against the Insurance Company, in respect of the right of the claimant is protected, as termed right in the larger perspective is made out in Sir Johnsons Jurisprudence is vested and available to a person and against a person to be in rem or in person- am. The right becomes complete only when there is a remedy as it is termed, ubi jus ihi remedium. Thus it does not matter, whoever is the owner of the vehicle, if there is valid insurance for the vehicle in question, under the legal circumstances.
18. Thus for all legal and practical purposes there are accepted relationship of employer and employee between the claimants and the owner of the lorry 20 bearing registration No.KA-02-8682. I do not find any infirmity, irregularity or perversity in the impugned judgment and award passed by the learned Commissioner for Workmen's Compensation and that the employees are entitled for compensation, at the same time, the Insurance Company is liable to pay the insurer.
19. Insofar as the quantum of compensation is concerned, in the circumstances, employer of the claimants unequivocably admits the relationship of employment. However, the learned Commissioner for Workmen's Compensation has taken the wages at Rs.4,000/- per month.
20. The injuries suffered by each of the claimants are as follows :-
1. In CR No.78/2008:21
Abrasion over right thigh Contusion wound on left upper arm 3" by 3" Crush injury of left foot Left upper arm painful Complaint on painful (L) foot Left eye swollen
2. In CR No.79/2008:
Contusion wound onleft thigh 4" x 4"
Abrasion 6" long on right hip Complaint of backache Left upper arm painful Complaint of painful (L) Left eye swollen
3. In CR No.80/2008:
Abrasion over left face Contusion wound on right calf 2" x 2"
Painful of Right Collar bone Right wrist painful Left foot painful Left knee painful
4. IN CR No.81/2008:
22
Multiple abrasion on back Contusion wound on right thigh 2" x 2"
Contusion wound on right forehead Right thumb painful Left wrist painful Right shoulder painful In CR No.82/2008:
Contusion wound on left knee joint by 1" x 2"
Abrasion over left back Right wrist painful Complaint of chest pain Complaint of painful left upper limb Lacerated wound of 1" x ½" on left sole sutured In CR No.123/2007 :
Multiple abrasion over right back Painful right wrist Contusion would by 1" x 1" on right elbow joint Abrasion over right thigh Contusion wound by ½" x ½" of left calf muscle 23 Abrasion wound on left forehead
21. The extent of disability is disputed by the Insurance Company.
22. In the circumstances, I am of the firm opinion, that the judgment and award dated 21.11.2006 passed by the learned Commissioner for Workmen's Compensation insofar as quantum of compensation is concerned it does not warrant interference.
23. However, the aspect of interest as made out in the judgment and award by the learned Commissioner is erroneous, as the interest is awarded in split phase wise from the date of petition and from the date of the order at 7.5% and thereafter at 12% p.a. This is not correct.
24. Regard being had to the fact that the respondents
- claimants have not preferred any appeal. No matter when the error or defect is located by the Court, its duty 24 would be to rectify it and it is accordingly done. Thus it is made clear that the rate of interest payable by the Insurance Company shall be invariably at 12% p.a. immediately after the expiry of 30th day of the accident till the date of settlement in full.
25. All the five appeals are dismissed.
26. Office is directed to send a certified copy of the judgment in each case to the Commissioner, Senior Civil Judge, Mandya. The amount in deposit shall be transferred to the concerned Tribunal for disbursement.
No Costs.
Sd/-
JUDGE NG*