Karnataka High Court
The Divisional Manager vs Shivalal S/O. Lalsingh Rathod on 24 April, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 24TH DAY OF APRIL, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
MFA No.30003/2010(WC)
CONNECTED WITH
MFA No.30004/2010(WC)
MFA No.30002/2010(WC)
MFA No.30001/2010(WC)
IN MFA No.30003/2010
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO., LTD.,
DIST. BIJAPUR ... APPELLANT
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND:
1. SHIVAJI
S/O BIKKU CHAVAN
AGE: MAJOR
R/O BHAVIKATTI TANDA
TQ. & DIST. BIJAPUR
2. LACHHU
S/O NAMU LAMANI
AGE: MAJOR, OCC:OWNER
2
OF TRACTOR & TRAILER BEARING
NO.KA-28-T-1711/1712
R/O BHAVIKATTI TANDA
TQ. & DIST. BIJAPUR
... RESPONDENTS
(BY SRI BABU H. METAGUDDA, ADVOCATE FOR R1,
SRI S.B.SONDUR, ADVOCATE FOR R2)
MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
30(1)OF WC ACT AGAINST THE JUDGMENT AND AWARD DATED
30.10.09 PASSED IN WCA NO.84/03 ON THE FILE OF THE
WORKMEN'S COMPENSATION COMMISSIONER AT BIJAPUR,
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
AWARDING AMOUNT OF RS.37,436/- WITH 12% P.A.
IN MFA No.30004/2010
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
BIJAPUR ... APPELLANT
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND:
1. PANDU
S/O LAXMAN RATHOD
AGE: MAJOR
R/O BHAVIKATTI TANDA
TQ. & DIST. BIJAPUR
2. LACHHU
S/O NAMU LAMANI
AGE: MAJOR, OCC:OWNER
OF TRACTOR & TRAILER BEARING
NO.KA-28-T-1711/1712
R/O BHAVIKATTI TANDA
TQ. & DIST. BIJAPUR ... RESPONDENTS
3
(BY SRI BABU H. METAGUDDA, ADVOCATE FOR R1,
SRI S.B.SONDUR, ADVOCATE FOR R2)
MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
30(1)OF WC ACT AGAINST THE JUDGMENT AND AWARD DATED
30.10.09 PASSED IN WCA NO.86/03 ON THE FILE OF THE
WORKMEN'S COMPENSATION COMMISSIONER AT BIJAPUR,
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
AWARDING AMOUNT OF RS.39,591/- WITH 12% P.A.
IN MFA No.30002/2010
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
BIJAPUR ... APPELLANT
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND:
1. DHANSINGH
S/O KESU CHAVAN
AGE: MAJOR
R/O BHAVIKATTI TANDA
TQ. & DIST. BIJAPUR
2. LACHHU
S/O NAMU LAMANI
AGE: MAJOR, OCC:ONWER
OF TRACTOR & TRAILER BEARING
NO.KA-28-T-1711/1712
R/O BHAVIKATTI TANDA
TQ. & DIST. BIJAPUR
... RESPONDENTS
(BY SRI BABU H. METAGUDDA, ADVOCATE FOR R1,
SRI S.B.SONDUR, ADVOCATE FOR R2)
4
MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
30(1)OF WC ACT AGAINST THE JUDGMENT AND AWARD DATED
30.10.09 PASSED IN WCA NO.83/03 ON THE FILE OF THE
WORKMEN'S COMPENSATION COMMISSIONER AT BIJAPUR,
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
AWARDING AMOUNT OF RS.38,122/- WITH 12% P.A.
IN MFA No.30001/2010
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
BIJAPUR ... APPELLANT
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND:
1. SHIVALAL
S/O. LALSINGH RATHOD
AGE: MAJOR, OCC: OWNER OF
TRACTOR AND TRAILER BEARING
Nos.KA-28-T-1711/1712
R/O BHAVIKATTI TANDA
TQ. & DIST. BIJAPUR
2. LACHHU S/O NAMU LAMANI
AGE: MAJOR, OCC: OWNER OF
TRACTOR & TRAILER
BEARING NO.KA-28-T-1711/1712
R/O BHAVIKATTI TANDI
TQ. & DIST. BIJAPUR ... RESPONDENTS
(BY SRI BABU H. METAGUDDA, ADVOCATE FOR R1,
SRI S.B.SONDUR, ADVOCATE FOR R2)
MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
30(1) OF WC ACT AGAINST THE JUDGMENT AND ORDER DATED
30.10.09 PASSED IN WCA NO.82/03 ON THE FILE OF THE
WORKMEN'S COMPENSTION COMMISSIONER SUB DIVISION
5
NO.2 AT BIJAPUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND AWARD AMOUNT OF RS.46,853/- WITH
INTEREST AT 12% P.A.
THESE APPEALS COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
These appeals are by the insurer of tractor-trailer bearing registration Nos.KA-28/T/1711 and 1712 questioning not only the finding of the Tribunal regarding occurrence of the accident but also the quantum of compensation granted to the respondents/claimants.
2. Heard Sri Manvendra Reddy, learned counsel for the appellant and Sri Babu H. Metagudda, learned counsel for the respondents/claimants.
3. The factual matrix needing reference is:
(a) Respondents in each of these appeals filed claim under the provisions of the Workmen's Compensation Act before the Commissioner for Workmen's Compensation, Bijapur seeking compensation towards injuries suffered by them in a motor vehicle accident on 21.02.2003 6 assertively contending that they were travelling in tractor-
trailer bearing registration Nos.KA-28/T-1711 and 1712 owned by the second respondent. They were engaged by the second respondent as coolies to load and unload fertile soil from Begum Talab to Rambhapur village. The vehicle was driven on N.H.No.13 to reach the destination, at 12.45 p.m. the driver became rash and negligent consequent to which, the accident occurred. Respondents in each of these appeals contend they suffered injuries of various degrees and shifted to Shylendra Deshpande Hospital, where they were treated.
(b) Claims were resisted by the insurance company basically on the ground that they were not employees of the second respondent-owner and they are not entitled to compensation. The appellant-insurance company has also disputed act of negligence attributed to the driver.
(c) The owner of the tractor-trailer arrayed as the second respondent filed written statement admitting the contention of the claimants that they were all his 7 employees and they were travelling in the trailer portion for loading and unloading the fertile soil. The Commissioner for Workmen's Compensation accepted the evidence tendered by them orally as also FIR which was registered on 19.03.2003 against one Shivalal Lalsingh Rathod for the offences punishable under Sections 279, 337, 338 and 304-A of IPC and held claimants who are respondents in these appeals are entitled to compensation and awarded them amount as indicated in the awards impugned in these appeals. Such an award passed by the Commissioner is questioned by the insurer of the vehicle.
4. Sri Manvendra Reddy, learned appellants counsel would contend claimants had failed to establish occurance of accident on 21.02.2003 involving tractor-trailer insured by the appellant. He submits that no complaint was lodged after the alleged occurrence on 21.02.2003 and thereafter also the claimants took no steps to report the occurrence of the accident to the Police. He refers to the FIR registered on 19.03.2003 to show that it was 8 registered on the basis of the reference by the learned Magistrate under Section 156(3) of Cr.P.C. to the SHO of jurisdictional Police station to investigate. He would further submit the Investigating Officer having registered reference in FIR No.137/2003 carried out investigation and filed the negative report that no material evidence was available to establish the occurrence of road accident on 21.02.2003 involving the vehicle insured by the appellant. On this basis, he submits there is no material about the occurrence of the accident and particularly negative report submitted by the SHO would show there is a reason to believe that claims are fraudulent. However, would further submit the medical evidence on which the claimants rely does not show, cases were registered at the hospital in the MLC register as is required. In the circumstances the statement of the owner admitting the averments in the claim petitions has to be treated as a result of collusion between the claimants and the second respondent - insured owner of the vehicle.
9
5. Sri Babu H. Metagudda, learned counsel for the respondents/claimants responding to these contentions would submit that the grounds urged by Sri Manvendra Reddy in these appeals were not canvassed before the Commissioner for Workmen's Compensation and he submits that in the counter filed by the insurance company they only disputed the nature of the injuries as also the quantum of compensation sought. They had disputed only claimants contention they were employees of the second respondent. In short, he submits the only defence of the insurance company was claimants are not the employees of the second respondent and therefore, they were not entitled for compensation under the provisions of Workmen's Compensation Act and even if they were held to be so entitled, insurance company was not liable to discharge the award.
6. From such contention of Sri Babu H. Metagudda, learned counsel, it is evident his attempt is to prevent the appellant's contention in these appeals that 10 there was no accident on 21.02.2003 and claims were fraudulent.
7. I have examined the reasons assigned by the Commissioner for Workmen's Compensation and as could be seen the Commissioner has taken note of the FIR, which was registered on 19.03.2003 to hold occurrence of the accident involving vehicle in question is established. Perhaps the Commissioner proceeded to determine the award as the insurance company had not alleged fraud as is being urged in these appeals. The question is whether the insurance company could be prevented from urging these grounds of alleged fraud in these appeals without taking such a defence before the Commissioner for Workmen's Compensation during adjudication of the claims. We cannot ignore the fact that the claims are filed under the provisions of Workmen's Compensation Act seeking compensation before the Commissioner for Workmen's Compensation undoubtedly, fastening the liability on the insurance company in terms of Section 147 11 of the Motor Vehicles Act. In such a proceeding, the insurance company is entitled to urge grounds enumerated in Section 149 of the Motor Vehicles Act as its defence. The insurance company has answered the grounds urged in the claim petitions through its counter and in such a counter they did not allege fraud, may be, because they were transversing statements in the claim petitions and at that time, the insurance company was not clear of the factual position regarding the evidence which the claimants would lead. During the enquiry before the Commissioner claimants have produced documents to establish the occurrence of the accident and based on those documents, in these appeals, the ground of fraud is alleged. It is settled principle of law when fraud is a ground urged against claims, litigant who propounds such a ground is required to substantiate it. At the same time, it is well settled principle of law, fraud vitiates all proceedings. Therefore, when a fraud is alleged neither it could be ignored nor more emphasis could be attached to it, unless established. Therefore, as fraud is a ground urged, in 12 these appeals it requires to be considered and the contention of Sri Babu H. Metagudda, learned counsel that as such a ground is urged for the first time it should be ignored is not acceptable.
8. During the course of the arguments, respondents/claimants have given opportunity to counter the grounds urged by the appellant. The grounds urged by Sri Manvendra Reddy, are that no report of occurrence was lodged soon after the occurrence of the accident. The claimants made an attempt to submit a private complaint before the learned jurisdictional Magistrate requesting it to take cognizance for the offences punishable under Sections 279, 337, 338 and 304-A of IPC which complaint was referred to jurisdictional SHO Police for enquiry and report, but did not result in filing of charge sheet.
9. I have already adverted to the contention of the claimants' counsel that claimants had preferred a private complaint about the occurrence and therefore, there was prima facie case made out establishing occurrence of the 13 accident. Such submission has to be tested by the proceedings before the trial court.
10. A perusal of the records made available shows the jurisdictional magistrate upon receipt of the complaint registered it in PCR.48/03 and by order dated 12.3.2003 referred it to the SHO of the jurisdictional police station for enquiry and report. Records also reveal I.O. did not file any report on the reference made by the magistrate except registering it as FIR. The jurisdictional magistrate adjourned the case from 12.3.2003 to several days and ultimately after a lapse of 2 years, on 21.4.2005 has passed the following order:
'Perused the records.
Sufficient time given, report not submitted. Hence, the order is recalled. Issue direction to the Investigating Officer to stop the investigation. Cognizance of the offences taken.
Issue notice to complainant and counsel by 26.05.2005.' The above order shows the investigating officer has not submitted final report of the result of investigation in PCR.48/03.14
11. It is noticed, the magistrate having referred the complaint for investigation by the police officer as envisaged under Section 202, Cr.P.C. without compelling the investigating officer to submit report, has erroneously stopped investigation. But it is material to note by order dated 21.4.2005, while directing the investigating officer to stop proceedings, the jurisdictional magistrate had taken cognizance of the offences alleged in the complaint and has issued notice to the complainant and his counsel. This would show that before the magistrate the case is still pending decision in PCR.48/03 about the alleged occurrence of the accident.
12. Sri Manvendra Reddy, learned counsel appearing for the insurance company would submit till now no final report has been filed and therefore it has to be presumed there is no material to substantiate the occurrence of the accident and hence the claim petitions were not maintainable.
15
13. In this regard it has to be mentioned that claims by victims claiming compensation for injuries suffered in a motor vehicle accident or claim by the legal heirs of the victim who dies in an accident are maintainable on tortuous liability and it will be enough if actionable negligence in the riding/driving of the vehicle is established. So far as prosecution is concerned, culpable negligence is necessary to substantiate the charge for the offences punishable under Sections 279, 337, 338 and 304A, I.P.C., as the case may be.
14. In the instant case, as there is no report of occurrence soon after the accident and it is only belatedly the private complaint is filed before the jurisdictional magistrate, the insurance company is justified in contending there is reason to believe claims are fraudulent. In these circumstances, the least the claimants could have done was to substantiate the allegations in the complaint in the proceedings initiated by them through PCR.48/03. That has not been done. 16 Therefore, as on the date claim petitions were filed before the Commissioner for Workmen's Compensation, the only material they had produced was FIR copy about the occurrence, but no report of the I.O. nor any proof that the magistrate had proceeded against the driver of the vehicle claimed by the claimants as the offending vehicle, was produced. I am, therefore, satisfied that the material placed before the Commissioner for Workmen's Compensation was not sufficient to conclude the accident occurred in the manner stated by the claimants in the claim petition and it required enquiry.
15. The Commissioner for Workmen's Compensation has not bestowed his concern to this aspect and has proceeded considering the FIR as sufficient material which is certainly improper. In the circumstances, I am satisfied the case requires to be remanded to the Commissioner for Workmen's Compensation with a direction to the raise an issue as to whether the claimants establish occurrence of the accident on 21.2.2003 involving a tractor-trailer 17 bearing registration No.KA-28/T-1711 and 1712 owned by the 2nd respondent due to rash and negligent driving by the driver of that vehicle. After deciding that issue, the Tribunal may proceed further.
16. However, as the Tribunal has already quantified compensation, the result of the claim petition will depend on the finding of the Commissioner for Workmen's Compensation on the issue relating to occurrence of the accident. In these circumstances, the order of the Commissioner granting compensation to the respondents in the claim petitions in WCA Nos.84/03, 86/03, 83/03 and 82/03 is set aside and the cases are remanded to the Commissioner for Workmen's Compensation to give opportunity to the claimants to establish occurrence of the accident on 21.2.2003 with equal opportunity to the insurance company to urge its defence and pass appropriate orders in accordance with law. The amount in deposit be transferred to the Commissioner for Workmen's 18 Compensation to be kept in deposit till the disposal of the claim petitions.
17. All the four appeals, viz., M.F.A. Nos.30003/10, 30004/10, 30002/10 and 30001/10 are disposed in terms stated above.
Sd/-
JUDGE NB*/vgh*