Bangalore District Court
G.N. Mahamood Baig vs Ghouse Pasha on 16 January, 2024
KABC020154602019
BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS
TRIBUNAL, IV ADDITIONAL JUDGE OF SMALL CAUSES
COURT AND A.C.M.M., AT BENGALURU (SCCH6)
DATED THIS THE 16th OF JANUARY 2024
PRESENT: SMT.CHETANA S.F.
(B.A., LL.B)
IV ADDL. SCJ & ACMM
MEMBER MACT, BENGALURU.
ECA. No.79/2019
Petitioner : Sri.G.N.Mahamood Baig
S/o Late Nawaz Baig
Aged about 49 years
Driver by profession
No.1444, Kurubarpet town
Kolar city563 102
at present r/at K.G.Mohalla
Clock tower
Kolar city563 102
(By Sri. Rahamathulla Shariff
Advocate)
v/s
Respondent/s : 1) Sri.Ghouse Pasha
Prop M/s Gee Pee Travels
No.18,
2nd main road, Klasiyapalyam
Bengaluru560 002
SCCH-6 2 ECA. No.79/2019
2. SBI General Insurance co., Ltd.,
Ground and 1st floor
Rukmini towers 31
Plat form road/Railway approach road
Sheshadripuram
Bengaluru560 020.
(By R1A.M.Mujawar Advocate
R2VRM Advocate)
JUDGMENT
This petition is filed under Section 22 of Employees Compensation Act seeking compensation of Rs.6,00,000/ together with penalty of Rs.3 lakhs and interest thereon at the rate of 12% p.a., from the date of accident till the date of realization.
2. The facts averred in the petition are that the petitioner was working as a driver in Volvo bus bearing No.KA01AD7166 owned by the 1st respondent and 2nd respondent is the insurer of the said vehicle. The wages of the petitioner was Rs.15,000/p.m. During the course of employment while he was driving the vehicle from Hyderabad to Bangalore on 1272013 at bout 6.15 am the vehicle met SCCH-6 3 ECA. No.79/2019 with an accident near Mission Thanda, Gorantle Mandal, Ananthpur district on NH 44, as a result of which cleaner of the lorry Nadeem Pasha expired and petitioner sustained grievous injuries which caused him permanent disability and now he is incapacitate to drive any vehicle. The petitioner stated that 1st respondent has not paid any compensation as contemplated under law and he has not provided any alternative job to the him and he promised to pay him the ex gratia payment immediately after the accident, but he failed to do so. As the accident took place during the course of employment, the respondents are jointly & severally liable to pay compensation.
3. After the service of notice of the petitioner, respondent No.1 and 2 appeared through their respective counsels and respondent No.1 has filed the memo to treat the objections filed by him u/s 5 of the Limitation Act as the objection to the main petition wherein respondent No.1 has taken the contention that the petition is barred by law as per Section 10 of the ECA Act and he has taken all precautionary SCCH-6 4 ECA. No.79/2019 measures covered by the insurance policy and respondent No.2 is liable to pay compensation if awarded to the petitioner. Further respondent No.1 submitted that petitioner is the daily waged worker and respondent No.1 has taken all the precautionary measures to safeguard the interest of the employees.
4. The respondent No.2 filed written statement denying the relationship of master and servant relationship between the respondent No.1 and the claimant. Further respondent No.2 has taken the contention that the petition is hopelessly barred by limitation. Without prejudice to the above contention it is submitted that there is no nexus between the injuries suffered by the petitioner and the alleged employment. Further it is averred that as the respondent No.1 has not reported the claim or incident giving raise for any cause of action about the alleged accident, the insurance company i.e., respondent No.2 is not liable to indemnify him. Rest of the petition averments are repudiated as false and baseless and it is prayed to dismiss the petition. SCCH-6 5 ECA. No.79/2019
5. On the basis of the above pleadings the following issues were framed :
ISSUES
1) Whether the petitioner proves the employee and employer relation between him and respondent No.1?
2) Whether petitioner proves that he sustained injuries during the course of his employment under the respondent No.1 ?
3) Whether petitioner is entitled for compensation ? If so, to what extent and from whom ?
4) What Order or award?
6. The petitioner examined himself as PW.1. Ex's.P1 to 13 were marked on his behalf. Respondent No.2 got examined one Ananda M. Deputy Manager as RW1 and got marked ExR1 to 3.
7. Oral arguments were addressed on both sides. Perused the entire materials placed on record. My answers to the above issues are as follows : Issue No.1 : In the Affirmative Issue No.2 : In the Negative SCCH-6 6 ECA. No.79/2019 Issue No.3 : In the Negative Issue No.4 : As per final order for the following :
REASONS
8. ISSUE NO.1 : The evidence on record reveals that the complaint lodged by one Sayyed Kamar Pasha S/o late S.Parejan bus driver has lodged the complaint before the jurisdictional police against the petitioner herein for the offence punishable under section 337, 304A of IPC. In this view of the matter the learned counsel for insurance company vociferously argued that as the claimant himself is the tortfeasor, he is not entitled for any compensation under the Employees Compensation Act. However the said contention is not sustainable in the light of the ratio laid down by the Hon'ble Apex Court in the decision reported in 2016 ACJ 721 wherein it was held that even if the employee himself is negligent it will not disentitle him from claiming compensation.
SCCH-6 7 ECA. No.79/2019
9. In order to substantiate the fact that he was working as a driver under the respondent No.1, the petitioner has not examined his employer viz., respondent No.1. The petitioner himself got examined as PW1 and deposed that he was working as a driver in the volvo bus bearing No.KA01AD 7166 owned by the first respondent and the accident in question occurred during the course of employment. The testimony of this witness was not displaced during cross examination. Even respondent No.2 has no where denied relationship between employer and employee at least by way of putting any single suggestion.
10. Though the respondent No.2 has denied the relationship of master and servant between the respondent No.1 and the claimant, it has not let in any cogent evidence to prove its defence or to disprove the evidence led by the petitioner. Though petitioner has not produced any single document to prove his relationship with respondent No.1, but respondent No.1 himself in his objection para No.4 has stated that petitioner is the daily wage worker and respondent No.1 SCCH-6 8 ECA. No.79/2019 has taken all the precautionary measure to safeguard the interest of the employees and thereby respondent No.1 has admitted that petitioner is working as a employee under him. Though respondent No.2 has disputed the said relationship, but during the course of argument counsel for the respondent No.2 submitting that he is not disputing the employer and employee relationship and occurrence of the accident during the course of employment. Mere taking of defence is not sufficient to dislodge the testimony of other side, which has no sanctity in the eyes of Law. Under such circumstances the evidence of PW.1 has to be accepted. Consequently I hold that on the date of incident the petitioner who was working as a driver under the respondent No.1 and accident had been taken place during the course of his employment. With this observation issue No.1 is answered as 'In the Affirmative'.
11. Issue No.2: Respondent No.2 has disputed the nexus between the injuries sustained by the petitioner and the accident. It is the contention of the petitioner that he has met with an accident and as a result of which he has SCCH-6 9 ECA. No.79/2019 sustained grievous injuries which caused him permanent disability, but no where petitioner either in his evidence or the petition stated about what are the injuries sustained by him which caused him permanent disability. In this regard on perusal of the documents produced by the PW1, ExP1 is a FIR wherein there is no report about the injuries sustained by the petitioner. Further petitioner has produced ExP3 medical report. On perusal of which it reveals that petitioner was referred to Raghava's diagnostic and Research centre to Dr.RanganathRadiologist by SDS tuberculosis and RGICD. wherein though it was stated that petitioner has sustained fracture to the posterior/axillary shafts of right sided 6 th to 9th ribs and associated bilateral pleural in situ on the right side, with subpleural/subsegmental pulmonary haemorrhages across the right lower lobe and the middle lobe and across the posterior basal segment of the left lower lobe right suprarenal glad adenoma, right paramedian post spinal subcutaneous fat plane lipoma. But no where it is stated that the said injuries had been sustained in the accident. Further SCCH-6 10 ECA. No.79/2019 petitioner has produced ExP4 dt.2082013 and ExP5 dt.1982013 which reveals that petitioner has taken the treatment for tuberculosis in the SDS tuberculosis Research centre and Rajiv Gandhi institute of chest diseases. Even there is no mention about the history of the injuries sustained in the accident in ExP4 and 5.
12. Further petitioner has mainly relied on ExP6 the referral letter dt.2782013. On perusal of which it shows that petitioner has admitted as inpatient from 1272013 to 2972013 with the history of road traffic accident at Bagepalli and he was referred to the SDS Tuberculosis Research centre for the chest injury and he was referred to CMO, NIMHANS and Government hospital. But ExP6 is the carbon copy and petitioner has not examined the doctor who treated him and also not produced the MLC, discharge summary in support of ExP6. Further though petitioner has produced ExP13 physical disability certificate, but as per Ex P13 does not bears the date on which he was examined and on which date the physical disability certificate was issued SCCH-6 11 ECA. No.79/2019 and even petitioner has not examined the said doctor who has issued ExP13. As such those documents cannot be believed. As such the petitioner has failed to prove that he has sustained any injuries during the course of his employment. With this observation issues No.2 is answered as 'In the Negative'.
13. ISSUE NO.3 : Though petitioner has proved the employer and employee relationship between him and the respondent No.1, but petitioner has failed to prove the nexus between the injuries and the accident. Apart from this, both respondent No.1 and 2 has taken the contention that petition is hopelessly barred by the limitation. In this regard petitioner has filed IA No.1 u/s 5 of the Limitation Act and contended that being his employer the 1strespondent has not taken sufficient measures to protect his interest. He has not paid any compensation as contemplated under law and he has not provided any alternative job. The 1 st respondent promised to pay the exgratia payment immediately after the accident, but he failed to do so. He was made to suffer by SCCH-6 12 ECA. No.79/2019 visiting the office of 1st respondent by traveling all the way from Kolar to Bangalore. On number of occasions the 1 st respondent did not available and ultimately his office Manager one Sri.Shariff appraised him that the 1st respondent has arranged for a lawyer to file claim petition before the competent court and instructed him to contact a lawyer by name M.K.Nayazuddin who is having his office at Chamarajpet Bengluru. At the instance Shariff, all the relevant papers were handed over to the said advocate. But the said lawyer did not evince any interest to file claim petition and he made him to run from pillar to post. On number of occasions, he visited the office of 1 st respondent and made an attempt to contact him personally. But due to his busy schedule, he was unable to trace him. Ultimately with great difficulty, he contacted the advocate, who at first told that the case is already filed and again made him to repeatedly visit his office for a period of more than two years and ultimately after verification, he came to know that, no claim case is filed and with very great difficulty, he is able to SCCH-6 13 ECA. No.79/2019 get all the papers during the last week of November 2018 and immediately thereafter, he contacted the counsel on record and requested them to file the claim petition. After three years of the accident, the 1st respondent continuously promised him that, he would settle the entire issue and he also kept him under dark that, he is making correspondence with the officials of insurance company i.e., 2 nd respondent. He is illiterate and not conscious of his rights. Due to the false promise of the 1st respondent, he is precluded from filing the claim petition all these days and prays to condone the delay of 5 years 10 months. On the other hand, respondent No.1 has completely denied the contention raised by the petitioner.
14. In this regard on perusal of the materials on record the date of accident is 1272013 and date on which the FIR is lodged on 1272013 and present petition was filed on 226 2019. Thus there is a delay of five years ten months. At this juncture, it is worth to refer here the provision of law relating SCCH-6 14 ECA. No.79/2019 to the period of limitation for filing the petition under ECA Act.
As per Section 10 of ECA Act Notice and claim [No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within [two years] of the occurrence of the accident or, in case of death, within [two years] from the date of death:] Provided that, where the accident is the contracting of a disease in respect of which the provisions of sub section (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the [employee] was continuously absent from work in consequence of the disablement caused by the disease:
[Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the [employee] to absent himself from work, the period of two years shall be counted from the SCCH-6 15 ECA. No.79/2019 day the [employee] gives notice of the disablement to his employer:
Provided further that if a [employee] who, having been employed in an employment for a continuous period, specified under subsection (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected:] [Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the [entertainment of a claim]
(a) if the claim is [preferred] in respect of the death of a [employee] resulting from an accident which occurred on the premises of the employer, or at any place where the [employee] at the time of the accident was working under the control of the employer or of any person employed by him, and the [employee] died on such premises or at such place, or on any premises belonging SCCH-6 16 ECA. No.79/2019 to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or
(b) if the employer [or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured [employee] was employed] had knowledge of the accident from any other source at or about the time when it occurred:
Provided further, that the Commissioner may [entertain] and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been [preferred], in due time as provided in this subsection, if he is satisfied that the failure so to give the notice of [prefer] the claim, as the case may be, was due to sufficient cause.
15. Thus as per the provision of law petition under Employee Compensation act has to be filed within two years from the date of accident. Coming to the facts of the present case, admittedly in the present case, petitioner has filed the petition after five years ten months from the date of accident and the contention raised by the petitioner in the application SCCH-6 17 ECA. No.79/2019 filed by him for condoning the delay is not at all satisfactory. Moreover the condoning the delay is a discretionary power of the court and court has to exercise its discretionary power judiciously nevertheless it is settled law that in case of inordinate delay the applicant has to explain each days delay. The grounds urged by the petitioner that the respondent No.1 went on promising him to pay the exgratia payment immediately after the accident and after three years of the accident, respondent No.1 continuously promised him that he would settle the entire issue cannot be believable as no prudent man would wait for three years after the accident has been taken place. These facts shows that petitioner himself was negligent and was not bonafide in filing this present petition. Apart from this, the very conduct of the petitioner shows that petitioner was negligent and not acted with normal care and caution. Moreover there are no bonafide reasons for condoning the delay. The petitioner has not produced any single iota of evidence to prove his contention with regard to the delay caused in filing the petition. SCCH-6 18 ECA. No.79/2019
16. In view of the above said facts and circumstances of the case, as there is a delay of five years ten months in the present case which is an inordinate delay and the said delay is not properly satisfactory and convincingly explained by the petitioner. This court cannot condone the delay only on the sympathetic ground. The reason given by the petitioner are far from satisfactory. It is well considered principle of law that the delay cannot be condoned without assigning any reasonable, satisfactory, sufficient and proper reason. When in the present case, as there is no reasonable and satisfactory grounds to condone the delay, this court has no other option to dismiss the suit on the ground that petition is barred by limitation. Therefore this court is of the opinion that petitioner is not entitled for the compensation. Hence this issue is answered in the Negative.
17. ISSUE NO.4: In view of the discussion made supra, this Tribunal proceeds to pass the following : SCCH-6 19 ECA. No.79/2019
: ORDER : The petition filed u/s. 22 of Employees Compensation Act, 1923 is hereby dismissed.
(Dictated to the Stenographer directly on computer and printout taken by him, then corrected and pronounced by me in the open court on this the 16 th day of January - 2024) (Chetana S.F.) IV Addl. Small Causes Judge & ACMM, Court of Small causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER/S :
PW.1 : Mahamood Baig LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER/S :
Ex.P1 : True copy of FIR
Ex.P2 : IMV report
Ex.P3 : Medical recport
Ex.P4 : Case sheet
&5
Ex.P6 : Referral letter
Ex.P7 : Postal receipts
to 9
Ex.P10 : Postal acknowledgments
and 11
SCCH-6 20 ECA. No.79/2019
Ex.P12 : 6 xrays
Ex.P13 : Disability certificate
LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENT/S :
RW1 : Ananda M. LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENT/S :
Ex.R1 :Authorization letter Ex.R2 : Insurance policy copy Ex.R3 : DL extract copy (Chetana S.F.) IV Addl. Small Causes Judge & ACMM, Court of Small causes, Bengaluru.SCCH-6 21 ECA. No.79/2019