Karnataka High Court
National Insurance Co. Ltd vs Sri Rangappa S/O Sudugadappa on 1 March, 2011
Equivalent citations: 2012 AAC 133 (KAR), 2011 (4) AIR KANT HCR 300, (2011) 5 KANT LJ 268, (2012) 1 LAB LN 232, (2012) 1 TAC 548, (2011) 131 FACLR 660, (2012) 2 CIVLJ 774
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
3R1 R. R, SUBBEGOWDA MAJOR, S/O RUDREGOWDA R/O KODIGE BAIL VILLAGE, KUNDOOR ESTATE, MUDIGERE TALUK * _ CHICKIVIAGALUR DISTRIC-'1'; _ I 5 I RESPONDENTS
(By Sn: K. OOI/INI3AI2AII.'--AIj'I»vv FOR R1' _ SRI.A.SHIVARAMAVV&V"ASSTS.:V, A--DVS~~.FOR R2 <3: R3) THIS MIj7A"!§ _'--FIL:ED§ I,.I1;/s'«I:§O{'.I~;., ACT AGAINST THE JIIL§<;;I\';rII'~_:N%I?--';'-_V :i,3.QI.2o09 PASSED IN WOA/KARAIOA/IRIRAI ~-- FILE OF THE LABOUR OFFICER H "AN_D_a'V::'3.: O.OIIIIyIIssIONER FOR WORKMEN cOMpE:I*Is}:_frIONV,' ~ ,:I;I;.I\/IISION-2, CHIKKAMAGALUR, AWARDING, A CONIRENSATION OF RS.1,21,996/~ WITH ON FOR HEARING THIS DAY, Q.) DELIVERED THE FOLLOWING:
Th§3.3'?_.I'€spOndentin WCA.NF.114/2002 On the file of 'v.,COII11'I1iSSK)I1€I' for Workmen's Compensation, Chickmagalur «.:}j'3§;gIg:=,}"I';1ed this appeal challenging the Order dated 13.1.2009 ' afiardirzg Compensatien 'IO claimant in a sum Of Rs.£,21,996/~ u payable with interest at 12% frem. 30" day Of Order till date Of fiepesit Of entire amount.
<3' V. M. C
2. Brief facts leading to this appeal are:
The ease of claimant is that hem-ias workingl. 'asleooliev.tin ' ; coffee estate of lst respondent.
21.3.2002 2nd respondent eitoheeev/flag -'traetorl' trailer bearing to load firewood to trailer of work was being carried out due to detacl1r;iejnt tractor, trailer turtled in injury to Claimant. lost the small toe of his left of left leg and also suffered fraetureltol the to him, the said accident resulting in afo.res'aicl'"injuries took place on 21.3.2002 at prn. Hlrnrnediately, thereafter he was sent to Hospital in Chickrnagalur by the owner of estate elairrla_r1t was treated as inpatient. Subsequently, he lgfiled elairri petition against one Chandregowda, owner of coffee another Arlnegowda, owner of tractor trailer bearing No.KA~i8/T~9l2~9i3.
%1;'£»«&' -4- 3, in the said proceedings statement it of objections wherein he denied relattoiiship ¢it:p«i¢y§§é-~ §:ndy employer between claimant 2155 respondent owner of adjo.eent.Vestate' otifner"of aforesaid tractor trailer which l 'respondent. He specifically denied'. claimant as also relationshipf." _i_:" any liability is fixed for payment ~~of it owner of tractor trailer, 20¢ respondent respondent are liable to pay the SBIDE.
1ri"ihe saidlflilroceedings, one Subbegowda who was _not,reep_lo.nderit_ the earlier instance came on record as 431 filed objections, wherein he did not admit l'i..relatioi'1shi;p of employee and employer between Claimant and However, he admit that he is owner of tractor trailer. also admit that he is friend and neighbour of let respondent and denied any accident involving his vehicle. However, he states that in the event Commissioner hold that Claimant is an employee under him, claimant is entitled to seek compensation from 3" respondent insurance oornoany.
-5- :3. Originally elairn petition was filed_;"'o'nl§%_' Chandregowda, Annegowda. E-3ul:)sequently,_.itisfseeln on 7.5.2004 claimant by filing j,_oi1'1e' K.R.Subbeogwda as 21"? respondent'----in'V.plaee.lv«l?si{.:original<2*? respondent Annegowda and li'1nijl»eadedl" insurance company limited as Sr'? is insurer of tractor trailer belonging to 2"; 7.4.2004 it is Chandregowda, lnsuranee Company Limited are' respondent Annegowda was Cl€l€t€Cl,>' 12.2006 record discloses about nassed on that day, wherein respondents__' are shown as Chandregowda as 151 ,r:esi;)onident',l "Annegrlwda as 2nd respondent and National
--4;C'ompany Limited as 3"' respondent and llfstrbibeglrivsétla asi"'.4ll1 respondent, The order sheet does not diselosev-._'hotsdthe deleted Annegowda is again continued as 2nd Vllresp_'ond'ent. Further, it is seen that Subbegowda who originally filed statement of objections denying relationship, subsequently = €3il.2{)O6 he amends his objections statement and admit the relationship of ernployer and eniployee between himself and
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eiaimant and admit that he was iemp_iejyee"'.eearnir1g--..hf Rs.60/- perciay. V . .A
6. With this centre-'dietery pleading. 'Cgemr1ii:3sieneri' proceeded to frame issues and .eyidef1ce._: ehe evidence claimant reiterates his oi respondents, son of 13* resporieient acAig;11V_1Vee.«;i he states that claimant is t0i;al"sti"an.g:e& to: 1:1in1"." no relationship of employer and his father and at any pqirifnbi' xvasheieriiing in their estate, which was him. years. So far as Annegowda is concerned 'there isVi1eAeiri(ienee by him. So far as Subbegowda .._is cfeiicerned in his----e2:aminatior1--in--chief he states that he is ~:)*}vme:' af 'afure'sVaid tractor trailer. Claimant was working under e'13.eV'e%eek prior to the date of accident. He was not a reguiar hemp}.-oyee and he was oniy a temporary employee V'-».wor1{irig___Aen salary of Rs.60/-- per day. However, in cross- 'e:ia1ri§natier1 he denies that he had ever known any person by i riame Rarigappa and that he perseri by name Rangappa had ever Worked with him. Claimant in support of his case examined Dr.M.G.S:iidhar, whe is net the person whe has given "ex
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treatment. He is the person who has gilxéeny elisability_e.ertiiiea«te it to claimant. He states that elairnant=__has lirnblV_t_*iisab'ilitylto 'an extent of 40% to his left leg. = . _
7. The Commissioner on a'p_pr'eeiatioi1«.rof pleadings and evidence available on accept that their exists relationship of ernp.1.oyee claimant and owner of injury in thfie course of he has suffered 40% disabilityutol resulted in his loss of earningvvleapaeity "of 40% and taking the income of Claimant atluRs_.:V3O0.0/ and by applying factor of 169.44 '--v.proeeleded toawarileornpensation in a sum of Rs.l,2l,999/- _payal;:l.el'With'l'interest at 12% from 30" day of order till date of deposit ofplerttire amount. Directed 3"' respondent insurance lx_peompany'to pay the entire compensation. .. The 3?" respondent insurance Company being by the aforesaid order in holding that there is it ...relationship of ernpioyer and employee between claimant and Subbegowda, owner of aforesaid tractor trailer has come up in i%--«.,»'< 'i this appeal challenging the aforee_aid_ findi'ng_Aol'l Commissioner and also awarding cornpensationl"tooelaimant in a sum of Rs. 1213996 / ~ and saddling to'~p.ay:_'sa3ne on it.
9. On appi'eVciatio'n"ofgrounds of .appeal and finding of Commissioneadin o'1*de_r1iirnp=.;l--gr;ied following Substantial questions__of in this appeal:
lf) V"et.ller Cornmissioner Rivas justified in holding that z',tlie_reV eXis't:t'.rel«ationship of employee and employer between, claimaiitll and 2"" respondent Subbegowda j downer ltraetor trailer bearing No.KA-- 18/11912-913?
2)' Whether Commissioner was justified in accepting it of Doctor, PW.2 to the effect that claimant v_.~siiffered 40% limb disability and consequently holding a v.V__l'oss of earning capacity to an extent of 40% Without there being any opinion from Doctor with regard to that'?
Heard the counsel for appellant and respondents. On V' reappreciation of pleadings, oral and documentary evidence available on record this Court answer lst substantial question 2% of law in the negative and hold that2gmi;'E§liilostantia.l"
law does not survive for conéi_d'eijation'-in ihebv.light"i--of finding'? given on is" substantial question_ol'»vliaw_for the«folloysfing:
' i"il§As=:}'i\is "
10. 'clahirn giietitioi/1*-----vi's filed by claimant against two one Chandregowda and anothef Cjhandregowda is said to be owner of Kundur Estate and is said to be owner of aforesaid tractor _trailer. liowexferf in between claimant gives up 2""
Annégcwda and iniplead one Subbegowda hfiubbegowda is owner of said tractor trailer and_sarne_ is "insured with 3" respondent. .. ll": s In the claim petition he states that he is employee a.l'unVder':respondents. He does not specifically say under Whom = was working as Coolie. He does not say he was either Working with Chandregowda or Annegowda at the first instance. Subsequently, amending claim petition he takes a specific stand that he is employee under Subbegowda, who is owner sf tractor trailer: V;/rliéii he hiinseli is not certain under lo?
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whom he was working at the reilevant oi"'tir:f:e, 7 Commissioner ought to have frairbecl an-v_l issrzev 'about employment of claimant with ailoreeaici oe:rsons._"'_: »
12. Initially, it is seen .VCi1.andregov\;cla, }Annegow<:la and Subbegowda denievd4.re'lationeyliiovernployer and employee between them ,_ar1Cl A' subsequently, Subbegowda_lij:(llil1'i:li:g in the year 2006 i.e., four years Vifaellfiled admit that claimant was as on the date of accident and that of about one or two weeks and that too it not allstealdy job and he was only temporary V' .employe;e.:o11 oailjrsaiary of R360/--.
13.', However, when it comes to evidence, he goes back again' on h;i._s'*e'2trlier statement wherein he files his written state'me1..*1t,'v*vi}herein he admit relationship of employee and ]em,ployer "between claimant and himself. Subsequently, on 'l;l;8;£iOO8 when he submits himself for eross~eXamination he it .,,:3.enies relationship of employer and employee between himself it and claimant and goes to the extent of saying that at no point of time he ever haé any C0Oll€ name Rangappa working -11- under him. With this it is eieariy seen that-:he1¢;§.;s"'eoi';ee::tedV, 'V exercise on the part of claimant and :'£3o.rnIriis'si.0Vher"ton Sehie how fix somebody to be the ernpioyer o'f.e1aima:iit;i' _ _
14. In addition to this eiairiiiant and 'Commissioner also takes assistance of one.Dr.S1jidhai*. who has'vneither treated claimant nor knows anything alleged inj ury suffered by him. He givessa to the effect that claimant which is caused due to use Sijihbegowda and said injury has caiised his ieft leg. He does not give any opinion Section 4( §,)(e)(ii) of Workmen's Compensation ,_:Act..whiCh"'require the Doctor to give opinion W'-hat Vvoviiiddvbe loss of earning Capacity the said ,.injti_ry has In the absence of same Commissioner takes up ,responsiif~iiity on his broad shoulders and again Comes to '._yassista~n.ee of claimant in fixing loss of earning capacity "genereusiy at 40% without there being acceptable evidence in siipport thereof and proceeded to award compensation in favour of ciaimani.
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i5. The entire oral and documentary ev1d.en::e._ava1ial§)lel' on record clearly discloses that there"is* unlioly<.neXns: betvvreni f claimant and respondent/owner of 'tractor "trailer Commissioner and Doctor who*.l_ias_ given eviden::el"in"s'upport of claimant to some how see that-~claiindpetition' fil-edfoy claimant is allowed and compxeiils.atio,ni:'»is fixing liability exclusively onv3?ld' specific denial of employee Vbetiizeen owner of tractor trailer the false, frivolous and is being challenged by 3rd respondentéiri this On going' through the finding of Commissioner it is «.._Aseevnd'tha.t it»_is yet another unsuccessful attempt on the part of L Com1n_iss_ionerTto« some how fasten liability to pay compensation on 3*?' respondent insurance company when there is no liability primaifilfi on the owner of tractor trailer to compensate the Therefore, this court holds that there is absolutely no ' justification to sustain the impugned order. Accordingly, ls' substantial question of law is answered in the negative. in min E -13- View of the answer to 13' substantial qz'1est i61i,'Of" v1.éVv"v2'"1' ~ ' substantial question of law does n0i1.su}f$?1\?é fdr.
17. In the result, the eippféal filed" févgficgndent i$ aliowed. The impugned.V'V"bfcVl§r x"(._iated 13 .L2OG9 in NF.No.1l4/2002 on the' Vfi-Ié {if for Workmen's Compensation, Chikmaga1ur_ j:s. sef*a_si.c;1é. In Vthé xédlowed, the amount in deposifibe ré-f'u7nd¢Vci"1t;§ th é'~«§ppe1*Iant.