Karnataka High Court
Divisional Manager vs Pramilabai W/O Mohan Rao Kulkarni on 2 March, 2016
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2nd DAY OF MARCH 2016
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
MFA NO. 31321/2010 (WC)
BETWEEN:
DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE,
BILAGUNDI COMPLEX,
STATION ROAD, GULBARGA. ...APPELLANT
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND:
1. SMT. PRAMILABAI
W/O MOHAN RAO KULKARNI,
AGE: 50 YEARS, OCC: HOUSEHOLD
2. KUM. SHILPA
D/O MOHAN RAO KULKARNI,
AGE: 20 YEARS, OCC: STUDENT
BOTH R/O VIDYA NAGAR COLOY,
TQ. & DIST. BIDAR.
3. MOHAN RAO
S/O GOVIND RAO
AGE: MAJOR, OWNER OF LORRY
BEARING NO. KA-38/78,
R/O VIDYA NAGAR, BIDAR. ...RESPONDENTS
(BY SRI SANTOSH BIRADAR, ADVOCATE FOR R1&R2, R3 SERVED)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 30 (1) OF WC
ACT, AGAINST THE JUDGMENT AND AWARD DATED 31.10.2009
PASSED IN WCA/FC/CR NO. 09/2008 ON THE FILE OF THE
COMMISSIONER FOR WORKMEN'S COMENSATION AT BIDAR,
ALLOWING THE CLAIM PETITION AND AWARDING THE
COMPENSATION OF RS. 3,29,925/- WITH INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is directed against the order dated 31.10.2009 passed by the Commissioner for Workmen's Compensation, Bidar in WCA/NFC/CR-09/2008.
2. The brief facts of the case are:
- It was contended by respondents 1 and 2 in their claim petition filed before the Commissioner that deceased Rajkumar s/o Mohanrao Kulkarni was an employee working as cleaner under respondent no.3 in a lorry bearing Regn.No.KA-38/78 and on 22.04.2008, when the deceased/workman working as a cleaner in the said lorry, i.e., in the course of employment, met with an accident while 3 proceeding from Bidar to Manna-E-Khelli and as a result, the deceased workman sustained injuries and died. It was further claimed that the workman was getting wages of Rs.3000/- per month. The claim was resisted by the appellants. The Commissioner after considering the evidence on record, allowed the claim petition and awarded compensation of Rs.3,29,925/- with interest @ 12.5% p.a. from 23.5.2008 fastening the liability on this appellant.
Being aggrieved by the said order, the appellant is in appeal under Section 30(1) of the Workmen's Compensation Act, 1923 (the 'Act' for short).
3. Heard the learned counsel appearing for the parties and perused the material on record.
4. Learned counsel appearing for the appellant would contend that the relationship of employer and employee between the driver and the cleaner was not established more particularly, in view of the admitted fact that the driver and 4 the cleaner were father and son. No contractual employment existed between the father and the son. The Commissioner overlooking this vital aspect, entertained the claim application and awarded compensation contrary to the provisions of the Act. Learned counsel in support of his arguments places reliance on the following Judgments:
(i) GULNAZ JALEEL vs SYED JALEEL(ILR 2010 Kar.196)
(ii) GOTTUMUKKALA APPALA NARASIMHA RAJU vs NATIONAL INSURANCE COMPANY LTD., (AIR 2007 SC 2907)
5. On the other hand, learned counsel appearing for the respondent justifies the order passed by the Commissioner and contends that no substantial questions of law arises in this petition. Unless the necessary applications required under the Motor Vehicles Act, 1988 i.e., under Section 170(b) to contest the claim on all grounds are filed, appellant cannot contend that the Commissioner has failed to consider the employer and employee relationship between the 5 father and the son. Learned counsel places reliance on the following Judgments:
(i) MANOHAR BHIMAPPA MORE vs MAHADEV BHIMAPPA MORE (2005(5) AIR Kar.R.36)
(ii) THE ORIENTAL INSURANCE COMPANY LIMITED vs HANUMANT AND ANOTHER (2005(4) KCCR 2320)
(iii) NEW INDIA ASSURANCE CO. LTD. Vs G D DENGI AND ANOTHER (2009 Kant M.A.C.171(Kant))
(iv) THE NEW INDIA ASSURANCE CO.LTD. vs SMT MAHANANDA AND OTHERS (2009 Kant.M.A.C.476(Kant))
(v) THE ORIENTAL INSURANCE CO.LTD., BANGALORE vs SHRI RAMESH AND ANOTHER (2014(4) KCCR 3411)
6. I have given my anxious consideration to the contentions advanced by the learned counsel appearing for the parties and perused the material on record.
7. It is an admitted fact that one Sri Rajkumar s/o Mohanrao Kulkarni met with an accident on 22.04.2008 while working as a cleaner in a lorry bearing No.KA-38/78 while proceeding in the said lorry in the course of employment from Bidar to Manna-E-Khelli. The only dispute 6 now raised by the appellant is that there is no relationship of employer and employee between the father and son and no material evidence is placed by the claimants to prove the contractual relationship. This issue is no more res integra. This Hon'ble Court in various Judgments cited supra has considered the identical issue of the father and son working as employer and employee and the son in the course of employment sustained injuries in the accident/died and the compensation claimed by the claimants under the provisions of the Act. This Court in the case of Mahananda (supra) has categorically held that the issue of employer and employee relationship is pure question of fact and it cannot be raised as a question of law much less substantial question of law in the wake of some evidence given by the employer. Just because, the employer/owner of the tractor/vehicle has employed his son as a coolie or a workman, it would be erroneous to hold that there cannot be an employer and employee relationship. There is no prohibition in law for the blood relatives to be the employer and employee.
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8. In the case of UNITED INDIA INSURANCE CO. LTD. Vs JHONSA (2001 ACJ 1682) this Court has held that, "When it was the specific case of the appellant insurance company that there was collusion between the opposing parties before the WCC, they would have as well filed an application under Section 170 of the Motor Vehicles Act to contest the claim on all grounds".
9. This Jhonsa's case (supra) was a case involving the relationship of workman and employer between deceased sons and their father and the allegations was made by the insurer that there was a collusion between the respondent and the claimants and their father. This Court has declined to interfere with the compensation awarded by the Commissioner. The Commissioner in the present case, following the Judgments of this Court in Jhonsa's case (supra) and appreciating the evidence placed on record, has come to a conclusion that there was relationship of employer 8 and employee between the father and the son which in my view cannot be found fault with.
10. Further, it would be beneficial to refer to the Judgment of this Court in the case of Manohar Bhimappa More (supra) wherein this Court has held thus:
3. On thorough consideration of the facts, the view taken by the W.C. Commissioner is bad in law. After all the tractor-trailer is meant to be used for agricultural purpose and it requires employment of people. In the rural life styles, it is not uncommon to find the practice of oral appointment for specific purpose and time. Many a time, the persons in the family would be employed for going the work instead of employing the strangers. The fact that the injured is the brother and guarantor for repayment of the loan is not a valid reason to hold that he was not a workman employed in connection with the tractor - trailer. The member of the family so employed cannot be considered as a workman in law only when he is the registered owner of the vehicle. Hence there is no inhibition in law for employment of member of the family in connection with the tractor trailer. In view of the peculiar family relationship it is artificial to insist documentary proof of appointment and payment of wages by cash as the only mode of consideration for proof of employment.
11. The very argument now advanced by the learned counsel appearing for the appellant was addressed in the case 9 of G.D.Dengi (supra) placing reliance on the Judgment of Gottukukkala Appala Narasimha Raju(supra). Considering the said judgment, this Court has held:
5. While arguing the case, the learned counsel for appellant relied on the decision of Apex Court in Gottumukkala Appala Narsimha Raju V. National Insurance Co. Ltd., 2007 ACJ 1025 (SC), wherein it was observed that technically, it may be possible that the husband is employed under the wife, but while arriving at a conclusion that when a dispute has been raised by other side, the overall situation should have been taken into consideration. The fact, which speaks for itself shows that the owner of the tractor joined hands with the claimant for laying a claim only against the insurer. The claim was not bona fide.
8. The learned counsel for respondent No. 2 also contended that the decision relied on by the appellant in Gottumukkala Appala Narsimha Raju's case 2007 ACJ 1025 (SC), is not applicable to the facts involved in this appeal. He has relied on the decision of this Court in Oriental Insurance Co. Ltd. V. Hanumant, 2006 ACJ 251 (Kant), wherein it is held thus:
"2) ... It is not uncommon amongst the business family to engage their own kith and kin on employment for doing the business or commercial activity. Merely because in such a situation no wages are paid in cash is also not a ground to infer absence of a legal relationship of employer and employee, since there would always be consideration in kind 10 computable in terms of money for the services rendered. The parties would not go for documentation of the contract nor create any documentary material to prove payment of wages in view of the peculiar family relationship..."
12. In the Judgment of Sri Ramesh and Another (Supra) while distinguishing the Judgment of the Apex Court in the case of Gottukukkala Appala Narasimha Raju has held thus:
6. Of course, the Apex Court in the case 2007 ACJ 1025 cited above having doubted the relationship of employer and employee between the husband and wife dismissed the claim petition and held that here is no relationship of employer and employee.
13. Learned counsel appearing for the appellant has placed much emphasis on the Judgment of this Court in the case of GULNAZ JALEEL (supra). In the said Judgment at paragraph 12, this Court has held thus:
12. No documentary proof to establish the contact of employment between the appellant and deceased Saleel Ahemed was produced. No independent witness was examined. Driver of the lorry, who is none other than the father of the 11 deceased and husband of the appellant, denied the averment of employment. Though it may be possible that a son is employed under a mother, considering the denial of employment by none other than the driver, as well as the father of the deceased and also the non-mention of employment of the deceased in Ex.P-2 which came into existence at earliest point of time, in my opinion, the claim of employment is not bonafide and appears to have been put forth for laying a claim against the insurer, which is clear from the fact that, the appellant has lodged a claim against herself, who was the owner of the vehicle, alleging rash and negligent driving by none other than her husband i.e., the first respondent, who incidentally did not depose before the Court and thereby, make himself available for cross examination. In the circumstances, there is no error in the matter of appreciation of evidence of PW-1 and the finding of the Tribunal with regard to the lack of proof of employment of the deceased under the claimant, is justified.
14. Thus, it is clear that in the said GULNAZ JALEEL case (supra), the driver of the lorry who was none other than the father of the deceased has denied the averment of employment. In that context, this Court has held that in view of the lack of proof of employment of the deceased under the claimant, no compensation could be awarded under the Act. However, it is manifest from the said Judgment wherein it is 12 categorically observed that, "though it may be possible that a son is employed under a mother", considering the denial of employment by none other than the driver, as well as the father of the deceased the Court has to come to the conclusion as stated above. Hence, this Judgment is not applicable to the facts of the present case.
15. As already observed by this Court, the Judgment of Gottukukkala Appala Narasimha Raju's case (supra) was rendered in a different context considering the relationship of employer and employee between the husband and wife. But, in the rural life, while many a times the persons in the family would be employed for doing the work. The fact that the driver and the cleaner are having blood relationship would not be a reason to suspect the employer and employee relationship between the son and the father and there is no such impediment in law to employ the family member as an employee by the employer. Considering the facts of this case in the light of the Judgments referred to above, I am of the 13 considered view that no substantial questions of law arise for consideration before this Court in this appeal. Accordingly, the appeal stands dismissed. The claimants are permitted to withdraw the amount deposited before this Court.
Sd/-
JUDGE brn