Karnataka High Court
United India Insurance Co Ltd vs Eramma on 21 February, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE P.KRISHNA BHAT
M.F.A. NO.4067/2011(WC)
C/W
M.F.A. NO.8033/2011(WC)
IN M.F.A.4067/2011
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.
BRANCH OFFICE, KANCHAN TOWERS,
N.H-17, KUNDAPURA
THROUGH
DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
JEWEL PLAZA, 1ST FLOOR,
MARUTHI,VEETHIKA,
UDUPI-576101.
BY IT"S MANAGER
...APPELLANT
(BY SRI. O MAHESH, ADVOCATE)
AND:
1. ERAMMA
AGED 66 YEARS,
W/O LATE YELLAPPA GOWDA,
R/O NILSKAL, NERTHIGE VILLAGE,
HOSNAGAR TALUK, SHIMOGGA DISTRICT
2
1.a. DUGGAPPA GOWDA,
AGED 57 YEARS
GOVT. SERVANT IN K.P.C. LTD.,
1.b. GUNDAPA GOWDA,
AGED 55 YEARS
GOVT. SERVANT IN K.P.C. LTD.,
1.c. SHANKARAPPA GOWDA,
AGED 53 YEARS
AGRICULTURIST,
1.d. ANANDA GOWDA,
AGED 51 YEARS,
AGRICULTURIST,
1.e. KRISHNAPPA GOWDA,
AGED 44 YEARS
AGRICULTURIST,
1.f. SURESH GOWDA,
AGED 38 YEARS
AGRICULTURIST AND CONTRACTOR
1.g. SMT. CHANDRAMMA, MAJOR,
W/O MUDDAPPA GOWDA
1.h SMT. DEVAMMA, MAJOR
W/O UMESH GOWDA,
1.a. to 1.h ARE CHILDREN OF DECEASED
ALL ARE RESIDING AT HOUSE NO.1-3,
NARTIGE (MAJARE), KARIMANE (ASALI),
HOSNAGAR TQ,
SHIMOGGA DIST.
(CAUSE TITLE AMENDED VIDE COURT
ORDER DATED 6.8.15)
3
2. S.T. RAMAPPA, MAJOR,
S/O RATHNAPPA GOWDA,
R/O CHAKRANAGARA,
SAMPAGONDA VILLAGE,
HOSNAGAR TALUK,
SHIMOGGA DISTRICT
...RESPONDENTS
(By SRI. MAHESH SHETTY, ADVOCATE FOR R.1(a- h);
R2 - SERVED)
THIS MFA FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT DATED 21.12.2010 PASSED IN WCA-CR-
37/FC/2008 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, UDUPI
DISTRICT, UDUPI, AWARDING A COMPENSATION OF
RS.2,18,470/- .
IN M.F.A.No.8033/2011
BETWEEN
SMT. ERAMMA
W/O LATE YELLAPPA GOWDA
SINCE DEAD LRs ARE BROUGHT ON
RECORD AS PER ORDER DATED 6.8.15
1.a N.Y. DUGGAPPA
S/O YELLAPA GOWDA
AGED ABOUT 57 YEARS
1.b N.Y. GUNDAPPA
S/O YELLAPA GOWDA
AGED ABOUT 55 YEARS
1.c. SAHANKARAPPA N.Y.
S/O YELLAPA GOWDA
AGED ABOUT 53 YEARS
4
1.d. N.Y. ANANDA
S/O YELLAPA GOWDA
AGED ABOUT 49 YEARS
1.e. SMT. CHANDRAMMA
D/O YELLAPA GOWDA
W/O MUDDAPPA
AGED ABOUT 51 YEARS
1.f. N.Y. KRISHNAPPA
S/O YELLAPA GOWDA
AGED ABOUT 45 YEARS
1.g. N.Y. DEVAMMA
W/O S.V. UMESH
AGED ABOUT 43 YEARS
1.h. N.Y. SURESYH
S/O YELLAPA GOWDA
AGED ABOUT 40 YEARS
ALL ARE RESIDING AT
NILSKAL, SERTHIGE VILLAGE,
HOSANAGAR TALULK,
SHIMOGA DISTRICT.
(AMENDED AS PER ORDER DATED 6.8.15)
...APPELLANTS
(BY SRI. MAHESH SHETTY, ADVO
FOR LRs OF DECEASED APPELLANT)
AND:
1. SRI S T RAMAPPA
S/O RATHNAPPA GOWDA
MAJOR
R/AT CHAKRANAGARA,
SAMPAGONDA VILLAGE,
HOSANAGARA, HOSANAGARA TALUK
SHIMOGA DISTRICT-577418.
5
2. UNITED INDIA INSURANCE COMPANY LTD.,
BRANCH OFFICE
KANCHANA TOWERS
N H 17, KUNDAPURA
UDUPI-576201
.. RESPONDENTS
(BY SRI. O. MAHESH, ADV. FOR R2;
V/O DT. 14.8.313, R1 SERVED)
THIS MFA FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT DATED 21.12.2010 PASSED IN WCA/CR-
37/FC/2008 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, UDUPI
DISTRICT, UDUPI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR HEARING
THROUGH VIDEO CONFERENCING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are at the instance of the Insurance Company and the claimants calling in question the legality and validity of the award dated 21.12.2010 in WCA/CR-37/FC/2008 passed by the Labour Officer and Commissioner for Workmen Compensation, Udupi District, Udupi.
6
2. The claim petition proceeded on the allegation that one Sri. N.Y. Devendra (hereinafter referred to as 'the deceased' for short), son of the claimant - Smt. Iramma, was working as a driver of lorry bearing Registration No.KA-20-763 owned by respondent No.1 -
Sri. S.T. Ramappa and insured with the appellant. It is further stated that the deceased was employed as a driver by respondent No.1 and on 30.11.1995, while he was driving the vehicle, he met with an accident and Sri. N.Y. Devendra died on account of the same.
3. Before the learned Commissioner, the owner - respondent No.1 and the appellant - Insurance Company both contested the proceedings. The owner - respondent No.1 filed a written statement admitting the employer employee relationship. Insurance Company in its written statement, denied all the material averments made in the claim petition.
7
4. Before the learned Commissioner, the claimant
- Smt. Iramma examined herself as PW.1, her son Sri. Krishnappa was examined as PW.2 and respondent No.1 - Sri. S.T. Ramappa, the owner of the lorry was examined as PW.3 and Exs-P.1 to P.7 were marked. The Insurance Company did not examine any witnesses, but Insurance policy was marked as Ex-R.1.
5. After hearing learned counsel on both sides and perusing the records, learned Commissioner allowed the claim petition in part awarding a compensation of Rs.2,18,470/- with interest thereon at 12% p.a. with effect from 30 days from the date of the order of the learned Commissioner.
6. Learned counsel, Sri. O. Mahesh appearing for the appellant-Insurance Company strenuously contended that the accident having taken place in Hosanagar Taluk, Shimogga District, learned Commissioner at Udupi District lacked the jurisdiction in view of the express provision under Section 21 of the Employee's Compensation Act, 8 1923 (hereinafter referred to as 'the Act' for short). He contended that the claim petition having been filed in the year 2008, for an accident which had occurred on 30.11.1995, was barred under Section 10(1) of the Act and therefore, the learned Commissioner has committed a serious error of law in entertaining the claim petition. He further contended that there was no employer-employee relationship between the insured owner - Sri. S.T. Ramappa and the deceased and learned Commissioner has not appreciated the evidence of PW.1 properly and therefore, the claim petition ought to have been dismissed. Lastly, he contended that the original claimant - Smt. Iramma has passed away during the pendency of the appeal and therefore, there is no surviving cause of action for the claimants, who were brought on record and accordingly, the appeal of the Insurance Company is liable to be allowed and the claim petition should be dismissed.
9
7. Learned counsel for the claimants, per contra, contended that the contention of the appellant -Insurance Company that the accident has occurred in Hosanagar Taluk, Shimogga District is false and against the records. The learned Commissioner based on the documentary evidence and the oral evidence has come to the conclusion that the accident has occurred within the jurisdiction of Shankar Narayana Police Station of Udupi District. He further submitted that this aspect of want of jurisdiction has not been raised even in the written statement filed by the Insurance Company and therefore, the appeal should be dismissed with costs. Insofar as the enormous delay of in filing the petition is concerned, the learned counsel for the claimants submits that after detailed consideration of the evidence placed on record and also in light of proviso to Section 10(1) of the Act, learned Commissioner has found that the claimant had shown that she was prevented by sufficient cause from preferring the claim petition within time and therefore, there is no merit in the said contention of the learned counsel for the appellant. He also submitted 10 that the claimant was the mother of the deceased and she herself had filed the claim petition and her death was subsequently during the pendency of this appeal and therefore, the conclusion that there is no cause of action or that the claim petition cannot be continued now is without substance. In support of his appeal, learned counsel for the claimants submitted that the compensation awarded is on the lower side as the learned Commissioner has taken the monthly income of the deceased at Rs.2,000/- and therefore, it is liable to be enhanced.
8. I have given my anxious consideration to the respective submissions made by the learned counsel and I have carefully perused the records.
9. The contention of the learned counsel for the appellant-Insurance Company is that there was delay of 11 years in preferring the claim petition and therefore, under Section 10 of the Act, it is barred by time and learned Commissioner ought to have rejected the claim petition. 11
10. Section 10 of the Act which is relevant for the current purpose reads as follows:
"10. Notice and claim.-(1) [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 day the [employee] gives notice of the disablement to his employer:12
Provided further that if [an employee] who, having been employed in an employment for a continuous period, specified under sub- section (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 [an 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 to the employer, or died without having left 13 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 sub-section, if he is satisfied that the failure so to give the notice or [prefer] the claim, as the case may be, was due to sufficient cause."
(Emphasis Supplied)
11. From the above, it is clear that the claimants have to prefer the claim petition under the Act within two years of the arising of the cause of action. There is no doubt in this case that the claim petition was filed after 11 14 years of the arising of cause of action to file such a petition. Before the learned Commissioner, evidence was let in regarding the question of delay and learned commissioner has framed a point for consideration on this aspect. In evidence, Ex.P.11 was also marked which shows that the claimant - mother was an old woman and she had serious ailments and also evidence was let in to show that she was suffering from mental health issues also. Upon consideration, learned Commissioner in exercise of his power under proviso to Section 10(1) of the Act, has condoned the delay and I am not inclined to interfere with the said finding since it is supported by evidence. Accordingly, the contention of the learned counsel to the effect that learned Commissioner should not have been condoned the delay is rejected.
12. The next contention advanced by the learned counsel for the appellant-Insurance Company is that there is no evidence to show that the deceased and the insured owner - Sri. S.T. Ramappa had jural relationship of 15 employee and employer. Learned Commissioner has framed appropriate points for consideration and has gone into the evidence. My attention was drawn to certain statements made by PW.1 - Smt. Iramma, the mother of the deceased during her cross examination. It is no doubt true that PW.1 has given answers suggesting that the deceased was driving the lorry under respondent No.1 - Sri. S.T. Ramappa on profit basis/for the purpose of his own profit. The relevant portions of the evidence of PW.1 read as follows:
"ªÀÄÈvÀ£ÁzÀ £À£Àß ªÀÄUÀ ªÀÄÈvÀ£ÁzÁUÀ DvÀ¤UÉ 25 ªÀµÀð ªÀAiÀĸÀÄì DVvÀÄÛ. 1 £Éà ¥ÀæwªÁ¢UÀ¼ÀÄ £ÀªÀÄä Hj£ÀªÀgÀÄ. £À£Àß ªÀÄÈvÀ£ÁzÀ ªÀÄUÀ 1£Éà JzÀÄgÀÄ zÁgÀgÀ PÉÊ PɼÀUÉ PÉ®¸À ªÀiÁrzÀÄÝ E®è JAzÀgÉ ¸ÀjAiÀÄ®è. F ¥ÀæPÀgÀtzÀ°è 1£Éà JzÀÄgÀÄzÁgÀjUÉ ¸ÉÃjzÀ 1ÁjAiÀÄ 1Á¨sÀ £ÀµÀÖ J®è £À£Àß ªÀÄUÀ¤UÉ ¸ÉÃjzÀÄÝ JAzÀgÉ ¸Àj. £À£Àß ªÀÄUÀ¤UÉ 1Áj N£Àgï ¸ÀA§¼À PÉÆqÀÄwÛzÀÝgÀÄ. ªÀÄÈvÀ£ÁUÀĪÀ JgÀqÀÄ ªÀUÀ¼À »A¢¤AzÀ £À£Àß ªÀÄUÀ ¸ÀéAvÀ 1Á¨sÀPÁÌV 1Áj Nr¸ÀÄwÛzÀÝ JAzÀgÉ ¸Àj. £À£Àß ªÀÄÈvÀ£ÁzÀ ªÀÄUÀ¤UÉ 1£Éà JzÀÄgÀÄzÁgÀgÀÄ ¸ÀA§¼À PÉÆqÀÄwÛzÀÄÝzÀÄÝ £À£Àß ªÀÄUÀ ªÀÄÈvÀ£ÁUÀĪÀÅzÀQÌAvÀ JgÀqÀÄ ªÀµÀð »AzÉ, 1£Éà ¥ÀæwªÁ¢UÀÆ ºÁUÀÆ £À£Àß 16 ªÀÄÈvÀ£ÁzÀ ªÀÄUÀ¤UÀÆ ªÀiÁ°PÀ-PÁ«ÄðUÀ ¨ÁAzsÀªÀå EgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è. 1£Éà ¥ÀæwªÁ¢AiÀĪÀgÀ 1ÁjAiÀÄ£ÀÄß £À£Àß ªÀÄÈvÀ£ÁzÀ ªÀÄUÀ ªÀ»¹PÉÆArzÀÝ. £À£Àß ªÀÄÈvÀ£ÁzÀ ªÀÄUÀ gÁªÀÄ¥Àà¤UÉ 1ÁjAiÀÄ ¸ÀA¥ÀÆtð PÀæAiÀĪÀ£ÀÄß PÉÆlÄÖ ªÀ»¹PÉÆArzÀÝ. ¸ÁQëAiÀÄÆ ªÀÄÄAzÀĪÀgÉzÀÄ ºÉüÀÄvÁÛgÉ. "K£ÀÄ ªÀiÁrzÀÝ£ÉÆà £À£ÀUÉ UÉÆwÛ®è" 1ÁjAiÀÄ j¥ÉÃjUÉ ¸ÀĪÀiÁgÀÄ JgÀqÀÄ ®PÀë RZÀÄð DVzÉ. J¥ÉÃjUÉ RZÀÄð DzÀ ºÀtªÀ£ÀÄß £ÁªÉà PÉÆlÖzÀÄÝ. ¸ÀzÀj 1ÁjAiÀÄ£ÀÄß ªÀiÁgÁl ªÀiÁrzÉÝÃªÉ DzÀgÉ JµÀÖPÉÌ JAzÀÄ UÉÆwÛ®è. 2£Éà ¥ÀæwªÁ¢UÀ¼ÀÄ £À£ÀUÉ AiÀiÁªÀÅzÉà ¥ÀjºÁgÀ ¤ÃqÀ®Ä ºÉÆuÉUÁgÀgÀ®è JAzÀgÉ ¸ÀjAiÀÄ®è. 1£Éà JzÀÄgÀÄzÁgÀgÀÄ ºÁUÀÆ £Á£ÀÄ ¸ÉÃj K£ÁzÀgÀÆ ¥ÀjºÁgÀ ¹UÀĪÀÅzÁzÀgÉ ¹UÀ° JAzÀÄ £ÁåAiÀiÁ®AiÀÄPÉÌ Cfð ¸À°è¹zÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ¤±Á£É ¦-1 £Á£ÀÄ ¸À馅 ªÀiÁrzÀ zÁR1É JAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ JAzÀÆ PÀÆqÀ ¤±Á£É ¦--1 £ÀÄß ¤ÃrzÀ ªÉÊzÀågÀ°è aQvÉì ¥ÀqÉ¢®è JAzÀgÉ ¸ÀjAiÀÄ®è".
(Emphasis supplied)
13. It is necessary to notice that the owner respondent - Sri. S.T. Ramappa had filed written statement at the earliest instance and had admitted the relationship of employer and employee. He has also given evidence as PW.3 admitting the jural relationship. PW.2 17 examined in this case is the son of PW.1 - Smt. Iramma. He has stated in his evidence that claimant - Smt. Iramma, who is the mother of the deceased as well as PW.2, was suffering from mental health issues and also from various other ailments. The relevant portion of his evidence is as follows:
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14. Taking into consideration all the aspects much importance cannot be given to certain admissions made by PW.1 at the time of cross-examination in the face of overwhelming evidence from the mouth of PW.2 and PW.3. She has stated emphatically that she didn't know what all transactions her son was doing clearly suggesting that the old woman - mother was not fully stable when she gave the evidence. In any case, the witness is a rustic one and learned Commissioner has come to a conclusion that there was employer-employee relationship which is based on his appreciation of the evidence and I am not inclined to interfere with the same as it is based on evidence. 21
15. Learned counsel for the appellant-Insurance Company also contended that since during the pendency of the appeal, claimant - Smt. Iramma has died, the cause of action for the death of the deceased to maintain claim petition does not survive. This contention does not bear legal scrutiny in as much as at the time of filing the claim petition, the dependent - Smt. Iramma was alive and in fact, she had instituted the claim petition. Her subsequent death during the pendency of this appeal does not take away the cause of action which existed at the time of filing the claim petition. Accordingly, the said submission of learned counsel for the appellant-Insurance company is rejected.
16. The last submission of the learned counsel for the appellant-Insurance Company is learned Commissioner had no territorial jurisdiction to entertain the claim petition. In this behalf and he took me through the provision of law under Section 21 of the Act as well as emphasized that the accident had occurred in Hosanagar 22 Taluk, Shimogga District and he further contended that claim petition having been filed at Udupi District, the claim petition is barred for want of territorial jurisdiction. This submission of the learned counsel for the appellant- Insurance Company is totally against the weight of the records. Records clearly show that the accident has occurred within the jurisdiction of Shankar Narayana Police Station, which is within the jurisdiction of the Workmen Compensation Commissioner, Udupi.
17. Insofar as the contention of the learned counsel for the claimants regarding the learned Commissioner taking the monthly income of the deceased at Rs.2,000/- is concerned, it is required to be noticed that accident had occurred on 30.11.1995. In that view of the matter, it cannot be said that the income taken at Rs.2,000/- per month for the deceased is on the lower side. Accordingly, I reject the said contention. 23
For the foregoing, there is no merit in both the appeals and I proceed to pass the following:
ORDER
(i) Both appeals are dismissed.
(ii) The amount in deposit shall be transmitted to the learned Court below forthwith along with the records.
Sd/-
JUDGE NM/HDK