The Divisional Manager, vs Sri.Najeer, S/O.Gous Solapure on 23 November, 2012

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Karnataka High Court

The Divisional Manager, vs Sri.Najeer, S/O.Gous Solapure on 23 November, 2012

Bench: S.N. Satyanarayana

                           1




            IN THE HIGH COURT OF KARNATAKA
               CIRCUIT BENCH AT DHARWAD

       DATED THIS THE 23rd DAY OF NOVEMBER, 2012

                        BEFORE

       THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA

    MISCELLANEOUS FIRST APPEAL NO.21998/2009 (WC)


BETWEEN:

THE DIVISIONAL MANAGER
UNITD INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, MARUTI GALLI
BELGAUM.
                                       .. APPELLANT
(BY SRI. RAVINDRA R. MANE, ADV.)


AND:

1. SRI. NAJEER, S/O GOUS SOLAPURE
AGE 39 YEARS, OCC: DRIVER,
R/O MAGAON, TQ. GADHINGALAJ,
NOW AT KAKAR GALLI
NEAR DELHI DARBAR HOTEL,
OPPOISE MARKET POLICE STATION,
BELGAUM.

2.SHRI SUBHASH YASHWANT PRABHU
AGE MAJOR, OCC: BUSINESS
R/O BHARDWAJ APARTMENTS F-4
KHADPABANDH PONDA
DIST. NORTH GOA, GOA
                                        .. RESPONDENTS
(BY SRI. JAGADISH PATIL, ADV. FOR R1. R2 SD.)
                              2




      THIS MFA IS FILED UNDER SECTION 30(1) (a)(aa) OF
WORKMEN'S COMPENSATION ACT, 1923, AGAINST THE
JUDGMENT AND ORDER DATED 30/03/2009 PASSED IN
KA.PA.KA/SR-24/2008 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-
DIVISION I BELGAUM, AWARDING COMPENSATION OF
RS.2,38,684/- ALONG WITH INTEREST AT THE RATE OF 12%
P.A. FROM THE DATE OF PETITION TILL DEPOSIT.


      THIS MFA COMING ON FOR FURTHER ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING

                          JUDGMENT

This appeal is filed by the second respondent in WCA No.24/2008 on the file of Commissioner for Workmen's Compensation, Sub-Division I, Belgaum.

2. Brief facts leading to this appeal are as under:

The petitioner before the Commissioner, driver of tata tipper bearing No.24/3831 belonging to first respondent and insured with second respondent before the commissioner filed claim petition seeking compensation for the injuries suffered in an accident taken place on 12/08/2007 in the course of his employment under the first respondent.

3. The accident is not in dispute so also the injuries suffered by the petitioner. On appreciation of the pleadings, oral and documentary evidence available on record, claim petition was allowed awarding compensation in a sum of Rs.2,38,684/-. While doing so, the liability to pay compensation was saddled on the owner and insurer of the aforesaid tata tipper. So far as the liability on the insurance company is concerned, the plea that was taken by the insurer that premium cheque was bounced, therefore, the policy is not in force, is accepted and the order is restricted to pay and recovery only. Against which, present appeal is filed.

4. Heard the counsel for the appellant and the respondent. On going through the judgment impugned, it is seen that the order so far as it pertains to pay and recovery, is not sustainable in the light of unreported judgment of Division Bench of this Court rendered in the matter Oriental Insurance company Limited -vs- K.C.Subramanyam, 2012(4) AIR Kar. R 305 4

5. In that view of the matter, direction issued by the Commissioner so far as pay and recovery is required to be set aside.

6. Hence, the appeal filed by the insurance company is allowed. Consequently, the direction issued against the first respondent-insurance company is expunged. Allowing and expunging liability of insurance company does not take away the right of the petitioner to proceed against the owner of the tipper and to collect the compensation awarded by the Commissioner. In the light of the appeal being allowed, the amount in deposit is ordered to be refunded to the appellant insurance company.

SD/-

JUDGE kmv

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