Karnataka High Court
Branch Manager M/S New India Assurance ... vs Smt. Mallamma W/O Mudukappa And Ors on 1 July, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 01ST DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.31198/2013 (WC)
BETWEEN:
Branch Manager,
M/s. New India Assurance Co. Ltd.,
Raichur, now represented by its
Dy. Manager, Regional Office, Hubli.
... Appellant
(By Sri Sanjay M. Joshi, Advocate)
AND:
1. Smt. Mallamma
W/o Mudukappa @ Hanumantraya
& Ors., Yadgir.
1(a) Smt. Devakamma W/o Basavaraj,
H.No.E/14-2-39, Kumbar Owni,
Near Bus stand, Timmapur,
Tq: Shorapur, Dist: Yadgir-585 220.
2. Vinod S/o Mudukappa @ Hanumantraya
Minor Student, Yadgir.
3. Ramesh S/o Mudukappa @ Hanumantraya
Minor Student, Yadgir.
2
4. Nagaraj S/o Mudukappa @ Hanumantraya,
Minor Student, Yadgir.
5. Sharanabasav
S/o Mudukappa @ Hanumantraya,
Minor Student,
Petitioner No.2 to 5 being minors are
R/by respondent No.1(a)
All are R/o Rajanakalluru village,
Tq: Surpur, Dist. Yadgir,
Presently Residing at RTPS Colony,
Shaktinagar, Tq. & Dist. Raichur.
6. Sri. Balappa S/o Nagappa,
Owner of Tractor Trolley,
R/o Rajanakalluru,
Sorapur Taluka, Dist: Yadgir.
Yadgir.
... Respondents
(Sri Babu H. Metagudda, Advocate for R1(a) & R2 to R5;
Notice to R6 is served)
This MFA is filed under Section 30(1) of the
Workmen's Compensation Act, 1923, praying to set aside
the order dated 31.10.2012 passed in
LOB/WCA/CR/127/2011 by the Labour Officer &
Commissioner for Workmen's Compensation, Raichur.
This appeal coming on for final hearing this day, the
Court delivered the following:
3
JUDGMENT
This appeal is filed by the Insurance company under Section 30(1) of the Workmen's Compensation Act, 1923, challenging the judgment and order dated 31.10.2012 passed by the Commissioner for Workmen's Compensation, Raichur in LOB/WCA/CR No.127/2011, awarding compensation of Rs.3,74,364/- to the claimants/respondent Nos.1 to 5 herein.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Commissioner.
3. The brief factual matrix leading to the case are that, the deceased Mudukappa was travelling in the Tractor and Trailer bearing No.KA-33/T-6011 and 6012 and on 17.01.2011 at about 2.30 p.m., the tractor met with an accident because of the actionable negligence on the part of the driver of the tractor and trailer and as a result of the same, the deceased fell from the tractor and 4 sustained fatal injuries. Subsequently, he succumbed because of the injuries. Hence, the claimants filed a claim petition before the Commissioner, seeking compensation of Rs.6,00,000/- from the respondents.
4. The Commissioner, after assessing the oral and documentary evidence has awarded compensation of Rs.3,74,364/- to the claimants with cost of Rs.5,000/- and interest at the rate of 12% p.a.
5. Being aggrieved by this judgment and order, the insurance company has filed this appeal.
6. The main contention of the learned counsel for the appellant is that, there is no relationship of employer and employee between respondent No.1 and the deceased. He would also contend that the deceased was travelling on the mudguard of the tractor and as such, there is a breach of policy conditions and in view of the same, the insurance company is not liable to pay the compensation. Hence, he 5 would seek for allowing the appeal by absolving the liability of the insurance company.
7. Per contra, learned counsel for respondent Nos.1(a) and 2 to 5/claimants would support the judgment and award passed by the Commissioner.
8. This Court, on 15.06.2022 has framed the following substantial questions of law:
1. Whether the Commissioner is justified in holding that there is a relationship of employer and employee between the deceased and the owner?
2. Whether the Commissioner is justified in fastening the liability on the appellant in view of the circumstances that the deceased was travelling on mudguard of the tractor?
9. Having heard the arguments and perusing the records, it is evident that now the insurance company is disputing the relationship of the deceased with respondent No.1. Now it is argued by the learned counsel for the 6 appellant that there is no relationship of employer and employee and hence, he would contend that the insurance company is not liable to pay the compensation. However, the cross-examination of the witnesses reveal that the counsel appearing for the insurance company has made fatal suggestions suggesting that the deceased was working under the owner of the tractor as a coolie. However, the defence taken by the learned counsel appearing for the insurance company in the cross- examination reveals that he is taking an inconsistent stand regarding the daily wages of Rs.300/- or Rs.100/-. In cross-examination of PW.1, it is suggested that the deceased was getting daily wages of Rs.100/- while as regards PW.2, a contrary suggestion is made suggesting that the deceased was being paid the daily wages of Rs.300/- all along. It is now asserted on the basis of objection statement that the deceased was not an employee, but was a gratuitous passenger being carried for hire and reward. However, the suggestion made 7 during cross-examination of the witnesses clearly disclose that the insurance company has admitted the relationship of employer and employee between respondent No.1 and the deceased. Hence, now the insurance company cannot take an inconsistent stand in the appeal having admitted the relationship before the Commissioner during the course of cross-examination. Accordingly, the substantial question of law No.1 is answered in the affirmative holding that the Commissioner is justified in holding that there is relationship of employer and employee.
10. The other contention raised by the learned counsel for the appellant-insurance company is that, the deceased was travelling by sitting on mudguard of the tractor and as such, there is a breach of policy conditions. Hence, he would contend that the insurance company is not liable to pay the compensation. In this regard, he has invited the attention of the Court towards recitals of the complaint, wherein it is asserted that the deceased was sitting by the side of the driver in the tractor. However, the 8 recitals of the complaint disclose that the complainant - Mahadevamma being sister of the deceased is not an eyewitness, but she is a hearsay witness and lodged the complaint only on the basis of the information. Hence, the recitals have no relevancy.
11. The learned counsel for the appellant further placed reliance on the statement of one Andangouda, who is said to be an eyewitness and the complaint is lodged as per information provided by him. But however, the 161 Cr.P.C. statement is not admissible in evidence, unless the witness is examined and he is confronted with the 161 statement which is required to be put to the Investigating Officer. The 161 Cr.P.C. statement is required to be proved in accordance with law and merely because there is a 161 statement, it cannot be held that it is proved and that cannot be accepted.
12. On the contrary, the objection statement of respondent No.2-Insurer is also relevant all along. The 9 insurance company is now arguing that the deceased was travelling by sitting on mudguard, on the basis of the statement made before the Investigating Officer which is not proved. But in the objection statement filed by the insurance company dated 24.01.2012 in paragraph No.5, the insurance company has specifically taken a defence that the deceased along with other persons was travelling in the trailer as a passenger towards their destination. This stand is completely inconsistent/contrary to the defence now put forth by the insurance company. Hence, the insurance company itself is not certain as to what should be the defence and under these circumstances, considering the inconsistent defence taken by the insurance company, the Commissioner is justified in fastening the liability on the insurance company, as the insurance company has failed to prove that the deceased was travelling by sitting on the mudguard of the tractor. Under these circumstances, the second substantial 10 question of law is also answered in the affirmative in favour of the claimants.
13. There is no dispute regarding the quantum of compensation awarded by the Commissioner and the claimants have also not challenged the quantum. Even the insurance company has not disputed the quantum. Under these circumstances, in view of the findings on above substantial questions of law, the appeal being devoid of any merits does not survive for consideration. Hence, I proceed to pass the following;
ORDER The appeal is dismissed.
The amount in deposit shall be transmitted to the concerned Court/Commissioner.
Sd/-
JUDGE LG/msr