Karnataka High Court
M/S National Insurance Company Limited vs Sri Omkarappa @ Veeresh on 27 March, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
M.F.A.No.6978/2010(WC)
C/W
M.F.A.No.6913/2013 (MV)
IN MFA No.6978/2010
BETWEEN
M/S.NATIONAL INSURANCE
COMPANY LIMITED
S.S.COMPLEX, B .H.ROAD
SHIMOGA.
NOW REP. BY ITS REGIONAL
OFFICE, No.144, SHUBHARAM
COMPLEX, M.G.ROAD,
BANGALORE - 560 001.
REP. BY ITS ADMINISTRATIVE OFFICER.
...APPELLANT
(BY SRI A M VENKATESH, ADVOCATE)
AND
1. SRI OMKARAPPA @ VEERESH
S/O PUTTASWAMY
AGED ABOUT 42 YEARS
OCC:BUS CONDUCTOR-CUM-CLEANER
R/O, 1ST CROSS,
MALLIKARJUNA LAYOUT
GOGHALA, SHIMOGA.
2. SRI P RUDRESH
S/O LATE FAKIRAPPA
2
OWNER OF SHRI VEERABHADRESHWARA
BUS, R/O.VEERABHADRESHWARA NILAYA
2ND CROSS, VENKATESH NAGAR
SHIMOGA.
...RESPONDENTS
(BY SRI S G BHAGAVAN, ADVOCATE FOR R1
R2 SERVED)
THIS MFA IS FILED UNDER SECTION 30(1) OF W.C.
ACT AGAINST THE JUDGMENT AND AWARD
DATED:09.03.2010 PASSED IN WCA/NF/CR.No.42/2006
ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION,
SHIMOGA DISTRICT, SHIMOGA, AWARDING A
COMPENSATION OF RS.3,02,620/-.
IN MFA No.6913/2013
BETWEEN
M/S.NATIONAL INSURANCE
COMPANY LIMITED, BRANCH OFFICE
S.S.COMPLEX, B .H.ROAD
SHIMOGA CITY
NOW REPRESENTED BY ITS
REGIONAL OFFICE, No.144,
SHUBHARAM COMPLEX, M.G.RAOD,
BANGALORE - 560 001.
REP. BY ITS ADMINISTRATIVE OFFICER.
...APPELLANT
(BY SRI A M VENKATESH, ADVOCATE)
AND
1. VEERESH @ OMKARAPPA
S/O PUTTASWAMY
AGED ABOUT 50 YEARS
AUTO DRIVER, R/AT 1ST CROSS
MALLIKARJUNA BADAVANE
3
GOPALA, SHIMOGA CITY - 577 201.
2. DINESH
S/O B NARAYANA
AGED ABOUT 49 YEARS
R/AT 5TH MAIN, 6TH CROSS
HOSAMANE, SHIMOGA CITY - 577 201.
3. SRINIVASA
S/O BHEEMAPPA
AGED ABOUT 33 YEARS
R/AT UPPARA BEEDI
KUMSHI, SHIMOGA CITY - 577 201.
...RESPONDENTS
(BY SRI S G BHAGAVAN, ADVOCATE FOR R1
R2 AND R3 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:22.04.2013 PASSED IN MVC No.293/2008 ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT,
SHIMOGA, AWARDING COMPENSATION OF RS.1,00,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION
TILL DEPOSIT.
THESE MFAs COMING ON FOR FURTHER DICTATION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These are the two appeals each of them directed against two different proceedings under separate statutes.
MFA No.6978/2010 is preferred by the Insurance Company challenging the judgment and order dated 4 9.3.2010 passed by the Labour Officer and Commissioner for Workmen's Compensation, Shimoga District, Shimoga, ('the Commissioner' for brevity) in case No. WCA/NF/CR-42/2006, wherein one Omkarappa @ Veeresh, S/o. Puttaswamy, was granted Rs.3,02,620/- together with interest at two percentages at the rate of 7.5% p.a. and 12% p.a., in respect of the accident occurred on 29.5.2005.
MFA No.6913/2013 is preferred by the Insurance Company challenging the judgment and award dated 22.04.2013 passed by the Principal Senior Civil Judge and MACT, Shimoga, wherein the claim petition filed under Motor Vehicles Act in MVC No.293/2008 came to be allowed in part and global compensation of Rs.1.00 lac was granted together with interest at 6% p.a. from the date of petition till its deposit in respect of the road traffic accident that occurred on 3.7.2008.
2. On dated 10.10.2013 in MFA No.6913/2013, this Court ordered for clubbing the two proceedings on 5 the basis of common claimant/petitioner in the proceedings before the Labour Officer and Commissioner for Workmen's Compensation and the learned Member, Motor Accidents Claims Tribunal, Shimoga.
3. The discussions and appreciation of evidence required to be separately made. Approach and conduct of the party have bearing of the one on the other.
4. The events and chronology of proceedings in both the appeals are as per the following tables:
TABLE -A (MFA NO.6978/2010 -WCA/NF/CR No.42/2006 before the Commissioner) Name of the claimant Omkarappa @ Veeresh S/o. Puttaswamy Date of accident 29.5.2005 Date of initiating 4.11.2006 proceedings under EC Act on Date of Disposal 9.3.2010 Amount of compensation Rs.3,02,620/- together granted with interest in 2 phases 6 TABLE -B (MFA NO.6913/2013 -MVC No.293/2008 before the Tribunal) Name of the claimant Veeresh @ Omkarappa S/o. Puttaswamy Date of Accident 3.7.2008 Initiating proceedings under 17.10.2008 MV Act on The disability as claimed 40% Date of Disposal 22.4.2013 Amount of compensation Rs.1.00 lakh together with granted interest at 6% p.a. from the date of petition till deposit.
5. The accident mentioned under Table -A occurred on 29.5.2005 and the claimant suffered injuries. The accident connecting to Table-B is said to have occurred on 3.7.2008, wherein, petitioner Veeresh @ Omkarappa said to have suffered injuries while traveling as a passenger in auto and sought compensation claiming 40% disability.
6. The contention of learned counsel Sri. A.M.Venkatesh, appearing for the Insurance Company in MFA No.6978/2010 is that, the status of workman- 7 Conductor as claimed by Omkarappa was not available as he was neither a Conductor not Workman in any capacity to bind the Employer or the Insurance Company to pay compensation in respect of the injuries suffered by him in the accident dated 29.5.2005.
7. Learned counsel Sri. S.G. Bhagawan, appearing for the petitioner/Omkarappa would submit that, Omkarappa has been a workman working as Conductor in respect of the bus bearing Registration No.KA.20.5324 owned by one Rudresh insured with the appellant-Insurance Company. Learned counsel further submits that the injuries suffered by Omkarappa sustained on 29.5.2005 when working as a Conductor/ workman and accident occurred out of and in the course of employment. Thus, he was well within the domain of entitlement for compensation
8. The main contention of the learned Counsel Sri. A.M.Venkatesh, for the Insurance Company is that, the 8 accident occurred when the bus bearing Registration No.KA.20.5324 was at Bhadravathi Town Limits which is faraway from Shivamogga and there was no route permit for the bus to go there. Thus, according to learned counsel for Insurance Company, liability to pay compensation gets evaporated where violation of permit conditions surfaced.
9. Learned counsel for Insurance Company would further submit that, to be a workman under the species of Conductor in a bus, licence issued by the Competent Authority is necessary and in the absence of which, one cannot hold such status. In the present case, Omkarappa never held such licence. Thus, there is a threshold bar for him to claim compensation under the Workmen's Compensation. Further, he would submit that there was no relationship of employer and employee between the petitioner - Omkarappa and owner- Rudresh. In the absence of primary liability on 9 Employer, there is no question of Insurance Company being liable to share the responsibility. Moreover, the petitioner- Omkarappa is to gently of mis- representation.
10. Thus, learned counsel for Insurance Company sums up that the petitioner-Omkarappa mis used the Act and the benefit thereon and contended that both the awards passed by the Commissioner and by the Tribunal are hit by the factor of absence of liability to pay compensation and quantum as well.
11. Learned counsel Sri.A.M.Venkatesh for Insurance Company would further submit insofar as the second claim petition filed by Omkarappa in MVC No.293/2008 in respect of the accident dated 3.7.2008 is concerned that, the things speak by themselves and claimant has mis-led the Insurance Company and the Court as well in presenting the false claim. 10
12. Learned counsel Sri. S.G. Bhagawan, appearing for petitioner/ Omkarappa in both the cases would submit that, the claimant was within the scope of his employment under Rudresh, respondent No.1. Further, the grounds urged by the Insurance Company against the grant of compensation are mis conceived and urged for the first time as it was neither pleaded nor substantiated before the learned Commissioner. It was further submitted by the learned counsel that the factor of compensation and the ingredients necessary for claiming it were all present in principle. Thus the matter was not vitiated.
13. Learned counsel appearing for the petitioner/Omkarappa would further submit that there is no hard and past rule that a person when received compensation in claim petition once and is debarred in making another claim petition in respect of the injuries suffered by him in an accident. He submits that, insofar as proceedings in WCA/NF/CR No.42/2006, the 11 claim is made in the capacity of a Workman. The employer Rudresh who incidentally is the owner of Bus is respondent Rudresh and the vehicle is insured with the appellant- Insurance Company. Insofar as other factors regarding accident, suffering of injury and disability are not disputed. Further, owner- Rudresh of the bus bearing Registration No. KA.20.5324, who also hold the status of Employer has not seriously disputed the relationship.
14. In the context of claim and incident, it is to be seen that the date of accident is - 29.5.2005, place of accident is - Bhadravati. The presence of claimant inside the bus on the date of accident and suffering injuries are not disputed. So also, the claimant being the employee of Rudresh is also not disputed. The claimant was working with him as Conductor of the bus bearing Registration No.KA.20.5324 and has gone on admission that the job of a Conductor means collecting money and issuing tickets.
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15. Thus, crux of the denial by the Insurance Company is that, the policy was no longer available for indemnity by virtue of violation of conditions of policy. It is contended that Bhadravathi was out of bounds to the vehicle in question. In this connection, Court may have to agree with the contentions of the learned counsel for respondent claimant as no such ground was ever pleaded or canvassed before the Tribunal and the same is not available for the Insurance Company in the appeal proceedings. It is significant to note that, no objection was raised by the Insurance Company at the earliest opportunity regarding violation of permit conditions.
16. Insofar as objections regarding violation of permit conditions, the learned counsel for the Insurance Company would submit that one of the grounds urged by him regarding the vehicle meeting with the accident at Bhadravathi which does not come under the 13 permitted area. The basic rule for a remedial relief for a claim of compensation is that what is evidenced ought to have been pleaded and what is pleaded is accepted as evidence when the materials with evidentiary value are produced and even otherwise, the violation of permit conditions is not pleaded before the Tribunal and it is not a point of law. When an aspect is point of law, it is open to be urged at any stage of the proceedings but whenever a threshold bar is there, it has to be pleaded at the earliest point of time available to the party who seeks relief under the said law.
17. Insofar as the claim regarding the compensation in the capacity of a workman is concerned, the Contract of Indemnity is implied. The moot point would be whether there was the necessity of arguments in this connection.
18. The admitted facts are, the vehicle is a bus, the owner is Rudresh, respondent No.1 and the 14 Insurance Company is respondent No.2 before the learned Commissioner. The Contract of indemnity is between the Insurance Company and the owner of the vehicle i.e., Rudresh-respondent No.1 before the learned Commissioner.
19. The further undisputed facts are, vehicle belonging to the owner Rudresh, the presence of the claimant who met with the accident on 29.05.2005 and sustaining injuries. But the question is, whether the liability is fixed to make good the compensation. It is needless to say that the owner of the vehicle Rudresh has gone on record by positively stating that the claimant was a conductor. His further version is that the job of Omkarappa was to collect money and issue ticket to complete the scope of a conductor which cannot be accepted. However, on the date of incident, there was no necessity of a conductor and Omkarappa - claimant was in the vehicle. Thus, he further states that Omkarappa was seized to be a conductor 3 or 4 days 15 earlier to the accident. Now the point would be, there were passengers or the inmates in the vehicle and that was booked for a function of the political party. Now the owner has gone on record by stating that there was no necessity of a Conductor on the date of the incident, presumably as the entire vehicle was sent for a function.
20. A conductor, has to coordinate the journey, maintain a pleasant atmosphere for smooth journey, taking precautionary steps so that the passengers are not subjected to any inconvenience during the stay in the bus and take remedial measures such as first aid and in other words, his duties cannot be congruent with that of a airhostess but goes very much on the nearer lines to the said designation. Thus, as a matter of fact, amount is neither collected nor the tickets are issued by an airhostess. But still it is a multifarious responsibility. Therefore, it means to say that entry of a 16 person into the vehicle or a carrier. In that circumstance, appointment of a person as a conductor requires license and other aspects and in this case, the conductor does not mean only the person who is meant for a limited version of the duties as spoken by owner Rudresh.
21. In the circumstances of the case, the employer admits during the chief-examination that is without being prompted by any suggestion or a question that "I say that there was no necessity of conductor at the point of time since the entire bus was hired by District Congress Committee, Shivamogga." Further assertion that he was under him two or three months subsequent to the incident that goes to show that he was the employer on the date of incident. The aspect of relation in the fact of the matter is the meaning and inclusion of persons for the definition of workman for the purpose of entitlement for compensation in respect 17 of the accident out of and in the course of employment, but not to cover other acts in strict sense.
22. In view of the above, in the present case, what is suggested by the circumstances is, the claimant was present in the bus that met with an accident at Bhadravathi. Therefore, there are ingredients to conclude that he was a workman under Rudresh as on the date of the accident.
23. The next question is insofar as the subsequent accident is concerned, i.e, claim petition filed under the Motor Vehicles Act, before the Tribunal in MVC No.293/2008. Again, the claimant was Omkarappa. It pertains to the accident dated 03.07.2008. As already narrated by me this matter is not the portion of the other matter. At the end of the day, it may be the fact that the conduct of the claimant Omkarappa in the second aspect regarding his own declaration in the first accident being questioned. 18
24. In the circumstances, for the limited purpose of claiming compensation in respect of the accident dated 29.05.2005, the facts available are: accident is dated 29.05.2005, the background is relationship of employer and employee of the owner of the bus bearing Registration No.KA.20.5324, the status of employee conductor-cum-cleaner. That even according to the employer and the claimant, the status of the claimant is not only a conductor but conductor-cum-cleaner. While returning, at about 10.00 PM near Donabaghatta, Bhardravati Taluk, the bus met with an accident; and the claimant suffered grievous injuries. With these ingredients, if Employees Compensation Act is complied with, it is just and appropriate. I find that there is no occasion for this Court to interfere with the finding of the Commissioner and the appeal is liable to rejected in this respect.
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25. In the context and circumstances of the case, this Court holds that the Insurance Company is liable to satisfy the compensation awarded both the Labour Officer and Commissioner for Workmen's Compensation and by the Member, MACT.
26. Insofar as the quantum of compensation in MFA No.6978/2010 is concerned, disability is considered at 75% by the Commissioner. In this connection, as per the injuries suffered by the claimant, I do not find any exuberance in granting compensation and fair enough amount Rs.3,02,620/- is granted. Thus, I do not find that the judgment of the Commissioner suffers from perversity or a circumstance that warrant interference. Hence, the same is confirmed.
27. Insofar as the interest payable on the compensation of Rs.3,02,620/- is concerned, it shall be 20 at 12% p.a. from the expiry of the 30th day of the accident till the payment in full.
28. Insofar as the compensation granted in MFA 6913/2013 (MVC No.293/2008) is concerned, the appeal is directed against the judgment and award dated 22.04.2013 passed in MVC No.293/2008 in respect of the accident dated 3.7.2008 which came to be allowed and a global compensation of Rs.1,00,000/- was granted together with interest at 6% p.a.
29. In the said accident, claimant suffered acute subdural haematoma with multiple hemorrhagic confusion in left temporo parietal region, fracture of right retrous adnsquamous temporal bone with fracture of right zygomatic arch.
30. In this connection, the Insurance Company questions credibility of the version that arises regarding disability, wherein he was declared as disabled to the 21 extent of 75% in the accident that occurred earlier. Thus, whether a person who was declared to be disabled to the extent of 75% by virtue of accident dated 29.05.2005 is to be fit enough either to travel as a passenger or the driver of the autorikshow? Whatever it may be, the reliability to the extent of disability claimed by the claimant more particularly at the age of 38 years, at 75% and even otherwise, if he has suffered injury, he was not that hale and healthy as claimed by him and vulnerability to suffer disability at a higher rate will be a probability and he will be disabled for the various activities of life when he is already disabled or not recovered from the same and he met with the subsequent accident on 03.07.2008. Thus, I am of the sincere view that to an extent of consolidated amount of Rs.50,000/- including the medical expenses incurred during the time of accident as well as to be incurred in future is to be awarded. Therefore, claimant Omakarappa is entitled for a global compensation of 22 Rs.50,000/- as against Rs.1,00,000/- awarded by the Tribunal. Accordingly, the appeal filed by the Insurance Company deserves to be allowed in part.
31. At this stage, in the light of the contentions raised by learned counsel for the Insurance Company that petitioner-claimant was driving the auto rickshaw and he is the author of the accident, it is necessary to observe that, the report is filed against driver of the auto rickshaw for the offences punishable under Section 279 and 378 of IPC in a criminal case and it cannot not be held that claimant Omkarappa was the driver of the auto rickshaw.
32. Hence, I pass the following:
ORDER
(i) Appeal filed by the Insurance Company in MFA No.6978/2010 is dismissed and MFA No.6913/2013 is allowed in part.
23
(ii) Judgment and award dated 22.4.2013
passed in MVC No. 293/2008 by the
Principal Senior Civil Judge and MACT, Shimoga, is set aside and modified by reducing the compensation from Rs.1.00 lakh to Rs.50,000/- with interest at 6% p.a. from the date of petition till its realization.
(iii) The manner of disbursement ordered by the learned Member is proportionately set aside to the extent of reduction made by this Court in MFA No.6913/2013.
(iv) Insurance Company is directed to deposit the compensation amount in both the appeals with interest within an outer limit of four weeks from the date of receipt of the copy of this judgment.
(v) The amount deposited by the Insurance
company in both the appeals shall be
24
transmitted to the jurisdictional
Commissioner for Workmen's compensation and the Tribunal forthwith.
Sd/-
JUDGE tsn*/DM/Bsv