Karnataka High Court
The Branch Manager vs Aruna @ Annapurna W/O Vilas Shinde on 23 August, 2012
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 23RD DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
M.F.A.NO.31228/2009 (WC)
BETWEEN:
THE BRANCH MANAGER,
THE ORIENTAL INSURANCE CO.LTD.,
GULBARGA.
.. Appellant
(By SMT. PREETHI.S.MELKUNDI, ADVOCATE )
AND
1. ARUNA @ ANNAPURNA,
W/O VILAS SHINDE,
AGE: 31 YEARS,
OCC: HOUSEHOLD,
2. PRIYA,
D/O VILAS SHINDE,
AGE: MINOR, U/G OF RESPONDENT NO.1,
3. SMT.PARU BAI
W/O WAGAJI SHINDE,
AGE: 75 YEARS,
ALL R/O KHADAKWADI, MANTHALA VILLAGE,
TQ: BASAWAKALYAN, DIST: BIDAR.
4. AMBAJI RAO S/O RANOJI,
AGE: MAJOR, OCC: BUSINESS,
OWNER OF LORRY
2
NO.KA-39/8021,
R/O MANTHALA VILLAGE,
TQ: BASAWAKALYAN, DIST: BIDAR.
... RESPONDENTS
( BY SRI MOHD.QUADEER., ADVOCATE FOR R-1 AND R-2
SRI SUDHEER KULKARNI, ADVOCATE FOR R-4
R-3 SERVED )
This M.F.A is filed under Section 30(1) of WC Act
against the judgment dated 18.5.2009 passed in
WCA.NO.30/2008 on the file of the Commissioner for
Workmen's Compensation, Bidar.
This appeal coming on for Final hearing this day, the
Court delivered the following:
JUDGMENT
The appeal filed by the insurance company challenging the award passed by the Workmen's Compensation Commissioner is on liability.
2. It is contended that the claimants have not proved the accident for the purpose of Section 3 of the Employees Compensation Act, 1923. There is no personal injury caused in the accident during the course of employment by examining the owner. Though the owner served he remained absent. Absolutely there could be no 3 materials before the Commissioner to allow the claim petition. Hence, the impugned order is ultravires the provisions of Section 3 of the Act. The complainant is the wife of the deceased who has stated in the complaint that he went to duty for driving vehicle and thereafter she learnt about death by an accident. The complaint made by the claimant was registered in UDR.No.5/2008 in order to make a claim before the Employees Compensation Commissioner. In the absence of proof of injury in the accident during the course of employment the Workmen's Compensation Commissioner should have dismiss the claim on the ground of jurisdiction. The claimant in her cross-examination has admitted that documents are not produced relating to employment of the deceased with the owner. These materials and evidence were not looked into and examined by the Workmen's Compensation Commissioner. Hence, the submission is made to allow this petition by setting aside the order passed by the Workmen's Compensation Commissioner. 4
3. On behalf of the claimant the claimants the learned counsel submitted to dismiss this appeal. The insurance company has not disproved the case of the claimants and no witnesses have been examined and documents have been marked. Virtually there was no material on behalf of the insurance company for disproving the case of the claimant. In Ex.P.3 case diary at question No.3 it has been referred that one Jaibhim and Naganath have seen the body at first instance. In order to disprove the claim the insurance company should have examined these two persons in order to prove that accident has not taken place and death has not resulted by accident. The owner though served remained absent but in order to disprove the employer and employee relationship owner should have been brought before the Commissioner at the instance of insurance company.
4. I have heard both the sides.
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5. To substantiate question of law whether the Workmen's Compensation Commissioner committed an error in not considering the materials on record. My answer would be as follows:
The complainant is the wife of the deceased whose complaint has been marked as Ex.P.2 and case has been registered in UDR No.5/2008. Admittedly she is not an eye witness to the incident. In order to make a claim under Section 3 of the Employees Compensation Act there shall be a personal injury in the accident during the course of the employment or the ingredients to be satisfied.
6. It is a specific case of the wife of the deceased that during the course of employment by personal injury in the accident he died. It is necessary to produce the police documents namely accident report, chargesheet, statement of the witnesses in order to prove the accident. But in the instant case no such documents have been produced by the claimants. The case has been registered only on the 6 basis of the statement made by the deceased wife. The question is whether the insurance company has disproved the case of the claimants by examining the witnesses whose names are found as per Ex.P.3 and the owner has been made party in the claim petition. Merely non- appearance of the owner to adduce evidence is not a ground to be taken by the insurance company to disprove the claim. In the instant case the owner has been duly served and he remained absent. In such circumstances the insurance company should have invoked provisions under the Act for the purpose of taking coercive steps to procure the presence of witnesses. For procuring the presence of witnesses the Commissioner has got power under Section 23 which reads thus:
23. Powers and procedure of Commissioners.-
The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects, (and the Commissioner shall be deemed to be a 7 Civil Court for all the purposes of Section 195 and of Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)]
7. For the purpose of "enforcing" the attendance of witnesses and compelling production of documents and material objects the Commissioner shall be deemed to be a Civil Court for the purpose of Section 195 and Chapter XXVI of the Code of Criminal Procedure. Order 16 Rule 20 of CPC it provides that: when any party to a suit present in court refuses without lawful excuse, when required by the court to give evidence or to produce any document then and there on his possession or power, the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.
8. Thus It is clear either of the party before the Workmen's Compensation Commissioner in order to prove their case or even to disprove they could invoke the above provisions to examine the witnesses.
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9. In the instant case it is true that the claimants have not produced the FIR, Chargesheet and other police documents to prove the accident and death during the course of employment by filing necessary complaint before the police. Non production of FIR, chargesheet itself shall not disentitle the claimant from making claim under the Workmen's Compensation Act. If the claimant satisfies the Workmen's Compensation Commissioner that the injury or death occurred in an accident during the course of employment by producing the documents and evidence then the same has to be considered by the Workmen's Compensation Commissioner.
10. All the accidents or injuries cannot be brought under Section 3 of the Employees Compensation Act automatically. In this connection the Supreme Court has held that: the accident may lead to death but it must be further proved that death has taken place in the course of employment, out of the accident. There is no presumption 9 that an accident had occurred". This judgment has been followed by this Court in MFA.No.30564/2009 dated 24.7.2011.
11. In the instant case where the claimants do not fully satisfy the Workmen's Compensation Commissioner for the purpose of Section 3 and 4 and insurance company also not disproved the case by examining the owner or examining the witnesses and marking documents. In such circumstances it is for this Court to believe the appellants version of the claimants in order to give effect to the Act which is benevolent legislation. Hence, I held that the inaction on the part of the insurance company and the claimants who have proved their case by examining the claimant as PW.1 and some documents have been produced that itself is sufficient. In view of the same order of the Commissioner is confirmed appeal of the insurance company is rejected.
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The amount in deposit to be transmitted to the Workmen's Compensation Commissioner for disbursement.
Sd/-
JUDGE MSR LNSJ 25.8.2012 Order on being spoken to On 24.8.2012 this appeal was rejected. The learned counsel for the appellant moved the matter for being spoken to. Accordingly the order dated 24.8.2012 is recalled and matter is taken up for being spoken to.
2. On the request made by the respondent insurance company, Matter has posted for being spoken to. The learned counsel referred the following two judgments.
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(1) (2009) ACC 52 (SC) between National Insurance Co. Ltd V/s Kaushalya Devi and Others. And (2) 2005 ACJ 1712 (Kar) between Divisional Manager, United Insurance Co.Ltd V/s Gujjamma and others.
and submits that under Section 3(1) of the Employees Compensation Act it is the duty and the burden on the part of the employee or the claimant to prove the relationship of his employment with the owner. Unless the relationship is proved and the accident "occurred during the course" and out of employment is proved legal inference cannot be drawn and also referred judgment reported in 2011 (3) TAC 493 KAR where it has been held that self serving testimony of the claimant is not sufficient to establish relationship of employer and employee. Hence, the learned counsel submitted to set aside the order passed and fasten the liability on the owner.
3. The learned counsel for the claimant as well as the owner submits to dismiss this appeal. Opportunity 12 provided to the insurance company was virtually abandoned before the Workmen's Compensation Commissioner. No documents were marked and none have been examined. Under these circumstances what has been held by the Workmen's Compensation Commissioner is just and proper.
4. Primarily and basically the person who approached the court has to establish with the employer. The employee could establish his relationship with this employer even without examining the employer by producing the materials, to the satisfaction of the Workmen's Compensation Commissioner. In the instant case the claimant has produced and marked only the FIR, driving license and panchanama and UDR case. These documents at most would establish the occupation of the deceased employee from which it is not possible to draw the inference that he must be the employee of the owner. In order to comply the principle of natural justice the 13 owner should have been subjected to cross examination by the insurance company. Unless these primary requirements are complied, statutory liability cannot be fastened on the insurance company. Under these circumstances, I am of the view that impugned judgment and order are to be set aside and matter has to be remanded. Hence, I pass the following.
ORDER Order of the Workmen's Compensation Commissioner is set aside. The matter is remanded with a specific purpose to permit the insurance company to lead the evidence. Insurance Company is reserved liberty to adduce evidence only in respect of disproving relationship of employer and employee. Both parties are directed to appear before the Workmen's Compensation Commissioner on 27.9.2012.
Sd/-
JUDGE MSR