Karnataka High Court
National Insurance Co Ltd vs Smt Yallavva W/O Shankaragouda Patil on 2 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 2682
Author: Krishna S Dixit
Bench: Krishna S. Dixit
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF APRIL 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S. DIXIT
M.F.A. NO.21185 OF 2008 (WC)
BETWEEN
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, SUJATA COMPLEX,
NEAR BUS STAND, P B ROAD, HUBLI.
..... APPELLANT
(BY SRI S K KAYAKAMATH, ADV.)
AND
1. SMT YALLAVVA W/O SHANKARAGOUDA PATIL,
AGE: 40 YEARS,
R/O KURADIKERI, TQ HUBLI.
2. CHANDRAGOUDA
S/O BHARAMAGOUDA BHAVIKATTI,
R/O INAM VEERAPUR,
PO BELAGALI, TQ HUBLI.
..... RESPONDENTS
(RESPONDENTS ARE SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 30(1) OF WORKMEN'S
COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND
ORDER DATED:14/07/2008 PASSED IN WCA/NF-127/2005 ON
THE FILE OF THE COMMISSIONER FOR WORKMEN'S
2
COMPENSATION, HUBLI, AWARDING COMPENSATION OF
RS.80,321/- WITH THE INTEREST AT THE RATE OF 12% P.A.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is insurance company's appeal against the judgment and order dated 14.07.2008 made by the Commissioner for Workmen's Compensation, Sub-Division- 1, Hubballi, whereby a compensation of Rs.80,321/- has been awarded with 12% interest to the injured-claimant.
2. Brief facts are: the claimant was in the employ of second respondent Chandragouda Bhavikatti as a Hamal working in his Mini Door vehicle bearing registration No.KA-25/A-9310; she was earning a monthly wage of Rs.4,000/- and daily batta of Rs.10/-; on 29.09.2004, she was travelling in the said vehicle as a Hamal; due to rash and negligent driving, the vehicle turtled resulting into her sustaining grievous injuries.
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3. The injured-claimant laid a claim for compensation which was resisted by the insurance company by filing the Written Statement. The owner of the vehicle i.e., the respondent No.2 in this appeal had also filed Written Statement admitting the employer employee relationship and also the wage structure. To prove her claim, the injured was examined as PW-1 and one doctor who treated her as PW-2. She got marked 10 documents as Exs.P-1 to P-10. The respondent-insurance company had examined one Mr. Allamaprabhu Kubsad as RW-1 in whose evidence, 3 documents came to be marked as Exs.R-1 to R-3.
4. The Commissioner after looking into the pleadings of the parties and evidentiary material on record has made the impugned award for a compensation of Rs.80,321/- which is now in challenge.
5. The counsel for the insurance company vehemently argues that the insurance company has 4 specifically taken up a contention in the Written Statement as to the absence of vinculum juris of employer-employee and therefore, it was incumbent upon the claimant to prove the same. He points out from the FIR which is marked at Ex.P-1 and also from the chargesheet/final report at Ex.P-4 marked in the evidence of claimant herself that there were other injured persons in the cabin of the vehicle in question whose names the claimant could utter whereas she feigned ignorance about the correct name of the driver himself.
He also points out that ordinarily the women do not work as Hamals in a transport vehicle and very rarely they travel with the vehicle. The counsel also points out from the FIR which is the earliest document that sets the criminal law in motion that one Mr. Hasansab S/o. Peersab Nadaf was the first informant; he had taken all the injured women to the hospital; the claimant never stated before him or before the Police that she was working as Hamal; 5 he hastily adds that had she been so working, she would have definitely stated so.
6. I have carefully gone through the version of the claimant who was examined as PW-1; although her version in evidence coupled with FIR followed by the final report which would go to show only that the accident in question happened on the eventful day and that the claimant and others were injured as a consequence thereof. The claimant at the earlier point of time has never claimed that she was working as the Hamal in the truck in question.
7. Although the respondent-truck driver Chandragouda had filed written statement admitting the employer employee relationship, he never entered the witness box to infuse life into his admission; had he entered the witness box, the appellant-insurance company would have had the opportunity of cross-examining him 6 and thereby demolishing his version. No explanation is offered as to why he did not enter the witness box.
8. Ordinarily women do not work as Hamals and that they do not travel in the transport vehicle as Hamals. There is a lot of force in the submission of the counsel for the appellant. Therefore, I set aside the finding of the Commissioner as to there being employer-employee relationship between the respondent-claimant and respondent-owner which is a sine qua non for fastening the vicarious liability on the insurance company.
9. The issue as to the liability of the insurance company is answered in favour of the company. Since the employer employee relationship is not proved, the insurance company is not liable to satisfy the award in question. Therefore, the appeal of the insurance company succeeds. The impugned judgment and award dated 14.07.2008 made by the Commissioner for Workmen's Compensation, Sub-Division-1, Hubballi, are modified to 7 the effect that the appellant-insurance company is not liable to satisfy the award of compensation.
10. However, the liability fastened on the respondent-owner of the vehicle because of his admission in the Written Statement is left intact so that he is liable to satisfy the award of compensation.
11. The amount in deposit shall be refunded to the appellant-insurance company.
Sd/-
JUDGE Naa