Karnataka High Court
M/S The New India Assurance Co Ltd vs Arasappa on 20 June, 2022
Author: H. T. Narendra Prasad
Bench: H. T. Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.3283 OF 2019(ECA)
BETWEEN
M/S THE NEW INDIA ASSURANCE CO LTD
SULTANAS, K.T. STREET
CHIKKAMAGALURU
NOW BY ITS REGIONAL OFFICE
2-B, UNITY BUILDING ANNEXE
P. KALINGA RAO ROAD
BANGALORE 560 027
REPRESENTED BY ITS
REGIONAL MANAGER.
...APPELLANT
(BY SRI.SRIDHAR D S., ADV.)
AND
1 . ARASAPPA
S/O KUPPEGOWDA
AGED 51 YEARS
R/AT SAIDAKHAN ESTATE
COLONY POST
NANDIBATTALU, TARIKERE TALUK,
CHIKKAMAGALURU 577 228.
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2 . THE MANAGEMENT
M/S KURKANAMATTI ESTATE
ESATATE OWNED AND MANAGED
BY A.B.C. COMPANY
NANJADIBATTALU POST
LINGADAHALLI HOBLI
TARIKERE TALUK
CHIKKAMAGALURU DISTRICT-577 228.
....RESPONDENTS
(BY SRI. AJAY PRABHU M ADV. FOR
SRI.SACHIN B S., ADV. FOR C/R1:
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 30(1) OF EMPLOYEES
COMPENSATION ACT, 1923, AGAINST THE JUDGMENT
AND AWARD DATED:30.01.2019 PASSED IN
ECA.NO.59/2015 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, CHIKKAMAGALURU,
AWARDING COMPENSTION OF RS.4,75,000/-WITH
INTEREST AT 12% P.A. AFTER EXPIRY OF 30 DAYS
FROM THE DATE OF THE INCIDENT, TILL THE DATE
OF PAYMENT.
THIS MFA COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 30(1) of the Employees Compensation Act, 1923 (hereinafter referred to as 'the Act') has been filed by the 3 Insurance Company being aggrieved by the judgment dated 30.1.2019 passed by Prl.Senior Civil Judge & CJM, Chikkamagaluru in ECA 59/2015.
2. Facts giving rise to the filing of the appeal briefly stated are that the claimant was a workman employed by the respondent No.1 in his estate. On 16.2.2010 at about 1:00 pm as per the instruction of the respondent No.1, when the claimant was chopping the branches of the tree, he fell down from the tree and sustained multiple injuries and was hospitalized.
3. The claimant filed a petition under Section 22 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc.
4. On service of notice, the respondents appeared through their respective counsel and filed 4 written statements in which the averments made in the petition were denied.
5. On the basis of the pleadings of the parties, the Commissioner framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.K.P.Hebbar was examined as PW-2 and one Ramu was examined as PW-3 and got exhibited documents namely Ex.P1 to Ex.P10. On behalf of the respondents, one witness was examined as RW-1 and got exhibited document namely Ex.R1. The Commissioner, by the impugned judgment, inter alia, held that the claimant was working under respondent No.1 and he sustained injuries during the course of employment and further held that the claimant is entitled to a compensation of Rs.422,000/- along with interest and directed the Insurance Company to deposit the compensation amount along 5 with interest. Being aggrieved, this appeal has been filed by the Insurance Company.
6. The learned counsel for the Insurance Company has contended that the accident occurred on 16.2.2010. The claim petition is filed on 18.11.2015. There is delay of more than 2 years in filing the claim petition. The same is not maintainable in view of provisions of Section 10 of the Act and no application has been filed for condonation of delay. Therefore, the impugned order is passed without jurisdiction. The same is contrary to Section 10 of the Act. He further contended that there is no employer and employee relationship between the claimant and respondent No.1. The claimant has failed to prove that he was an employee under respondent No.1. The Commissioner has committed an error in holding that the Insurance Company is liable to pay compensation. He further contended that considering the age and avocation of 6 the claimant, the overall compensation awarded by the Commissioner is on the higher side. Hence, he sought for allowing the appeal.
7. Per contra, learned counsel for the claimant has contended that it is not in dispute that the claim petition is filed beyond 2 years from the date of incident. The claimant has filed an application for condonation of delay along with the claim petition explaining the delay in filing the claim petition. He contended that since the claimant has proved that he is an employee working under respondent No.1 and he has proved that he has sustained injuries during the course of his employment, the Commissioner has rightly allowed the claim petition and awarded compensation.
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8. Heard the learned counsel for the parties. Perused the judgment and award passed by the Commissioner for Workmen Compensation.
9. This court has admitted the appeal on 3.7.2019 for consideration of the following substantial questions of law.
1. Whether the Tribunal is justified in awarding the compensation of Rs.4,22,000/- with interest at the rate of 12% p.a. when the claim petition filed by the claimant was barred under the provisions of Section 10(1) of the Employee's Cop. Act, 1923?
2. Whether the Tribunal is justified in awarding compensation in the absence of any application for condonation of delay under the facts and circumstances of the present case?
10. The case of the claimant is that he was working under respondent No.1 for the last 12 years. On 16.2.2010 when he was on duty, he sustained 8 injuries and he was immediately shifted to Tejaswini Hospital, Mangalore. He has taken treatment from 16.2.2010 to 6.3.2010 and from 2.4.2010 to 5.4.2010 and from 2.1.2012 to 12.1.2012 and underwent surgery. After recovering from injuries, he filed claim petition under Section 10 of the Employees Compensation Act, 1923. Section 10 of the Act reads as follows:
10. Notice and claim.- (1) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or, in case of death, within two years from the date of death Provided that, where the accident is the contracting of a disease in respect of which the provisions of sub-section (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the employee was continuously absent from work in consequence of the disablement caused by the disease:
Provided further that in case of partial disablement due to the contracting of any such 9 disease and which does not force the employee to absent himself from work, the period of two years shall be counted from the day the employee gives notice of the disablement to his employer:
Provided further that if a employee who, having been employed in an employment for a continuous period, specified under sub-section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected [Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the 6[entertainment of a claim]
(a) if the claim is preferred in respect of the death of a employee resulting from an accident which occurred on the premises of the employer, or at any place where the employee at the time of the accident was working under the control of- the employer or of any person employed by him, and the 1[employee] died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or
(b) if the employer 8[or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured employee was employed had knowledge of the 10 accident from any other source at or about the time when it occurred:
Provided further, that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been preferred, in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice of 11[prefer] the claim, as the case may be, was due to sufficient cause.
(2) Every such notice shall give the name and address of the persons injured and shall state in ordinary language the cause for the injury and the date on which the accident happened, and shall be served on the employer or upon any one of several employers, or upon any person responsible to the employer for the management of any branch of the trade or business in which the injured employee was employed.
(3) The State Government may require that any prescribed class of employers shall maintain at their premises at which employees are employed a notice-book, in the prescribed form, which shall be readily accessible at all reasonable times to any injured employee employed on the premises and to any person acting bona fide on his behalf.
(4) A notice under this section may be served by delivering it at, or sending it by registered post addressed to, the residence or any office or place of business of the person on whom it is to be served, or, where a notice-book is maintained, by entry in the notice-book.11
As per Section 10 of the said Act, it is very clear that the claim petition has to be filed within 2 years from the date of occurrence of the accident or in case of death within 2 years from the date of death. Section 10(1) has provided that if the claimant has satisfied the Commissioner for condoning the delay in filing the claim petition by giving cogent and sufficient reasons, the Commissioner has to consider the same and pass appropriate orders in accordance with law.
11. In the case on hand, the claimant has filed the claim petition along with an application for condonation of delay. The application is dated 16.11.2015. The same is available in the records. The Commissioner has not framed any issue in respect of delay and no order has been passed on the application filed for condonation of delay. Therefore, the impugned order is passed without jurisdiction. There is error apparent on the face of the record. Hence, the 12 matter requires to be remitted back for reconsideration.
12. Accordingly, the appeal is allowed. The judgment and award passed by the Prl.Senior Civil Judge & CJM, Chikkamagaluru in ECA 59/2015 is set aside.
The matter is remitted back to the Commissioner to reconsider the matter afresh in accordance with law after giving opportunities to both the parties.
The amount in deposit is ordered to be transferred to the Prl. Senior Civil Judge & CJM, Chikkamagaluru in ECA 59/2015 with a direction to keep the said amount in fixed deposit.
Sd/-
JUDGE DM