Karnataka High Court
The Divisional Manager, The New India ... vs Raju S/O Shankar Pawar Anr on 8 September, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
M.F.A. No.31810/2010 (WC-SJ)
BETWEEN:
The Divisional Manager,
The New India Assurance Co.Ltd.,
Bijapur.
... Appellant
(By Sri R.V. Nadagouda, Advocate)
AND:
1. Raju S/o Shankar Pawar,
Age : 34 Years,
Occ : Coolie,
R/o Makanapur LT,
Tq. & Dist. Bijapur.
2. Siddappa S/o Ishwarappa Birajdar,
Age : Major,
R/o Uttagi,
Tq.Jath, Maharashtra.
...Respondents
(By Sri Babu H. Metagudda, advocate for R-1 )
(Notice to R-2 held sufficient v/o dated 14.03.2016)
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This Miscellaneous First Appeal is filed under
Section 30(1) of WC Act against the Judgment and
Award dated 8.4.2010 in WCA No.42/2008 on the file
of the Labour Officer & Commissioner for Workmen's
Compensation Sub-Division-2, District Bijapur, partly
allowing the claim petition and awarding
compensation of Rs.58,556/- with interest at 12%
P.A..
This appeal coming on for hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is preferred by Divisional Manager, New India Assurance Company Limited against the order passed by the learned Labour Officer and Commissioner for Workmen's Compensation, Sub- Division-2, District Vijayapur, in WCA/SR.No.42/2008, under the Workmen's Compensation Act, 1923.
2. In order to avoid confusion, the parties are hereby referred to, in accordance with the rankings held by them before the Commissioner for Workmen's Compensation. The learned Commissioner for 3 Workmen's Compensation has disposed of three claim petitions No.42, 43 and 44 of 2008 and all the said matters were disposed of by learned Member through common order dated 08.04.2010. The claim by the petitioner in WCA/SR.No.42/2008 is that he was a workmen under the respondent No.1 Siddappa, as a cleaner of the lorry bearing No.MH-10/Z-929. Thus, no doubt that the accident occurred on 21.09.2007 and the injuries suffered by the petitioner. The accident of the lorry in the course of bringing the articles required for marriage. Thus, the amount of Rs.4,00,000/- was claimed as compensation because of the injuries sustained by him. The respondents before the Commissioner are two. Respondent No.1 Siddappa is the owner of the lorry and respondent No.2 is the insurer of the said lorry. In the context and circumstances of the case, that the petitioner had two opportunities to claim compensation for 4 accidental injuries i.e., under Motor Vehicles Act, 1988 or Workmen's Compensation Act, 1923, but not and, he could have chosen one forum for claiming compensation. Both under Motor Vehicles Act and Workmen's Compensation Act, the remedies are available but it does not lye in both of them. The scheme of compensation would be basing on the liability in so far as Motor Vehicles Act is concerned, the workmen sustaining injury or facing death, in which event, the liability determined on the owner and the insurer upon the possessing valid and effective driving license and policy. In so far as the Workmen's Compensation Act is concerned, the ingredients that are required to claim compensation by workmen or injuries sustained by workmen in accident arising out of and in the course of employment. Secondary, occupational disease suffered by the workmen because of the nature of the 5 employment and the cause for labouring the disease was due to occupation. In so far as death of workmen is concerned hit injury or occupational disease the compensation is available.
3. Learned counsel for respondent No.2/appellant would submit that the learned Commissioner failed to consider the absence of employer and employee under Workmen's compensation Act between the respondent No.1 and the petitioner.
4. Even in the written statement filed by the respondent No.2, New India Assurance Company Limited has denied the relationship of employer and employee and basic contention is the claimant/injured was not entitled for compensation under the Workmen's Act.
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5. Learned counsel for respondent No.2/appellant would further submit that unless discharges or to show minimum material to the effect of existing the jural relationship, then only the person is entitled for compensation. In the present case there was no relationship of employer and workmen between respondent No.1 and petitioner. It could be seen that before the learned Commissioner respondent No.1 owner of the lorry has admitted the existence of relationship. The learned counsel for respondent No.2 would submit that despite admission being made by the owner of the lorry, no convenience material is forthcoming regarding the jural relationship. Sine quo non for claiming compensation is relationship of employer and workmen.
6. Learned counsel for respondent No.2 would further submit that when it matter of payment of compensation upon holding of a valid driving license 7 and insurance policy, the insurance company invariably becomes liable.
7. Even a specific issue is not framed by the learned Commissioner. Just mentioning of the jural relation by the claimant or just mentioning as "admitted" are not the exclusive criteria. Because, when the employer has subscribed for insurance invariable means, the liability would be on the 'Insurer'. Thus, the claimant and the employer have responsibility to be discharged at the threshold. The learned Commissioner committed error in concluding that there existed the relationship of employer and employee between the respondent No.1 and petitioner. The judgment and award dated 8.4.2010 in WCA No.42/2008 passed by the learned Commissioner is liable to be set aside. Hence, the following :
ORDER The appeal is hereby allowed. 8 The Judgment and Award dated 8.4.2010 in WCA/SR No.42/2008 passed by the learned Commissioner is set aside. The matter is remanded for adjudicating the jural relationship by framing a point for consideration by allowing the parties to adduce oral/documentary evidence or objection if any and then adjudicate the claim petition and dispose of the matter within outer limit of three months from the receipt of the copy of this order.
Sd/-
JUDGE RSP