Karnataka High Court
The Branch Manager The Oriental ... vs Sri Vittala S/O Pithambar Bharath on 2 April, 2014
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IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 02ND DAY OF APRIL, 2014
BEFORE:
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
MISCELLANEOUS FIRST APPEAL NO.2211 OF 2007 (WC)
BETWEEN:
The Branch Manager,
The Oriental Insurance Co. Ltd.,
Bijapur represented by
The Asst. Manager,
The Oriental Insurance Co. Ltd.,
Regional Office,
Leo shopping Complex,
No.44/45 Residency Road,
BANGALORE-560 025. ... Appellant
[By Sri M.V.Poonacha & Sri R.V.Nadagouda, Advocates]
AND:
1. Sri Vittala
S/o Pithambar Bharath
Aged 44 years,
R/at Muneshwara Nagar,
Bijapur.
2. Smt Radhika
S/o Vittala Bharath
Major,
R/at Muneshwara Nagar,
Bijapur. ... Respondents
[R-1 and R-2 served]
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This MFA is filed U/S 30(1) of W.C. Act against
the judgment and award dated 05.09.2006 passed in
WCA.No.97/2006 on the file of the Labour Officer and
Commissioner for Workmen Compensation, Sub Division-
1, Bijapur, awarding a compensation of Rs.1,26,389/-
with interest at 12% p.a.
This appeal coming on for Orders, the Court
delivered the following:
JUDGMENT
As the learned counsel for the appellant has made available the copies of the depositions and the documents produced, the LCR is dispensed with. Both the Respondents are served. Therefore, the matter is taken up for final disposal.
2. The insurer has challenged the judgment and award of the Commissioner for Workmen's Compensation directing the appellant to pay a sum of Rs.1,26,389/- as compensation with interest at 12%.
3. The facts relevant for the purpose of this appeal are as under:
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The parties are referred to as per their rank before the trial Court for the sake of convenience.
The appellant herein is a 2nd respondent, whereas the 1st respondent herein is the petitioner before the Commissioner and the 2nd respondent herein the 1st respondent. The petitioner met with an accident on 05.09.2005 while he was driving the auto rickshaw bearing registration No. KA.28/9059 wherein another vehicle bearing registration No. KA-28/A-243 driven in a rash and negligent manner hit the auto- rickshaw. Thereby he sustained injuries and was treated in the hospital. Claiming that he has suffered disability due to the injuries sustained in the accident and as the 1st respondent is his employer and the 2nd respondent (the appellant herein) insurer, he submitted an application for compensation.
4. The appellant appeared before the Commissioner and filed its objections denying the 4 relationship of employer and employee and also injuries sustained in the accident.
5. In the course of the enquiry, the petitioner was examined as PW 1 and the doctor PW 2. In their evidence Ex.P-1 to P-9 were marked. On behalf of the appellant RW 1 was examined and the policy of insurance is marked as Ex.R-1.
6. The Commissioner after appreciating the evidence on record held that there is relationship of employer and employee between the parties and as the petitioner said to have sustained injuries and disability, assessing the disability at 30%, awarded compensation of Rs.1,26,389/- with interest at 12$%. Aggrieved by the judgment and award, the present appeal is filed.
7. Heard the learned counsel for the appellant. The following substantial questions of law arise for consideration.
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(1) Whether from the facts and the evidence placed on record there exist relationship of employer and employee between the respondent Nos. 1 and 2 herein?
(2) Whether the respondent No.1 herein has suffered any disability due to the injuries in the accident during the course of his employment?
8. Learned counsel for the appellant would submit that the respondent No.1 who is the owner of the auto-rickshaw bearing registration No.KA-28/9059 is none else than the wife of the petitioner and he was driving the auto-rickshaw. There cannot be any relationship of employer and employee between the parties. It is also his submission that the petitioner has suffered only simple injuries. There are no fractures and assessment of disability at 30% is improper and illegal.
9. Insurance policy is produced at Ex.R-1 and it reveals that 1st respondent before the 6 Commissioner is Smt Radhika W/o Vittala Bharat. The wife of the petitioner is the owner of the auto- rickshaw. Perusal of his oral evidence reveals that he has not produced any documents that he has been receiving any salary from the owner of the auto- rickshaw i.e., his wife. When a wife is the owner of the vehicle and the husband is the driver, it cannot be at any stretch of imagination held that there is relationship of employer and employee between the parties. In the circumstances the Commissioner had no jurisdiction to entertain the petition for compensation.
10. Ex.P-5 is the injury certificate and perusal of this certificate would reveal that (1)Swelling present over left shoulder. Movements are painful and restricted (2) Tenderness present over the left leg. Movements normal. X-ray No.9671 dated 30.11.2004 of the left shoulder showed no evidence of fracture. The doctor has certified that the injuries are simple in nature and have been caused by blunt 7 and hard object. So when a person suffered only simple injuries, the question of disability does not arise. There are no grievous injuries much less any fracture. Though the petitioner has examined PW 2 the doctor, his evidence does not reveal any material to show that the petitioner had suffered any grievous injuries or any fracture of any of the limbs. In the absence of grievous injuries and the fracture, it is impossible to accept the evidence of PW 2 about disability. Therefore, his evidence is of ho help to the petitioner to prove the disability. Acceptance of such evidence by the Commissioner is erroneous and illegal.
11. In the aforesaid circumstances I am of the opinion that the impugned judgment and award deserves to be set aside, as relationship of employer and employee is not proved and so also the permanent disability. Hence the substantial question of law are answered in the negative.
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Consequently, the appeal is allowed. The impugned judgment and award in WCA/SR-97/2006 dated 05.09.2006 impugned in this appeal is set aside and the petition of the 1st respondent herein is dismissed.
The amount in deposit is ordered to be refunded to the appellant.
Sd/-
JUDGE *MK