Bangalore District Court
Gurushanthamma vs Shri Ram Gen Ins Co Ltd on 4 November, 2024
IN THE COURT OF XIII ADDL. SMALL CAUSES AND ACJM
AND ADDL. MACT., BENGALURU, (SCCH-15)
PRESENT: Smt. KUMARI SUJATHA.
B.Com., LL.B.,
XIII Addl. Small Causes Judge,
ACJM, Court of Small Causes
& Member,MACT-15, Bengaluru.
Dated this the 4th day of November 2024
ECA No.98 OF 2022
PETITIONERS 1. Smt. Gurushanthamma
W/o. Late Sannana
Aged about 84 years
2. Kum. Bhoomika J.N
D/o. Late. J.S. Nagaraj
Aged about 20 years
3. Deepak J.N.
S/o. Late. Nagaraj J.S.
Aged about 18 years
All are residing at
No.40, Sriramapura Main Road,
Amruthahalli,
Bengaluru North,
Sahakaranagar P.O.
Bengaluru, Karnataka-560092
(Pleader by Sri. H.V. Kumara Swamy)
-- Vs --
RESPONDENTS : 1. Shri Rama Insurance Co. Ltd.,
No.3/5, 3rd Floor, S.V. Arcade
Devarachikkanahalli Road,Bannerghatta
SCCH - 15 2 ECA. 98/2022
Road, IIM Post Bilekahalli,
Bengaluru-76
(Policy issued by its in Policy
No.418007/31/22/017243
Date of validity from 09.11.2021 to 08.11.2022)
(Pleader by Sri. S.N. Ramaswamy)
2. Mrs. Nalina
W/o. Late J.S. Nagaraj
Aged about 42 years,
R/at. No.335, Jakkur Cross,
S.V. Layout, Amruthahalli,
Bengaluru-64.
(Exparte)
JUDGMENT
This Claim Petition is filed by the Petitioners against the Respondents under Section 22 of the Workmen Compensation Act, seeking Award of compensation of Rs.25,00,000/- with interest @ 12% per annum from the date of petition till the date of realization.
2. The substance of Petition averments as stated in the petition is as under:
The deceased J.S. Nagaraj was a professional driver and he was working as a driver under the Respondent No.2 in the SCCH - 15 3 ECA. 98/2022 Auto rickshaw bearing Reg.No.KA-50-4334 and was getting monthly income of Rs.25,000/-.
That on 28.06.2022 at about 6.10 p.m., the deceased J.S. Nagaraj was driving the Auto rickshaw bearing Reg.No.KA-50-4334 in B.B. Service road, near Vidhyashilpa Down Ramp, Yelahanka, Bengaluru and at that time, one motorcycle bearing Reg.No.KA-03-HE-2600 which was coming to cross the auto, consequently said deceased Nagaraj had suddenly applied the break and then the auto was turtled. Due to the said impact, Nagaraj had sustained grievous injuries and was succumbed to the injuries on the way to hospital. Thereafter, Post Mortem was done at Government Hospital, Yelahanka, Bengaluru. The Petitioners had spent Rs.1,00,000/- towards funeral, obsequies and other incidental expenses.
Prior to the date of incident, the deceased J.S. Nagaraj was hale and healthy. The Petitioners were solely depending on the income of the deceased and he was the only earning member of his family. Due to this incident, the whole family SCCH - 15 4 ECA. 98/2022 of the Petitioners have lost their bread earner. The Respondent No.1 is the insurer and the Respondent No.2 is the owner of the Auto rickshaw bearing Reg.No.KA-50-4334.
Therefore, both Respondent No.1 and 2 are jointly and severally liable to pay compensation to the Petitioners. Hence, this Petition.
3. In pursuance of service of Notice to the Respondents, the Respondent No.2 remained absent and she was placed exparte. The Respondent No.1 had appeared before the Court through its Counsel and filed its Objection statement to the main Petition.
Respondent No.1 has denied the Petition averments and denied the employer and employee relationship between the deceased J.S. Nagaraj and the Respondent No.2. Further it contended that the deceased J.S. Nagaraj and the Respondent No.2 are the husband and wife and therefore there is no employer and employee relationship between them. Further it contended that the deceased was not holding SCCH - 15 5 ECA. 98/2022 valid and effective driving licence to drive the said vehicle. Further it denied the age, income of the deceased J.S. Nagaraj and also submitted that the petitioners have to put strict proof of the same. Further it denied the other contentions of the petition and it has prayed to dismiss the petition.
4. On the basis of the rival pleadings, this Tribunal has framed the following Issues:
ISSUES
1. Whether the Petitioners prove that, they are Legal representatives of the deceased?
2. Whether the Petitioners prove the employee and employer relationship between the Respondent No.2 and the deceased J.S. Nagaraj?
3. Whether the Petitioners further prove that, J.S. Nagaraj S/o. Late Sannana was died on 28.06.2022 at 6.10 p.m. in B.B. Service Road, near Vidhyashilpa Down Ramp, Yelahanka, Bengaluru, during the Course of his employment under the Respondent No.2?SCCH - 15 6 ECA. 98/2022
4. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
5. What Order or Award ?
5. In order to substantiate the Petition averments, the Petitioner No.2 got examined herself as P.W.1 and got marked 18 documents as per Ex.P-1 to Ex.P-18 and closed her side evidence. On the other hand, the Respondent No.1 has examined one witness as RW.1 and got marked two documents at Ex.R1 and 2 and closed its side evidence. Since the Respondent No.2 was placed exparte, there is no evidence from Respondent No.2 side.
6. During the stage of arguments, the Learned Counsel for Respondent No.1 has relied on the following decisions:
1. AIR 2007 SC 2907, between Gottumukkala Appala Narasimha Raju and Ors Vs. National Insurance Company Ltd.
2. MFA. No.5996/2010 (EC), between The Oriental Insurance Company Limited Vs. Sri Laxman and Others.SCCH - 15 7 ECA. 98/2022
3. MFA. No.2211 of 2007 (WC), between The Branch Manager, the Oriental Insurance Co.
Ltd., Vs.Sri Vittala and Another.
4. MFA. No.2838 of 2009 (WC), between M/s. National Insurance Company Limited Vs. T.N. Gouramma and Another.
5. 2006 ACJ 251, between The Oriental Insurance Co. Ltd., Vs. Hanumant and Another.
7. The Learned Counsel for Respondent No.1 has filed Written Arguments. Having heard the arguments by both sides and upon perusal of the Citations relied on by the Respondent No.1, depositions, documents exhibited and materials available on record, my answers to the above Issues are as under :
Issue No. 1 : In the Affirmative,
Issue No. 2 : In the Negative
Issue No. 3 : In the Negative
Issue No. 4 : In the Negative
Issue No.5 : As per the final Order
for the following :
SCCH - 15 8 ECA. 98/2022
REASONS
8. ISSUE NO.1: It is stated in the petition that,
Petitioners are the Legal heirs of the deceased J.S. Nagaraj. The Petitioner No.1 is the mother and Petitioner No.2 and 3 are the children of deceased J.S. Nagaraj. In order to prove the relationship between the Petitioners and the deceased, they have relied on Ex.P.11, 12, 17 and 18 i.e., Aadhaar cards of Petitioner No.1 to 3 and deceased J.S. Nagaraj which shows Petitioner No.1 is the mother and Petitioner No.2 and 3 are the daughter and son of the deceased J.S. Nagaraj. Accordingly I answer Issue No.1 in the "Affirmative".
9. ISSUE NO.2 to 4: All these Issues are taken together for common discussion as they are interlinked with each other and to avoid repetition of facts.
10. The Petitioners claims that the deceased J.S. Nagaraj was the driver under the Respondent No.2 and they invoked Sec.22 of Workmen Compensation Act and therefore they have to prove the relationship of the deceased J.S. SCCH - 15 9 ECA. 98/2022 Nagaraj with the Respondent No.2 that as on the date of the incident, there existed employer and employee relationship between the Respondent No.2 and deceased J.S. Nagaraj. It is the condition precedent that the legal heirs of the deceased employee can claim compensation from the employer of the deceased subject to proving their relationship.
11. Second most important aspect of the matter is that, incident should have occurred during the course of employment with his employer. The PW.1 has re-iterated the fact in her chief examination that her father met with an accident on 28.06.2022 while he was working under Respondent No.2.
12. In order to substantiate the case of the Petitioners, Petitioner No.2 got examined herself as PW.1 and she has filed her chief affidavit in lieu of chief-examination and reiterated petition averments in her chief affidavit. PW.1 has relied on Ex.P1 to Ex.P18 i.e., True Copies of FIR, Complaint, Spot mahazar with Spot Sketch, IMV report, Charge sheet, SCCH - 15 10 ECA. 98/2022 PM report, Inquest Report, Statements of eye witnesses, Aadhaar cards, DL, RC and Permit.
13. On the other hand, the Respondent No.1 has examined its Senior Executive Officer (Legal) by name Poorna Mishra as RW.1 and she also filed her chief affidavit in lieu of chief examination and got marked 2 documents at Ex.R1 and 2 i.e., Authorization letter and copy of Insurance Policy.
14. Ex.P1 & 2 are the True copies of FIR and Complaint which shows that on the Complaint lodged by one A. Nagaraj S/o Chennabasappa, the Yelahanka Traffic Police have registered the case against the deceased J.S. Nagaraj who was the driver of Auto rickshaw bearing Reg.KA-50-4334 for the offences punishable under Sec. 279 and 304(A) of IPC. Ex.P3 is the Spot Mahazar with Sketch which shows that the concerned Police had drawn the mahazar and sketch at the spot in the presence of panchas. Ex.P-4 is the IMV report which shows that the accident does not occurred due to any mechanical defects of the vehicle. Ex.P5 is the Abated Charge SCCH - 15 11 ECA. 98/2022 sheet which was submitted by the I.O after thorough investigation against the deceased J.S. Nagaraj. Ex.P6 is the PM report which shows the cause of death is due to the Head injury sustained. Ex.P.7 is the Inquest Mahazar of the deceased J.S. Nagaraj. Ex.P.8 to 10 are the True copies of Statement of the eye witnesses.
15. PW1 is subjected for cross-examination by the Learned Counsel for Respondent No.1. In the cross examination, she deposed that now 23 years completed for the marriage of her parents and since from then her father and mother was residing together. She further deposed that prior to the date of accident, her mother did not go to any job. The auto rickshaw was purchased in the year 2010-2012 and prior to the date of purchase of said auto rickshaw, her father did not had any job. Further she admitted that the said Auto was registered in the name of her mother and her father was earning Rs.25,000/- p.m., by driving the said auto rickshaw on rent. Further she deposed that she does not know which documents shows that her father was SCCH - 15 12 ECA. 98/2022 working under her mother. Further she deposed that their family was running from the income earned by her father by driving the auto on rental basis and there was no other source of income. She denied the other suggestions.
16. On the other hand, to rebut the evidence of PW.1, the Respondent No.1 has examined its Executive-Legal by name Poorna Mishra as RW.1 and she has reiterated the Objection Statement contentions in her chief-affidavit and she also got marked Authorization Letter at Ex.R.1 and Certified copy of Insurance Policy at Ex.R.2. In the cross- examination, she admitted that the Respondent No.2 was the owner of the offending vehicle and deceased J.S. Nagaraj was the driver of the said vehicle. She further admitted that she has not produced documents to show that there was no relationship of employee and employer between the deceased J.S. Nagaraj and the Respondent No.2.
17. In this case, it is most important aspect to show that there existed employee and employer relationship SCCH - 15 13 ECA. 98/2022 between the deceased J.S. Nagaraj and the owner of the offending vehicle and also the death of deceased caused during the course of employment with his employer. It is very important to note here that the Respondent No.2 is the wife of the deceased J.S. Nagaraj. Further, it is very important to note here that there was no document placed before the Court except the oral evidence to show that there existed employee and employer relationship between the deceased J.S. Nagaraj and the Respondent No.2. Further, the PW.1 being the daughter of the deceased J.S. Nagaraj as well as the Respondent No.2 has deposed in her cross-examination that her father was earning income by driving the Auto rickshaw on rent. Further she admitted that except the said income, there was no other source of income to their family. Upon going through the Statements given by the children of the deceased J.S. Nagaraj i.e., PW.1 and son by name Deepak @ Akash shown as under;
" ನಮ್ಮ ತಂದೆ ಜೆ.ಎಸ್ ನಾಗರಾಜು ರವರು ಆಟೋವನ್ನು ಬಾಡಿಗೆಗೆ ಓಡಿಸಿಕೊಂಡಿದ್ದು , ನಮ್ಮ ತಾಯಿ ನಳಿನರವರು ಗಾರ್ಮೆಂಟ್ಸ್ ನಲ್ಲಿ ಕೆಲಸ ಮಾಡಿಕೊಂಡಿರುತ್ತಾ ರೆ".SCCH - 15 14 ECA. 98/2022
18. This statement of the Petitioners who are the children of deceased J.S. Nagaraj and Respondent No.2 clearly shows that the Respondent No.2 i.e., their mother herself working in a Garments. So, there is no document to show that she was engaged her husband as a driver to her vehicle and giving salary to her husband. Hence, there is no documentary proof to establish the contract of employment was produced by the Petitioners. Further, no independent witness was examined by the Petitioners.
19. During the course of Arguments, the learned Counsel for Respondent No.1 has also relied on the decision reported in AIR 2007 Supreme Court 2907 in between Gottumukkala Appala Narasimha Raju and Ors Vs. National Insurance Company Ltd., wherein the Hon'ble Apex Court also held as under;
" It is wholly absurd to suggest that the husband would be a 'Workman' of his wife in absence of any specific contract. For the purpose of proceeding under the 1923 Act, only the appellants have concocted the story of husband and wife living separately. If they have been living separately in view of certain SCCH - 15 15 ECA. 98/2022 disputes, the question of husband being a 'Workman' under her would be a far-fetched one. Technically, it may be possible that the husband is employed under the wife, but, while arriving at a conclusion that when a dispute has been raised by other side, the overall situation should be taken into consideration. The fact, which speaks for itself shows that the owner of the tractor joined hands with the claimant for laying a claim only against the insurer. The claim was not bonafide".
20. Further, the Learned Counsel for Respondent No.2 has also relied on the Judgment of our Hon'ble High Court of Karnataka in MFA No.2211 of 2007 dated 02.04.2014 between the Branch Manager, the Oriental Insurance Company Limited Vs. Sri Vittala and Another, wherein the Hon'ble High Court of Karnataka pleased to observed as under;
"On 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".
Accordingly, the Hon'ble High Court of Karnataka has come to the conclusion that the relationship of employer and SCCH - 15 16 ECA. 98/2022 employee is not proved and therefore it has pleased allowed the appeal and set aside the Judgment and Award and dismissed the Petition filed by the Respondent No.1.
21. In the instant case also, the Respondent No.2 is the wife of the deceased J.S. Nagaraj and the Petitioners claiming that their father was working under the Respondent No.2 as a employee. But, absolutely there is no document to show that there existed employee and employer relationship between their father and their mother i.e., Respondent No.2. Further, there is no document produced by the petitioners to show that their father was drawing a salary of Rs.25,000/- per month from the Respondent No.2. Moreover, it is most important to note here that as per the statement given by the Petitioner No.2 and 3 at the time of Inquest Mahazar clearly shows that the Respondent No.2 herself was working in a Garments. It is also admitted by the PW.1 that her parents living together since from the date of their marriage. In the instant case also, there is no document placed before the Court to show the employee and employer relationship SCCH - 15 17 ECA. 98/2022 between the deceased J.S. Nagaraj and the Respondent No.2 and said J.S. Nagaraj was died during the course of his employment under the Respondent No.2. Therefore, the Petitioners are not entitled for any relief as prayed in the claim Petition. Under these circumstances, this tribunal answers Issue No. 2 to 4 "in the Negative".
22. ISSUE NO.5: In view of above discussion and findings, I proceed to pass the following:
ORDER The Petition filed by the Petitioners U/Sec.22 of the Workmen Compensation Act is hereby dismissed.
Draw award accordingly.
(Dictated to the Stenographer, typed by her, corrected and then pronounced by me in the Open Court on this the 4th day of November, 2024) (Smt. Kumari Sujatha.) XIII Addl. Small Causes Judge, ACJM,Court of Small Causes & Member, MACT-15, Bengaluru.SCCH - 15 18 ECA. 98/2022
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER:-
PW.1 : Bhoomika J.N LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER:-
Ex.P.1 : True copy of FIR
Ex.P.2 : Complaint
Ex.P.3 : Spot mahazar with Sketch
Ex.P.4 : IMV report
Ex.P.5 : Charge-sheet
Ex.P.6 : PM report
Ex.P.7 : Inquest report
Ex.P.8 to 10 : Statements of eye witnesses
Ex.P.11 & 12 : Aadhaar cards of Petitioner No.2 and 3
Ex.P.13 : DL of deceased
Ex.P.14 : RC
Ex.P.15 : Permit
Ex.P.16 : Endorsement of Renewal of Permit
Ex.P.17 : Aadhar card of Petitioner No.1
Ex.P.18 : Aadhar card of deceased J.S. Nagaraj
SCCH - 15 19 ECA. 98/2022
LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS:-
RW.1 : Poorna Mishra LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS:-
Ex.R1 : Authorization letter
Ex.R2 : Insurance policy
(Smt. Kumari Sujatha.)
XIII Addl. Small Causes Judge,
ACJM,Court of Small Causes &
Member, MACT-15, Bengaluru.