Karnataka High Court
M/S National Insurance Co. Ltd vs T.N.Gouramma W/O T.N.Shiva Shankar on 11 October, 2012
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.No.2838/2009 (WC)
BETWEEN:
M/s.National Insurance Company Limited
Branch Office: Opp. to APSRTC Bus Stand
Hindupur, now rep. by its Regional Office
No.144, Shubharam Complex
M.G.Road, Bangalore
Rep. by its Administrative Officer ... Appellant
(By Sri A.M.Venkatesh, Advocate)
AND:
1. T.N.Gouramma
W/o T.N.Shiva Shankar
Aged 47 years, r/o. Azad Nagar, Hindupur
Ananthapura District.
2. T.N.Shivashankar, Major
S/o T.A.Narayanappa
R/o No.18, 12, 7/4, A2
Azad Nagar, Hindupur
Ananthapura District. ...Respondents
(By Sri Patel D.Karegowda, Advocate for R1; R2 - Served)
This appeal is filed under section 30(1) of Workmen's
Compensation Act, to set aside the award dated 20.10.2008,
passed in WCA/CR.No.28/2002, on the file of the Labour Officer
and Commissioner for Workmen's Compensation, Tumkur
District, Tumkur, awarding compensation and etc.
This appeal coming on for hearing this day, the court
delivered the following:
2
JUDGMENT
The Insurance Company has filed this appeal, raising following substantial questions of law:-
a. Whether there existed any relationship of employer and employee between the deceased and the owner of the vehicle i.e., son and father?
b. Whether the Commissioner was justified in holding that deceased was working as a loader with his father in the insured vehicle?
c. Whether the Commissioner was justified in holding deceased suffered death in the course of and arising out of employment while working as a loader with his father?
d. Whether the Commissioner was justified in holding that claimant and her husband are living separately and are divorced each other?
e. Whether the Commissioner was justified in holding that claimant is depending on her deceased son?3
f. Whether claim petition by mother of the deceased when her husband is alive is maintainable?
g. Whether Rs.1,800/- taken as income of the deceased is based on any proof and sustainable in the eye of law as also the compensation granted?
2. I have heard Sri A.M.Venkatesh, learned counsel for Insurance Company and Sri Patel D.Karegowda, learned counsel for claimant.
3. Though several substantial questions of law are framed as stated supra, the main grievance of the Insurance Company is that there was no satisfactory proof that deceased was employed by his father (insured) as a loader of insured vehicle.
4. The claimant is the mother of deceased T.A.Shankar. The II-respondent herein is the father of deceased T.A.Shankar. The deceased was the only son to them. In the circumstances, the evidence of claimant that deceased was 4 the only son of claimant and the deceased was under the employment of II-respondent (his father) and deceased was working as a loader looks improbable. The claimant has not produced any documentary evidence. The claimant has relied on Ex.P.4-Ration Card (House Hold Supply Card).
5. As per evidence of claimant, apart from deceased T.A.Shankar, she had two daughters, whose names are not shown in the ration card (Ex.P.4). It is evident that claimant has fabricated the ration card to raise a bogus claim petition to get compensation.
6. The second witness examined is one Irfan. As per evidence of Irfan, deceased was working as a loader, however he has not stated that deceased had been employed by II- respondent (insured).
7. In a decision reported in 2007 ACJ 1025 (in the case of Gottumukkala Appala Narasimha Raju & others Vs. National Insurance Co. Ltd. & another), the Supreme Court has held:- 5
"22. Thus, if the vehicle is covered by an insurance, the insurer may be made a party and it may be liable to indemnify the owner, but the situation in this case is entirely different, as would appear from the discussions made hereinafter.
23. In our considered opinion, it is wholly absurd to suggest that the husband would be a 'workman' of his wife in absence of any specific contract. We have no doubt in our mind that only for the purpose of proceeding under 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 disputes, the question of husband being a 'workman' under her appears to be a farfetched one.
24. 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 have been taken into consideration. The fact, which speaks for itself shows that the owner of the tractor joined hands 6 with the claimant for laying a claim only against the insurer. The claim was not bona fide.
25. No documentary proof to establish the contract of employment was produced. No independent witness was examined. Even as to for what purpose the tractor was being used had not been disclosed. How the accident had taken place is also not borne out from the records of the case. If the deceased, with all intent and purport, was the owner of the tractor, the claim petition under the 1988 Act might not have been maintainable. A petition under 1923 Act certainly would not lie. Only because Section 143 and 167 of the 1988 Act refer to the provisions of the 1923 Act, the same by itself would not mean that the provisions of the 1988 Act, proprio vigore would apply in regard to a proceeding for payment under the 1923 Act. The limited applicability of the provisions of the 1988 Act, in relation to the proceedings under the 1923 Act has been discussed by this Court in the aforementioned judgments. It is, thus, not possible to extend the scope and ambit of the provisions of 1988 Act to the provisions of 1923 7 Act save and except to the extent noticed hereinbefore."
8. It is interesting to notice that insured (II-respondent herein) having filed objections has not participated in the proceedings. It appears that insured has set up his wife to claim compensation from the Insurance Company. In the absence of satisfactory evidence in proof of relationship of deceased and II-respondent as employee and employer, the Commissioner for Workmen's Compensation should not have granted compensation.
9. Therefore, I pass the following:-
ORDER The appeal is accepted. The impugned award is set aside. The amount deposited by the Insurance Company shall be refunded to it.
Sd/-
JUDGE SNN