Karnataka High Court
The Branch Manager National vs Mallamma And Ors on 14 July, 2023
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NC: 2023:KHC-K:5391
MFA No. 200194 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
MISCL. FIRST APPEAL NO. 200194 OF 2018 (ECA)
BETWEEN:
THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD,
BRANCH OFFICE RAICHUR
THROUGH ITS DIVISIONAL MANAGER
KALABURAGI
NOW REPRESENTED BY
AUTHORIZED SIGNATORY
...APPELLANT
(BY SRI S. S. ASPALLI, ADVOCATE)
AND:
1. MALLAMMA W/O LATE MAHANTESH
AGE: 30 YEARS OCC: HOUSEHOLD
Digitally signed
by SACHIN 2. VEERAPPA S/O LATE MAHANTESH
Location: HIGH
COURT OF
AGE: 6 YEARS (MINOR)
KARNATAKA
3. AKSHATA D/O LATE MAHANTESH
AGE: 4 YEARS (MINOR)
4. ERAMMA W/O SANGAPPA KATTI
AGE: 57 YEARS OCC: HOUSEHOLD
SINCE PETN. NO.2 & 3 ARE MINORS
REPRESENTED BY THEIR NATURAL
MOTHER I.E. PETITIONER NO.1
MALLAMMA W/O LATE MAHANTESH
ALL ARE R/O KANDAGAL VILLAGE
TQ. HUNAGUNDA DIST. BAGALKOT
NOW R/O KALMALA VILLAGE
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NC: 2023:KHC-K:5391
MFA No. 200194 of 2018
TQ. & DIST. RAICHUR-584101
5. VEERABHADRAPPA S/O VEERAPPA KATTI
AGE: MAJOR OCC: AGRI & OWNER
OF TRACTOR BEARING ITS REGN.
NO.KA-29/TA-5197, R/O KANDAGAL
VILLAGE TQ. HUNAGUNDA
DIST. BAGALKOT-585101.
...RESPONDENTS
(BY SRI BABU H. METAGUDDA, ADVOCATE FOR R1 TO R4;
R5 SERVED; R2 & R3 ARE MINORS R/BY R1)
THIS MFA IS FILED UNDER SECTION 30 (1) OF ECA ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
18.11.2017 PASSED BY THE II ADDL. SENIOR CIVIL JUDGE
AND COMMISSIONER FOR WORKMEN COMPENSATION,
RAICHUR, BY ALLOWING THE APPEAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The insurer is in appeal challenging the liability fastened on it as well as the quantum of compensation awarded by the II Additional Senior Civil Judge and Commissioner for Workmen Compensation, Raichur (henceforth referred to as 'Commissioner') in E.C.A.No.39/2015 vide its judgment and order dated 18.11.2017.
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NC: 2023:KHC-K:5391 MFA No. 200194 of 2018
2. The claimants are the dependant legal heirs of deceased - Mahantesh. The claimants claimed that on 27.08.2014, Mahantesh was working as a driver in a Tractor bearing registration No.KA-29/TA-5197 owned by the respondent No.5 herein. On that day, he had taken the tractor to Lingasugur for retreading the tyres of the Tractor and on his way back, he fell off the Tractor and the wheel ran over him, as a result of which, he died at the spot. The claimants claimed that the deceased was earning a sum of Rs.9,000/- per month and Rs.100/- per day as daily allowance and therefore, they filed a claim petition claiming compensation from the owner and the insurer of the Tractor.
3. The owner of the Tractor admitted the contents of the claim petition and contended that it was for the insurer to indemnify him. The insurer contested the claim petition and denied the relationship of an employer and employee between the owner of the Tractor and the deceased. It also denied the claim that the deceased was earning a sum of Rs.9,000/- per month. It claimed that the deceased did not possess valid and effective driving licence and hence the owner had violated the terms and condition of the policy of insurance. -4-
NC: 2023:KHC-K:5391 MFA No. 200194 of 2018
4. Based on these rival contentions, the claim petition was set down for trial. The claimant No.1 was examined as PW.1 and she marked Exs.P1 to P7. The insurer examined one of its officials as RW.1, who marked Ex.R1 to R3.
5. During the pendency of the proceedings, the insurer filed an application calling upon the owner to place on record the driving licence of the deceased. The said application was rejected in view of the contention of the claimants and the owner that they were not in a position to produce the driving licence.
6. Based on the oral and documentary evidence, the Commissioner held that the deceased was employed in the Tractor under the respondent No.1/owner and that he died during and in the course of employment. It also considered the income of the deceased at a sum of Rs.10,000/- and deducted 50% of it towards his expenses and applying factor of 199.40, awarded a sum of Rs.10,22,000/- including Rs.25,000/- towards funeral expenses and directed the insurer of the Tractor to pay the same along with interest at the rate of 12% -5- NC: 2023:KHC-K:5391 MFA No. 200194 of 2018 per annum from the date of the claim petition till the date of realization.
7. Being aggrieved by the same, the insurer is in appeal.
8. The learned counsel for the insurer contended that the owner of the Tractor was none other than the paternal uncle of the deceased and therefore, there was no relationship of employer and employee between them. He also contended that the father of the deceased had lodged a complaint before the jurisdictional police where he did not mention that the deceased was employed as a driver of the Tractor under the respondent No.5 herein/owner. He further contended that the jurisdictional police after investigation, filed an abated charge- sheet against the deceased where too, there was no mention of the deceased being employed. He further contended that the claimants or owner did not place on record the licence possessed by the deceased and therefore, there was no relationship of employer and employee between the deceased and the owner of the Tractor. He therefore, contended that the proof of relationship of employer and employee being condition -6- NC: 2023:KHC-K:5391 MFA No. 200194 of 2018 precedent for grant of compensation under the Employee's Compensation Act, 1923, the claimants are not entitled to claim any compensation from the insurer and that they were bound to proceed only against the owner of the Tractor. Even otherwise, he contended that since the deceased did not possess licence, the insurer was not liable to indemnify the owner and it was for the owner to pay the compensation determined by the Commissioner. He also contended that the Commissioner considered the income of the deceased at a sum of Rs.10,000/- per month, while maximum income that could be considered under Section 4 of the Employee's Compensation Act is Rs.8,000/-.
9. Per contra, learned counsel for the claimants contended that the Tractor in question belonged to the respondent No.5 herein, who was the paternal uncle of the deceased. He submitted that since the deceased took the Tractor for getting the tyres of the Tractor retreaded, there was an implied relationship contract of employer and employee and therefore, the Commissioner was right in holding that the deceased suffered injuries during and in the course of employment. He however, was unable to respond to the query -7- NC: 2023:KHC-K:5391 MFA No. 200194 of 2018 of the Court whether the deceased possessed a licence to drive the Tractor and therefore, it is construed that the deceased did not possess a licence to drive the Tractor in question.
10. In so far as quantum of compensation is concerned, the learned counsel for the claimants contended that the insurer did not challenge the quantum of compensation awarded by the Commissioner and therefore, the same cannot be assailed. He further contended that the insurer has not even raised any ground questioning the quantum of compensation awarded by the Commissioner and therefore, it cannot raise this contention at the time of hearing the appeal. Further, he contended that the insurer has not even suggested this as a question of law and therefore, quantum of compensation cannot be interfered with.
11. I have considered the submissions made by the learned counsel for the insurer as well as the learned counsel for the claimants.
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NC: 2023:KHC-K:5391 MFA No. 200194 of 2018
12. In view of the contentions urged by the learned counsel for the insurer and learned counsel for the claimants, the following questions of law would arise for consideration:-
1) Whether there was a relationship of the employer and employee between the deceased and respondent No.5 herein/owner?
2) Whether the insurer was under any liability to indemnify the owner since the deceased did not possess a valid licence to drive the Tractor and whether the principle of pay and recover is applicable to the facts and circumstances of this case?
3) Whether the income considered by the Commissioner for the purpose of determining compensation exceeded the income prescribed under Section 4 of the Employee's Compensation Act?
13. While dealing with the first question, it is relevant to note that the deceased on the instruction of the owner/respondent No.5 herein had taken the Tractor for getting the tyres retreaded. Therefore, there was implied relationship of employer and employee between the deceased and the owner/respondent No.5 herein. The finding of the -9- NC: 2023:KHC-K:5391 MFA No. 200194 of 2018 Commissioner that the deceased died during and in the course of employment, cannot be found fault with and hence the first substantial of question of law framed by this Court is answered in favour of the claimants and against the insurer and it is held that there was a relationship of employer and employee between the deceased the respondent No.5 herein/owner.
14. In so far as second substantial question of law is concerned, though principle of pay and recovery is applicable to claim under the Motor Vehicle Act, 1988, in view of the statutory provision contained under Section 149 of the Motor Vehicles Act, yet having regard to the fact that the deceased did not possess a valid licence to drive tractor, the insurer cannot avoid liability to indemnify the owner as breach of policy conditions should result in civil consequences between the insurer and insured/owner. It cannot deprive the claimants of the benefit of the compensation awarded by the Commissioner. In that view of the matter, though the principle of pay and recovery is not strictly applicable in a case arising out of provision of Employee's Compensation Act yet, the insurer is bound to pay and recover the compensation determined by the Commissioner.
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NC: 2023:KHC-K:5391 MFA No. 200194 of 2018
15. In so far as third substantial question of law is concerned, Section 4 of the Employee's Compensation Act prescribes that for the purpose of determining the amount of compensation payable in cases of death, where the monthly wages of workmen exceed Rs.8,000/-, his monthly wages for the purpose of clauses (a) and (b) of Section 4 shall be deemed to be Rs.8,000/- only. In the case on hand, the deceased was allegedly earning Rs.9,000/- per month and Rs.100/- as daily wages and therefore, the Commissioner could not have considered the income beyond a sum of Rs.8,000/-. In that view of the matter, the third substantial question of law framed by this Court is answered against the claimants and in favour of the insurer. It is held that the Commissioner committed an error in considering the income of the deceased at Rs.10,000/- per month.
16. In that view of the matter, the contention urged by the insurer to avoid liability does not merit consideration. However, the contention that the Commissioner awarded higher compensation by considering the income of the deceased at Rs.10,000/- merits consideration. The income of the deceased is considered at a sum of Rs.8,000/-. In that view of the
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NC: 2023:KHC-K:5391 MFA No. 200194 of 2018 matter, the claimants are entitled to the compensation at Rs.7,97,600/- (4,000 x 199.40) and Funeral expenses of Rs.25,000/-. In all, the claimants are entitled to the compensation of Rs.8,22,600/-.
17. In that view of the matter, this appeal is allowed in part. The compensation of Rs.10,22,000/- awarded by the Commissioner is reduced to Rs.8,22,600/-. The reduced compensation shall be paid by the insurer along with interest at the rate of 12% per annum from the date of accident till the date of realisation.
18. The insurer is entitled to recover the compensation from the owner/respondent No.5 herein in accordance with law and in the same proceedings.
19. The insurer shall deposit the compensation along with interest before the Commissioner within a period of one month from the date of receipt of a certified copy of this Judgment.
20. Upon deposit, 30% of the compensation shall be deposited in the names of each of claimant Nos.2 and 3 in any
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NC: 2023:KHC-K:5391 MFA No. 200194 of 2018 nationalized bank for a period of 5 years or till they attain the age of the majority, whichever is later. Remaining shall be released to the claimant Nos.1 and 4 equally.
21. The amount in deposit is ordered to be transferred to the Commissioner for necessary orders. If any excess amount is deposited, the Commissioner is directed to refund the same to the insurer.
Sd/-
JUDGE PMR LIST NO.: 1 SL NO.: 29