Karnataka High Court
Branch Manager United India Insurance ... vs Smt.Yellamma on 25 March, 2013
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
MISC.FIRST APPEAL NO.9239/2012
BETWEEN :
BRANCH MANAGER,
UNITED INDIA INSURANCE CO. LTD.
J C ROAD, SAGAR
REPRESENTED BY ITS DIVISIONAL MANAGER
UNITED INDIA INSURNACE CO LTD.,
D.O. , SHIVAMOGGA
PIN 577 002. ...APPELLANT
( By Sri. RAVISH BENNI, ADV. )
AND :
1 SMT.YELLAMMA
AGED ABOUT 53 YEARS
W/O RAMAPPA
DINDADAHALLI VILLAGE
KITTADAHALLI POST
SHIKARIPURA TALUK
PIN 577 411.
2 SRI RAMAPPA
AGED ABOUT 63 YEARS
S/O HANUMANTHAPPA
OCC: AGRICULTURIST
OWNER OF TRACTOR AND TRAILER NO.KA-15-T-4789-4790
DINDAHALLI VILLAGE
KITTADAHALLI POST
2
SHIKARIPURA TALUK
PIN 577 411. ...RESPONDENTS
( By SMT.MANJULA R.KAMADOLLI, ADV. FOR M/S.CHINMAYI
ASSTS., ADV. FOR R-1; R-2 SERVED )
THIS MFA FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.5.2012 PASSED IN
WCA.NO.C.R.83/2007 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISION,
SHIVAMOGGA, AWARDING A COMPENSATION OF RS.3,69,214/- WITH
INTEREST @ 12% P.A FROM 21.4.2007 TILL DEPOSIT IN COURT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The second respondent - Insurance Company in W.C.A.No.83/2007 on the file of Commissioner for Workmen's Compensation, Shimoga, has come up in this appeal, impugning the judgment dated 31.5.2012 so far it pertains to holding that the deceased Thippesh, son of claimant Smt.Yellamma was working as coolie under his own father Ramappa, first respondent in the said proceedings, who is also the owner of Tractor-Trailor bearing No.KA- 15/T-4789-4790 insured with second respondent.
2. Brief facts leading to this appeal are as under:
The son of claimant Yellamma viz., Tippesh along with his 3 brother Malatesh were standing next to Tractor-Trailor belonging to first respondent while the driver of the said vehicle was unloading the bricks, which was transported in the said Tractor-Trailor and at that time, the body of the Tractor-Trailor fell on the shoulders of deceased Thippesh resulted in his death. Hence, the claim petition was filed contending that, at the relevant time of the accident, Thippesh was working as coolie under his father Ramappa, owner of the offending Tractor-Trailor, which is insured with second respondent and compensation was sought by his father for his death and the claim petition was filed by none other than his mother.
3. In the said proceedings, based on the oral and documentary evidence available on record, the Commissioner proceeded to accept the contention of claimant that her son Thippesh was working as coolie under his own father Ramappa and thereby awarded compensation to the claimant. Being aggrieved by the said award, the present appeal is filed by the Insurance Company. 4
4. On going through the judgment impugned and also the grounds of the appeal, the following substantial question of law arises for consideration:
"Whether the material available on record substantiate the finding of the Commissioner to the effect that, Thippesh was working as coolie under Ramappa in offending Tractor-Trailor bearing No.KA-15/T-4789- 4790 at the relevant time of accident?"
5. Heard the Counsel for the appellant as well as the respondent - claimant before the Commissioner. Perused the judgment impugned and also the portion of evidence culled out in the said judgment. On re-appreciation of the same, this Court answer the aforesaid substantial question of law in the negative for the reason that the entire exercise before the Commissioner is nothing but a handy work of claimant and her husband Ramappa and also the independent witnesses, who are none other than the friends of the claimant and first respondent. 5
6. The entire exercise before the Commissioner is nothing but an attempt to bring an unfortunate incident within the ambit of the Workmen's Compensation Act to see that the compensation is secured for the claimant Yellamma, mother of Thippesh. Assuming for a moment that the deceased Thippesh is an employee under first respondent, nothing prevented them from intimating the same to the Insurance Company after the accident has taken place, giving an intimation with regard to the accident having taken place and the persons, who are involved in the said accident, their relationship with the owner and the manner in which the accident took place.
7. In the instant case, no such information is furnished to the Insurance Company immediately after the accident and the said defence is also not taken in the statement of objection. It is only at the stage of evidence, to get over the lacuna and to see that the compensation claimed within the ambit of Workmen's Compensation Act where compensation could be awarded to the mother of deceased, an exercise is adopted before the Commissioner and the 6 Commissioner without applying his mind has blindly accepted the same and awarded compensation saddling the liability to pay the same on the Insurance Company. On going through the entire judgment, it is seen that the relationship of employer and employee not being established, accepting the same on the basis of oral evidence of family friends of the claimant and first respondent, the Commissioner cannot come to a conclusion that there is relationship of employer and employee.
8. When statutory obligation in bringing the said accident to the notice of the Insurance Company immediately after the accident not being complied in terms of the provisions of the Workmen's Compensation Act, this Court refuse to believe the evidence to demonstrate that there is relationship of employer and employee between deceased and first respondent owner of tractor. However, the decisions of this Court, which are referred to in the judgment impugned are circumstances where there is clear evidence regarding relationship of employer and employee being established even before 7 the claim petition is filed. When that being the case, the ratio laid down in the said judgment would not enure to the benefit of the claimant in the present case.
9. Accordingly, while answering the aforesaid substantial question of law in the negative, this Court answered that the finding of the Commissioner does not stand to reason and accordingly, the same is set aside and consequently, the compensation awarded to be paid for the death of Thippesh, is also set aside.
10. In view of the appeal being allowed, the amount in deposit is ordered to be released in favour of the Insurance Company.
SD/-
JUDGE KNM/-