Karnataka High Court
Sanjeevani @ Sajubai W/O Bhimarao ... vs Ramesh S/O Krishnaji Jadhav on 15 November, 2022
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MFA No. 102440 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
MISC. FIRST APPEAL NO.102440 OF 2014 (ECA)
BETWEEN:
1. SMT.SANJEEVANI @ SAJUBAI,
W/O BHIMARAO WAIRAGI,
AGE: 38 YEARS,
OCC: HOUSEHOLD WORK,
R/O: H.NO.64, SONIJAWALA POST,
YUSUFWADAGAON, TALUKA KEJ,
DISTRICT BEED, MAHARASHTRA.
2. SHRI NAMADEV S/O OMAJI WAIRAGI,
AGE: 70 YEARS, OCC: HOUSEHOLD WORK,
R/O: H.NO-64, SONIJAWALA POST,
YUSUFWADAGAON, TALUKA KEJ,
DISTRICT: BEED, MAHARASHTRA.
3. SMT.ANUSAYA W/O NAMADEV WAIRAGI,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O: H.NO-64, SONIJAWALA POST,
YUSUFWADAGAON, TALUKA KEJ,
DISTRICT: BEED, MAHARASHTRA.
4. SHRI YUVRAJ S/O BHIMARAO WAIRAGI,
AGE: 18 YEARS, OCC: HOUSEHOLD WORK,
R/O: H.NO-64, SONIJAWALA POST,
YUSUFWADAGAON, TALUKA KEJ,
DISTRICT: BEED, MAHARASHTRA.
5. KUMAR DEEPAK S/O BHIMARAO WAIRAGI,
AGE: 15 YEARS, OCC: HOUSEHOLD WORK,
R/O: H.NO-64, SONIJAWALA POST,
YUSUFWADAGAON, TALUKA KEJ,
DISTRICT: BEED, MAHARASHTRA.
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MFA No. 102440 of 2014
6. KUMAR NITIN S/O BHIMARAO WAIRAGI,
AGE: 12 YEARS, OCC: HOUSEHOLD WORK,
R/O: H.NO-64, SONIJAWALA POST,
YUSUFWADAGAON, TALUKA KEJ,
DISTRICT: BEED, MAHARASHTRA.
(SINCE APPELLANT NO.5 AND 6 ARE MINOR
REP. BY HIS NATURAL GUARDIAN MOTHER
SMT.SANJEEVANI BHIMARAO WAIRAGE)
...APPELLANTS
(BY SRI. HANAMANT R.LATUR, ADVOCATE)
AND:
1. SHRI RAMESH S/O KRISHNAJI JADHAV,
AGE: 50 YEARS, OCC: BUSINESS,
R/O: AT POST: MANGNOOR,
TQ: KAGAL, DIST: KOLHAPUR,
STATE: MAHARASHTRA.
2. THE NATIONAL INSURANCE CO. LTD.,
KOLHAPUR BRANCH OFFICE,
1241/E WARD, SHAHU MILL ROAD,
KOLHAPUR-416001,
THROUGH ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, RAMADEV GALLI,
BELGAUM.
...RESPONDENTS
(BY SRI. S.K.KAYAKAMATH, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS M.F.A. IS FILED UNDER SECTION 30(1) OF THE
EMPLOYEES COMPENSATION ACT, AGAINST THE ORDER
DATED 03.09.2014 PASSED IN E.C.A. NO.446/2014 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BELGAUM,
DISMISSING THE PETITION FILED UNDER SECTION 22 OF
WORKMEN'S COMPENSATION ACT, 1923.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 102440 of 2014
JUDGMENT
The claimants in ECA No.446/2014 on the file of the II Addl.Senior Civil Judge, Belgaum (for short, 'the Tribunal') have filed this appeal challenging the judgment and award dated 03.09.2014 by which, the Tribunal dismissed the petition filed by them under Section 22 of the Workmen's Compensation Act, 1923.
2. The claimants are the legal representatives of deceased Bhimrao. They alleged that the deceased was traveling in a truck bearing registration No.MH-09/A-9276 on 01.12.2011 to cut and load sugarcane at Modikoppa village. The driver of the truck is stated to have driven it in a rash and negligent manner which caused the accident resulting in serious injuries. Bhimrao was shifted to Government Hospital, Khanapur from where he was shifted to Belgaum for higher treatment. However, he succumbed to the injuries on 02.12.2011. The claimants contended that the deceased was 42 years and was earning a sum of Rs.9,000/- per month being employed under the respondent No.1. The claimants therefore filed a claim petition under Section 22 of -4- MFA No. 102440 of 2014 the Employee's Compensation Act, 1923 (for short, 'the Act') claiming compensation from the owner and insurer of the truck.
3. The owner of the offending vehicle did not contest the claim petition. However, the insurer opposed the claim petition contending that the deceased was not employed as a loader or a coolie in the offending vehicle and that he was not traveling as a coolie in the truck on 01.12.2011. On the contrary, it contended that the deceased was traveling as a gratuitous passenger in violation of the conditions of the permit and therefore, it was not liable to indemnify the owner of the vehicle. It denied the age, occupation as well as the income of the deceased.
4. Based on these rival contentions, the claim petition was set-down for trial. Claimant No.4 was examined as PW1 and he marked Exs.P1 to P14. The insurer did not lead any evidence, but marked copy of the insurance policy as Ex.R1 by consent.
5. Based on the oral and documentary evidence, the Tribunal held that the claimants had failed to prove that the -5- MFA No. 102440 of 2014 deceased was employed with the owner of the offending vehicle. The Tribunal held that "the deceased person was a freelancer coolie and was independent and was moving in search of work owing to the season and accordingly, he along with others in a group came and took a contract of cutting of sugarcane. So this clearly shows that this person was not at all employed under the respondent No.1 who was the owner of the truck bearing registration No.MH-09/ A-9276." The Tribunal further held that "the deceased was permanent resident of a place which is about 400 Kms from the place of the respondent No.1. It can be hardly inferred that an economic weaker person like deceased would have permanent employer at a place far away. Although there is no such bar but there is no evidence that there was permanent migration of the deceased from his place i.e. Sonijawala to Manganoor." The Tribunal, therefore, dismissed the petition.
6. Being aggrieved by the same, the claimants have filed this appeal.
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7. Learned counsel for the claimants submitted that Ex.P1 which is the First Information Report was lodged based on a complaint by co-employee who stated that they were traveling in the offending vehicle which was used for transporting sugarcane from Modikoppa to Nagorcha and that the driver of the offending vehicle lost control and dashed against the roadside tree. Learned counsel submitted that this was just enough to establish that the deceased was employed in the truck as a coolie. He also invited the attention of the Court to the evidence of PW1 where pointed suggestions were put to PW1 by the insurer which indicated that the deceased was employed by the owner of the offending vehicle as a coolie. He, therefore submitted that in view of definition of an "employee" under Section 2(dd) of the Employee's Compensation Act, 1923, the deceased was employed as a coolie in the offending vehicle and therefore, the insurer was statutory liable to indemnify the owner.
8. Per contra, learned counsel for the insurer submitted that the insurer has a liability to indemnify the owner of the offending vehicle only if there was a -7- MFA No. 102440 of 2014 relationship of employer and employee and in the present case, the claimants did not produce any acceptable evidence to establish the relationship. Learned counsel submitted that the deceased was a resident of Sonajiwala in Maharashtra while the accident occurred in Khanapur. Therefore, he submitted that the deceased was one of the many who migrated in search of labour and had camped in at Nagorcha village for cutting sugarcane in the lands of various farmers, but was not employed in the truck belonging to the respondent No.1. He submitted that unless there was clinching evidence to establish the relationship of employer and employee, the insurer is not liable to indemnify the owner.
9. I have considered the submissions made by the learned counsel for the claimants and the learned counsel for the insurer.
10. The fact that the deceased was traveling in the offending vehicle on 01.12.2011 is not much in dispute. The fact that the vehicle in question was also covered by a policy of insurance is also not in dispute. The only issue raised by -8- MFA No. 102440 of 2014 the insurer is that there was no tangible evidence to establish the relationship of the employer and employee and therefore, the insurer was not liable to indemnify the compensation payable to the claimants. The evidence on record more particularly, the cross-examination of PW1 point out to the fact that the deceased was employed as a coolie in the offending vehicle and the same is extracted for easy reference.
"ªÁºÀ£À ªÀiÁ°ÃPÀgÀÄ ªÀiÁAUÀ£ÀÆgÀÄ PÁd¯ï vÁ: PÉÆïÁè¥ÀÄgÀ f¯Éè JAzÀgÉ ¸Àj. ªÀiÁAUÀ£ÀÆgÀÄUÉ ¸ÉÆäeÁªÁ¯ï HjUÉ ¸ÀĪÀiÁgÀÄ 400 Q.«Ä. zÀÆgÀÄ EgÀÄvÀÛzÉ. PÀ§Äâ PÀmÁªÀÅ ¸ÀªÀÄAiÀÄzÀ°è £ÁªÀÅ UÀÄA¥ÁV §AzÀÄ UÀÄwÛUÉ »rzÀÄ PÀ§Äâ PÀmÁªÀÅ ªÀiÁqÀÄvÁÛgÉ JAzÀgÉ ¸Àj CzÀgÀAvÉ ¥Àæ-1 §½ £ÀªÀÄä vÀAzÉ PÉ®¸À ªÀiÁqÀÄwÛzÀÝgÀÄ. PÀ§Äâ PÀmÁªÀÅ ªÀiÁqÀÄwÛzÀÝ d«Ä¤£À ªÀiÁ°ÃPÀgÀ ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ ¸ÀªÉÃð £ÀA. w½¢gÀĪÀÅ¢®è DzÀgÉ SÁ£Á¥ÀÄgÀ vÁ: ªÉÆ¢PÉÆ¥Àà JA§ ¸ÀܼÀzÀ ºÉ¸ÀgÀÄ UÉÆvÀÄÛ. PÀ§Äâ PÀmÁªÀÅ ªÀiÁrzÀ £ÀAvÀgÀ ¨ÉÃgÉƧâgÀ ºÉÆ®zÀ°è PÀmÁªÀÅ ªÀiÁqÀĪÀÅzÀÄ £À£Àß vÀAzÉ PÉ®¸À DVvÀÄÛ JAzÀgÉ CªÀgÀÄ PÀ§Äâ ¯ÉÆÃqÀ ªÀiÁqÀ®Ä ºÉÆÃVzÀÝgÀÄ. ¯ÉÆÃqÀ ªÀiÁrzÀ £ÀAvÀgÀ CzÀ£ÀÄß ¸ÀPÀÌgÉ PÁSÁð£ÉUÉ vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸Àj. CzÀgÀAvÉ SÁ£Á¥ÀÄgÀ vÁ: ¨sÁUÀå®Qëöäà ¸ÀPÀÌgÉ PÁSÁð£ÉUÉ vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛzÀÝgÀÄ. PÀ§Äâ C£ï¯ÉÆÃqÀ ªÀiÁqÀ®Ä ºÉÆÃzÁUÀ ¸ÀPÀÌgÉ PÁSÁð£ÉUÉ ºÉÆÃzÁUÀ gÀ²Ã¢UÀ¼À£ÀÄß F £ÁåAiÀiÁ®AiÀÄzÀ°è ºÁdgÀÄ¥Àr¹®è JAzÀgÉ ¸Àj. ªÉÆâPÉÆ¥Àà¢AzÀ £ÁUÀªÁqÀPÉÌ ªÁºÀ£ÀzÀ°è d£ÀgÀÄ ºÉÆÃUÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸Àj. ¸ÀPÀÌgÉ -9- MFA No. 102440 of 2014 PÁSÁð£ÉUÀ½UÉ PÀ§Äâ ¸ÀgÀ§gÁdÄ ªÁºÀ£ÀUÀ¼À£ÀÄß PÁSÁð£ÉAiÀĪÀgÀÄ UÀÄwÛUÉ ¥ÀqÉ¢gÀÄvÁÛgÉ ºÁUÀÆ F ªÁºÀ£ÀUÀ½UÉ PÁSÁð£ÉAiÀĪÀgÀÄ ¨ÁrUÉ PÉÆqÀÄvÁÛgÉ JAzÀgÉ ¸ÀjAiÀÄ®è. CzÉà jÃw PÀ§Äâ PÀqÉAiÀÄ®Ä §gÀĪÀ PÀÆ° d£ÀgÀ£ÀÄß ¸ÀºÀ PÁSÁð£ÉAiÀĪÀgÉ UÀÄwÛUÉ ªÉÄÃ¯É £ÉëĹPÉÆAqÀÄ CªÀgÉà PÀÆ° PÉÆqÀÄvÁÛgÉ JAzÀgÉ ¸ÀjAiÀÄ®è."
11. The insurer, on the other hand, except suggesting to PW1 that the deceased was not employed in the truck did nothing to ascertain from the owner whether the deceased was employed with the owner of the offending vehicle or not. The fact that in addition to the deceased, there were two other persons who were traveling in the said vehicle on the date of accident who were also injured, probablises that the deceased was traveling in the vehicle either as a coolie or as a loader. If that be so, the deceased fell within the definition of "employee" under Section 2(dd) of the Act and therefore, the insurer was liable to indemnify the owner against the claim for compensation. In that view of the matter, the impugned judgment and award passed by the Tribunal deserves to be set aside. Consequently, the compensation to which the claimants are entitled to is determined at Rs.7,13,960/- (Rs.4,000 x 178.49). In addition, the
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MFA No. 102440 of 2014 claimants are entitled to a sum of Rs.5,000/- towards funeral expenses.
12. Accordingly, the appeal is allowed in part. The total compensation to which the claimants are entitled to is determined at Rs.7,18,960/-, which is payable by the insurer with interest @ 12% per annum from one month from the date of the accident till the date of deposit. The compensation along with interest shall be deposited before the Tribunal within a period of one month from the date of receipt of a certified copy of this order.
13. Upon such deposit, 20% of the compensation along with interest shall be kept in fixed deposit in the names of claimants No.2 and 3 in any nationalized bank for a period of five years and 15% each shall be kept in the names of claimants No.1, 4, 5 and 6 in any nationalized bank for a period of one year.
(Sd/-) JUDGE CLK