Karnataka High Court
The Divisional Manager vs Sri Virupakshappa S/O Ramappajadar on 15 July, 2016
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2016
BEFORE:
THE HON'BLE MR. JUSTICE B.MANOHAR
MFA.NO.3797/2011(WC)
BETWEEN:
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
HUBLI, THROUGH ITS
BANGALORE REGIONAL OFFICE,
NO.44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD, BANGALORE
REP. BY ITS DEPUTY MANAGER.
... APPELLANT
(BY SRI.S.V.HEGDE MULKHAND, ADVOCATE)
AND:
1. SRI VIRUPAKSHAPPA
S/O RAMAPPAJADAR
AGED ABOUT 61 YEARS
2. BASAVANNEVVA
W/O VURUPAKSHAPPA
AGED ABOUT 54 YEARS
BOTH ARE R/O LABOUR COLONY PARK
NEAR RH VRINDAVANA
DAVANAGERE.
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3. SMT RENUKAVVA
W/O PUNDALIKAPPA JADAR
MAJOR IN AGE
R/O MEVUNDI HAVERI TALUK.
... RESPONDENTS
(BY SRI.HARISH, ADV. FOR SRI.B.M.SIDDAPPA, ADV. FOR
R1 & R2, R3 SERVED)
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT DATED 29.10.2010 PASSED IN
KAADA/KANAPA:CR/212/2007 ON THE FILE OF THE
LABOUR OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, DAVANAGERE DISTRICT, DAVANAGERE,
AWARDING A COMPENSATION OF RS.4,52,760/- .
THIS MFA COMING ON FOR HEARING AND HAVING
RESERVED FOR JUDGMENT ON 20-06-2016, THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING
JUDGMENT
The Oriental Insurance Company has filed this appeal challenging the legality and correctness of the judgment and order dated 29-10-2010 made in WCA/CR-212/2007 passed by the Labour Officer and Commissioner for Workmen's Compensation (hereinafter referred to as 'the WCC for short).
2. Respondents 1 and 2 herein filed a claim petition contending that son of the claimants Sri.Shivanand 3 Virupakshappa Jadar was working as a driver and hamali in the Tractor and Trailer bearing Registration No.KA-27/T- 7759-7760 belonging to the third respondent herein. As per the instructions of owner of the vehicle, on 7-4-2005, after completion of transportation of the soil, the tyre of the Tractor was punctured. After getting repaired the punctured tyre at Motebennur, while they were proceeding towards Kalledevarahalli, due to the rash and negligent driving of the said Tractor and Trailer by its driver, the vehicle met with an accident. The son of the claimants died on the spot, during the course and out of employment. Prior to the accident, the owner of the vehicle was paying him salary of Rs.4,500/- p.m. and batta of Rs.100/- per day. At the time was accident the deceased was aged about 18 years. The Insurance policy covers the risk of the Tractor and Trailer. The claimants are dependants of the deceased. Hence, sought for compensation.
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3. In pursuance of the notice issued by the WCC, though the owner of the vehicle was served with notice, he remained unrepresented. The second respondent/insurance company filed the written statement denying the entire averments made in the claim petition and also disputed the relationship of master and servant between the deceased as well as the owner of the vehicle. The owner of the offending Tractor and Trailer is none other than the sister of the deceased. No document has been produced to show that the deceased was being paid salary of Rs.4,500/- p.m. and batta of Rs.100/- per day. The driver of the Tractor and Trailer did not possess the valid and effective driving license as on the date of accident. Hence, the insurance company is not liable to compensate the claimants and sought for dismissal of the claim petition.
4. On the basis of pleadings of the parties, the WCC framed necessary issues. The claimants, in order to prove their case, the second claimant examined herself as P.W.1 5 and got marked the documents as Ex.P1 to Ex.P8. On behalf of the respondents, none of the witnesses were examined, however, the insurance company got marked the documents as Ex.R1 to Ex.R5.
5. The WCC, after appreciating the oral and documentary evidence let in by the parties and taking into consideration spot mahazar, IMV report, copy of the complaint and charge sheet held that while the deceased was working as driver and hamali in the Tractor and Trailer, it met with an accident during the course and out of employment. The claimants are the dependants of the deceased. Hence, the claimants are entitled for compensation. With regard to quantum of compensation is concerned, the WCC, taking into consideration the income of the deceased as Rs.4,000/- p.m., deducting 50% thereof, at the time of death he was aged about 18 years applying the relevant factor 226.28 awarded compensation of Rs.4,52,760/- with interest at the rate of 7.5% p.a. from the date of accident, till the date of passing of 6 the judgment and order and 12% from the date of passing of the judgment and order till it is deposited. Since the Insurance policy covers the risk of the Tractor and Trailer and the accident occurred during the course and out of employment, the liability was fastened on the insurance company to compensate the claimants. The insurance company being aggrieved by the judgment and order passed by the WCC, filed this appeal.
6. Sri.S.V.Hegde Mulkhand, learned counsel appearing for the appellant contended that the judgment and order passed by the WCC is contrary to law. There is no relationship of master and servant between the deceased and the owner of the vehicle. The owner of the vehicle is none other than the sister of the deceased. The owner of the vehicle made a statement before the Police that her father bought the Tractor and Trailer in her name and her brother was managing the said Tractor and Trailer. Further, at the time of accident, the deceased was driving of the Tractor and Trailer, he was aged 7 about 18 years, he did not possess the valid and effective driving license as on the date of the accident to drive the Tractor and Trailer. Hence, the insurance company is not liable to compensate the claimants and sought for dismissal of the claim petition.
7. On the other hand, Sri.Harish, learned counsel appearing for Sri.B.M.Siddappa, learned counsel appearing for respondents 1 and 2 argued in support of the judgment and order passed by the WCC and contended that the deceased was working as a hamali in the Tractor and Trailer belonging to the third respondent. There is no prohibition under the Act for younger brother working as hamali in the Tractor and Trailer belonging to his sister. The deceased falls within the meaning of Section 2(1)(n) of Employees Compensation Act. The claimants are the dependants of the deceased, they are entitled for compensation and hence sought for dismissal of the appeal. In support of his contention, he relied upon a decision reported in 2014(4) AKR 8 158 in the case of THE ORIENTAL INSURANCE CO. LTD. v/s SHRI RAMESH AND OTHERS and another decision reported in 2014(2) AKR 312 in the case of MUNISAWAMY v/s CHARLES KATANU GEORGE AND ANOTHER and also relied on various other judgments.
8. Having heard the learned counsel appearing for the parties, the points that arise for consideration in this appeal are :
(a) Whether there exists relationship of master and servant between the deceased and the third respondent herein?
(b) Whether the claimants are entitled for compensation?
9. The records clearly disclose that on 7-4-2005, while the deceased was working as a driver and hamali in the Tractor and Trailer belonging to the 3rd respondent herein died during the course and out of employment and the vehicle is covered by the insurance policy. Hence, the claimants have sought 9 for compensation. Though, owner of the vehicle was served with notice, she remained unrepresented. The insurance company disputed the relationship of master and servant between the deceased and owner of the vehicle. The insurance company has produced some of the documents to show that the deceased was none other than the brother of the owner of the vehicle. The sister of the deceased in her statement made before the Police, which was produced as Ex.R2(4) admitted that she was running Provisions Stores. Five months after her marriage, her husband died. In view of that, her father purchased the Tractor and Trailer in her name. Her brother deceased Shivananda was managing the said Tractor and Trailer. Further she has deposed that, on 7-4-2005, her brother and Manjunath Nagappa Nekar, her sister's husband went to Motebennur to repair the punctured wheel of the tractor. While returning, the Tractor and Trailer met with an accident and her brother died. Hence, there is no relationship of master and servant between the deceased and the owner of the vehicle. Further, as on the date of 10 accident, the deceased was driving the Tractor and Trailer. He did not possess the valid and effective driving license to drive the Tractor and Trailer. Since he was aged about 18 years as on the date of accident, he was not eligible to drive Tractor and Trailer. The Tractor and Trailer was entrusted to an unauthorized person. Hence, the insurance company is not liable to compensate the claimants.
10. On perusal of Ex.R2(4) i.e. the statement made before the Police by the owner of the vehicle and also complaint Ex.R2(5) made by Manjunath Nagappa Nekar, it is clear that the Tractor and Trailer is being managed by the deceased though it belonged to the 3rd respondent herein. Under the Workmen's Compensation Act, it is incumbent upon the claimants to prove that there is relationship of master and servant between the deceased and the owner of the vehicle and falls under Section 2(1)(n) of the Employees' Compensation Act. Except oral assertion that the deceased was working as a driver-cum-hamali of the Tractor and 11 Trailer, no document has been produced to show that the deceased was a workman. The duty cast upon the claimants to prove that the deceased was a workman under the third respondent. The third respondent clearly admitted in the Criminal proceedings that her father purchased the Tractor and Trailer in her name, she was running the Provision Stores, her brother Shivanandappa was managing the Tractor and Trailer and he died in the accident that occurred on 07-04-2005 while they were returning to Kalledevanahalli from Motebennur. The Police have registered a case against the deceased Shivananda, since he was driving the Tractor and Trailer at the time of accident. The charge sheet was also filed against the said deceased Shivananda. The statement made by the owner of the vehicle clearly discloses that her brother deceased Shivananda was managing the Tractor and Trailer and there is no relationship of master and servant between the deceased and his sister, third respondent herein.
Some of the judgments relied upon by the respondents/claimants are only with regard to possession of 12 driving license. The dispute in this appeal is whether there exists jural relationship of employer and employee between the deceased and the owner of the vehicle. Hence, the said judgments are not applicable to the facts of the present case. Under the Workmen's Compensation Act, though there is no bar for the Sister to become owner of the vehicle, it has to be proved that the deceased was a workman, working under the owner of the vehicle and falls under Section 2(1)(n) of the Employees' Compensation Act. In the instant case, no material has been placed to show that there is jural relationship of master and servant between the deceased and the owner of the vehicle. The owner of the vehicle herself admitted that her deceased brother was managing the Tractor and Trailer, since she was doing Provision Stores business. Hence, the finding of the WCC is contrary to law. The judgment and order passed by the WCC cannot be sustained. Accordingly, the issues framed in this appeal are held against the respondents/claimants and in favour of the appellant. Accordingly, I pass the following:
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ORDER The appeal is allowed. The judgment and order dated 29-10-2010 made in WCA/CR-212/2007 passed by the Commissioner for Workmen's Compensation, Davanagere is set aside insofar as appellant is concerned. The insurance company is exonerated from its liability to compensate the claimants. It is open to the claimants to enforce the said judgment and order against the owner of the Tractor and Trailer.
The amount deposited is directed to be refunded to the appellant.
Sd/-
JUDGE mpk/-*