Karnataka High Court
Smt Sowbhagyamma vs Sri Maniyan on 18 February, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE N. K. SUDHINDRARAO
M.F.A. No.4417 OF 2013 (WC)
C/W
M.F.A. NOS. 4413, 4414, 4416 AND 4418 OF 2013 (WC)
IN MFA NO. 4417 OF 2013
BETWEEN:
1. SMT. SOWBHAGYAMMA
W/O KUMARA NAIK,
AGED ABOUT 35 YEARS
2. TAVARA NAIK
S/O LATE SHAMA NAIK,
AGED ABOUT 50 YEARS
3. MANJUNATHA
S/O KUMARA NAIK,
AGED ABOUT 13 YEARS.
4. PAVITHRA BAI
D/O KUMARA NAIK,
AGED ABOUT 11 YEARS.
(THE CLAIMANT NOs.3 AND 4
ARE MINORS, REPRESENTED
BY MOTHER AND NATURAL
GUARDIAN CLAIMANT NO.1)
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ALL ARE R/O DODDABIDIRE VILLAGE
HULIYAR HOBLI,
CHIKKANAYAKANHALLI TALUK
TUMAKURU DISTRICT - 572 214.
...APPELLANTS
(BY SRI. K.R. RAMESH, ADVOCATE)
IN MFA NO. 4413 OF 2013
BETWEEN:
1. SMT. LALITHA BAI
W/O CHANDRA NAIK,
AGED ABOUT 48 YEARS.
2. KUM. MADHU,
D/O CHANDRA NAIK,
AGED ABOUT 22 YEARS.
3. MANGALAMMA
D/O CHANDRA NAIK,
AGED ABOUT 20 YEARS.
4. DHARANI KUMAR
S/O CHANDRA NAIK,
AGED ABOUT 18 YEARS.
ALL ARE R/O ANKANABAVI VILLAGE,
MUDDANAHALLI POST,
CHIKKANAYAKANAHALLI TALUK,
TUMAKURU DISTRICT - 572 214.
...APPELLANTS
(BY SRI. K.R. RAMESH, ADVOCATE)
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IN MFA NO. 4414 OF 2013
BETWEEN:
1. SMT. SOMALI BAI,
W/O R.SHYAMA NAIK,
AGED ABOUT 50 YEARS,
TUMAKURU DISTRICT.
2. KAMALAMMA,
D/O SHYAMA NAIK,
AGED ABOUT 35 YEARS.
3. MALLESHA NAIK,
S/O SHYAMA NAIK
AGED ABOUT 33 YEARS,
ALL ARE R/O ANKANABAVI VILLAGE,
MUDDANAHALLI POST,
CHIKKANAYAKANAHALLI TALUK,
TUMAKURU DISTRICT - 572 214.
...APPELLANTS
(BY SRI. K.R. RAMESH, ADVOCATE)
IN MFA NO. 4416 OF 2013
BETWEEN:
1. SMT. RUPLI BAI
W/O. SHAYAMA NAIK,
AGED ABOUT 50 YEARS.
2. NINGARAJU
S/O. SHAYAMA NAIK,
AGED ABOUT 32 YEARS
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3. YATHISH NAIK,
S/O. SHAYAMA NAIK,
AGED ABOUT 30 YEARS.
4. CHANDRASHEKAR NAIK,
S/O. SHAYAMA NAIK,
AGED ABOUT 30 YEARS.
ALL ARE R/O. ANKANABAVI VILLAGE,
MUDDANAHALLI POST,
CHIKKANAYAKANHALLI TALUK,
TUMAKURU DISTRICT - 572 214.
...APPELLANTS
(BY SRI. K.R. RAMESH, ADVOCATE)
IN MFA NO. 4418 OF 2013
BETWEEN:
SRI SHANKARA NAIK
S/O RAMA NAIK,
AGED ABOUT 55 YEARS,
SALAKATTE TANDYA,
MUDDANAHALLI POST,
CHIKKANAYAKANAHALLI TALUK,
TUMAKURU DISTIRCT.
...APPELLANT
(BY SRI.K.R.RAMESH, ADVOCATE)
AND:
1. SRI MANIYAN
FATHER'S NAME NOT KNOWN
TO THE APPELLANT
PRESIDENT
N.A.P.C., COMPANY,
NO.480, ANNASALAYI,
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NANDAHAM,
CHENNAI - 600 035.
2. M/S. THE NEW INDIA ASSURANCE
COMPANY LIMITED,
6TH FLOOR, HARSHADJI TATA ROAD,
CHURCH GATE,
MUMBAI - 400 001
REP. BY ITS MANAGER.
3. SMT. SAVITHA N.,
W/O. LATE NAGABUSHAN,
AGED ABOUT 32 YEARS.
4. HARSHITHA
D/O LATE NAGABUSHAN
AGED ABOUT 12 YEARS.
5. SIDDU BHUSHAN
S/O LATE NAGABUSHAN
AGED ABOUT 10 YEARS.
(THE RESPONDENT NOs.4 AND 5
ARE MINORS, REPRESENTED
BY MOTHER AND NATURAL GUARDIAN
RESPONDENT NO.3)
THE RESPONDENTS NO.3 TO 5 ARE
R/O. DWARAKA NILAYA,
8TH CROSS, S.S.PURAM,
TUMAKURU - 572 102.
...COMMON RESPONDENTS
(BY SRI. K. A. CHANDRASHEKARA, ADVOCATE FOR R1;
SRI. KARTHIK YADAV V. FOR SRI S.K.VENKATA REDDY,
ADVOCATES FOR R3, R4 AND R5;
SRI R. JAI PRAKASH, ADVOCATE FOR R2)
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MFA No.4417 OF 2013 IS FILED U/S 30(1) OF W.C.
ACT AGAINST THE JUDGMENT AND AWARD DATED:
12.12.2012 PASSED IN WCA NO.KA.A.TU:PA.KAA:CR-
80/2003 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION,
TUMAKURU DISTRICT, TUMAKURU, REJECTING THE
PETITION FOR COMPENSATION ETC.
MFA No.4413/2013 IS FILED U/S 30(1) OF W.C. ACT
AGAINST THE JUDGMENT DATED: 12.12.2012 PASSED IN
WCA NO.KAA.TU.KA.PA.KAA:CR-58/2003 ON THE FILE OF
THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN COMPENSATION, TUMAKURU DISTRICT,
TUMAKURU, REJECTING THE PETITION FOR
COMPENSATION ETC.
MFA No.4414/2013 IS FILED U/S 30(1) OF W.C. ACT
AGAINST THE JUDGMENT DATED: 12.12.2012 PASSED IN
WCA NO.KA.A.TU:KA.PA.KAA:CR-59/2003 ON THE FILE OF
THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN COMPENSATION, TUMAKURU DISTRICT,
TUMAKURU, REJECTING THE CLAIM PETITION FOR
COMPENSATION ETC.
MFA No.4416/2013 IS FILED U/S 30(1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED:
12.12.2012 PASSED IN WCA NO.KA.A.TU:KA.PA.KAA:CR-
60/2003 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION,
TUMAKURU DISTRICT, TUMAKURU, REJECTING THE
PETITION FOR COMPENSATION ETC.
MFA No.4418/2013 IS FILED U/S 30(1) OF W.C. ACT
AGAINST THE JUDGMENT AND AWARD DATED:
12.12.2012 PASSED IN WCA NO.KA.A.TU:PA.KAA:CR-
95/2003 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION,
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TUMAKURU DISTRICT, TUMAKURU, REJECTING THE
PETITION FOR COMPENSATION.
THESE MFAs' COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the appeals are listed for admission, with the consent of learned counsel for both parties, they are taken up for final hearing and disposal.
2. These are five miscellaneous first appeals filed under the provisions of Employees Compensation Act, 1923, (hereinafter referred to as 'the Act'), directed against the respective impugned judgments and awards dated 12.12.2012, passed by the Labour Officer and Commissioner For Workmen's Compensation, Tumakuru District, Tumakuru.
3. In order to avoid confusion and overlapping, the parties are referred to, as per their rankings before the trial Court.
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4. Out of the five appeals, WCA NO.KA.A.TU:PA.KAA:CR-95/2003 is filed for the injuries suffered in the blast / accident that occurred on 18.04.2002, the rest are in respect of death. The present proceedings are being conducted for the second time.
5. On an earlier occasion, the Tribunal presided by the Commissioner adjudicated the claim petitions holding that there was no jural relationship of `employee' and `employer' between the respondents and the deceased employees in WCA NO. KA. A. TU:PA. KAA:CR-80/2003, WCA NO. KAA. TU. KA. PA. KAA:CR- 58/2003, WCA NO. KA. A. TU:KA. PA. KAA:CR-59/2003 and WCA NO. KA. A. TU:KA. PA. KAA:CR-60/2003 and the injured claimant in WCA NO.KA.A.TU:PA.KAA:CR- 95/2003.
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6. Being aggrieved by the same, the claimants preferred appeals in MFA.Nos.7282/2005, 7283/2005, 7284/2005, 7285/2005 and 7286/2005 and this Court vide judgment dated 06.11.2008, allowed the appeals and remanded the matters to the Commissioner for Workmen's Compensation directing the Commissioner to consider the prayer of the claimants to amend the pleadings and permit them to produce additional evidence, if any and to dispose of the matters without being influenced by any of the observations made with regard to the factual matters referred to above.
7. The facts of the case that led to filing of claim petitions before the Commissioner for Workmen's Compensation is mentioned in detail in the tabular form as under:
Name of the W.C.A. Appeal in Appeal in High Appellant No.Ka.A.Tu High Court Court (II time) .:Ka.Pa.Kaa (I time) :CR Mrs. 80/2003 MFA.No.72 MFA.No.4417/2 Sowbhagya 85/2005 013 10 and others Mr. Shankar 95/2003 MFA.No.72 MFA.No.4418/2 Naik 86/2005 013 Smt. Roopali 60/2003 MFA.No.72 MFA.No.4416/2 Bai and 84/2005 013 others Smt. Somali 59/2003 MFA.No.72 MFA.No.4414/2 Bai and 83/2005 013 others Smt. Lalitha 58/2003 MFA.No.72 MFA.No.4413/2 Bai 82/2005 013
8. The deceased employees and one injured employee were working under one Nagabhushan, who was a supplier of explosives, which were required by the first respondent who was a principal employer. The said Nagabhushan was a sub-contractor of the first respondent, who was undertaking the work of supplying explosives to the first respondent. On 18.04.2002, the deceased employees and the injured employee were engaged in unloading the explosives from the jeep as per the instructions of Nagabhushan, the explosives accidentally exploded. On account of such explosion, many people died including the said sub-contractor - Nagabhushan.
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9. The four claim petitions were filed by the claimants, who are the dependents of the deceased employees and the fifth claim petition i.e., WCA NO.KA.A.TU:PA.KAA:CR-95/2003 is filed by the injured employee/claimant. Thus, in the first four cases, the claim petitions came to be preferred seeking compensation under the Act, on the death of respective employees, due to the accident out of and in the course of employment. Further, in WCA NO.KA.A.TU:PA.KAA:CR-95/2003, it is stated that the injuries sustained by the claimant was due to the same accident, arose out of and during the course of his employment.
10. Learned counsel for the appellants - Sri K.R.Ramesh, would submit that the mode of operations was that of a stone blasting. He would further submit that it was an assignment of work. The said Nagabhushan was also a victim of the said 12 accident, who was carrying out an assignment for the business of respondent No.1. The said Nagabhushan was a sub-contractor under respondent No.1. For all practical purpose, they constituted employees as they were conducting the business and the process of activities were of tacit understanding. He would also submit that the learned Commissioner has not gone deeper into the merits of the case and has not considered the scope and definition of 'employee', which is defined in Section 2(1)(n) of the Act.
11. Sri K.A.Chandrashekara, learned counsel appearing for respondent No.1 would submit that at no point of time, the victims were employees under him and he carried out the business independently. If at all the liability were be to be clamped, it is not against Nagabhushan or the insurer - respondent No.2.
12. Sri Jaiprakash, learned counsel for respondent No.2 would submit that the insurance company has not 13 accepted the contentions of the claimants. Insofar as there was no relationship of employee and employer subsisted between the victims on the one hand and the respondent Nos.1 and 2 on the other side and that is, made very clear by themselves.
13. Another interesting factor to be noted in these cases is, the insurance policy in this connection was subscribed by respondent No.1 that covered the business activity which straightaway passed trigger out the meaning that the business was being conducted by respondent No.1. Due to his responsibilities in Chennai, respondent No.1 entrusted the work to Nagabhushan. Thus, respondent No.1 is the principal contractor and the respondent No.2 is insurance company, who has issued policy to respondent No.1.
14. Sri K.R.Ramesh, learned counsel for the appellants drew my attention to the criminal case lodged against the respondents in C.R.No.23/2002 14 under Section 304A and 286 of the IPC read with Sections 4 to 6 of the Explosive Substances Act, 1908 and Sections 33, 76, 77, 78 and 146 of the Explosive Rules, 1983. He submits that after investigation, final report also came to be submitted. In this connection, learned counsel for respondent No.1, Sri K.A.Chandrashekar, would submit that the said criminal case ended up in acquittal. The findings of a criminal Court has no binding on the proceedings for compensation because when the matter is adjudicated, the matter takes out different shape and different form. Under labour side, it is remedial but under criminal side, it is penal in nature. Thus, the very holding of the insurance policy by respondent No.1 is also a material matter to be considered. If he was a contractor and having an independent business, there was no necessity to hold a policy. He cannot shirk away and as such in this connection, details of the policy are as under: 15
"NATIONAL ASPHALT PRODUCTS AND CONSTRUCTION COMPANY Annexure to WCI Policy No.111400/41/01/00161 Expiring on 21.2.2003.
The jobs are carried out deploying the following categories of employees:
1. Petty/Sub-contractors' and Transport Contractors' employees.
2. Buildozer Operators.
3. Excavator / Loader Operators.
4. Compressor Operators.
5. Road Roller Drivers and Helpers.
6. Mechanics, Welders, Helpers and Other Workshop Staff.
7. Site Supervisory Staff.
8. Stone Crusher Operators, Helpers and Labourers.
9. Asphalt Mixing Plant and Paver Operators, Helpers and Labourers.
10. Vehicles Drivers, Helpers and Cleaners.
11. Blasting Men and Labourers.
12. Site Accountants and Office Staff."
15. It is also necessary to refer to Section 12 of the Act which defines contract:
"Section 12 - Contracting.-
(1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (hereinafter in this section referred to as the 16 contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed.
(2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, 2 or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation,] and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner.
(3) Nothing in this section shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal.
(4) This section shall not apply in any case where the accident occurred elsewhere 17 than on, in or about the premises on which the principal has undertaken or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management."
An employer may entrust his work to a sub-contractor and the later may scatter the responsibilities to the sub- contractor and it may go so on.
16. It is necessary to mention the principal employer cannot escape from his liability to pay the compensation by entrusting or pushing the same on the sub-contractor. The definition of the term 'employer' is defined in Section 2(e) of the Act, which reads thus:
"Section 2 (e) "employer" includes anybody of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a *[employee] are temporarily lent or let on hire to another person by the person with whom the *[employee] has entered into a contract of 18 service or apprenticeship, means such other person while the *[employee] is working for him."
17. Insofar as the insurer is concerned, he takes up the responsibility of compensation subject to the policy conditions. Thus, it is an accepted principle that the employer-contractor and the insurer who holds the job and insured who accepted the policy are jointly and severally liable. The insured is National Asphalts Products and Construction Company (NAPC), Chennai and the insurer is New India Assurance Company Limited.
18. Thus, by this time, it is established that the Commissioner on the first occasion on the post remand adjudicated the matter but failed to look into the documents in proper perspective. Definitions of `workman', 'employer', 'contractor', the nature of work and the responsibilities are not properly and completely considered. Further, in the rural side, the employer and 19 employee are being used in a raw form. Documents and accounts statement are not maintained in strict sense, but still in deserving cases, grievances are remedied considering the nature of activity carried on by the employees. Relationship between the respondent No.3 and intermediary but it is also under particular insurance policy and the position of law.
19. I find relationship of employer and employee definitely existed among respondent No.1 and 3 and it is clarified with respondent No.2 one Chandra. It is for the Commissioner for Workman Compensation to adjudicate the remaining aspects with regard to the merits of the case. The existence of relationship of 'employer' and 'employee' between the respondents and the injured claimant and deceased employees is accepted by this Court. Thus, the finding of the Commissioner in respect of absence to the effect that 20 there was no relationship of employer and employee is set aside.
20. He shall adjudicate the matter considering the existence of relationship of employer and employee and dispose of the matters in accordance with law.
21. All the appeals are allowed and the matter is remanded to the Commissioner for Workman Compensation. In order to mitigate the consumption of time, the parties are directed to appear before the Commissioner for Workmen's Compensation without awaiting further notice on 31.03.2020.
The Commissioner for Workmen Compensation has to consider the age and stage of the cases and shall dispose of the matters within a time limit of four months from the date of the first appearance of the parties. 21
As it is submitted now the matter are being tried by the learned senior Judge at Chikkanayakahalli. Office to verify and send the files accordingly.
Sd/-
JUDGE nvj