Karnataka High Court
National Insurance Co Ltd vs K Balakrishna on 26 March, 2013
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
-1-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
M.F.A.NO.2015/2009 (WC)
C/W M.F.A.NO.2016/2009 (WC)
BETWEEN
National Insurance Co., Ltd.,
Manna Building, I Floor,
Main Road, Virajpet 571218
Kodagu District, Now repted by its
Regional Manager,
National Insurance Co. Ltd.,
Regional Office, Subharam Complex,
144, M.G.Road,
Bangalore - 560 001. ...Common
Appellant
(By Sri A.N.Krishna Swamy, Adv.,)
AND:
1. K.Balakrishna,
S/o Kundaiah @ Kundan,
Now aged about 26 years,
Occ: Tempo Cleaner,
R/o Sinkona Colony, Kutta Village,
Virajpet Tq., Now C/o Ramesh,
Auto Driver, Janatha Nagar,
Thonachikoppal,
Mysore City.
2. K. Murugan,
S/o Kundan,
Now aged about 36 years,
R/o Sinkona Colony, Kutta Village,
-2-
Virajpet Tq.,
3. Smt. Kannike,
W/o Late C.B.Kallaiah,
P.B.NO.130, Badaga Village,
Virajpet Tq., Kodagu Dist., ...Respondents in
M.F.A.NO.2015/09
(By Smt.Asha B, Adv., for G.M.Ananda, Adv., for R3,
R1 and R2 are served)
AND:
1. Manikanta,
S/o Late Devadas @ Johnson,
Age: Major,
Occ: Tempo Loader,
R/o Kutta Pochagal, Kutta Village,
Virajpet Tq., Now C/o Antony,
Rajeev Nagar, Mysore.
2. K. Murugan,
S/o Kundan,
Now aged about 36 years,
R/o Sinkona Colony, Kutta Village,
Virajpet Tq.,
3. Smt. Kannike,
W/o Late C.B.Kallaiah,
P.B.NO.130, Badaga Village,
Virajpet Tq., Kodagu Dist.,
...Respondents in
M.F.A.NO.2016/09
(By Smt.Asha B, Adv., for G.M.Ananda, Adv., for R3,
R1 and R2 are served)
M.F.A.NO.2015/2009 is filed u/s 30(1) of W.C.Act
against the Judgment and award dated :24.9.2008 passed in
WCA/NFC/CR.NO.12/2005 on the file of the Labour Officer
and Commissioner for workmen Compensation, Mysore
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District, Mysore awarding compensation of Rs.50,756/- with
the interest at the rate of 12% p.a.
M.F.A.NO.2016/2009 is filed u/s 30(1) of W.C.Act
against the Judgment dated :24.9.2008 passed in
WCA/NFC/CR.NO.13/2005 on the file of the Labour Officer
and Commissioner for workmen Compensation, Mysore
District, Mysore awarding compensation of Rs.1,04,832/- with
the interest at 12% p.a.
These appeals coming on for hearing this day, the Court
delivered the following:
JUDGMENT
Third respondent insurance company in WCA.CR.Nos.12/2005 and 13/2005 on the file of
Commissioner for Workmen's Compensation, Mysore, has come up in these appeals impugning the common judgment and order dated 24.9.2008 passed therein.
2. Brief facts leading to these appeals are as under:
Claimants before Commissioner, namely, Balakrishna and Manikanta claim themselves to be cleaner and loader in goods tempo bearing No.KA-9/4865 belonging to second respondent insured with third respondent and driven by first respondent at the relevant point of time. According to them, on 31.8.2003 aforesaid tempo was driven by first respondent to -4- bring fruits from Kutta to Mysore market. On the way, at about 4.00 pm., said vehicle met with accident due to driver hitting the same against the road side tree resulting in injuries to first respondent before Tribunal and as well as to claimants.
In that behalf, it is seen that three claim petitions came to be filed ie., two claim petitions by alleged cleaner and loader, one by driver, which is in WCA.No.385/2007 on the file of very same Court. It is seen that Commissioner on appreciation of oral and documentary evidence available on record allowed all the three claim petitions. While dong so, so far as claim petition filed by first respondent-driver in WCA.No.385/2007 is concerned, the same was allowed by a separate judgment and order dated 30.1.2009 and so far as claim petitions filed by first respondent in these two appeals ie., claimants were disposed of by common judgment dated 24.9.2008.
3. Incidentally, it is seen that second respondent owner of offending vehicle Smt.Kannika has taken a specific defence in all the three claim petitions before Commissioner that though she is the owner of offending vehicle, at no point of time she had employed Balakrishna and Manikanta as cleaner and -5- loader in the offending vehicle belonging to her. There is no relationship of employee and employer between claimants and herself, they were not the inmates of offending vehicle at any point of time and they have not suffered any injury in any accident involving the vehicle belonging to her. In the proceedings before Commissioner inspite of said specific plea being taken regarding denial of relationship between claimants and second respondent, Commissioner by ignoring said objection has proceeded to allow both claim petitions and awarded compensation to each of the claimants. Being aggrieved by the same, the present appeals are filed by insurance company.
4. In this proceedings also third respondent herein, and second respondent before Commissioner has appeared and supported the case of insurance company. It is also brought to the notice of this Court that in respect of compensation awarded in favour of driver/first respondent, an appeal was filed by insurance company in MFA.No.5484/2009, which came to be allowed by judgment dated 2.2.2012, wherein the -6- appeal filed by appellant was allowed and compensation awarded in WCA.385/2007 is set aside.
5. In these appeals also, on going through the judgment and order impugned with reference to grounds of appeals, it is clearly seen that there is deliberate attempt on the part of Commissioner in ignoring the material on record and erroneously coming to the conclusion that Balakrishna and Manikanta, claimants before Commissioner are employees of third respondent herein, owner of offending vehicle. In that view of matter, this Court find the following substantial questions of laws arise for consideration in these appeals:
1. Whether Commissioner was justified in holding that claimants in both claim petitions as employees of second respondent, owner of offending vehicle?
2. Whether Commissioner was justified in allowing the claim petitions and awarding compensation to claimants therein?
6. Heard the counsel for appellant and as well as third respondent owner of offending vehicle. So far as claimants before Commissioner who are respectively first respondent in both appeals have remained exparte. On going through the material on record it is clearly seen that claimants have failed -7- to demonstrate before Commissioner that they were employed as cleaner and loader in the offending vehicle by third respondent herein and the injuries suffered by them as injuries suffered in the course of their employment with third respondent, owner of offending vehicle. In that view of mater, there is error on the part of Commissioner in ignoring all these aspects and awarding compensation, which is required to be set aside as it was done by this Court in MFA.No.5484/2009. Accordingly, substantial questions of law are answered in the negative.
7. In that view of matter, both appeals are allowed in part. Consequently, common judgment and order dated 24.9.2008 passed in WCA.CR.Nos.12/2005 and 13/2005 on the file of Commissioner for Workmen's Compensation, Mysore, is set aside.
In the light of appeals filed by insurance company being allowed, the amount in deposit is ordered to be refunded to appellant in both appeals.
Sd/-
JUDGE nd/-