Karnataka High Court
The Divisional Manager vs Smt. Girija W/O Jayawant Wadder on 21 September, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE Mr. JUSTICE L. NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL No.24003 OF 2011 [WC-D]
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
SUJATA COMPLEX, OPP. GLASS HOUSE,
HUBLI, REP. BY ITS DEPUTY MANAGER.
... APPELLANT
(By Sri. S K KAYAKAMATH ADV.)
AND:
1. SMT. GIRIJA W/O JAYANT WADDER
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O SHIDHARAMESHWAR GALLI,
HALIYAL, NOW R/AT LONDA, TQ. KHANAPUR,
DIST. BELGAUM
2. KUMAR RAHUL S/O JAYANT WADDER,
AGE: 12 YEARS, OCC: STUDENT,
R/O SHIDHARAMESHWAR GALLI, HALIYAL,
NOW R/AT LONDA, TQ. KHANAPUR,
DIST. BELGAUM
3. KUMAR RAKESH S/O JAYANT WADDER,
AGE: 10 YEARS, OCC: STUDENT,
R/O SHIDHARAMESHWAR GALLI, HALIYAL,
NOW R/AT LONDA, TQ. KHANAPUR,
2
DIST. BELGAUM
4. KUMARI ROHIL D/O JAYANT WADDER,
AGE: 8 YEARS, OCC: STUDENT,
R/O SHIDHARAMESHWAR GALLI, HALIYAL,
NOW R/AT LONDA, TQ. KHANAPUR,
DIST. BELGAUM
RESPONDENTS 2 TO 4 ARE MINORS,
REPTD. BY THEIR NATURAL MOTHER
GUARDIAN RESPONDENT NO.1.
5. SRI. HANUMANT S/O GANGAPPA WADDER
AGE: 57 YEARS, OCC: NIL,
R/O SHIDHARAMESHWAR GALLI, HALIYAL,
NOW R/AT LONDA, TQ. KHANAPUR,
DIST. BELGAUM
6. SRI. HUSSAIN MOHAMMED HUSSAIN SHAIK
AGE: MAJOR, OCC: BUSINESS,
R/O PRADHANI (BOMANAGI), TQ. JOYDHA,
DIST. KARWAR
... RESPONDENTS
(By Sri. C S NAGASHETTI ADV. FOR R1-R5;
SRI.D.L.LADKHAN ADV. FOR R6;
R2 to R4 ARE MINORS-REPTD. BY R1)
THIS MFA IS FILED U/S.30(1)OF THE W.C.ACT 1923,
AGAINST THE JUDGMENT AND AWARD DATED
18.04.2011, PASSED IN WCA/SR NO.145/2009 ON THE
FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN'S COMPENSATION, SUB-DIVISION-2,
BELGAUM, AWARDING THE COMPENSATION OF
RS.3,60,413/- WITH INTEREST AT THE RATE OF 12% P.A.
FROM THE DATE OF PETITION AND SHALL BE DEPOSITED
WITHIN ONE MONTH FROM THE DATE OF THE ORDER.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal is filed by the insurer of the offending vehicle being aggrieved of the liability fastened on it to pay compensation of Rs.3,60,413/- with interest at 12 per cent per annum to the petitioners, by the judgment and order dated 18th April 2011 passed in Application No.WCA/SR-145 of 2009 by the Commissioner for Workmen's Compensation, Sub-Division-II, Belagavi (for short 'WC Commissioner'), on account of the death of one Sri.Jayant Wadder on 21st January 2008.
2. Though this matter is listed for admission, it is heard and disposed of on merits with the consent of learned counsel for both parties.
3. The facts of the case in brief are that, one Jayant Wadder while working as a Loader in the Tractor bearing Registration No.KA-30/T-117 and Trailer bearing Registration No.KA-26/T-0478 on 21st January 2008, after finishing loading unloading of sand, stone 4 borders, was proceeding from Diggi Mines to Karatolli Camp, the driver of the said Tractor-trailer drove the same negligently and the vehicle toppled down. As a result, the deceased fell down, sustained grievous injuries and succumbed to the same. The deceased was 31 years as on the date of accident and all the petitioners were dependents upon the income of the deceased. Claiming compensation of Rs.10,00,000/- from the owner and insurer of the offending vehicle for the death of Sri.Jayant Wadder in the accident that occurred due to the negligence on the part of the driver of the offending vehicle, during the course and arising out of the employment, the petitioners filed a claim application before the WC Commissioner. By the judgment and order dated 18th April 2011, the WC Commissioner ordered compensation of Rs.3,60,413/- with interest at 12 per cent per annum to be paid by the appellant-insurance company to the petitioners within one month from the date of the order. Being not 5 satisfied with the liability fastened on it, the insurer of the offending vehicle has filed this appeal.
4. I have heard the learned counsel for the parties and perused the impugned judgment and order.
5. The learned counsel for the appellant-insurer made the following submissions:
(a) The complaint when read in toto proves the fact that the deceased was not under the employment of the insured, but he was under the employment of the Contractor, which is admitted by the complainant, namely his coworker in the complaint-
Ex.P-1. Hence, it is contended that there is no employer and employee relationship.
(b) Since the policy was issued to the owner of the offending Tractor to cover the risk of his employees only when it is used for agriculture purposes, in contravention of the terms and conditions of the policy, 6 the Tractor was given for hire and reward to a contractor for the purpose of construction of road work. As the deceased was working under the contractor, the insurance company is not liable to indemnify the insured in respect of the same.
(c) Further, it is submitted that as per the complaint, the accident occurred when the deceased was returning home after completion of the work, hence, the incident had no nexus with the employment. Therefore, it cannot be said that the accident occurred during the course and arising out of the employment.
(d) In support of his submission, the learned counsel for the appellant, referring to the proviso to Section 147 of the Motor Vehicles Act submitted that the risk is covered in respect of an employee of the insured. In the instant case, the deceased was working for a contractor. He also relied on the decisions of the Hon'ble Supreme Court in the case of SANJEEV KUMAR 7 SAMRAT versus NATIONAL INSURANCE COMPANY LIMITED, 2013 ACJ 1 and MANAGER, NATIONAL INSURANCE COMPANY LIMITED versus SAJU P. PAUL AND ANOTHER, I (2013) ACC 46 (SC) to drive home his point of contention that the liability could not have been fastened on the insurance company for a person who has suffered injury or death who is not related to the employer/insured.
6. Supporting the findings of the WC Commissioner and the impugned judgment and order, the learned counsel for the respondent-petitioners sought for dismissal of the appeal. It is submitted that the grounds urged by the appellant herein were examined by the WC Commissioner and it has been held that the insurance company has failed to disprove the relationship of employer and employee. The WC Commissioner framed relevant issue with regard to the relationship and it was held in favour of the petitioners 8 by considering the oral and documentary evidence adduced by them, particularly PW-1 who is wife of the deceased.
7. Having heard the learned counsel for the parties, the following substantial question of law arises for consideration in this appeal:
" Whether the WC Commissioner committed any error in answering issue No.2, namely whether the petitioners have proved the relationship of employer and employee between the respondent No.6 and the deceased and if so, the accident occurred during the course and arising out of the employment? "
8. At the outset, it is pertinent to note that the death of Sri.Jayant Wadder in the accident that occurred on 21st January 2008 and issuance of policy to the offending Tractor which was in force as on the date of accident is not in dispute.
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9. For the purpose of disputing the relationship of employer and employee between the respondent No.6 and the deceased, learned counsel for the appellant insurer referred to the contents of the complaint made by the co-worker of the deceased, wherein he has stated that the deceased was working under the contractor and not with the insured. However, it is relevant to note that the insurance company has not examined the author of the complaint to substantiate the same. On the other hand, in support of their claim, the petitioners have examined wife of the deceased as PW-1 who has deposed before the WC Commissioner to the effect that her late husband was working under the respondent No.6 and the Tractor was issued with a policy covering the risk of an employee. This piece of evidence has been considered by the WC Commissioner. When the occurrence of accident is not in dispute, the petitioners have adduced evidence to the effect that the deceased was an employee of the respondent No.6, the WC 10 Commissioner upon proper appreciation of the material on record answered the said issue in favour of the petitioners.
10. Further, no iota of evidence is produced by the insurance company regarding entrusting the tractor to a contractor on payment of any rent or reward, nor any contra documents are produced to show that the deceased was working under the Contractor. Under these circumstances and in view of the deposition of PW-1 that the deceased was working under respondent No.6 and the tractor being duly insured, the insurance company cannot be heard to say that there was no relationship of employer and employee between the owner of the tractor and deceased. The proviso to Section 147 of the Motor Vehicles Act would have been available to the insurance company if it has examined the complainant or any other person with regard to the same. No such efforts have been made. The 11 submissions of the learned counsel for the appellant that the complaint Ex.P-1 need to be read in toto and not in isolation. The said submission having force, the same is not applicable, for the reason that the proceedings before the Motor Accidents Claims Tribunal and the Court of Workmen's Compensation Commissioner are summary in nature. What is to be looked into is the material evidence on record. Though the complaint is the basis for making a claim, the lapses therein, if any, cannot be made basis for denying the claim. No oral evidence is adduced by the insurance company in support of its contention. On the other hand, the petitioners have substantiated their claim by examining PW-1 who is the wife of the deceased.
11. Under these circumstances, the submissions made before this Court, though available before the WC Commissioner, same have not been used and not been proved, the WC Commissioner has rightly answered the 12 said issues in favour of the petitioners. In such circumstances, the reasons assigned by the learned WC Commissioner is sound and proper.
12. The decisions relied upon by the learned counsel for the appellant is of no assistance, for the reason that these judgments have to be read along with the proviso to Section 147 of the Motor Vehicles Act which makes it very clear that unless the relationship of employer and employee is established, the petitioners are not entitled for compensation. The insurance company though raised a dispute with regard to existence of employer and employee relationship, has not examined the author of the complaint nor produced any documents to show that the offending tractor was given on hire to a contractor. Hence, it has utterly failed to prove its case. The WC Commissioner, on the basis of the material available on record, honoured the 13 claim of the petitioners and awarded just and reasonable compensation.
13. On reconsideration of the matter, this Court is of the considered view that there is no error or illegality committed by the WC Commissioner in fastening the liability on the insurance company. Accordingly, the substantial question of law is answered holding that the petitioners have proved the relationship of employer and employee between the respondent No.6 and the deceased and the accident occurred during the course and arising out of the employment.
14. In the result, the appeal sans merit and it is accordingly dismissed. The judgment and order dated 18th April 2011 passed in Application No.WCA/SR-145 of 2009 by the Commissioner for Workmen's Compensation, Sub-Division-II, Belagavi, is confirmed. 14
The amount in deposit be transmitted to the Court of WC Commissioner forthwith.
Sd/-
JUDGE RK/-