IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA MFA NO. 4386 OF 2016 (WC) BETWEEN 1. Smt. Amaravathi Aged about 36 years W/o Late Venkateshappa @ Venkatesh 2. Master Nagesh Aged about 17 years S/o Late Venkateshappa @ Venkatesh 3. Master. Vijay Kumar Aged about 14 years S/o Late Venkateshappa @ Venkatesh 4. Smt. Nanjanna Aged about 56 years W/o Late Muniyappa Since appellants No.2 & 3 are Minors, represented by their Mother and natural guardian Appellant No.1 Smt. Amaravathi.
All are residing at Palavanavalli Village, Tekal Hobli, Malur Taluk Kolar District – 563101.
... Appellants (By Sri. Shripad V Shastri - Advocate) AND 1. Sri Rajesh .A @ Rajesh N. A Major in age S/o Anappa Residing at Nagali Village and post Mulbagilu Taluk Kolar District – 563101.
2. The Legal Manager M/s IFFCO TOKIO Gen. Ins.
Co. Ltd., No.141, Sri Shanthi Towers 4th Floor, 3rd Main East NGEF Layout, Kasturinagar Bangalore – 59 By its Manager.
... Respondents (By Sri. D.S. Sridhar - Advocate for R-2; R-1 is served but unrepresented) This MFA is filed u/s 30(1) of the Workers Compensation Act, against the judgment and award dated 02.04.2016 passed on ECA No. 8/2014 on the file of the X Additional Judge, Court of Small Causes, MACT, Bangalore, dismissing the claim petition for compensation.
This MFA coming on for hearing this day, the court delivered the following:
JUDGMENT The claimants being the wife, children and mother of deceased Venkatesh are before this Court against the judgment and award dated 02.04.2016 passed by the Tribunal in ECA No.8/2014, dismissing the claim petition filed by the claimants under Section 22 of the Workmen’s Compensation Act, 1923.
2. The claimants filed the claim petition claiming that deceased Venkatesh died on 21.09.2013 at about 1.30 p.m., during the course of employment under the first respondent. The deceased was unloading the sand from lorry bearing Reg.No.KA-07-A-2424 owned by the first respondent and when he was discharging his duties, fell down from the top of the sand load and died during the course of his employment. It is further contended that the jurisdictional police registered a case in UDR No.41/2013 under Section 174 of Cr.P.C. After the death of Venkateshappa @ Venkatesh, he was shifted to Vydehi Medical College Hospital to conduct postmortem and after the postmortem the dead body was handed over to the claimants. It is contended by the claimants that they have spent more than Rs.25,000/- towards transportation of dead body and funeral expenses. At the time of accident, the deceased was aged 35 years and was working as coolie under first respondent and was earning a sum of Rs.500/- per day. The respondents being the owner and the insurer of the vehicle are jointly and severally liable to pay the compensation to the claimants.
3. In response to the notice, respondents appeared before the Tribunal and filed their written statement. First respondent in his statement of objections admitted that he is the owner of lorry bearing Reg.No.KA-07-A-2424 and the policy was in force as on the date of accident. It was contended that he was doing sand business and on 21.09.2014, his lorry came to Kattamnallur gate and the driver parked the said lorry. At that time, one Mr.Anand came and asked the driver of the lorry as to whether unloading people are required. On the say of driver of the lorry, Mr.Anand called upon the deceased to help him to unload the sand and thereafter, went to Nagondanahalli village at the construction of building. While unloading the sand from the lorry, suddenly the deceased fell down and due to ill-health babbles came from his mouth. Immediately, he was shifted to Vydehi Hospital and there he was declared as dead. He contended that the deceased was not working under him and accordingly, he sought for dismissal of the petition.
4. Second respondent being the insurer of the lorry bearing Regn.No.KA-07-A-2424 admitted the policy of the lorry and contended that their liability is subject to the terms and conditions of the policy as per Section 147 of the MV Act. It further denied the age, avocation and income of the deceased and also denied that the death of deceased Venkateshappa @ Venkatesh was caused while he was working as a coolie under the first respondent. It was further contended that the deceased was not a coolie working under any employer at any point of time and there was no relationship of employer and employee between the deceased and the first respondent. On these grounds sought for dismissal of the claim petition.
5. Based upon the said pleadings, the Tribunal framed the following issues:
i) Whether the petitioners prove that there exists jural relationship of employer and employee between Respondent No.1 and deceased?
ii) Whether the Petitioners prove that the deceased Sri.Venkatesh died on 21.09.2013 at about 1.30 p.m. while unloading sand from the Lorry bearing Regn.No.KA-07-A-2424 during course of employment under the first Respondent?
iii) Whether the petitioners prove that they are the legal heirs of the deceased Sri Venkatesh?
iv) What order?
6. In order to prove the case, claimant no.1 being the wife of deceased Venkatesh was examined as PW.1 and got marked Exs.P1 to P14. The official of the respondent No.2 insurance company was examined as RW.1 and got marked document as per Ex.R1. First respondent did not led any evidence on his behalf.
7. The Tribunal by considering the oral and documentary evidence available on record, held that claimants have failed to prove the relationship of employer and employee between the first respondent and the deceased and ultimately, dismissed the claim petition. Hence, the claimants have preferred the present appeal.
8. This Court while admitting the appeal on 10.07.2019 has framed the following substantial questions of law:
1) Whether the Workmen’s Compensation Commissioner/Tribunal is justified in dismissing the claim petition mainly on the ground that the appellant has failed to prove the employer and employee relationship ignoring both oral and documentary evidence on record?
2) Whether the Tribunal is justified in dismissing the claim petition holding that deceased was not an employee in view of the definition in Section 2(dd) and 2(c) of the Employees Compensation Act in the facts and circumstances of the case?
9. I have heard learned counsel for the parties to the lis.
10. Sri Sripad V.Shastri, learned counsel for the claimants contended that the impugned judgment and award passed by the Tribunal rejecting the claim of the claimants solely on the ground that claimants failed to prove the employer and employee relationship ignoring the material documents is contrary to law and the same is liable to be set-aside. He would further contend that the material documents Ex.P1 – FIR, Ex.P2 – Inquest report, Ex.P3 – statement, Ex.P4 – PM report, Ex.P5 – charge sheet, Ex.P6 – notice, clearly depicts that the deceased was a workman working under the first respondent and the accident occurred arising out of and during the course of employment. The same has not been considered by the Tribunal before passing the impugned judgment and award.
11. He would further contend that the Tribunal erred in holding that deceased was not an employee in accordance with definition of provisions of Section 2(dd) and Section 2(c) of the Employees Compensation Act, 1923. On these grounds, he sought to allow the appeal.
12. Though respondent No.1 was served, remained unrepresented.
13. Per contra, Sri D.S.Sridhar, learned counsel for respondent No.2 – insurance company sought to justify the impugned judgment and award passed by the Tribunal on the ground that first respondent has not at all engaged deceased Venkatesh for unloading sand from the lorry. It is only on the request made by the driver of the lorry, one Mr.Anand and Venkatesh were unloading the sand and that deceased was not employed by the first respondent. The deceased died due to ill-health and babbles came from his mouth. He denied the relationship of employer and employee between deceased and first respondent. He would further contend that the material documents does not depict that deceased was employed under the first respondent. Therefore, he sought for dismissal of the appeal.
14. Having heard the learned counsel for the parties, it is the specific case of the claimants that deceased Venkateshappa @ Venkatesh who was aged 35 years died while unloading the sand during the course of employment. But the same is denied by both the respondents. The jurisdictional police have registered crime in respect of the accident occurred in UDR No.41/2013 under the provisions of Section 174 of Cr.P.C. The Tribunal considering the entire material on record recorded the finding that claimants have failed to prove the relationship of employer and employee between deceased and the first respondent.
15. First respondent being the owner of the lorry filed the objection statement before the Tribunal stating that he is the owner of lorry bearing Regn.No.KA-07-A-2424 insured with the second respondent and the policy was in force as on the date of the accident. It is pertinent to mention in this context that this respondent was doing sand business on 21.09.2014, his lorry came to Kattamnallur gate and his driver parked the said lorry. One Anand came and asked the driver of the lorry that if he needs unloading people and the driver stated that he needs one person to unload the sand from the lorry on that day only. Then said Anand stated that his friend Venkatesh (deceased) will help him to unload the sand. Thereafter, they went to Nagondanahalli village as one Lakshminarayan had purchased the sand for construction of his building. At about 1.30 p.m. Anand and deceased Venkatesh unloading the sand from the lorry, suddenly the said Venkatesh fell down on sand due to ill-health (MURCHE disease) and babbles came from his mouth. Immediately said Anand and lorry driver Reddappa shifted Venkatesh to nearby Vydehi Hospital and there he died. Thereafter, doctors said that the death of the Venkatesh is due to brain dis-infection of blood and same is natural death.
16. Based on the complaint made by one Manjunath, Ex.P1 – FIR in Crime No.41/2013 came to be registered. It is specifically stated in the FIR that deceased Venkatesh lost balance and fell down, while unloading the sand and died. Ex.P3 is the statement made by one Thimmarayappa before the Police stating that while unloading the sand from the lorry, deceased Venkatesh lost balance, fell down and died. Ex.P2 – inquest report at point no.17 it is stated that deceased Venkatesh while unloading the sand, he lost his balance and fell down and died later. In Ex.P6 – legal notice issued by the claimants at paragraph 3, it is specifically stated “my clients further instruct me that on 21.09.2013 at about 1.30 p.m. deceased Venkatesh was unloading the sand from the lorry as an employee of the first of you and he was discharging duty as an employed labourer and fell down from the top of the sand load by loosing his balance died during the course of his employment with the 1st of you within the jurisdiction of Kadugodi Police Station Limits and a case has been registered in UDR No.41/2013. It is further stated that deceased Venkatesh @ Venkateshappa aged 35 years was having sound health and personality and was earning a sum of Rs.500/- per day and met with an accidental fall from the lorry while he was employed by the 1st of you and during the course of employment with the 1st of you. As per the information furnished by Kadugodi Police, the said lorry has been insured with the second respondent and the policy is valid from 18.01.2010 to 17.01.2014. Both first and second respondents are liable to pay the compensation. The said legal notice was not replied by either of them. Therefore, the allegations/assertions were not controverted.
17. In view of the aforesaid material evidence on record, the Tribunal was not justified in dismissing the claim petition by ignoring the same. PW.1 – wife of the deceased has stated on oath that deceased Venkatesh died while unloading the sand from the lorry owned by first respondent and he was discharging his duties as an employed labourer and fell down from the top of the sand by loosing his balance and died during the course of the employment. In the cross-examination nothing is elicited to disprove her evidence and she has reiterated in the cross –examination that her husband died during the course of employment while working under first respondent. No contra material is produced by the insurance company to disprove the same. The Tribunal ought to have considered the oral and documentary evidence before rejecting the claim petition.
18. It is well settled that the Employees’ Compensation Act is a piece of social security and welfare legislation. Its dominant purpose is to protect the workmen and therefore, the provisions of the Act should not be interpreted too narrowly which may defeat the purpose of the Act, which was introduced by the legislature. The primary purpose of the Act is to make the employer and insurer of the workmen responsible for the loss or costs incurred for the injuries or death which ought to have happened while the workman was engaged in his work. It is also relevant to state at this stage that provisions of Section 3 of the Employees’ Compensation Act, 1923 clearly depicts that, if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay the compensation in accordance with the provisions of this Chapter. If the deceased employee met with his death while he was going to his place of work on death arising out of and during the course of employment, then the employer is liable to pay compensation.
19. Admittedly, in the instant case, it is the assertion of the claimants that deceased Venkatesh died arising out of and during the course of employment under the first respondent. While unloading the sand from the lorry, he lost the balance, he fell down from the top of the sand and died. Ultimately, the Tribunal has to decide whether the insurance company is liable to pay the compensation or the owner of the vehicle based on the oral and documentary evidence on record produced by the parties. The Tribunal proceeded to reject the claim petition mainly on the ground that claimants have failed to prove the relationship of employer and employee between the deceased and first respondent by ignoring the material documents on record and the same cannot be sustained under law.
20. For the reasons stated above, the substantial question of law has to be held in negative holding that the Tribunal is not justified in dismissing the claim petition on the ground that the claimants have failed to prove the employer and employee relationship and that deceased was not an employee in view of definition in Section 2(dd) and 2(c), by ignoring both oral and documentary evidence on record. The matter requires reconsideration and ultimately, the Tribunal has to decide the case on merits.
21. In view of the above, the appeal is hereby allowed. The impugned judgment and award dated 02.04.2016 passed by the Tribunal in ECA No.8/2014 is hereby set-aside. The matter is remanded to the Tribunal for re-consideration afresh and in the light of the observations made in this appeal.
All contentions are kept open.
Sd/- JUDGE DKB