IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR WRIT APPEAL NO.837 OF 2016 (GM-RES) BETWEEN:
BRUHAT BENGALURU MAHANAGARA PALIKE REP. BY ITS COMMISSIONER N.R.SQUARE, BENGALURU-560 001. :APPELLANT (BY SRI K.N. PUTTE GOWDA, ADV.) AND:
1. STATE OF KARNATAKA BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, DR. B.R. AMBEDKAR VEEDHI, BENGALURU -560 001.
2. SMT.CHINNAMMA W/O LATE CHENCHAIAH AGED ABOUT 54 YEARS, R/AT HOUSE NO.1, 3RD CROSS 1ST MAIN ROAD BHADRAPPA LAYOUT BENGALURU -560 084.
3. SMT.SUNITHA D/O LATE CHENCHAIAH AGED ABOUT 30 YEARS R/A KOTHIGOTTA VILLAGE PANGERGONTA POST PALAMNER MANDALAM CHITTOR DISTRICT-600 408.
4. SRI. BHUSHAN, S/O LATE CHENCHAIAH AGED ABOUT 24 YEARS R/A BODABANDALU VILLAGE KATHAGARIPALLI POST BANGARPALYAM CHITTOR DISTRICT-600 416. :RESPONDENTS (BY SRI S.S. MAHENDRA, AGA FOR R1; SRI CLIFTON D. ROZARIO AND SMT. MAITREYI KRISHNAN, ADVS. FOR C/R-2) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED 11.01.2016 PASSED IN W.P.NO.16365/2014 AND GRANT SUCH OTHER RELIEF AS THIS HON’BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING ALONG WITH I.A. No. 2 OF 2016 THIS DAY, NARAYANA SWAMY J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed against the order passed by the learned Single Judge in W.P. No.16365/2014, dated 11.01.2016, directing the appellant herein – BBMP to pay a total compensation of Rs.10,00,000/- to the petitioners/claimants therein.
2. Heard learned counsels appearing for the appellant and respondent No.2 and learned AGA appearing for respondent No.1. Perused the records.
3. The case of the respondents / petitioners is that one Chenchaiah died while in service on 18.01.2014 while clearing the drain opposite to K.P. Agrahara Police Station, Bengaluru. Since he was serving for BBMP, his wife and children are entitled for compensation in view of the Judgment of the supreme Court DELHI JAL BOARD Vs. NATIONAL CAMPAIGN FOR DIGNITY AND RIGHTS OF SEWERAGE AND ALLIED WORKERS AND OTHERS reported in 2011 (7) SCALE 489. This Court considering the case of the parties, directed the BBMP to pay a sum of Rs.8,00,000/- as compensation since Rs.2,00,000/- was paid initially by the corporation on humanitarian consideration by looking at the spot where Chenchaiah died while clearing the drain.
4. The directions issued by the learned Single Judge has been challenged on various grounds. The principal ground taken by the appellant is that the objection taken by the appellant which was the respondent before the learned Single Judge has been discussed at para 5 of the impugned order. Learned counsel contended that the Corporation has not engaged the services of deceased Chenchaiah nor it has given any work of clearing the drain opposite to K.P. Agrahara Police Station where drainage clearing work is stated to have been done. It is submitted that as the relationship of employer and employee has not been proved, fixing the liability is unwarranted. It is specific defence taken in written statement that the deceased was aged about 75 years. He died on his own mistake accidentally. In no way the Corporation is liable to pay compensation since it has not engaged the services of deceased Chenchaiah directly or indirectly to clear the drainage. Learned counsel submitted that when the specific ground has been taken, without giving a positive opinion with reference to the relationship of deceased with the corporation, learned Single Judge has directed the petitioner to pay a sum of Rs.10,00,000/- as compensation which is an error of law and facts.
5. On the other hand, learned counsel for the respondents / claimants contended that learned Sessions Judge has rightly considered the case of the petitioner in view of the Judgment of the Supreme Court referred to supra and also another Judgment in the case of SAFAI KARAMCHARI ANDOLAN AND OTHERS Vs. UNION OF INDIA AND OTHERS, reported in (2014) 11 SCC 224 .
6. The defence taken by the Corporation with regard to the employer – employee relationship between the Corporation and deceased Chenchaiah has not been analysed while passing the impugned Judgment. The relationship of employer and empolyee has not been proved and without such proof, liability cannot be fixed. Liability can be fixed only against a person / institution who is answerable for death or injury during service. The specific case of the appellant before the Single Judge is, deceased was aged about 75 years. He was not in a position to be engaged either directly or indirectly for clearing the drainage. When such defence is taken, learned Single Judge should have given a specific answer. Until the said question is kept unanswered, directing the Corporation to pay the compensation amount was unwarranted.
7. In the facts and circumstances of the case, directing the appellant to pay an amount of Rs.10,00,000/- as compensation to the respondents / claimants is unjust and contrary to law as laid down by the Hon'ble Supreme Court. Where an employment is provided by the Corporation either directly or through its concerns, and in case he dies while working, then only liability can be fastened. In this case, the claimants have not established or failed to establish the relationship of employer and employee and learned Single Judge has not answered the defence. Hence, the appeal succeeds and order of the learned Single Judge is liable to be set aside and accordingly it is set aside.
Since Corporation has paid Rs.2,00,000/- on humanitarian grounds, we do not propose to direct recovery of the said amount.
Liberty is reserved to the respondents - claimants to approach the Government for compensation. If such claim is made then it is for the Government to consider and pass orders in accordance with law.
I.A.2/2016 seeking stay does not survive for consideration.
Sd/- JUDGE sac* Sd/- JUDGE