IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17th DAY OF JULY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO.3787 OF 2013 (MV) BETWEEN:
THE MANAGER CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED NO.363, SHRI HARI COMPLEX SEETHAVILASA ROAD, MYSURU REP. BY THE CLAIMS MANAGER CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED UNIT NO.4, NINTH FLOOR (LEVEL-06) “GOLDEN HEIGHTS” COMPLEX 59TH ‘C’ CROSS INDUSTRIAL SUBURB RAJAJINAGAR, 4TH ‘M’ BLOCK BENGALURU – 560 010 BY ITS SENIOR MANAGER - CLAIMS (BY SRI. O. MAHESH, ADV.) AND 1. SHRIKANTHA @ CHETHAN HANDICAPPED S/O VENKATESH HULIKERE, SHRIRANGAPATNA TALUK, MANDYA DIST – 571 401 ... APPELLANT 2. M. RAMESH, MAJOR S/O MAHADEVA, HOOTAGALLI NO.416, ALENGI KATTE ROAD BELAVAADI POST MYSURU TALUK – 570 001 ... RESPONDENTS (BY SRI. P. NATARAJU, ADV., FOR R-1; R2-SERVED.) THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 22.03.2013 PASSED IN WCA/NFC/-17/2010 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, MYSURU DISTRICT, MYSURU, AWARDING A COMPENSATION OF RS.7,86,492/- WITH INTEREST @ 12% FROM 19.06.2010.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred by the appellant/insurance company against the judgment and order dated 23.3.2013 rendered by the Labour Officer and Commissioner for Workmen compensation, Mysore District, Mysore in WCA/NFC No.17/2010 awarding compensation of Rs.7,86,492/- with interest @ 12% p.a.
2. The first respondent/claimant filed the claim petition seeking compensation on the ground that the injuries sustained by him was during and arising out of the employment as a driver under the second respondent – insured in respect of goods auto bearing Regn.No.KA- 09/B 0754. The insured employer has filed statement admitting employment and also the accident. Further, the insurer contested the claim denying the averments of the claim petition contending that he was a passenger and hence, not liable to pay compensation and the claim petition is filed with the help of the insured who was interested in avoiding his liability.
3. Further, in order to substantiate his claim, the injured claimant got himself examined as PW.2 apart from his mother and friend and the Doctor was examined as PW.4 and got marked documents as per Exs.P1 to P11. On behalf of respondents the insured got himself examined as RW.1 and an officer of the insurer was examined as RW.2 and exhibits R1 to R4 were got marked in his evidence. After hearing the arguments advanced by learned counsel for the parties, and on assessment of the oral and documentary evidence on record, the Commissioner held that the injuries sustained by the claimant was during and arising out of his employment under first respondent and hence, he is entitled for compensation of Rs.7,86,492/- with interest @ 12% p.a. from 19.06.2010. It is this judgment which is under challenge in this appeal on various amongst other grounds.
4. Learned counsel for the appellant / insurance company contends that the judgment and award of the Commissioner is contrary to law and material available on record, without power or authority after “the Employee’s Compensation Act, 1923 as amended by Act 45 of 2009 which came into force with effect from 18.01.2010 and in view of Section 20 of the said Act and thus, the entire proceedings is vitiated. Further, he contends that the Commissioner even otherwise, ought to have seen that there was no compliance of mandatory provisions of Section 134(c) of M.V.Act either by the insured or of Section 158(6) of the M.V.Act both by insured and concerned investigating police officer and insurer was kept in darkness in respect of alleged accident. Further, the Commissioner has failed to see that under Section 4-A of the Employee’s Compensation Act, 1923, as amended, wherein primary liability to pay compensation to an admitted extent is on employer and as such the employer who admitted employment of injured and wages paid to him should have deposited with him and any claim for indemnification against his insurer, if any, to be made against his insurer subject to the terms and conditions of policy. Further, the Commissioner ought to have seen that under the scheme of the Employee’s Compensation Act, the primary liability is on the employer and no where in the said Act, liability of insurer figure besides indemnification to insured as in the case of claims under the provisions of M.V.Act.
5. He further contends that the Commissioner ought to have seen that admittedly the insured goods auto was a public transport vehicle and as such owner-employer of such transport vehicle is mandatorily required to maintain under Section 18 of Minimum Wages Act, 1950. Further it could be seen that the police investigation reports as well as the medical reports establish that injured was traveling in the insured goods vehicle along with his three other friends to attend a marriage which neither in connection with trade or business of insured. Further, the Commissioner erred in holding that wages of injured was Rs.6,000/- p.m. in the absence of proof of such claim and has suffered 100% disability for all works as contemplated under the Act. On all these grounds, learned counsel for the appellant seeks for intervention of this Court by setting aside the impugned judgment rendered by the Tribunal.
6. Per contra, learned counsel for the claimant, Sri.P.Nataraju while taking me through the materials on record, contends that the court below on consideration of oral and documentary evidence has rightly passed the impugned judgment and order, which appears to be just and proper and the same does not call for interference of this Court and seeks for dismissal of the appeal.
7. Keeping in view the arguments advanced by learned counsel for the appellant and so also, learned counsel for the claimant, the matter requires intervention of the impugned judgment passed by the court below for the reason that the proceedings conducted by the Commissioner is in derogation of the provisions of the Act and vitiated for the reasons that the Commissioner was not competent person as stipulated under Section 20 of the Employee’s Compensation Act, 1923 and which came into force w.e.f. 18.1.2010 to discharge his duties. Therefore, it is said that without going to issues which has been raised in this appeal to deal with the matter in detail, the matter requires to be remitted back to the competent court below to proceed in accordance with law and by giving an opportunity to both the side and decide the issues afresh. For the reasons stated above, I have to proceed to pass the following:
ORDER The appeal is hereby allowed. Consequently, the judgment and award in WCA/NFC No.17/2010 dated 22.03.2013 rendered by the Labour Officer and the Commissioner for Workman, Mysore District, Mysore is hereby set-aside. The matter is remitted to the competent court of law to proceed with the matter, afresh, by giving an opportunity to both sides.
As the matter is of the year 2010, the concerned court is directed to dispose of the case within a period of six months from the date of receipt of copy of this order. The amount in deposit, if any, shall be remitted to the appellant/insurance company.
Registry is directed to forward the entire records, forthwith.
Sd/- JUDGE DKB