IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.8268/2009 C/W M.F.A.No.1267/2009 (WC) IN MFA No.8268/2009 BETWEEN:
1. GUMMATIR SUBRAMANI S/O LATE SUBBAIAH AGED ABOUT 47 YEARS OCC:AGRICULTURIST.
2. P A ANILKUMAR S/O P S ACHAIAH AGED ABOUT 32 YEARS OCC:AGICULTURIST.
BOTH ARE RESIDENT OF KUNDA VILLAGE & POST VIRAJPET TALUK KODAGU DISTRICT.
(BY SRI K S PONNAPPA, ADVOCATE) AND:
1. SHIVAIAH S/O MARIYAYYA AGED ABOUT 32 YEARS R/O KAMEGOWDANAHALLY HUNSUR TALUK …APPELLANTS MYSORE DISTRICT.
2. THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD., MANNA BUILDING, MAIN ROAD VIRAJPET, KODAGU DISTRICT.
...RESPONDENTS (BY SRI SANTOSH KUMAR M B, ADVOCATE FOR R1 SRI H S LINGARAJ, ADVOCATE FOR R2) THIS MFA IS FILED U/S 30(1) OF WC ACT AGAINST THE ORDER DATED 29.11.2008 PASSED IN No.WCA/FC/CR.No.31/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN’S COMPENSATION, MYSORE, AWARDING A COMPENSATION OF Rs.1,83,289/- WITH INTEREST AT 12% P.A.
IN MFA No.1267/2009 BETWEEN:
THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD., KUNDA GRAM, VIRAJPET TALUK KODAGU DISTRICT, REPRESENTED BY IT’S THE DEPUTY MANAGER NATIONAL INSURANCE CO. LTD., BANGALORE REGIONAL OFFICE SUBHARAM COMPLEX No.144, M.G.ROAD BANGALORE – 560 001.
(BY SRI M U POONACHA, ADVOCATE) AND:
1. SHIVAIAH S/O MARIYAIAH AGED 30 YEARS R/AT HANAGODU HOBLI …APPELLANT HUNASUR TALUK MYSORE DISTRICT.
2. SRI GUMMATEERA SUBRAMANI S/O LATE SUBBAIAH MAJOR, R/AT KUNDAGRAM VIRAJPET TALUK KODAGU DISTRICT.
3. SRI P A ANILKUMAR S/O P S ACHAIAH MAJOR, R/AT KUNDAGRAM R/AT KUNDAGRAM VIRAJPET TALUK KODAGU DISTRICT.
…RESPONDENTS (BY SRI K S PONNAPPA, ADVOCATE FOR R2 & 3 R1 IS SERVED) THIS MFA IS FILED U/S 30(1) OF W.C ACT AGAINST THE JUDGMENT DATED 29.11.2008 PASSED IN No.WCA.FC.CR.31/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, MYSORE DISTRICT, MYSORE- AWARDING A COMPENSATION OF Rs.1,83,289/- WITH THE INTEREST AT 12% P.A.
THESE MFAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These two appeals are directed against the judgment and order dated 29.11.2008 passed in WCA:FC:CR:31/2007 by the Labour Officer and Commissioner for Workmen’s Compensation, Mysore District, Mysore.
2. The same is challenged under these appeals both by the respondent Nos.1 and 2 viz., Gummateera Subramani and Anil Kumar and by respondent No.3- National Insurance Company Limited. MFA No.8268/2009 is filed by the respondent Nos. 1 and 2 seeking to set aside the same and shift the entire liability against the Insurance company and MFA No.1267/2009 is filed by the Insurance Company seeking to set aside the liability fixed on it.
3. In order to avoid confusion and overlapping, parties hereinafter are referred to with reference to their rankings as it stood before the Tribunal.
4. The learned Commissioner while passing the award by partly allowing the claim petition filed by the claimant, granted Rs.1,83,289/- together with interest at 12% p.a. after 30 days of the award and saddled the liability on respondent Nos.1, 2 and 3 equally. As reflected through the cause title before the Commissioner, respondent No.1 is – Gummateera Subramani stated to be the landlord, respondent No.2 Anil Kumar is said to be the owner of the tiller and respondent No.3 is the Insurance Company. Rest is, petitioner Shivaiah is claiming to be the husband of deceased employee-Mahadevamma.
5. Proceedings came to be initiated before the Commissioner because of the incident dated 25.12.2004 when one Mahadevamma, wife of the petitioner was working as agricultural labourer for the past two years under respondent No.1 on a wages of Rs.100/- plus allowances per day coming up to Rs.3,000/- per month. Her co workers are Suresh and Murthy. Mahadevamma was feeding paddy to the tiller, the end portion of her saree was struck, because of which belt got dis connected and hit the chest of the said lady. As a result, she fell down and sustained serious bleeding injuries and she was taken to Government Hospital, Gonikoppa. But because of the impact of the injuries sustained by her, she succumbed to them and the compensation is sought against respondent Nos. 1 to 3.
6. Respondent Nos.1 to 3 entered appearance and resisted the claim of the petitioner.
7. The learned Commissioner was accommodated with the evidence of petitioner-Shivaiah and RWs 1 to 3 through affidavits and documentary evidence of Exs.P1 to P6 and Exs.R1 and R2.
8. The learned Commissioner considered the aspects of incident, negligence and involvement of the vehicle- tiller, came to the conclusion that the petitioner who is the husband of the victim was entitled for compensation of Rs.1,83,829/- together with interest at 12% p.a. and fastened liability on the respondent Nos. 1 to 3 equally which is challenged in these appeals.
9. The contention of the Insurance Company/ respondent No.3 before the Commissioner is that, it is not a case for granting compensation under the Workmens’ Compensation Act and there is no liability on its part. Two vehicles are reflected in FIR. Thus, it banks on suppression of material fact in order to make wrongful gains. Further, respondent No.3 also pleaded that collusion between the petitioner and other respondents would prejudice the insurance company.
10. Insofar as appeal in MFA No.1267/2009 preferred by the Branch Manager, National Insurance Company Limited for tiller and trailor bearing Nos.KA.12.T.3625 is concerned, 2nd respondent-Anil Kumar is the owner of the said vehicle.
Learned counsel for the Insurance Company has placed reliance on the decision in the case of Oriental Insurance Company Limited Vs. Premlata Shukla and others ( 2007 ACJ 1928) and submitted that the principles laid down in the said decision is squarely applicable to the case in hand.
11. It is also submitted by the learned counsel for petitioner that petitioner is entitled for his right as his wife Mahadevamma fell within the meaning and definition of workman and by virtue of her death, petitioner, who is her husband is entitled for compensation. It is the claim of petitioner Shivaiah that his wife was working in the agricultural field of respondent No.1 Gummateera Subramani.
12. Learned counsel for Insurance company stresses on the point of difference between the registration number of offending vehicle as stated in the complaint and the spot mahazar.
13. Insofar as complaint is concerned, it is lodged by one Shivaiah, S/o. Mariyaiah involving the vehicle bearing No.MYZ 6407. This complaint was filed on 24.12.2004 and insofar as mahazar which was said to have been conducted on 25.12.2004 marked as Ex.P3 is concerned, the Registration number of the vehicle is reflected as ‘KA.12. T.3626’. It is reflected in the policy, Ex.R1 as ‘KA.12.T.3626’. Thus, the learned counsel for the Insurance company would submit that it is a planted claim petition and unfair advantage was attempted to be taken by the claimant Shivaiah by making a false claim on accident and employment.
14. Learned counsel for Insurance Company would submit that the accident did not happened connecting insured vehicle. He bases his stand on the discrepancies stated above. In the circumstances of the case, it is to be noted that upon receiving the complaint FIR is registered under Section 154 of Cr.P.C. and matter would be taken up for investigation. In this connection, it is necessary to mention that none of the parties have filed the copy of the chargesheet/final report filed under Section 173(2) of Cr.P.C. It is during the investigation, mahazar is said to have conducted on 25.12.2004 wherein the offending vehicle was said to have been seized, and the number of the vehicle is noted as ‘KA.12.T.3626’. Incidentally, in the policy marked as Ex.R1, it is in respect of the vehicle tiller and trailor bearing KA.12.T.2625. The make therein is stated as VSTP/tiller and trailer. Thus, the claim of the insurance company is that, the vehicle was not involved. In this connection, insurance company being an institution accommodated by battery of professionals has not chosen to challenge the FIR or the cognizance if any taken.
15. In this connection, it is necessary to mention that, insofar as complaint is concerned, it is lodged by one Shivaiah, who is none other than the claimant, husband of the deceased is apparently illiterate and has scribed his left thumb mark on the complaint. Thus, there is no necessity of reading too much into the registration number of the vehicle. Thus, the learned Commissioner refers the employer as the respondents in the commencement of the order and the petition is filed on the basis that late Mahadevamma was working under respondent No.1.
16. It is necessary to observe that, the aspect that requires to be considered is, whether the injuries were suffered by Mahadevamma due to hitting of the belt of a tiller while she was discharging her duties as coolie under respondent No.1.
Here, except filing of objections and deposing, there are no further efforts by the Insurance Company. Further the denial is not corroborated by the independent version of other respondents. More particularly, respondent No.1 has given a positive evidence to the effect that Mahadevamma was working under him.
17. It is also necessary to mention that to quantify compensation as the injured workman or the dependent of workman, he should be employee for the purpose of the trade or avocation or process or employer has appointed as coolie. Thus, the nexus between the work carried on by the labourer and the trade or process carried on by the employer assumes importance. In the circumstances, the only aspect that should have been placed before the court is, positive or relevant evidence regarding the employment at the first instance and for absolving the liability on the second. Therefore, I have no hesitation in holding that Mahadevamma being a workman is entitled for compensation.
18. Insofar as the vehicle tiller is concerned, the discrepancy between mentioning of different vehicle numbers in the complaint on the one side and mahazar and the insurance policy on the other side does not make difference when it was totally for the insurance company to demonstrate the vehicle under the ownership of respondent No.1 or respondent No.2 bearing the number other than the one mentioned in the policy.
19. On factual reading of the evidence of RW1 it is in support of the claimant. In the circumstances, the materials available fortify the relationship of employer and employee between respondent No.1 and Mahadevamma and it pertains to her death. The relevant factor considered by the learned Commissioner for calculating loss of dependency is as under:
845 x 216.91/100 x 100% = 1,83,829/-.
The learned member erred in saddling the liability on all the respondents. In the given circumstance, existence of policy in respect of the offending vehicle, status of workman, wife of the petitioner, accident dated 25.12.2004 is out of and during the course of employment, the Insurance company is liable to compensate.
Thus, insofar as the appeal by the Insurance Company for absolving it from liability has no grounds to stand. Accordingly, it is liable to be rejected.
20. Insofar as appeal No. 8268/2009 preferred by the appellants/respondent No.1 and 2 is concerned, it is necessary to place on record that, in the light of the valid insurance policy which is in force directs liability towards the Insurance Company. Thus, the prayer of respondent Nos.1 and 2 to relieve them of the liability succeeds. As the quantum is not a serious contention in the case, I find what is awarded is just and fair. Thus, I proceed to pass the following:
ORDER (i) M.F.A.No.8268/2009 filed by the appellants/respondent Nos. 1 and 2 is allowed.
(ii) M.F.A.No.1267/2009 filed by the Insurance Company is dismissed.
(iii) The judgment and order dated 29.11.2008 passed in WCA:FC:CR:31/2007 by the Labour Officer and Commissioner for Workmen’s Compensation, Mysore District, Mysore is modified fastening entire liability on the Insurance Company to compensate the award amount.
(iv) The Insurance Company is directed to deposit the compensation amount as ordered by the Commissioner with interest @ 12% p.a. within four weeks from date of receipt of a copy of this order.
Amount deposited in M.F.A.No.1267/2009 shall be transmitted forthwith.
tsn* Sd/- JUDGE