IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.5826/2009(WC) BETWEEN:
ICICI LOMBARD GENERAL INSURANCE CO. LTD., DAVANAGERE, NOW REP. BY ITS MANAGER LEGAL ICICI LOMBARD GIC LTD, SVR COMPLEX II FLOOR, 89 HOSUR ROAD, BANGALORE-560 068 ..APPELLANT (BY SRI A N KRISHNA SWAMY, ADVOCATE) AND:
1.SMT CHAND BI W/O.LATE IBRAHIM SAB AGED ABOUT 42 YEARS R/AT.NO.96, 13TH CROSS, BASHANAGAR DAVANGERE 2.RAZIA BI D/O.LATE IBRAHIM SAB AGED ABOUT 22 YEARS R/AT.NO.96, 13TH CROSS, BASHANAGAR DAVANGERE 3.RIHANA D/O.LATE IBRAHIM SAB AGED 20 YEARS R/AT.NO.96, 13TH CROSS, BASHANAGAR DAVANGERE 4.NAZIMA D/O.LATE IBRAHIM SAB AGED ABOUT 18 YEARS R/AT.NO.96, 13TH CROSS, BASHANAGAR DAVANGERE 5.HABIBULLA S/O.LATE IBRAHIM SAB AGED ABOUT 16 YEARS R/AT.NO.96, 13TH CROSS, BASHANAGAR DAVANGERE MINOR REP. BY HIS NATURAL GUARDIAN/ MOTHER- RESPONDENT NO.1 6.ASHOK M K S/O.M B KEMPABORAIAH MAJOR OWNER OF LORRY R/O.MARAKADADODDI GORAVANAHALLI MADDUR TQ MANDYA DISTRICT ..RESPONDENTS (BY SRI MANJUNATHA PATTANASHETTY, ADVOCATE FOR R-1 TO R-5-ABSENT, R-6 - SERVED) THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND ORDER DATED 23.03.2009 PASSED IN WCA/CR-348/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, DAVANAGERE DISTRICT, DAVANAGERE, AWARDING A COMPENSATION OF RS.2,03,340/-.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Counsel for appellant present. Counsel for respondents 1 to 5 absent. No representation. Matter is of the year 2009 in terms of the appeal and of the year 2007 in terms of presenting the claim petition. There are no grounds to grant adjournment. Matter is listed under Final Hearing-oldest matters. Hearing date was notified well in advance. Learned counsel for appellant present. Thus, I proceed to hear learned counsel for appellant-insurance company, peruse the file and dispose of the matter.
2. Appeal is directed against the Judgment and order dated 23.03.2009 passed in WCA/CR No.348/2007 by the Commissioner for Workmen Compensation, Davanagere, wherein claim petition filed by the dependents of one Ibrahim Sab came to be allowed in part and a compensation of Rs.2,03,340/- was awarded to the claimants together with interest at the rate of 12% p.a.
3. In order to avoid confusion and overlapping the parties are herein referred in accordance with the rankings already held by them before the learned Commissioner for Workmen Compensation, Davanagere.
4. The date of accident said to be 03.11.2007. The offending vehicle is lorry bearing registration No.CNU- 8519 and the victim is Ibrahim Sab who was working as cleaner in that lorry. A Criminal case in FIR in Crime No.166/2007 came to be registered for the offence punishable under Sections 279 and 304A of IPC and Section 187 of Motor Vehicles Act. Claimants consist of wife and children of Ibrahim Sab. The accident occurred due to rash and negligent driving of the driver of offending vehicle near Mahadevappa Garden, NH-4 Road and due to impact of abrupt brake Ibrahim Sab fell from the top of the lorry and sustained injuries and he succumbed to them. Claimants are widow and children of Ibrahim Sab claimed that accident was out of and in the course of employment and that the claimants are entitled for compensation as per the provisions of Workmen Compensation Act.
5. Learned Commissioner considered the matter with reference to accident, injuries and death and the concept of `out of and in the course of employment’ and adopted the following relevant factor and granted compensation as under:
Rs.3,000-50% = Rs.1,500x135.56 – Rs.2,03,340/-
6. Learned counsel for appellant Sri A N Krishnaswamy would submit that the liability did not arise and that victim was on the top of the lorry. Learned counsel would submit that there are statements of the neighbours to the effect that the deceased Ibrahim Sab was a cycle rickshaw puller and never employed with respondent No.1. They are said to be statements recorded under Section 161 of Cr.P.C in the course of investigation of the connected criminal case. However no independent witnesses are examined in the said connection. The appellant- insurance company has claimed breach of policy conditions and that victim was not employed with respondent No.1.
7. Before the Commissioner no concrete and specific evidence are produced to said effect. It is necessary to examine the submission of the learned counsel for insurance company to the effect that the victim Ibrahim Sab was sitting on the top of the loaded lorry and fell down and as such he was not entitled to claim compensation under the Act. In this connection the sworn testimony of RW-1 who is none other than one Chetan P., S/o Puttannaiah, aged 32 years, Manager, ICICI Lombard General Insurance Company Limited, in his evidence through sworn testimony (affidavit) has stated:
“4. That on the date of accident Deceased was not cleaner in the vehicle in question. The deceased was an un-authorized passenger in some other vehicle and he was waiting near Bada Circle for the vehicle to go to Chitradurga. At that time deceased get into the unknown lorry as un-authorised passenger. Hence, this Respondent is not liable to pay any compensation to the petitioners.”
8. However, diagonally opposite version can be ascertained from the evidence and submissions by the insurance company.
9. In the over all circumstances of the case, I do not find there is any infirmity, illegality in the order dated 23.03.2009 passed in WCA/CR No.348/2007 by the Commissioner, Workmen Compensation, Davanagere.
Appeal is devoid of merits and is rejected.
Absence of learned counsel for respondents 1 to 5 is placed on record. In this connection Taluka Legal Services Authority shall co-operate and co-ordinate with the respondents in getting the compensation as ordered by the Commissioner, Workmen Compensation, Davanagere.
Amount in deposit be transferred to the Commissioner, Workmen Compensation, Davanagere.
Sd/- JUDGE SBN