IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA M.F.A.No.368/2016 (WC) BETWEEN:
1. Smt. Kanthamma W/o. Late B.P.Shivakumar, Aged about 32 years, 2. Pavithra D/o. Late B.P.Shivakumar Aged about 14 years, 3. Likitha D/o. Late B.P.Shivakumar Aged about 11 years, 4. Smt. Thimmamma W/o. Late Puttaswamy Aged about 62 years, (The Appellants 2 and 3 are since minor represented by their guardian-Appellant No.1) All the Appellants are residing at Bhuvanahalli Village Kasaba Hobli Hassan Taluk-573 201.
... Appellants (By Sri. Chethan B, Advocate) AND:
1. C.J. Ashoka S/o. Javaregowda Major Resident of Chikkadaluru Village, Dudda Hobli Hassan Taluk-573 201, Hassan.
2. The Manager The Reliance General Insurance Co. Ltd., Kruthika Arcade Holenarasipura Road, Hassan-573 201.
… Respondents (By Sri. H.T. Jagadeesh, Advocate for R1 Sri. H.N. Keshava Prashanth, Advocate for R2) This MFA is filed under section 30(1) of the Workmen’s Compensation Act, 1988, against the judgment and award dated 07.11.2015 passed in ECA No.45/2014 on the file of the Principal Senior Civil Judge & Commissioner for Employees Compensation, Hassan, dismissing the petition for compensation.
This MFA coming on for Admission this day, the court delivered the following:
JUDGMENT The claimants are wife, daughters and mother of deceased B.P.Shivakumar, have filed the present appeal before this Court against the judgment and award passed by the Principal Senior Civil Judge and Commissioner for Employees Compensation, Hassan (hereinafter referred to as ‘the Commissioner’ for short) made in E.C.A.No.45/2014 dated 07-11-2015 which has been dismissed. The claimants are claiming compensation of Rs.10,00,000/- with interest at the rate of 24% per annum for the death of B.P.Shivakumar during the course of his employment under respondent No.1.
2. It is the case of the claimants that they are the wife, daughters and mother of deceased B.P.Shivakumar, who was working as driver under respondent No.1 from two years. As per the directions of respondent No.1, on 23-11-2011, the deceased B.P.Shivakumar along with pilgrims went to Shabarimalai and other places. He returned on 02-12-2011 at about 3.00 p.m., and parked the Maxi cab near tempo stand, Park road at Hassan. Due to long hours of journey, the deceased B.P.Shivakumar suffered chest pain, then the cleaner Ranganatha came to the place where deceased B.P.Shivakumar had fell down. Thereafter, cleaner Ranganatha took him to Mangala Hospital, Hassan and after the checkup, doctors informed that B.P.Shivakumar was brought dead. It is the further case of the claimants that the deceased was aged about 35 years at the time of accident and was earning monthly wages of Rs.6,000/- and Rs.250/- batta per day from respondent No.1 as a driver. Therefore, sought for compensation as prayed.
3. The first respondent has appeared before Tribunal, but not filed any statement of objections. The second respondent appeared before the Court through its counsel and filed the statement of objections. The second respondent in its statement has denied the averments made in the claim petition and denied the date, time and place of incident, age, income and occupation of the deceased. It is further denied that the deceased B.P.Shivakumar died due to chest pain and he was not discharging his duties under respondent No.1 as an employee. It is also denied the jural relationship between the first respondent and deceased and contended that the petitioners, first respondent and the jurisdictional police have concocted a false story that the deceased B.P.Shivakumar was discharging his duty under respondent No.1. Therefore, sought for dismissal of the appeal.
4. Based on the pleadings, the Tribunal framed the following issues:
1. ªÀÄÈvÀ£À JzÀÄgÀÄzÁgÀgÀ°è PÁ«ÄðPÀ£ÁV ¢: 2.12.2011 gÀAzÀÄ JA¥ÁèAiÀiïªÉÄAmï EAdÄj¬ÄAzÀ ªÀÄÈvÀ£ÁVzÁÝ£É JAzÀÄ CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
2. vÁªÀÅ ªÀÄÈvÀ£À CªÀ®A©vÀgÀÄ JAzÀÄ CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àj¸ÀĪÀgÉÃ?
3. ªÀÄÈvÀ PÁ«ÄðPÀ£À C¥ÀWÁvÀ ¸ÀªÀÄAiÀÄzÀ ªÀAiÀĸÀÄì ªÀÄvÀÄÛ ªÀiÁ¹PÀ ªÉÃvÀ£À JµÀÄÖ JAzÀÄ CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
4. CfðzÁgÀ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ?
5. ¥ÀjºÁgÀ ¥ÁªÀw¸À®Ä AiÀiÁgÀÄ ¨sÁzÀågÀÄ?
6. K£ÀÄ DzÉñÀ?
5. In order to prove the above said issues, the first petitioner got examined herself as P.W.1 and the cleaner Ranganath was examined as P.W.2 and got marked 7 documents as per Ex.P1 to Ex.P7. The Manager of the second respondent-Company was examined as R.W.1 and got marked two documents as per Ex.R-1 and Ex.R-2.
6. The Commissioner, after considering the entire material on record has recorded a finding that the claimants have not proved that the deceased was working as a driver under respondent No.1 and have not proved the date of accident, age of the deceased and monthly wages.
Accordingly, by the impugned judgment and award has dismissed the petition.
7. Hence, present appeal is filed before this Court. Along with the appeal, the claimants have also filed the application under Order 41 Rule 27 of CPC seeking permission to lead the additional evidence by way of production of Document i.e., Driving License of deceased B.P.B.P.Shivakumar, mainly contending that though the deceased was working as driver under respondent No.1, he died due to the accident occurred on 02.12.2011. It is further contended by the claimants that due to the sudden death of B.P.Shivakumar, the entire responsibility of maintaining the family was on wife of the deceased. Therefore, she could not trace out a copy of the driving license of her husband and could not produce the same before the Commissioner/Tribunal. The Commissioner/ Tribunal has dismissed the petition mainly on the ground of non-production of driving license of the deceased. In this regard the claimants have filed the above stated I.A.No.1/2016 to produce additional documents and contended if the application is allowed, no inconvenience would be caused to the respondents but if the same is rejected, the claimants would suffer injustice. Therefore, sought to allow the said application.
8. I have heard the learned counsels for the parties to the lis.
9. Sri. Chethan.B, learned counsel for the appellants contended that the impugned judgment and award passed by the Commissioner/Tribunal, dismissing the claim petition filed by the claimants mainly on the ground that the claimants have not produced the driving license of the deceased is erroneous and contrary to law. The material on record depicts that the Commissioner/Tribunal has not provided sufficient time to the appellants to produce the document i.e., driving license of the deceased. He further contended that as on the date of the evidence adduced before the Tribunal, the first appellant who is the wife of the deceased could not produce the driving license as she was under shock due to death of her husband-deceased B.P.Shivakumar, therefore she was not able to trace out a copy of the driving license. Therefore, sought to allow the application permitting the appellants to lead the additional evidence by way of production of document i.e., driving license of the deceased which is produced along with the application.
10. Per contra, Sri. H.N. Keshava Prashanth, learned counsel for respondent No.2 sought to justify the impugned judgment and award passed by the Commissioner/Tribunal and contended that the driving license of the deceased was not produced before the Commissioner/Tribunal and the claimants-appellants have not proved the fact that deceased was working under respondent No.1 and also not proved the date of the accident, age and monthly wages of the deceased. Therefore, sought to dismiss the appeal.
11. This Court while admitting the appeal framed the following substantial questions of law for consideration:
1. Whether the Commissioner for Employee’s Compensation/Tribunal is justified in dismissing the claim petition mainly on the ground that the claimants have not produced the driving license of deceased B.P.Shivakumar inspite of categorical statement made by P.W.2 who was working along with the deceased under respondent No.1.?
2. Whether the claimants-appellants have made out a ground to allow the application filed under Order 41 Rule 27 of CPC.?
12. Having heard the learned counsels for the parties, it is a specific case of the claimants that the deceased was working as a driver under respondent No.1 from last 2 years prior to the accident. It is also not in dispute that the accident occurred on 2.12.2011 at about 3.00 p.m. P.W.1- wife of the deceased and P.W.2 the alleged cleaner who was working under respondent No.1 along with the deceased have specifically stated on oath that B.P.Shivakumar died due to chest pain occurred during the course of employment on account long hours of journey. The jurisdictional police registered the claim and marked the documents Ex.P1 to Ex.P7. The Commissioner/Tribunal proceeded to reject the claim petition mainly on the ground that the claimants have not produced the valid driving license of the deceased without which the deceased could not have discharge his duty as an employee under respondent No.1. Admittedly, respondent No.1 has not filed any objections before the Tribunal. The claimants have filed application I.A.No.1/2016 under Order 41 Rule 27 of the CPC seeking permission to lead the additional evidence by way of production of Document i.e., driving license of deceased B.P.Shivakumar.
13. On careful perusal of the driving license issued by the competent Authority in the name of the deceased- B.P.Shivakumar, it is seen that the same is valid from 23.05.2009 to 22.05.2012. Admittedly, the accident occurred on 02.12.2011, as on the date of the accident, the deceased was holding a valid driving license, the same was not produced by the appellants due to the fact that it was not traced out as P.W.1-wife of the deceased has stated on oath that after the death of her husband, the entire responsibility to maintain the family was on her and she could not trace out the driving license of her husband- deceased and produce the same before the Commissioner/ Tribunal. The original motor driving license issued by the Competent Authority is before this Court and on perusal of the same it clearly depicts that the license was valid as on the date of accident. Therefore, in the interest of justice, if the application is allowed, no injustice will be caused to the respondents.
14. It is well-settled that the Employee’s Compensation Act, 1923 is a piece of social security and welfare legislation. Its dominant purpose is to protect the workman and, therefore, the provisions of the Act should not be interpreted too narrowly so as to debar the workman from compensation which the Parliament thought they ought to have. The intention of the Legislature was to make the employer an insurer of the workman responsible against the loss caused by the injuries or death, which ought to have happened, while the workman was engaged in his work.
15. In view of the aforesaid reasons, the substantial question of law raised in the present appeal has to be held in the negative holding that the Commissioner/Tribunal was not justified in rejecting the claim petition mainly on the ground of non-production of driving license of the deceased. Accordingly, the claimants have made out a case to allow the application I.A.No.1/2016 under Order 41 Rule 27 of the CPC seeking permission to lead the additional evidence by way of production of Document i.e., driving license of deceased B.P.Shivakumar and have also produced the driving license of the deceased along with the application.
16. In view of the above, the appeal is allowed, the impugned judgment and award passed by the Principal Senior Civil Judge and Commissioner for Employees Compensation in E.C.A.No.45/2014, dated 07-11-2015 is hereby set aside, the application I.A.No.1/2016 under Order 41 Rule 27 of the CPC is allowed. The matter is remanded to the Principal Senior Civil Judge and Commissioner for Employees Compensation for re-consideration in the light of allowing application filed for additional evidence by producing driving license of deceased before this Court. The Commissioner/Tribunal is directed to proceed afresh after giving an opportunity to both the parties and pass an appropriate orders in accordance with law.
Ordered accordingly.
SMJ Sd/-
JUDGE