IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL No.5831/2016(WC) BETWEEN:
1. SMT. NEELA, W/O LATE KRISHNA, AGED ABOUT 45 YEARS, 1a. RAGHU S/O LATE KRISHNA, AGED ABOUT 15 YEARS, 1b. SHIVU S/O LATE KRISHNA, AGED ABOUT 13 YEARS, 1c. PAVITHRA D/O LATE KRISHNA AGED ABOUT 11 YEARS, 1d. SANDEEP S/O LATE KRISHNA AGED ABOUT 9 YEARS, 1e. CHAITHRA D/O LATE KRISHNA, AGED ABOUT 7 YEARS, 1f. MONISH S/O LATE KRISHNA AGED ABOUT 5 YEARS, 1g. BHAVYA D/O LATE KRISHNA AGED ABOUT 3 YEARS, APPELLANT No.2 TO 8 I.E., 1(a) TO 1(g) ARE MINOR, REPRESENTED BY NATURAL GUARDIAN MOTHER 1ST APPELLANT ALL ARE RESIDING AT INDIRA NAGARA, NMDC KAIMAR POST, CHIKKAMAGALURU TALUK. ... APPELLANTS (BY SRI VENKATE GOWDA K., ADVOCATE) AND:
1. M/S AMBI PLY & BOARDS YEARS PLOT NO.42, INDUSTRIAL AREA, AMBALE CHIKMAGALUR TALUK 577101 2. THE MANAGER, M/S NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH OFFICE, CHIKMAGALUR 577101. ... RESPONDENTS (BY SRI K. KISHOR KUMAR REDDY, ADVOCATE FOR R2; R1 IS SERVED, BUT UNREPRESENTED) …..
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER S.30(1)(a) OF EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED:30.06.2016 PASSED ON ECA NO.198/14 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE & JMFC, CHIKKAMAGALURU, DISMISSING THE PETITION FOR COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This Appeal is filed by the Appellants challenging the judgment and award dated 30.06.2016 made in E.C.A. No.198/2014 on the file of the II Addl. Senior Civil Judge and JMFC, Chikkamaguluru, dismissing the claim petition.
2. This Appeal is filed by the claimants whose claim petition came to be dismissed by the Commissioner for Workmen Compensation/Tribunal mainly on the ground that the claimants have not produced any material to prove that the deceased was working under the first respondent.
3. It is the case of the claimants before the Tribunal that the first claimant is the wife and claimants 1(a) to 1(g) are the children of deceased Krishna who was working under the first respondent. On 23.02.2006 at 12.00 pm, when deceased Krishna was cutting timber at Kalmane Estate, he accidentally fell down, as a result, he sustained grievous injuries and succumbed to the injuries on his way to hospital. The death was occurred during the course of employment under the first respondent. As on the date of the accident, the deceased was aged about 35 years and was drawing daily wages of `200/-. Therefore, the claimants claimed compensation.
4. The first respondent/employer filed objections before the Tribunal and admitted that on 23.02.2016, Krishna, husband of the first claimant died while cutting the timber, and he was aged about 35 years as on that date. It is contended that the deceased was drawing daily wages of `170/- and not `200/-. It is further stated that the claimants have not requested to pay the compensation and that he has obtained insurance policy from the second respondent which was in force as on the date of the accident, and therefore, the second respondent is liable to pay the compensation.
5. The second respondent/insurance company filed detailed objections and denied the relationship of employer and employee between the deceased and the first respondent; denied the accident and the death occurred during the course of employment. Therefore, it was contended that the insurance company is not liable to pay the compensation and sought for dismissal of the claim petition.
6. Based on the aforesaid pleadings, the Tribunal framed the following issues:
(i) Whether the petitioners prove that deceased Krishna S/o Somaiah was an employee as defined under the provisions of Workmen Compensation Act?
(ii) Whether the petitioners prove that on 23.02.2006 at about 12.00 pm the deceased Krishna, S/o Somaiah met with an accident and died during the course of employment under the first respondent?
(iii) Whether the petitioners prove that deceased Krishna S/o Somaiah was aged about 35 years on the date of accident and was getting daily wages at the rate of `200/-?
(iv) Whether the petitioners are entitled to the compensation as sought for in the petition, if so at what quantum and from whom?
(v) What order or award?
7. In order to establish the case of the claimants, the first claimant, wife of the deceased, examined herself as P.W.1, co-employee of the deceased was examined as P.W.2 and got marked the documents as per Exs.P.1 to P.3. One Chendil Kumar, timber merchant was examined as R.W.1, but has not marked any documents. The second respondent also did not chose to adduce or produce any oral and documentary evidence.
8. The Tribunal, considering the entire material on record has recorded a finding that, the claimants failed to prove that the deceased was an employee as defined under the Workmen’s Compensation Act and the accident occurred on 23.02.2006 during the course of employment under the first respondent. Accordingly, the Tribunal, by the impugned judgment and award, dismissed the claim petition. Hence the present appeal is filed by the claimants.
9. I have heard the learned counsel for the parties to the lis.
10. Sri Venkate Gowda.K. learned Counsel for the appellants contended with vehemence that the impugned judgment and award passed by the Tribunal dismissing the claim petition is erroneous and contrary to the material on record. He contended that the Tribunal failed to appreciate the averments made in the claim petition and evidence on record and erroneously proceeded to dismiss the claim petition, without considering the oral evidence of P.W.1 and 2, R.W.1 and the material evidence on record. He contended that R.W.1 has stated on oath that the deceased was working under the first respondent and died during the course of employment on 23.02.2006 and the first respondent used to pay Rs.170/- as daily wages and Ex.R.1-insurance policy was in force as on the date of the accident. He denied the suggestion that the deceased Krishna was getting daily wages of `200/-, but has voluntarily stated that it was `170/-. R.W.1 has also stated that the deceased was working under the supervision of mestri and he has paid `15,000/- to the claimants/appellants. The first respondent, in the objections filed before the Tribunal, in categorical terms, has admitted that the deceased was working under him and he was paying `170/- as wages per day and the deceased died during the course of employment. Therefore, he sought to allow the appeal.
11. The first respondent under whom the deceased was working, has remained absent. Sri K.Kishor Kumar Reddy, learned counsel for the second respondent sought to justify the impugned judgment and award and contended that in the absence of any material documents produced, the Tribunal is justified in dismissing the claim petition and sought to dismiss the appeal.
12. This Court, while admitting he appeal, on 03.07.2019, framed the following substantial questions of law:
(i) Whether the Tribunal is justified in dismissing the claim petition filed by the claimants ignoring the evidence of employer-R.W.1 and objections filed by him, when the deceased died during the course of employment under the first respondent?
(ii) Whether the Tribunal is justified in dismissing the claim petition under the facts and circumstances of the present case?
13. Having heard the learned counsel for the parties, it is the specific case of the appellants that the deceased as working under the first respondent along with P.W.2 and when they were cutting the timber, the deceased fell down and died during the course of employment. P.W.1-wife of the deceased and P.W.2-coworker have stated that the deceased and P.W.2 were working as coolies under the first respondent and as per the directions of the first respondent, P.W.2 and the deceased were cutting the timber in Kalmane Estate at the time of the accident. P.W.2 is an eye witness to the incident. It is also not in dispute that the employer has stated on oath that the deceased was working under him and as per his directions, the deceased and P.W.2 were cutting the timber and the deceased fell down, due to which, he succumbed to the injuries during the course of employment. The employer has also stated that he was paying `170/- as wages per day to the deceased and not `200/-. It is also not in dispute that the first respondent filed objections before the Tribunal and in categorical terms, has admitted that the deceased was an employee under him and he was paying daily wages of `170/- and the death occurred during the course of employment.
14. The Tribunal, ignoring the objections filed by the first respondent, oral evidence of R.W.1-owner and ignoring the evidence of P.W.1 and 2, proceeded to dismiss the claim petition, which is contrary to the material on record. When the employer under whom the deceased was working has filed objections and admitted the relationship of master and servant and also admitted that the accident occurred arising out of during the course of employment, ought to have decided the case on merits and ought to have decided as to whether the insurance company is liable to pay the compensation or owner is liable to pay. Instead of doing so, on technical grounds, the Tribunal proceeded to dismiss the claim petition which cannot be sustained.
15. The Tribunal failed to notice 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 and 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.
16. Admittedly, it is categorical statement of the first respondent/employer that the deceased died during the course of employment and the same was supported by the evidence of P.W.1 and 2 and R.W.1. Ignoring the said material evidence, the Tribunal proceeded to dismiss the claim petition erroneously, which is not the intention of the legislature. The Tribunal ought to have decided the case on merits with regard to liability, based on the oral and documentary evidence adduced and produced by the parties.
17. For the reasons stated above, the substantial questions of law has to be answered in the negative holding that the Tribunal is not justified in dismissing the claim petition filed by the claimants ignoring the statement of objections filed by the first respondent, evidence of R.W.1, P.W.1 and 2 and therefore, the matter requires reconsideration. In view of the above, appeal is allowed. The impugned judgment and award dated 30.06.2016 made in E.C.A. No.198/2014 on the file of the II Addl. Senior Civil Judge and JMFC, Chikkamaguluru, is hereby set-aside. The matter is remanded to the Tribunal for reconsideration on merits and to pass appropriate judgment and award, strictly in accordance with law.
Sd/- JUDGE kcm