IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.No.5948 OF 2013 (WCA) BETWEEN M/S. THE ORIENTAL INSURANCE CO. LTD., D.O.2, KANTHARAJ URS ROAD, SARASWATHIPURAM, MYSORE – 570 009.
NOW REPRESENTED BY M/S. ORIENTAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE, LEO SHOPPING COMPLEX, T.P.HUB, NO.44/45 RESIDENCY ROAD CROSS, BANGALORE – 560 025.
REPRESENTED BY ITS AUTHORISED SIGNATORY.
(BY SRI.SURESH K., ADVOCATE) AND 1. SRI.KALEGOWDA, S/O LATE SRI.KULLEGOWDA, AGED 66 YEARS, ... APPELLANT 2. SMT. BORAMMA, W/O SRI.KALEGOWDA, AGED ABOUT 56 YEARS, BOTH AT BTM KOPPALU, PIRIYAPATTANA TALUK, MYSORE DISTRICT – 570 009.
3. SRI.H.S.SOMASHEKAR, S/O SRI.H.B.SHIVALINGAPPA, MAJOR, HITTANAHALLI VILLAGE, PIRIYAPATTANA TALUK – 570 009.
... RESPONDENTS (BY SMT. SUMA KEDILAYA, ADVOCATE FOR R1 & R2; R3 IS SERVED) THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT, AGAINST THE JUDGMENT DATED 30.03.2013 PASSED IN WCA/FC-79/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, MYSORE DISTRICT, MYSORE, AWARDING A COMPENSATION OF RS.4,39,900/- WITH INTEREST @ 12% FROM 13.07.2007 TILL THE DATE OF DEPOSIT.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant Insurance Company is before this Court under Section 30(1) of Workmen’s Compensation Act, 1923, being aggrieved by the award dated 30.3.2013 passed in WCA/FC-79/2007 by the Labour Commissioner for Workmen Compensation, Mysuru District, Mysuru.
2. The claimants filed the claim petition under Sections 10 and 22 of Workmen’s Compensation Act, 1923 (for short ‘the Act’) seeking compensation for the death of their son Siddarama during the course of employment involving lorry bearing No. KA-45 1324 on 13.6.2007. It is stated that the deceased was working as a loader in the said lorry. He and others were proceeding to B.T.M. Koppal village through Periyapatna-Bettadapura Main Road, near Kaggundi Tobacco Board to secure menure. As the driver of the lorry drove the vehicle in rash and negligent manner, he lost control of the lorry which turtled. As a result, the deceased suffered grievous injuries and succumbed to injuries. As on the date of death, the deceased was aged 23 years and was earning Rs.150 per day.
3. On issuance of the notice, respondent No.1- owner as well as respondent No.2-insurer appeared before the Commissioner. Respondent No.1-owner filed the statement of objections before the Commissioner admitting that the deceased was working as a loader to the lorry bearing No.KA-45 1324. The insurer had also filed the statement wherein he denied the employer- employee relationship between the deceased and respondent No.1. It was the contention of the insurer that the deceased was traveling in the said lorry as an unauthorized passenger. The Commissioner based on the pleadings, framed the following points for consideration:
ªÁzÁA±ÀUÀ¼ÀÄ 1. ªÀÄÈvÀ£ÀÄ 1£Éà ¥ÀæwªÁ¢UÀ¼À°è PÁ«ÄðPÀ£ÁVzÀÝ£ÉA§ÄzÀ£ÀÄß CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
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6. EzÀgÀ §UÉÎ DzÉñÀªÉãÀÄ?
4. On behalf of the claimants, claimant No.1 was examined as P.W.1 and examined P.W.2 apart from marking Exs.P.1 to P.12. The respondent-insurer examined one witness as R.W.1. The Commissioner, on analyzing the materials on record, held that the accident had taken place during the course of employment and also held that the deceased was working as a loader to the aforesaid lorry belonging to respondent No.1 and awarded the total compensation of Rs.4,39,900 with interest at 12% p.a. from the date of petition till payment. The insurer being aggrieved by the same, is before this Court in this appeal.
5. Heard the learned Counsel for the appellant and the learned Counsel for the respondents.
6. Perused the Lower Court Records.
7. Learned Counsel for the appellant would submit that the deceased was not working as a loader to the lorry belonging to respondent No.1 and that the deceased was traveling in the said lorry as an unauthorized passenger. He submits that there is no material or evidence to substantiate that the deceased was working as a loader in the lorry bearing No.KA-45 1324 belonging to respondent No.1. The learned Counsel invites the attention of this Court to the evidence of P.W.2 to say that the deceased was traveling in the lorry along with others to secure manure and he was not the loader to the lorry. The learned Counsel also invites the attention of this Court to Ex.P.7 which would indicate that the deceased was traveling along with others to secure the manure. Thus, he submits that the claimants have not proved the employer-employee relationship between the deceased and respondent No.1.
8. Per contra, learned Counsel for the claimants would submit that respondent No.1 in his statement has admitted that the deceased was working as a loader to the lorry belonging to respondent No.1. It is contended that no substantial question of law would arise for consideration in this appeal. As such, it is prayed to dismiss the appeal.
9. On hearing the learned Counsel appearing for the parties and on perusal of the entire lower court records, I am of view that no substantial question of law would arise for consideration in this appeal so as to admit the same.
10. The Hon’ble Apex Court in a decision reported in (2017) 1 SCC 45 - GOLLA RAJANNA AND OTHERS VS. DIVISIONAL MANAGER AND ANOTHER, at paragraph 10, has held as follows:-
“10. Under the scheme of the Act, the Workmen’s Compensation Commissioner is the last authority on facts. Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to reappreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act.”
The above decision makes it clear that Commissioner is the last authority on facts. Keeping in mind the principles stated in the above decision, the facts of the present case will have to be examined.
11. The only contention raised by the appellant- insurance company is that the deceased was not working as a loader to the lorry belonging to respondent No.1 and the deceased was traveling in the said lorry as an unauthorized passenger. P.W.1, father of the deceased, in his evidence, has stated that the deceased was working as a loader in the lorry bearing NoKA-45 1324 belonging to respondent No.1. P.W.1 has denied the suggestion of the insurance company that the deceased was not working as the loader but he was traveling in the lorry as a passenger. The same suggestion made to P.W.2 by the insurance company was also denied by him.
12. Respondent No.1-the owner of the lorry in his statement has admitted that he is the owner of the lorry bearing No.KA-45 1324 and that the deceased Siddarama was employed under him as a coolie in respect of the said lorry. The insurance company has examined one of its officers as R.W.1, but no other witnesses were examined in support of their contentions. RW-1 in his evidence has stated that he does not know whether Respondent No.1 in his statement stated that deceased was working under him as loader. Further he has stated that the deceased was not loader is based on charge sheet. The insurer in support of their contention that deceased was not loader have not produced any material. On the other hand, respondent No.1 owner has categorically stated that deceased was working under him as loader. It is a question of fact in each case whether the relationship of master and servant exists between the employer and employee. The appeal of the insurance company is based purely on facts. The Commissioner by his detailed judgment and based on the available records, has rightly held that the deceased was employed by respondent No.1 as a loader and has rightly awarded the compensation. As no substantial question of law would arise for consideration, the appeal is rejected.
Cs CT:SN Sd/- JUDGE