IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2017 BEFORE THE HON’BLE MR. JUSTICE B MANOHAR MFA.No.3801/2011 (WC) BETWEEN THE ORIENTAL INSURANCE COMPANY LIMITED, CHANDRA COMPLEX, 1ST FLOOR, NO.42/1, KALIDASA ROAD, V V MOHALLA, MYSORE, REP BY ADMINISTRATIVE OFFICER AT REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BENGALURU. .. APPELLANT (By Sri S SRISHAILA, ADVOCATE) AND 1. DEVAMMA, MAJOR W/O.CHIKKALAXMEGOWDA.
2. SHILPA, MINOR, D/O.CHIKKALAXMEGOWDA.
3. SHAILA, MINOR, D/O.CHIKKALAXMEGOWDA 4. RAGHAVENDRA,MINOR S/O.CHIKKALAXMEGOWDA.
Sl.Nos.2 TO 4 ARE REP. BY MOTHER AND NATURAL GUARDIAN DEVAMMA ALL ARE R/A SHAMUBUNAHALLI VILLAGE, KASABA HOBLI, PANDAVPURA TALUK, MANDYA DISTRICT.
5. CHANDRASHEKARAIAH PROPRIETOR, ANNAPOORNESHWARI JELLY CRUSHING INDUSTRIES, NO.50, EAST OF KAMAKSHI HOSPITAL ROAD, MYSORE. .. RESPONDENTS (By Sri SHARATH S GOWDA, ADVOCATE FOR R1 TO R4, Sri P MAHESHA, ADVOCATE FOR R5) THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 24.2.2010 PASSED IN WCA/F/09/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, MANDYA SUB DIVISION-1, MANDYA, AWARDING A COMPENSATION OF RS.2,54,160/- WITH INTEREST @ 12% P.A.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: -
JUDGMENT The Oriental Insurance Company Limited has filed this appeal challenging the legality and correctness of the judgment and order dated 24.2.2010 made in WCA/F/09/2007 by the Labour Officer and Commissioner for Workmen Compensation, Sub Division-1, Mandya (for short `Commissioner for Workmen Compensation’) fastening the liability on them to compensate the claimants.
2. For the sake of convenience, the parties are referred to as they are arrayed before the Commissioner for Workmen Compensation.
3. Respondents No.1 to 4 herein filed a claim petition contending that the deceased Chikkalaxmegowda, husband of the 1st claimant and the father of claimants No.2 to 4, was working as a coolie in Annapoorneshwari Jelly Crushing Industries belonged to the 1st respondent. On 12.7.2001, as per the instructions of the 1st respondent – owner of the Crushing Industries, after loading the jelly in a tractor and trailer, the deceased along with another employee had been to Pandavapura town in a tractor bearing Registration No.KA 09/5103 and trailer bearing Registration No.KA 09/5104 for supplying jelly. After unloading the jelly, they went to Pandavapura sandy for purchasing all necessary things and vegetables, at about 7.00 p.m, when they were returning to the village in the said vehicle on Pandavapura – Shambunahalli main road, near T B extension, the driver of the tractor and trailer drove the said vehicle in a rash and negligent manner with high speed and drove into a road side pit. As a result of which, the deceased Chikkalaxmegowda fell down and sustained grievous bleeding injuries on his head. Immediately after the accident, he was shifted to General Hospital, Pandavapura. However, he succumbed to the injuries on the same day. The accident occurred during the course and out of employment. The wife and children of the deceased filed a claim petition contending that the deceased was working in Annapoorneswari Jelly Crushing Industries and was getting wages of Rs.150/- per day. In view of death of the deceased, the family has lost the bread earner and sought for compensation of Rs.10,00,000/-.
4. In response to the notice issued by the Commissioner for Workmen Compensation, though the owner of the tractor and trailer was served with notice, he remained unrepresented. The Insurance Company filed written statement denying the entire averments made in the claim petition and also disputed the relationship of master and servant between the owner of tractor and trailer and the deceased. The insurance policy does not cover the risk of any of the employees working in the tractor and trailer. The policy issued was subject to fulfillment of certain conditions. Hence, sought for dismissal of the claim petition.
5. On the basis of pleadings of the parties, the Commissioner for Workmen Compensation framed necessary issues.
6. The claimants in order to prove their case, the 1st claimant got examined herself as PW1 and also examined one witness as PW2 and got marked the documents as Exs.P1 and P2. On behalf of the Insurance Company, the insurance policy was marked as Ex.R1.
7. The Commissioner for Workmen Compensation after appreciating the oral and documentary evidence let in by the parties held that when the deceased Chikkalaxmegowda was proceeding in the tractor and trailer, he fell down from the tractor and trailer and died during the course of and out of employment. Claimants are the wife and children of the deceased. Hence, they are entitled for compensation.
8. With regard to quantum of compensation is concerned, though the deceased was getting wages of Rs.150/- per day, no document was produced to substantiate the same. The Commissioner for Workmen Compensation taking into consideration the minimum wages being paid to the coolies and taking the income of Rs.3,000/- per month, deducting 50% thereof, since the deceased was aged about 45 years at the time of accident, applying the relevant factor 169.44 awarded a sum of Rs.2,54,160/- with interest at 12% p.a. Since the policy was in force as on the date of accident, liability was fastened on the Insurance Company to compensate the claimants. The Insurance Company being aggrieved by the judgment and order passed by the Commissioner for Workmen Compensation has filed this appeal.
9. Sri Srishaila, learned Advocate appearing for the appellant – Insurance Company contended that the judgment and order passed by the Commissioner for Workmen Compensation is contrary to law. No document has been produced to show that the deceased was an employee as provided under Section 2(1)(n) of the Employees Compensation Act. Immediately after the accident, one of the inmates in the tractor and trailer lodged a complaint before the jurisdictional police. In the complaint, the complainant stated that on 12.7.2001, the deceased, Jayaramu s/o Lakkegowda and Kumar went to Pandavapura sandy to purchase utensils. After purchasing the utensils and vegetables at Pandavapura sandy, they were proceeding to their village in the tractor and trailer. At about 7.00 p.m., due to rash and negligent driving of the tractor and trailer on Pandavapura – Shambunahalli main road, the deceased fell down and sustained grievous injuries to the vital parts of the body and he succumbed to the injuries. He requested the police to take action against the driver of the tractor and trailer. However, in the claim petition, some story has been cooked up stating that the deceased was an employee in Annapoorneswari Jelly Crushing Industries. After unloading the jelly at Pandavapura and returning to the village, the accident had occurred. Hence, learned Advocate sought for allowing the appeal.
10. On the other hand, Sri Sharath S Gowda, learned Advocate appearing for respondents No.1 to 4 – claimants argued in support of the judgment and order passed by the Commissioner for Workmen Compensation and contended that on 12.7.2001, after unloading the jelly at Pandavapura town and purchasing the household articles and vegetables, the deceased and another were proceeded in the tractor and trailer to their village. The occurrence of accident is not disputed by the owner of Annapoorneswari Jelly Crushing Industries. The Employees Compensation Act is a social peace of legislation. The Commissioner for Workmen Compensation after appreciating the oral and documentary evidence held that the claimants are entitled for compensation. Hence, learned Advocate sought for dismissal of the appeal.
11. I have carefully considered the arguments addressed by the learned counsel appearing for the parties and perused oral and documentary evidence and the order passed by the Commissioner for Workmen Compensation.
12. The issue in this appeal is with regard to the relationship of master and servant between the owner and the deceased.
13. To claim compensation under the Employees Compensation Act, there must be relationship of master and servant between the owner and the deceased under Section 2(1)(n) of the Act. In the claim petition, it was contended that the deceased was working for one year in Annapoorneswari Jelly Crushing Industries. On 12.7.2001, as per the instructions of the owner of the vehicle, after loading the jelly, the deceased and another employee went to Pandavapura town. After unloading at Pandavapura town while returning to the village, the accident had occurred. Hence, there is a relationship of master and servant. However, Ex.P1 produced by the claimants clearly discloses that one Sannamoogaiah lodged a complaint on the very same day at about 9.00 p.m. before the jurisdictional police stating that the deceased along with other four persons went to Pandavapura sandy to purchase the household articles. After purchasing the household articles, they returned to their village in the tractor and trailer, which met with an accident at about 7.00 p.m. on Pandavapura – Shambunahalli main road. Due to the accident, the deceased Chikkalaxmegowda fell down and sustained grievous bleeding injuries on his head and died during the course of treatment at about 8.00 p.m. The complaint was lodged immediately after the accident. The averments made in the complaint as well as in the claim petition run contrary to each other. If the deceased was working at Annapoorneswari Jelly Crushing Industries, nothing prevented the complainant stating that after unloading the jelly at Pandavapura town while returning to the village, the accident had occurred. Nowhere in the complaint it was stated that after unlading the jelly at Pandhavara town, they were returned to their village, whereas the entire case of the complainant is that the deceased Chikkalaxmegowda along with others went to Pandavapura sandy and while returning to their village in the said tractor and trailer, the accident had occurred. In view of that, Chikkalaxmegowda fell down and sustained grievous injuries and died. The claimants cannot approbate and reprobate. The Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. –vs- Premalata Shukla and others reported in 2007 ACJ 1928 in paras-14 – 15 held as follows:
“14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise.
15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a part which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turnround and raise a contention that the contents of the documents had no been proved and, thus, should not be relied upon.”
14. In the case on hand, PW1 is the wife of the deceased and is not an eye witness to the incident. One Krishnegowda, examined himself as an eye witness, has not stated anything in his evidence that whether the deceased was an employee of Annapoorneswari Jelly Crushing Industries. He has only stated the occurrence of accident, injury sustained and the death of the deceased and not stated anything about the relationship of master and servant between the employer and the employee. As stated earlier, no document has been produced to show that the deceased was an employee in Annapoorneswari Jelly Crushing Industries to claim compensation from the appellant. Except oral assertion, no document was produced to show the relationship of master and servant between the owner and the deceased. Hence, the Employees Compensation Act is not applicable to the case on hand. Therefore, the claim petition filed by the claimants is liable to be dismissed. Accordingly, I pass the following:
ORDER Appeal is allowed. The judgment and order dated 24.2.2010 made in WCA/F/09/2007 by the Labour Officer and Commissioner for Workmen Compensation, Sub Division-1, Mandya, is set aside. Claim petition filed by the claimants is dismissed.
The amount in deposit, if any, is ordered to be refunded to the appellant.
Sd/- JUDGE Bkm.