IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL No.8316 of 2016 (WC) BETWEEN:
SMT. PUTTAHANUMAMMA, W/O. LATE SHIVANNA, AGED ABOUT 57 YEARS, RESIDING AT KALLUDEVANAHALLI VILLAGE AND POST, MADABAL HOBLI, MAGADI TALUK, RAMANAGAR DISTRICT – 562 120.
(BY SMT. P.V. KALPANA, ADVOCATE) AND:
1. MR. RAVIKUMAR S.D., S/O. DEVARAJU S.N., C/O. NEELAMMA, No.59/1, 1ST MAIN ROAD, MUNESHWARA LAYOUT, SANJIVININAGAR, HEGGANAHALLI, BANGALORE - 560 091.
... APPELLANT 2. THE BRANCH MANAGER, SHRIRAM GENERAL INSURANCE CO. LTD., No.S-5, 2ND FLOOR, MONARCH CHAMBERS, INFANTRY ROAD, BANGALORE - 560 001.
... RESPONDENTS (BY SRI G.M. NAGESH KUMAR, ADVOCATE FOR R-1; SRI H.N. KESHAV PRASHANTH, ADVOCATE FOR R-2.) THIS MFA IS FILED UNDER SECTION 30(1) OF EMPLOYEE'S COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED 18.02.2016 PASSED IN ECA No.19/2014 ON THE FILE OF I ADDITIONAL SMALL CAUSES JUDGE, & XXVII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, MACT, BANGALORE, (SCCH-11) DISMISSING THE CLAIM PETITION AS DEVOID OF MERITS FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, NATARAJAN. J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with consent of learned counsel on both sides, it is heard finally.
2. This appeal is filed by the claimant against judgment and award passed by the I Additional Small Causes Judge and XXVII ACMM, Bengaluru, (SCCH-11) (hereinafter referred to as ‘Tribunal’ for the sake of convenience) in ECA No.19/2014, dated 18.02.2016.
3. The claimant is said to be mother of deceased- Rajesh, who filed claim petition under Section 22 of the Employee’s Compensation Act, 1923, claiming compensation inter alia, contending that her son was working under respondent No.1 as a driver of Indica Car bearing Regn.No.KA-04-A-2296. On 22.06.2014, he was driving the said car on Kalludevanahalli-Chakrabhavi Road, Magadi Taluk, Ramanagara District and when he reached near Chakrabhavi Village, Chikkayyanagudi Road Cross, Magadi Taluk, Ramanagar, he lost his control over the said car and dashed against a road side tree thereby, the car turned turtle. Due to the said impact, son of the claimant sustained grievous injuries and died on the spot. Later, Police registered a case and filed charge sheet. The claimant, being mother of deceased Rajesh, filed the claim petition claiming compensation of Rs.25,00,000/-. The vehicle in question, as on the date of the accident, was insured with respondent No.2.
Upon issuance of notice, respondent No.1 did not contest the matter and was place ex parte. Respondent No.2 being the Insurer appeared through the counsel and filed objections contending that deceased-Rajesh was not having a valid driving license to drive the cab, which is a transport vehicle thereby respondent No.1-insured had violated the conditions of the Policy. Also, there is no fitness certificate for the vehicle in question as on the date of accident. It is also contended that the accident had not occurred during the course of employment and it was also contended that the claim made was excessive and exorbitant. Hence, Insurer prayed for dismissal of the claim petition.
4. Based upon the pleadings, the Tribunal framed five issues, which are as follows;
“1. Whether petitioners prove that, deceased Rajesh.S was employee under the respondent No.1 within the purview of provisions of Employees Compensation Act?
2. Whether petitioners prove that, deceased Rajesh.S succumbed to accidental injuries during the course of employment under respondent No.1 as a driver on 22.06.2014 at about 8:30pm while driving Indica Car bearing No.KA-04-C-2296 on Kalludevanahalli- Chakrabhavi Road, Magadi Taluk, Ramanagara District?
3. Whether petitioners prove that, the deceased was getting Rs.12,000/- per month including bata charges from respondent No.1?
4. Whether petitioners are entitled for compensation as prayed in the claim petition? If so, what is the compensation amount and from whom?
5. What order?”
The claimant examined herself as PW.1, got marked 11 documents as per Exs.P.1 to P.11 and on behalf of respondent No.2, they examined two witnesses as RWs.1 and 2 and got marked five documents as per Exs.R.1 to R.5 and after hearing arguments, the Tribunal dismissed the claim petition. Hence, the claimant is before this Court challenging the award passed by the Tribunal on various grounds.
5. Smt. P.V.Kalpana, learned counsel for the appellant strenuously argued that the son of claimant was holding a valid driving license at the time of the accident. The same was produced and marked before the Tribunal as per Exs.P.7 and P.11 to show that he was the driver of respondent No.1. Respondent No.1 was placed ex parte. However, he had issued the salary certificate as per Ex.P.6 stating that the deceased-Rajesh was working under him in his organization and drawing salary of Rs.12,000/- per month including batta charges. Merely because the claimant had not examined the employer, that by itself was not a ground to reject the claim petition, since respondent No.1 being his employer remained ex parte and did not contest the case. The contention of respondent No.2 is that there was no valid driving license for driving the vehicle by the deceased and the accident had not occurred during the course of employment. However, there is no finding recorded by the Tribunal as to whether the accident had occurred during the course of the employment or not. Therefore, learned counsel for the appellant argued that the judgment and award passed by the Tribunal is liable to be set aside and the matter requires to be remanded to the Tribunal for a fresh disposal by giving appropriate findings on all issues.
6. Per contra, learned counsel for the respondent- Insurer contended that there is no evidence produced by the claimant to show that the deceased was working under respondent No.1. Ex.P.6-salary certificate has been rightly disbelieved by the Tribunal as it is not having any authentication or seal of respondent No.1. There is no Bank pass-book or any other document produced by the claimant to show that deceased was working under respondent No.1 and was driving the vehicle. Charge sheet also came to be filed against him and he was proceeding on private affairs. Therefore, it cannot be considered as he was on duty under respondent No.1. Hence, he supported the judgment of the Tribunal and prayed for dismissal of the appeal.
7. Upon hearing the arguments of learned counsel for the parties and on perusal of the records, it reveals that the accident in question had occurred on 22.06.2014 involving the vehicle bearing Regn. No.KA-04-C-2296 is not in dispute. The Tribunal though framed five issues for its consideration, but has not given proper or sufficient reasons on each issue in the impugned judgment. Ex.P.6- Salary Certificate has been issued by respondent No.1, who is the owner of the vehicle. Admittedly, Ex.P.7 is the Driving License of the deceased. Though it was stated as Driving License for non-transport vehicles, but Ex.P.11- Driving License for Cab has been issued by the authority by issuing separate badge for running transport vehicle which has not been disbelieved by the Tribunal. The evidence led by PW.1 and respondents has not been properly appreciated by the Tribunal. Although, respondent No.1 remained ex parte, he being the owner of the vehicle, he has given a certificate that as on the said date the deceased was working under him in his organization. The same has not been properly appreciated and findings have not been given by the Tribunal. The documentary evidence and the oral evidence produced by the parties have not been properly appreciated and the Tribunal has jumped into a wrong conclusion that the claimant has failed to prove the case before the Court, which is not correct. Therefore, without expressing any opinion on the merits of the case, we are of the view that the matter requires to be remitted to the Tribunal for fresh consideration with a direction to give findings on all issues and after appreciating the evidence on record and to dispose of the matter in accordance with law.
8. Learned counsel for the respective parties have also brought to our notice that there is no finding recorded by the Tribunal as to whether the deceased met with an accident by the use of vehicle during the course of his employment or not. Therefore, the award passed by the Tribunal deserves to be set aside.
9. Hence, we proceed to pass the following order; Appeal is allowed in-part.
The judgment and award dated 18.02.2016 passed by the I Additional Small Causes Judge & XXVII ACMM, Bangalore, in ECA No.19/2014 is set aside. The matter is remanded to consider the petition filed by the appellant afresh in light of the observations made above.
Since, the parties are represented by their respective counsel, they are directed to appear before the Tribunal on 24.06.2019 without expecting any separate notice from the said Court.
It is needless to observe that the Tribunal shall dispose of the matter expeditiously as the accident has occurred on 22.06.2014 and the parties shall co-operate with the Tribunal for expeditious disposal of the petition.
Although, respondent No.1 is represented by a counsel before this Court, he has been placed ex parte before the Tribunal. Since the matter is being remanded, the Tribunal to issue fresh notice to respondent No.1, in case he does not appear on his own before the Tribunal.
Sd/- JUDGE Sd/- JUDGE mv