IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA MFA NO. 3249 OF 2016 (WC) BETWEEN 1. Sheik Ameena Begum W/o Late Saleem Pasha Aged about 32 years 2. Mohammed Nauman Pasha S/o Late Saleem Pasha Aged about 12 years 3. Sanasabeela D/o Late Saleem Pasha Aged about 9 years Appellants 2 and 3 are minors R/p by natural guardian mother-
Appellant No.1 Shiek Ameena Begum 4. K. Mehaboob Pasha S/o Khuddus Sab Aged about 69 years 5. Raziabi W/o K. Mehaboob Pasha Aged about 64 years All are residing at No. 73-B, 4th and 5th Main Road By the side the Chamundi Temple Tumkur – 572101.
... Appellants (By Sri. Sreenivasan M. Y - Advocate) AND 1. Sulthanasab S/o Abdul Razak Major R/o 7th Cross P H Colony, Tumkur – 572101.
2. The Divisional Manager Oriental Insurance Co. Ltd., Divisional Office Opp Fire Brigade New Musllim Hostel Complex Saraswathipuram, Mysore – 570016.
... Respondents (By Sri. A Ravishankar - Advocate for R-2; R-1 is served but unrepresented) This MFA is filed u/s 30(1) of the Employees Compensation Act, against the judgment and award dated 14.03.2016 passed on ECA No. 5/2014 on the file of the Principal Senior Civil Judge and JMFC, Srirangapatna, dismissing the petition filed under Section 10 of the Workmen’s Compensation Act.
This MFA coming on for hearing this day, the court delivered the following:
JUDGMENT Appellants are the wife, minor children and parents of deceased Saleem Pasha are before this Court against the judgment and award dated 14.03.2016 made in ECA No.5/2014 by the Prl.Senior Civil Judge and JMFC, Srirangapatna dismissing the claim petition.
2. The claimants filed the claim petition seeking compensation contending that deceased Saleem Pasha was working as a driver under the first respondent. It is further contended that on 28.11.2011 deceased Saleem Pasha as per the direction of first respondent was driving the Tata Indica Car bearing Regn.No.KA-06-M-8735 from Hangarahalli towards Tumkur. At about 7.15 p.m. near Basavanagudi cross, Chinnayakanahalli village, Bannur- Srirangapatna road, when a cyclist suddenly came across the road, at that moment, Saleem Pasha in order to avoid the accident applied the brakes, as a result of which the car toppled rolled down causing injuries to Saleem Pasha who succumbed to the injuries at the spot. The jurisdictional police registered a case in Crime No.762/2011 for the offences punishable under Sections 279, 337 and 304(A) of IPC.
3. It is further contended that immediately, the said Saleem Pasha was shifted to Government Hospital, Srirangapatna where post mortem was conducted and the claimants spent more than Rs.50,000/- for performance of last rites of deceased. It is further contended that at the time of the accident, the deceased was aged 32 years and he was working as a driver of the car bearing Regn.KA-06- M-8735 belonging to the first respondent and he was paid monthly salary of Rs.8,000/- and Rs.200/- bata per day. As the accident occurred arising out of and during the course of employment, both first and second respondents being the employer and insurer of the offending Tata Indica Car, are jointly and severally liable to pay the compensation.
4. In response to the notice issued by the Tribunal, the first respondent entered appearance and filed objections admitting the fact that he was the owner of the car bearing Reg.No.KA-06-M-8735 which was insured with the second respondent as on the date of the accident and he also admitted the fact that as on the date of accident deceased Saleem Pasha was working as a driver under him. He also admitted the existence of relationship of employer and employee between him and deceased Saleem Pasha and also admitted the fact that the alleged accident in which deceased Saleem Pasha lost his life occurred during the course of the employment. He further admitted that he was paying monthly salary of Rs.6,000/- along with Bata of Rs.100/- per day to the deceased. He contended that as the policy was in force as on the date of accident, second respondent being the insurer is liable to pay compensation to the claimants.
5. Second respondent – insurer filed statement of objection denying the entire averments made in the claim petition and contended that the vehicle belonging to the first respondent was insured with it and a valid policy was in force on the date of accident. But disputed the existence of relationship of employer and employee between the deceased and the first respondent and also disputed the age, occupation and monthly income of the deceased. Further, it was contended that the name of the deceased driver of the insured car was differently mentioned in the FIR and charge sheet and further, contended that the deceased driver of the insured did not possess valid and effective driving license to drive the vehicle at the time of accident. Further, it was contended that the amount of compensation claimed by the claimants is highly excessive, exorbitant and accordingly, sought for dismissal of the claim petition.
6. The Tribunal based on the pleadings framed the following issues:
i) Whether the deceased Sri Saleem Pasha in ECA No.02/2012 was being employed as a driver in the Tata Indica Car bearing reg.no.KA.06.M.8735 belonging to the first respondent, met with accident on 28.11.2011 and sustained grievous injuries and died?
ii) Whether the accident arose out and during the course of employment of the deceased under the first respondent?
iii) What was the monthly wages and age of the deceased at the time of accidental death?
iv) Whether the applicants were dependents of the deceased?
v) What is the amount of compensation, the applicants are entitled to receive?
vi) Which respondent is liable to deposit the compensation before this court?
vii) To what order?
7. In order to prove the case of the claimants, claimant no.4 was examined as PW.1 and marked documents as per Exs.P1 to P8. The first respondent did not led any evidence. The Assistant Manager of second respondent insurance company was got examined as RW.1 and got marked documents as per Exs.R1 and R2.
8. The Tribunal by considering both oral and documentary evidence available on record held that deceased Saleem Pasha died in the accident that occurred on 28.11.2011, but the claimants have failed to prove the relationship of employee and employer between the deceased and first respondent and proceeded to dismiss the petition. Hence, the claimants have filed the present appeal.
9. This court while admitting the present appeal framed the following substantial questions of law:
i) Whether the Tribunal is justified in dismissing the claim petition mainly on the ground that there is no relationship of ‘employer and employee’ ignoring the written statement filed by the employer i.e., the first respondent, wherein he has categorically admitted that deceased Saleem Pasha was working under him as driver and he was being paid monthly wages of Rs.6,000/- with batta of Rs.100/- per day?
ii) Whether the Tribunal is justified in dismissing the claim petition in the facts and circumstances of the present case?
10. I have heard learned counsel for the parties to the lis.
11. Sri M.Y.Sreenivasan, learned counsel for the claimants contends that the Tribunal erred in dismissing the claim petition mainly on the ground that there is no relationship of employee and employer by ignoring the oral evidence of PW.1 and RW.1 and material documents Exs.P1 to P8 and Exs.R1 and R2. Therefore, the same is liable to be set-aside. He further contends, that when the first respondent who is the owner of Tata Indica Car has made a statement on oath before the Tribunal by filing objections and in categorical terms has stated that deceased was working under him as a Driver as on the date of accident and that accident occurred arising out of and during the course of employment. He has specifically stated on oath that he was paying monthly salary of Rs.6,000/- p.m. and bata of Rs.100/- per day. The statement made on oath before the Tribunal has been ignored by the Tribunal. Therefore, he sought to set-aside the judgment and award passed by the Tribunal.
12. He would further contend that the Tribunal erred in coming to the conclusion only on the basis of inquest mahazar wherein it is stated that deceased was not the driver at the time of the accident and ignored the material documents Ex.P1 – FIR, Ex.P2 – spot mahazar, Ex.P3 – seizure mahazar, Ex.P4 – IMV report, Ex.P5 – charge sheet, Ex.P6 – PM report and Ex.P8 – DL of deceased. He further contends that the impugned judgment and award is contrary to both oral and documentary evidence available on record and same requires to be set-aside.
13. Per contra, Sri A.Ravishankar, learned counsel for the insurance company contended that in view of categorical evidence of RW.1 who has produced the driving license extract of deceased Saleem Pasha and Ex.R3 – the inquest mahazar drawn by the police which consists of statement of one Aleem Pasha who is said to be the younger brother of deceased Saleem Pasha and there is no clarity between the oral evidence and documents produced before the Tribunal. Therefore, the Tribunal was justified in holding that there is no relationship of employer and employee between the first respondent and deceased Saleem Pasha and the claimants have failed to prove that the deceased died in the accident arising out of and during the course of employment. Therefore, he sought for dismissal of the appeal.
14. Having heard learned counsel for the parties, it is an undisputed fact that deceased – Saleem Pasha died on 28.11.2011 in the accident arising out of and during the course of employment and the first respondent being the owner and employer of deceased has admitted the same in his statement of objections filed before the Tribunal, wherein the first respondent in categorical terms has stated on oath that deceased Saleem Pasha was working as a driver under him and the accident occurred arising out of and during the course of employment. He further stated that he was paying monthly salary of Rs.6,000/- and Rs.100/- bata per day. In categorical terms he has stated that as on the date of accident, car bearing Regn.No.KA.06.M.8735 was insured with the second respondent and the policy was in force as on the date of accident. When the owner has filed objections before the Tribunal and in categorical terms has admitted the relationship between him and Saleem Pasha as employer and employee, the only point that arise for consideration is whether the claimants are entitled for compensation and whether the compensation has to be paid by insurance company or by the owner of the vehicle and the same has to be adjudicated after full fledged trial. When the owner of the vehicle filed statement of objections and in categorical terms has admitted the deceased was working under him, the Tribunal by ignoring the objection statement and the documentary evidence on record, has proceeded to hold that there is no relationship of employer and employee.
15. It is well settled that the Employees Compensation Act, 1923 (for short “the Act”), is a piece of social security and welfare legislation. Its dominant purpose is to protect the workmen and therefore, the provisions of the Act should not be interpreted too narrowly which may defeat the purpose of the Act, which was introduced by the legislature. The primary purpose of the Act is to make the employer and insurer of the workmen responsible for the loss or costs incurred for the injuries or death which ought to have happened while the workman was engaged in his work.
16. Admittedly, in the present case the employer has filed objections before the Tribunal and in categorical terms has admitted that deceased was working under him as a Driver and the accident occurred arising out of and during the course of employment and he was paying salary of Rs.6,000/- p.m. and Rs.100/- bata per day. But the Tribunal has failed to consider the same. It is also relevant to state at this stage that provisions of Section 3 of the Act clearly depicts that, if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay the compensation in accordance with the provisions of this Chapter. If the deceased employee met with his death while he was going to his place of work on death arising out of and during course of employment, then the employer is liable to pay compensation. Therefore, the impugned judgment and award passed by the Tribunal dismissing the claim petition is against the very intention of legislation and contradictory to the provisions of Section 3 of the Act. The Tribunal has proceeded to dismiss the petition mainly on the ground that the claimants have proved the death of Saleem Pasha in a road traffic accident, but failed to prove that at the time of accident, the relationship of employee and employer did exist between the deceased and first respondent, as a condition precedent for granting compensation to the victim under the Act by ignoring the very statement made by the employer/first respondent on oath as stated supra. Therefore, the impugned judgment and award cannot be sustained under law.
17. For the reasons stated above, the substantial question of law framed in the present appeal is answered in negative holding that the Tribunal was not justified in dismissing the claim petition on the ground that there was no relationship of employer and employee, ignoring the very statement of objection filed by the employer/first respondent wherein he has admitted that deceased Saleem Pasha died in the accident arising out of and during the course of employement and he was paying monthly wages of Rs.6,000/- and Rs.100/- per day.
18. In view of the above, the appeal is hereby allowed. The impugned judgment and award dated 14.3.2016 passed by the Tribunal in ECA No.5/2014 is set-aside. The matter is remanded for reconsideration afresh, in the light of observations made by this Court and to pass fresh orders in accordance with law.
All contentions urged by both the parties are left open to be urged before the Tribunal.
Sd/- JUDGE DKB