Karnataka High Court
The Divisional Manager vs Sunil And Ors on 17 January, 2025
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MFA No. 200430 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISC. FIRST APPEAL NO.200430 OF 2019 (WC)
BETWEEN:
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD,
OPP: MINI VIDHANA SOUDHA STATION ROAD,
KALABURAGI-585102
...APPELLANT
(BY SRI. MANVENDRA REDDY, ADVOCATE)
AND:
1. SUNIL S/O CHANBAS UPASE
AGE: 48 YEARS OCC: AGRICULTURE
2. DATTATRAYA S/O CHANBAS UPASE
AGE: 22 YEARS OCC: STUDENT
3. LAXMIBAI W/O SUNIL UPASE
AGE: 46 YEARS OCC: HOUSEHOLD
ALL R/O: VILLAGE JAWALI
Digitally signed
by LUCYGRACE
TQ: LOHARA DIST: USMANABAD (M.S)
Location: HIGH NOW RESIDING AT VILLAGE MANGALORE
COURT OF
KARNATAKA TQ: BASAVAKALYAN DIST: BIDAR-585 411
4. RAJKAMALA TRANSPORT MR. D.H. JOSHI
AGE: MAJOR OCC: BUSINESS AND OWNER OF
CONTAINER LORRY BEARING NO.AP-10/V-9675,
R/O: 2-3-42/52/1, 2ND FLOOR,
MAITHRI ARCADE M.G. ROAD,
RANI GUNJ,
SECUNDRABAD-500003
(TELEGANA STATE)
...RESPONDENTS
(NOTICE TO R1 TO R4 SERVED, BUT UN-REPRESENTED)
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MFA No. 200430 of 2019
THIS MFA IS FILED UNDER SECTION 30 (1) OF E. C. ACT,
PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE
JUDGMENT AND AWARD DATED 12.12.2018 PASSED BY THE
SENIOR CIVIL JUDGE AND COMMISSIONER FOR EMPLOYEES
COMPENSATION ACT, BASAVAKALYAN IN ECA.NO.15/2016 BY
ALLOWING THE APPEAL AS PRAYED FOR AND ETC.,
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
09.01.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON’BLE MR. JUSTICE C M JOSHI)
This appeal is directed against the judgment and
award passed by the learned Senior Civil Judge and
Commissioner for Workmen’s Compensation
Basavakalyan, in ECA.No.15/2016 dated 12.12.2018,
whereby the liability to pay the compensation was
fastened upon the insurance company.
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MFA No. 200430 of 2019
02. The parties would be referred as per their ranks
before the Commissioner.
03. The brief facts of the case are that the
deceased – Khandesh was working on the lorry bearing
Reg.No.AP-10-V-9675 belonging to the respondent No.1 –
Transport Company and insured by the respondent No.2 –
Insurance Company. On 05.03.2011 the deceased –
Khandesh was on the loaded lorry and was on the way to
Mumbai from Hyderabad, when near Handral village on
N.H.9, in the wee hours of 06.03.2011 the deceased –
Khandesh was driving the same and he failed to control
and dashed to a road side Tree, due to which he sustained
injuries and died at the spot. The petitioners who are the
parents and brother of the deceased filed the claim
petition contending that they are entitled for the
compensation under Section 10 of the Employees
Compensation Act.
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MFA No. 200430 of 2019
04. The respondents No.1 and 2 who are the owner
and insurer of the lorry appeared before the Commissioner
and filed their written statement / objections.
05. The respondent No.1 contended that there was
no such relation of employee and employer with the
deceased. It is denied that the deceased – Khandesh was
the driver of the lorry owned by it, but on the other hand,
the driver was Govind, who was also on the same lorry
and succumbed to the injury on the way to the Hospital. It
was admitted that Govind was the lorry driver and he was
engaged on contract basis and used to take the lorry from
one place to another place for a certain contractual
amount and he was a driver on call. Therefore, if at all
Govind had engaged the deceased – Khandesh it is not to
their knowledge and they are not liable. However, it is
admitted that the said lorry had met with an accident and
the said lorry was insured with respondent No.2 –
insurance company. It was also contended that earlier
MVC.No.269/2012 was filed by the petitioners, the same
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MFA No. 200430 of 2019
was resisted by the respondents and later it was dismissed
for non-prosecution. Therefore, the present petition is not
maintainable.
06. The respondent No.2 – insurance company
contended that when the respondent No.1 has denied jural
relationship of employee and employer, it is not bound to
indemnify the respondent No.1. It was also contended that
the terms and conditions of the policy are violated by the
respondent No.1 and its driver. Therefore, the liability
against the respondent No.1 is to be absolved. It is
contended that the deceased – Khandesh, who was driving
the lorry was not having any driving license as may be
found from the police papers. The petition though filed
under the Employees Compensation Act, involves a motor
vehicle policy and as such it may be permitted to take all
defence available to the owner under the policy and M.V.
Act.
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MFA No. 200430 of 2019
07. On the basis of the above contentions, the
following issues were framed by the Tribunal.
1. Whether the petitioners prove that the deceased –
Khandesh s/o Sunil Upase was workmen under the
Respondent No.1 as defined under Employees’
Compensation Act.?
2. Whether the petitioners prove that the said deceased
– Khandesh s/o Sunil Upase died on account of
injuries sustained in accident, which was occurred
during the course of his employment under
respondent No.1.?
3. Whether the petitioners prove the age of the
deceased and monthly wages as asserted.?
4. Whether the petitioners are entitled for
compensation.? If so, what an extent and from whom
they are entitled.?
5. What order or award.?
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MFA No. 200430 of 2019
08. The petitioner No.1 was examined as PW.1 and
Ex.P.1 to 17 were marked. The manager of the respondent
No.1 was examined RW.1 and Ex.R.1 to 4 were marked.
The respondent No.2 – insurance company did not lead
any evidence. After hearing both the sides, the Tribunal
answered the issues framed in the affirmative and
awarded the compensation of Rs.11,16,850/- and directed
the respondent No.2 – insurance company to pay the
same.
09. Being aggrieved by the said judgment, the
respondent No.2 – insurance company is before this Court.
10. On the appeal being heard, the following
substantial questions of law framed by this Court on
19.02.2024.
I. Whether the Commissioner for Employees
Compensation Act was justified in law by
fastening liability on the appellant insurance
company, though the respondent No.1 owner
of the vehicle seriously disputed the jural
relationship of deceased – Khandesh, but the
authorized person executed the indemnity
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MFA No. 200430 of 2019
bond before the concerned police admitted
that the deceased – Khandesh was employee
of respondent No.1 as a cleaner, as such he
has disbelieved the version of respondent
No.1 and held that the Khandesh was a driver
and died during the course of employment
and more particularly the owner of vehicle
has denied the relationship.?
II. Whether the Commissioner for Employees
Compensation Act was justified in fastening
liability holding in view of Sections 3 and 5 of
the M.V. Act that no person shall drive motor
vehicle in any public place unless he holds
effective D.L. issued to him authorizing him
to drive the vehice. Driving license defined in
Section 2 (1) of M.V. Act to mean the license
issued by a competent authority under
Chapter II, authorizing the person specified
therein to driver, otherwise than as a learner,
a motor vehicle or a motor vehicle of any
specified class or description, Goods carriage
has been defined in Section 2 (14) to mean
any motor vehicle constructed or adapted for
use solely for the carriage of goods, or any
motor vehicle not so constructed of adapted
when used for the carriage of goods.?
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MFA No. 200430 of 2019
11. The respondents No.1 to 3 did not appear
despite notice being served by substituted service and
respondent No.4 did not appear despite sufficient service.
12. The arguments advanced by the learned
counsel for the appellant is heard.
13. The learned counsel appearing for the appellant
Sri. Manvendra Reddy would submit that the policy being
Motor Vehicle Policy, is subject to the conditions therein. It
is submitted that the deceased – Khandesh was not having
any driving license at the time of the accident. Therefore,
there is gross violation of the terms and conditions of the
policy. This aspect is not disputed by the respondent No.4
– owner of the vehicle. On the other hand, he denies the
fact that the deceased – Khandesh was on the said lorry
as a cleaner. He submits that the police papers would
show that the main driver is Govind, while he was
sleeping, the deceased – Khandesh drove the lorry and
caused the accident. The said deceased – Khandesh was
cleaner of the said lorry. Therefore, there being violation
of the conditions of the policy, the appellant is not liable to
pay any compensation.
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MFA No. 200430 of 2019
14. His second prong of the argument is that the
Commissioner failed to see that the notification issued
under Section 4 (1B) of the E. C. Act, restrict the income
to be taken at Rs.8,000/- per month. Therefore, the
Commissioner erred in adopting the income of Rs.10,000/-
per month.
15. Thirdly, he contends that the accident occurred
in the year 2011 and the present petition is filed in the
year 2016, thereby it is beyond the permissible time.
Hence, on all these counts, the impugned judgment is
erroneous.
16. It is pertinent to note that though the
respondent No.1 – owner of the vehicle had denied the
jural relationship of employee and employer, it is
necessary to note that the Commissioner relying on
Ex.P.12 – indemnity bond executed by an official of the
respondent No.1, came to the conclusion that there exists
the relationship of the employee and employer. A perusal
of Ex.P.12 would disclose that one S. Mallikarjun Rao
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MFA No. 200430 of 2019
claiming himself to be the Senior Manager at Rajkamal
Transport, at Hyderabad and power-of-attorney holder of
the owner of the vehicle, got the vehicle release by
executing a bond. In the said document it was admitted
that the lorry driver was one Govind Godke and the
deceased – Khandesh was the cleaner. In the same
document, there is no mention as to in what capacity the
deceased – Khandesh was on the vehicle. Therefore,
without further elaboration it would suffice to say that the
jural relationship, having been admitted by an official of
respondent No.1, a subsequent denial is not admissible
and as such, the conclusion by the learned Commissioner
is proper in that regard. The second point of first
substantial question of law, depends on the valid Driving
License of the deceased, which is dealt under second
substantial question.
17. The perusal of the complaint at Ex.P.2, the
statement of one of the witness who was companion driver
of another vehicle at Ex.P.7 and the Mahazar and the
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MFA No. 200430 of 2019
other documents categorically mention that the lorry was
loaded with chemical barrels and several lorries started
from Hyderabad together. It was stated that Govinda was
the driver and the deceased – Khandesh was the cleaner.
It is also stated that the deceased – Khandesh was driving
the vehicle and Govinda was sleeping in the cabin at the
time of accident. The charge-sheet, which is at Ex.P.11 do
not mention anything about the driving license.
18. It is pertinent to note that the testimony of the
RW.1 – Mallikarjun Rao shows that he is unaware about
the deceased – Khandesh and he never stated anything
about the driving license. Therefore, when RW.1 and the
petitioners have failed to establish that there was a valid
driving license, it has to be held that the terms and
conditions of the policy are violated. It is also pertinent to
note that a suggestion made by the petitioners that he is
deposing false in order to avoid the payment of
compensation as the deceased – Khandesh is not having
valid driving license was denied by him.
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MFA No. 200430 of 2019
19. Thus, it is clear that the primary burden of the
petitioners that the deceased – Khandesh was having valid
driving license, is not established. Evidently, the fact that
the deceased – Khandesh was driving the lorry is not in
dispute. Therefore, it was incumbent upon the petitioners
to show that the deceased – Khandesh had a valid driving
license, but such burden having not been discharged by
them, it has to be held that there is no such driving
license.
20. In view of violation of terms and conditions of
the policy, it is the respondent No.1 – owner of the vehicle
which is liable to pay the compensation, subject to the
other contentions raised. In that view of the matter, the
learned Commissioner was not justified in fastening the
liability on the respondent No.2 – insurance company.
21. It is relevant to note that the contention of the
respondent No.1 – owner that it was unaware of the fact
that the deceased – Khandesh was taken as a cleaner by
Govinda also is not permissible, for the simple reason that
though Govind being the contract employee, had engaged
the deceased – Khandesh itself would result in the
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MFA No. 200430 of 2019
respondent No.1 being principle employer. Therefore, this
argument of the respondent No.1 was impermissible even
if the RW.1 had not admitted the jural relationship in
Ex.P.12.
22. The next aspect is whether the petition was
barred by time. Obviously, the petitioners had approached
the MACT under Section 166 of the M.V. Act and such
petition was not pursued by them. The copy of the order
sheet of the MACT, produced at Ex.R.4 would show that
the petition was dismissed with liberty to approach the
W.C. Court. In that view of the matter, when the liberty
was given, the time consumed before the MACT till
05.03.2014 has to be excluded. Hence, the ground of
resjudicata was rightly negated by the Commissioner.
23. In that view of the matter, the appellant –
insurance company being bound by the provision of the
M.V. Act, 1988 and the terms and condition of the policy is
justified in seeking absolvement from liability. Hence,
second substantial question of law is answered in
negative.
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MFA No. 200430 of 2019
24. The third last of the case, as contended by the
learned counsel for the appellant is that the commissioner
erred in holding the income at Rs.10,000/- per month
though, the petitioners contended that it is Rs.8,000/- per
month. It is pertinent note that the notification issued by
the Ministry of Labour and Employment, Government of
India dated 31.05.2010 limits the wages that could be
taken under the provisions of Section 4 of the E.C. Act to
Rs.8,000/- per month. Therefore, the Commissioner erred
in holding the income at Rs.10,000/-. The compensation
would workout to Rs.8,000/- x 50% x 221.37 =
Rs.8,85,480/- by taking the appropriate factor as per
Schedule IV for the age of 22 years. In addition to it, the
petitioners are also entitled for a sum of Rs.10,000/-
towards the funeral expenses.
25. In view of the above discussion, the appeal
deserves to be allowed. Hence, the following;
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MFA No. 200430 of 2019
ORDER
I. The appeal is allowed.
II. The appellant – insurance company is absolved from
paying the compensation amount.
III. The owner of the lorry, the respondent No.4 herein is
directed to pay the compensation to the respondents
No.1 to 3.
IV. The compensation is re-assed at Rs.8,95,480/-
instead of Rs.11,16,850/- awarded by the
Commissioner.
V. The rest of the order in respect of interest and
deposit, passed by the Commissioner, remain
unaltered.
Sd/-
(C M JOSHI)
JUDGE
KJJ
List No.: 1 Sl No.: 60
AK
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