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2013 DIGILAW 844 (KAR)

NEW INDIA ASSURANCE COMPANY LIMITED v. VIMALA

2013-07-25

B.S.PATIL

body2013
JUDGMENT B.S. PATIL, J.-Though this appeal is posted for orders, having regard to the fact that this matter is pending since 2010,with the consent of learned counsel for both parties, the matter is taken up for consideration to find out whether there is any substantial question of law. 2. Facts leading to this appeal filed under Section 30(1) of the Workmen's Compensation Act disclose that one Manju @ Channakeshavegowda died in a road accident involving the canter lorry bearing Registration No. KA 02 9428. The accident occurred on 13.11.2004. The claimants are the widow, minor son and the mother of the deceased. They are arrayed as respondent Nos. 1 to 3 to this appeal respectively. Respondent No. 4 herein is the owner of the vehicle. 3. It was the case of the claimants that deceased Manju was working as a loader in the canter lorry belonging to the 4th respondent and on the fateful day i.e., 13.11.2004, the said vehicle colluded with another lorry bearing No. KA 21/A 3277, as a result whereof Manju suffered fatal injuries and died. They contended that the deceased was earning a sum of Rs. 3000/- per month apart from Rs. 50/-paid as bata. 4. Appellant Insurance Company filed statement of objections resisting the claim. Whereas, the insured employer filed his statement of objections admitting the employment of the deceased under him and also the factum of accident having taken place. In support of the case, claimant No. 1 widow of the deceased examined herself as P.W.1 and produced and marked Exs.P. 1 to P12. The appellant-Insurance Company examined their administrative officer and produced Exs.R.1 to R.3. They contended that the deceased was not an employee working under the 4th respondent at the time of accident but was a gratuitous passenger travelling in the goods vehicle. 5. The Commissioner for Workmen's Compensation, Hassan Sub-Division, Hassan, has having considered the oral and documentary evidence before him recorded the findings holding that there was relationship of employer and employee between the deceased and the 4th respondent and that the accident arose out of and during the course of employment as such. Insofar as the quantum of compensation is concerned, the Commissioner has taken the age of the deceased as 27 years and the wages earned by him at Rs. 3,000/- and by applying the relevant factor at 213.57 has quantified the compensation at Rs. Insofar as the quantum of compensation is concerned, the Commissioner has taken the age of the deceased as 27 years and the wages earned by him at Rs. 3,000/- and by applying the relevant factor at 213.57 has quantified the compensation at Rs. 3,20,355/- and awarded the same alongwith interest at 12% with effect from the date of expiry of 30 days from the date of accident. Aggrieved by the said award, the present appeal is filed. 6. Learned counsel for the appellant Sri A. Ravishankar strongly contends that the Commissioner erred in law in recording a finding that the relationship of employer and employee was established between the deceased and the 4th respondent herein. He draws the attention of the Court to the FIR lodged by one T. Satish to contend that at an earliest point of time as reported to the police the deceased was a passenger travelling in the goods vehicle and therefore the Commissioner could not have ignored this aspect of the matter. He has placed reliance on the judgment of the Apex Court in the case of Oriental Insurance Co. Ltd. vs. Premlata Shukla and others, (2007) 13 SCC 476. He urges that as the FIR was marked in evidence by the claimants for the purpose of proving the accident, they cannot be permitted to rely upon part of the FIR by requiring the Commissioner to ignore the other part pertaining to the fact which disclosed that there was no relationship of employer and employee between the deceased and the 4th respondent. He has also referred to the judgments of this Court in the case of National Insurance Company and others vs. Govindamma and others, 2006 ACJ 563 ; and another judgment in the case of United India Insurance Co. Limited vs. Hussain Sab and others, 2006(1) KCCR 107 . 7. Learned counsel for the respondents strongly supports the findings recorded by the Commissioner in this regard by taking me through the evidence on record. 8. Having carefully considered the entire materials on record, I find that the Commissioner for Workmen's Compensation has indeed looked into the contents of the FIR, the charge sheet filed and the statements of the witnesses apart from other documents placed before him. 8. Having carefully considered the entire materials on record, I find that the Commissioner for Workmen's Compensation has indeed looked into the contents of the FIR, the charge sheet filed and the statements of the witnesses apart from other documents placed before him. The Commissioner has examined these documents and the evidence adduced before him both oral and documentary to come to the conclusion that relationship of employer and employee between the deceased and the 4th respondent was established. 9. It has to be borne in mind, in the facts of the present case that the 4th respondent herein/employer of the deceased and owner of the vehicle has filed statement of objections admitting the relationship of employer and employee between him and the deceased. In fact, the claimant has produced Ex. P. 11. It is in the form of a communication addressed to claimant No. 1 by the employer regarding the employment of the deceased under him by paying a sum of Rs. 3,000/- as monthly salary apart from Rs. 50/- as bata. Though the employer is not examined before the Tribunal, the fact remains that he has admitted the assertions made by the claimant in the claim petition regarding the relationship of employer and employee. The charge sheet filed by the police and other documents are also referred to by the Commissioner to come to the conclusion that there was such a relationship of employer and employee. In doing so, the Commissioner has held that although the complaint filed by Sri T Satish before the police disclosed that the deceased was travelling in the vehicle in question, in view of the other evidence, the contents of the FIR cannot be taken as decisive material to brush aside the other evidence. It has found that probabilities of the case disclosed that the deceased was engaged as an employee under the 4th respondent. 10. In the wake of these fact materials and documents which are closely scrutinized and considered by the Commissioner, this Court cannot come to a contrary conclusion merely on the basis of the contents of the FIR ignoring the other relevant documents and evidence. The judgments on which the learned counsel for the appellant has placed reliance have no applications to the facts and circumstances of the case. 11. The judgments on which the learned counsel for the appellant has placed reliance have no applications to the facts and circumstances of the case. 11. It is true the FIR, though not a substantiative piece of evidence is a material which will have to be taken note of and the parties cannot be permitted to place reliance only on a portion of the same requesting the Court to ignore the other portion. But, if there are other voluminous evidence as is present in the instant case which have been taken note of by carefully analyzing the evidence it cannot be said that even in such case the statement made in the FIR alone will be taken note of by ignoring the other materials. The facts and circumstances of this case, therefore, make it clear that the Commissioner did not commit any illegality in recording the findings regarding the relationship of employer and employee between the deceased and the 4th respondent. At any rate, this aspect is only in the realm of appreciation of evidence and will not constitute a substantial question of law. 12. No grievance is made by the appellant with regard to quantum of compensation. Hence, I do not find any merit in this 13. The amount in deposit shall be transferred to the Commissioner for Workmen's Compensation for disbursal in accordance with law.