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2019 DIGILAW 138 (KAR)

OSMANAPATIL v. MASTANASAB

2019-01-10

P.G.M.PATIL

body2019
JUDGMENT P.G.M. PATIL, J. MFA No.30372/2011 is filed by the claimants being aggrieved by the judgment and order dated 10.12.2010 passed by the Commissioner for Workmen's Compensation, Gulbarga in WCA No.129/2007 for enhancement of compensation. MFA No.31259/2011 is filed by the insurer Oriental Insurance Company Ltd., challenging the liability saddled on the insurer. 2. For the sake of convenience, the parties are referred to, as per their ranking before the Court below. 3. It is the case of the claimants before the Commissioner for Workmen's Compensation that the deceased-Akbar son of the claimants was working as a driver under respondent No.1 in his lorry bearing No.KA-32/A-4703 and was getting salary of Rs.5,000/- per month and Rs.75/- per day as batta. The said lorry was left for repairs at garage in Gulbarga. On 15.05.2007, the deceased-Akbar left his village Dandoti to bring the said lorry from the garage as per the instructions of the owner. He was proceeding on a motorcycle bearing No.KA-37/H-5524 and when he came near Tippu Sultan College, another motorcycle bearing No.KA-32/H-5170 dashed to the deceased and the deceased lost control over the said vehicle and dashed against the other motorcycle. Due to which he sustained severe injuries and became unconsciousness. Immediately, he was shifted to Government Hospital, Gulbarga and thereafter he was shifted to Basaveshwar Hospital, Gulbarga and then to S.P.Institute of Neuro Science, Solapur, later he was admitted in Modi Hospital, Gulbarga. He succumbed to the injuries on 15.06.2007. Therefore, the claimants being the parents of the deceased, filed the claim petition seeking compensation of Rs.6,00,000/-. The claimants have also stated that the deceased was the only earning member in the family. Respondent No.1 is the owner of the vehicle and employer of the deceased and respondent No.2 is the insurer of the said vehicle. 4. In spite of service of notice, respondent No.1 remained absent and he was placed ex parte. Respondent No.2 appeared through his counsel before the Court below and filed written statement. He has denied the allegations made in the claim petition. He has denied the age, occupation and income of the deceased. It was further contended that the deceased was not employed by respondent No.1 and there is no jural relationship of employee and employer. Respondent No.2 appeared through his counsel before the Court below and filed written statement. He has denied the allegations made in the claim petition. He has denied the age, occupation and income of the deceased. It was further contended that the deceased was not employed by respondent No.1 and there is no jural relationship of employee and employer. It was further contended that the vehicle was not at all involved in the incident and that the alleged incident has not taken place during the course of employment. Therefore, he is not liable to indemnify the owner of the vehicle. On these grounds, he prayed for dismissal of the claim petition. On the pleadings of the parties, the learned Commissioner for Workmen's Compensation, framed the issues. 5. Claimant No.1 got examined himself as PW.1 and got marked seven documents. However, respondent No.2-insurer did not produce any oral or documentary evidence. Learned Commissioner for Workmen's Compensation after hearing the parties, passed the impugned judgment, awarding compensation of Rs.4,30,560/- together with interest at the rate of 12% per annum payable from one month of the award till realization. Respondent No.2 was directed to deposit the compensation amount. 6. The insurer has challenged the said judgment and order on the grounds that the Commissioner for Workmen's Compensation has failed to appreciate the evidence on record in a proper manner and erred in allowing the claim petition and saddling the liability to pay the compensation on the insurer. It is further contended that the claimants have not discharged their burden to prove that there was jural relationship between the deceased and respondent No.1 and that the accident arose during the course of employment. 7. The claimants have filed the appeal seeking for enhancement of compensation on the ground that the learned Commissioner for Workmen's Compensation has not considered the income of the deceased at Rs.5,000/- per month, which was supported by oral evidence. 8. After having heard learned counsel for the respective parties, the following substantial questions of law arise for consideration: (1) Whether the impugned judgment and order is illegal and against the law as there is no nexus between the accident and vehicle in question? (2) Whether the impugned judgment and order is liable to be set aside on the ground that the jural relationship between the deceased and respondent No.1 is not proved? (3) What order? 9. (2) Whether the impugned judgment and order is liable to be set aside on the ground that the jural relationship between the deceased and respondent No.1 is not proved? (3) What order? 9. The learned counsel for the insurer submitted that the claimants have not proved the jural relationship between the deceased and respondent No.1 and that the alleged accident has no nexus with the offending vehicle. The learned counsel further submitted that owner of the vehicle has not produced any documents to show that the lorry was left for repair and deceased was proceeding to the garage to bring the lorry. Therefore, there is no evidence to prove that the accident in question occurred in the course of employment. 10. Per contra, learned counsel for the claimants submitted that the complaint was lodged on the same day of the accident and driving licence of the deceased is produced at Ex.A2 in order to prove that he was working as driver under respondent No1. The insurer has not produced any evidence in the case. The learned counsel for the claimants further submitted that the income of the deceased ought to have been considered as Rs.5,000/- per month for assessing the loss of dependency. 11. The main contention on behalf of the insurer to set aside the judgment and order is that the jural relationship is not proved and further there is no nexus between the accident and the insured vehicle and that the alleged accident did not occur during the course of employment. It is the case of the claimants that the deceased was working as a driver in the lorry owned by respondent No.1 on a salary of Rs.5,000/- per month and Rs.75/- per day as batta. This is also stated in the complaint lodged before the police on the date of accident, which is not disputed by the insurer. The driving licence of the deceased-Akbar is also produced at Ex.A2. Claimant No.1 examined as PW.1 has deposed to these facts, except some suggestions in his cross-examination that his son was not working as a driver under respondent No.1 nothing is brought on record to disbelieve the evidence of PW.1. The insurer has not stepped into the witness box to deny the evidence of the claimants. Under these circumstances, it cannot be held hat the claimants have not proved jural relationship between the deceased and respondent No.1. 12. The insurer has not stepped into the witness box to deny the evidence of the claimants. Under these circumstances, it cannot be held hat the claimants have not proved jural relationship between the deceased and respondent No.1. 12. Claimant No.1 has deposed before the learned Commissioner for Workmen's Compensation that on the date of accident his son left the house in order to bring the lorry left in the garage at Gulbarga and while he was proceeding towards Gulbarga, he met with an accident and died. The statement made by claimant No.1 on oath is not denied by producing counter evidence. PW.1 has denied in his crossexamination that on the date of accident his son was not proceeding to Gulbarga in order to bring back the lorry from the garage. He has denied that he is deposing falsely that the lorry belonging to respondent No.1 was left in the garage for repairs. Therefore, the evidence of PW.1 in this regard also cannot be rejected. 13. Learned counsel for the insurer relying on the judgment in the case of Mamtaj Bi Bapusab Nadaf and others vs. United India Insurance Co. Ltd., and Others reported in, (2010) ACJ 2661 submitted that there is no use of insured vehicle in the accident and therefore, there is no proximity or direct connection between the death of the workman and the vehicle. In the said case the Hon'ble Apex Court considered Section 147 of the Motor Vehicles Act, together with explanation and has held that the insurance company cannot be held liable for the death of the workmen, if there is no proximity or direct connection with the vehicle and the death of the deceased. In the said case the deceased Basappa was engaged in unloading maize from a tractor-trailer when maize was being unloaded from the tractor-trailer to an underground storage bin (hagevu), the said labour climbed the grocery pit in order to clean the same for storing maize and while cleaning, he fell into the grocery pit and died to suffocation. Under those circumstances, the Hon'ble Apex Court held that death of the workman has not proximity or direct connection with the vehicle and as such exonerated the insurance company. 14. Under those circumstances, the Hon'ble Apex Court held that death of the workman has not proximity or direct connection with the vehicle and as such exonerated the insurance company. 14. The learned counsel for the claimants has relied upon a decision of the Division Bench of this Court in the case of New India Assurance Company Limited vs. Channamam reported in, (2007) 2 KCCR 1493 the facts in the said case were that the deceased Hanumanthaiah was working as a loader in a lorry. On the date of incident, he was loading sand in the said lorry from sandpit and the sandpit collapsed suddenly and the deceased was buried in the sand. The owner of the lorry and the insurance company contested the claim on the ground that the vehicle was stationary at the time of incident and no liability arises against the owner or the insurance company to pay compensation. This Court considered the contention of the owner and insurer that the death of the deceased did arise out of and in the course of the employment. The learned counsel for the claimants has also relied on judgment in the case of Branch Manager, New India Assurance Company Limited vs. Siddappa reported in, (2004) ILR(Kar) 3119 in this case this Court has considered the word "accident arose out of and in the course of employment". The facts in the said case were that the deceased Shivanna was working as operator in the factory and he was found dead in a well situated in the premises of the factory. The owner contended that the death of the deceased did not occur in the course of employment. His contention was rejected and it was held that the death of the deceased-workman occurred in the course of his employment. 15. This Court has observed that there are various pronouncements of judgments of the Hon'ble Apex Court and High Court indicating that the accident which resulted in the injury or death must be connected with the employment and must arise out of it. Thus, there must be casual connection between the employment or accidental injury or death. It is further observed in the case of Hanumanthaiah supra the deceased was working as a loader in question was not disputed and said lorry was used for loading sand and for transporting to the destination was also not disputed. Thus, there must be casual connection between the employment or accidental injury or death. It is further observed in the case of Hanumanthaiah supra the deceased was working as a loader in question was not disputed and said lorry was used for loading sand and for transporting to the destination was also not disputed. Under those circumstances, this Court held that there is clear nexus of the deceased- Hanumanthaiah meeting with the death in the course and arising out of his employment, namely, digging sand from pit and loading in the truck. Applying the same principle to the case on hand it can be safely held that the deceased was proceeding to garage to bring back the lorry left for repairs and the said lorry belongs to his employer, which was left for repairs. Therefore, it has to be held that the accident in question occurred in the course of his employment. The deceased was proceeding to the garage as per the instructions of his employer to bring back the lorry and as such, there is casual connection and there is nexus between the death of the deceased and the vehicle in question and as such, it has to be held that the death of the deceased occurred in the course of his employment. Therefore, the contention of the insurer that that there is no nexus between the accident and vehicle in question cannot be accepted. 16. Under these circumstances, I hold that the appeal filed by the insurer is liable to be dismissed. 17. The claimants have sought for enhancement of compensation. It is contended by the claimants that the deceased was earning Rs.5,000/- per month as salary together with butta of Rs.75/- per day. However, the claimants have not produced any evidence in order to prove their claim. Further respondent No.1 the employer has also not appeared before the learned Commissioner for Workmen's Compensation and has not admitted the claim of the claimants. Therefore, learned Commissioner for Workmen's Compensation has properly considered the income of the deceased as Rs.4,000/- per month. In view of the provisions of the Minimum Wages Act and the compensation towards loss of dependency is properly assessed taking the relevant factor as 215.28 and has arrived at total compensation of Rs.4,30,560/-. 18. Therefore, learned Commissioner for Workmen's Compensation has properly considered the income of the deceased as Rs.4,000/- per month. In view of the provisions of the Minimum Wages Act and the compensation towards loss of dependency is properly assessed taking the relevant factor as 215.28 and has arrived at total compensation of Rs.4,30,560/-. 18. However, the learned Commissioner for Workmen's Compensation has awarded interest at the rate of 12% per annum from the date after one month of the adjudication, namely, passing the judgment. Under the provisions of Workmen's Compensation Act, it is necessary to award interest from the date of one month after the accident and not from the date after one month of adjudication. The accident and death of deceased occurred on 15.05.2007 and therefore, interest has to be awarded from 15.06.2007. The impugned judgment and order needs to be modified to this extent. Accordingly, I pass the following: ORDER MFA No.31259/2011 filed by the insurer-Oriental Insurance Company is hereby dismissed. The amount in deposit, if any, is directed to be transmitted to the concerned Tribunal. MFA No.30372/2011 filed by the claimants is hereby allowed in part. The claimants are entitled for interest on the compensation amount at the rate of 12% per annum from 15.06.2007 till its realization.