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Karnataka High Court · body

2022 DIGILAW 123 (KAR)

Rahul v. Ningegowda

2022-02-01

P.KRISHNA BHAT

body2022
JUDGMENT 1. These appeals are at the instance of the claimants and the insurance company calling in question the legality and validity of the award dtd. 12/5/2009 passed in W.C.No.KAPKA/F-04/2007 by the Labour Officer and Commissioner for Workmen Compensation, Division-2 at Chikmagalur. 2. The claim petition proceeded on the allegation that one Chandramma @ Bhanubai (hereinafter referred to as 'deceased') was working as a coolie in the tractor and trailer bearing Registration No.KA-18-3641 & 3642 which was owned by respondent No.1-Ningegowda, before the learned Commissioner and insured with the appellant- insurance company. Respondent No.3-K.S.Raju before the learned Commissioner was subsequently impleaded on the allegation that he was a contractor who had employed the deceased. It is further alleged in the claim petition that on 25/8/2001 at about 3.50 p.m. when the deceased was proceeding in the tractor and trailer in question, on account of the rash and negligent driving of the driver of the tractor, it met with an accident resulting in the death of the deceased. 3. On issuance of notice by the learned Commissioner, respondent Nos.1 to 3 appeared before the learned Commissioner. Respondent No.1 Ningegowda filed a detailed written statement denying the very employer and employee relationship between himself and the deceased. Respondent No.2 who is the appellant-insurance company filed a detailed written statement denying all the material allegations made in the claim petition. Respondent No.3 also filed a written statement denying the averments made in the claim petition. 4. During the enquiry before the learned Commissioner, claimant No.1 examined himself as PW-1 and got marked Exs.P1 to P9. Respondent No.1- Insurance Company examined one of its officials as RW-1 and also examined the investigator appointed by it as RW-2 and Exs.R1 to R5 were marked. 5. Learned Commissioner upon hearing the learned counsel on both sides and perusing the records, allowed the claim petition in part and awarded a compensation of Rs.4,42,740.00 with interest thereon @ 12% p.a. fastening the liability to pay the same by respondent No.2-insurance company. 6. Learned counsel for the claimants in support of their appeal submitted that the compensation awarded is highly inadequate and the income of the deceased taken at Rs.4,000.00 per month is on the lower side. He, therefore, submitted that the compensation awarded requires to be enhanced and the appeal requires to be allowed. 7. 6. Learned counsel for the claimants in support of their appeal submitted that the compensation awarded is highly inadequate and the income of the deceased taken at Rs.4,000.00 per month is on the lower side. He, therefore, submitted that the compensation awarded requires to be enhanced and the appeal requires to be allowed. 7. Learned counsel for the insurance company, per contra, submitted in support of his appeal that the finding recorded by the learned Commissioner that there exists a relationship of employer and employee between respondent No.1 Ningegowda and the deceased is based on no evidence and therefore it is liable to be set aside. He also submitted that the tractor and trailer in question was covered with a Farmers Package Policy and therefore it did not cover the risk of accident to a coolie in the said trailer. He also submitted that the policy clearly disclaimed any liability if the accident took place while the tractor and trailer was being used for hire purpose. He also submitted that the evidence placed before the learned Commissioner clearly shows that the respondent No.3-Rajegowda had taken the tractor and trailer on hire basis and the accident having taken place while transporting large number of coolies to the work site, the insurance company is not liable for paying the compensation and therefore the appeal should be allowed and the claim petition should be dismissed. 8. I have given my anxious consideration to the submissions made on both sides and carefully perused the records. 9. The substantial question of law that arises for consideration in this case is: Whether the finding of the learned Commissioner that employer and employee relationship between the owner of the tractor and trailer Ningegowda and the deceased is established, is based on evidence or not? 10. The claimants have no doubt pleaded in the claim petition that on 25/8/2001 the deceased Chandramma @ Bhanubai was proceeding in the tractor and trailer for loading and unloading manure transported in the same for the purpose of owner Ningegowda. However, as pointed out by the learned counsel for the insurance company, in the cross examination PW-1 has admitted that deceased Chandramma was not working as an employee under the owner of the tractor and trailer Ningegowda. Ex.P4 is the FIR and the complaint lodged in this case on the very day of the accident itself. However, as pointed out by the learned counsel for the insurance company, in the cross examination PW-1 has admitted that deceased Chandramma was not working as an employee under the owner of the tractor and trailer Ningegowda. Ex.P4 is the FIR and the complaint lodged in this case on the very day of the accident itself. One Nirvani, son of Thimma Bovi is the complainant. He has stated in the said complaint that at the time of the accident, 18 coolies working under Raju @ Rajegowda (respondent No.3 before the Hon'ble Commissioner) were travelling in the tractor and trailer including deceased Chandramma and on account of the rash and negligent driving of the driver of the tractor and trailer, it capsized and Chandramma suffered serious injuries and she died. This clearly supports the admission made by PW-1 in the cross examination that Chandramma was not working under the owner Ningegowda. In his pleadings also, respondent No.1- Ningegowda categorically denied the employer and employee relationship between himself and the deceased. As a matter of fact, Ex.P4 is the complaint lodged by the claimant No.1 alleging that his wife Chandramma had eloped with one Venkatesh, son of Thimma bovi and they had taken his second son Raghavendra along with them between 28/7/2001 and 29/7/2001. 11. Learned Commissioner has not at all adverted to the very important and material evidence in deciding whether there was employer and employee relationship between the owner of tractor and trailer Ningegowda and the deceased. 12. My perusal of the records clearly shows that the findings recorded by the learned Commissioner that employer and employee relationship between the owner Ningegowda and the deceased has been established is not based on evidence. In that view of the matter, the appeal of the insurance company is liable to be allowed and the appeal of the claimants is liable to be dismissed. Hence, the following: ORDER 1. MFA No.5976/2009 filed by the insurance company is allowed. MFA No.2776/2010 filed by the claimants is dismissed. The amount in deposit shall be refunded to the Insurance Company.