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2018 Supreme(Kar) 1160
IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
P.G.M. PATIL, J.
M/s United India Insurance Company Limited – Appellant
Versus
Smt. Shamla W/o Anna Gunda – Respondent
MFA No. 30017 of 2011
Decided On : 21-12-2018
Advocate Appeared:
For the Appellant : Sri. Manvendra Reddy.
For the Respondent: Sri. Koujalagi Chandrakanth.
Headnote:
Indian Penal Code,1860 - Section 302 - Workmen’s Compensation Act, 1923 - Section 21 - Case Of Murder - Claim Petition - Whether Commissioner for Workmen’s Compensation is justified in awarding a sum interest when claimants failed to prove relationship of employer and employee between deceased and owner of vehicle - Whether Commissioner for Workmen’s Compensation is justified in fastening liability on appellant even though respondent have not been able to establish that deceased was the employee engaged by insured in connection with auto when wife of deceased has stated on oath that her husband was done to death - Whether Commissioner for Workmen’s Compensation is justified in awarding the compensation for a sum interest when murder of deceased was taken place at Solapur in Maharashtra and he was resident of Pakani village of Solapur (Maharashtra) when Commissioner has no jurisdiction in view of provisions Workmen’s Compensation Act – Held, Case incident in question occurred in course of employment of deceased and he was done to death for the reason that he failed to give side to jeep coming from rear side as a result inmates of jeep committed his murder these circumstances death of deceased has be as caused arising out of his employment and it not case of murder converted into a claim petition as contended by insurer -This decision has been applied by Commissioner for Workmen’s Compensation in impugned judgment and on basis of this decision Commissioner has come to conclusion that death of deceased occurred in course of his employment - Police stating he has sold said vehicle and has executed a bond has stated that they have got investigated matter and as per investigation said vehicle was sold by the respondent favour of respondent - In his cross-examination has admitted that insurance policy covered risk of driver - He has not produced a report of investigation - There is no reason for non-production of said report - Case of murder converted into a claim petition as contended by insurer - This decision has been applied by Commissioner for Workmen’s Compensation in impugned judgment and on basis this decision Commissioner has come to conclusion that death of deceased occurred in course of his employment incident in question occurred - If at all respondent had sold the said vehicle in insurer would not have issued insurance policy in of respondent Admittedly insurance policy was issued in the name of respondent - Therefore this document will not help insurer to support his contention that respondent was not owner of vehicle as on the date of incident and that deceased was not his employment these circumstances it cannot be that Commissioner failed to hold that the claimants have not proved relationship of employee and employer between deceased and respondent or that Commissioner has committed grave error in fastening liability on appellant-insurer - Therefore none of contentions raised by appellant deserve to be accepted - Appeal dismissed
JUDGMENT :
1. This appeal is directed against the judgment and order dated 09.09.2010 passed by the Commissioner for Workmen’s Compensation, Sub-Division-2, Bijapur in WC No. 103/2009.
2. For the sake of convenience, the parties are referred with their ranks held before the Commissioner for Workmen’s Compensation.
3. The claimants No. 1 and 2 filed claim petition before the Commissioner for Workmen’s Compensation, Bijapur claiming compensation of Rs. 5,00,000/- for the death of Amol Gunda son of claimant No. 1 and husband of claimant No. 2 which according to claimants occurred in the course of his employment. It is stated that the deceased Amol Gunda was working as driver under respondent No. 1 in his auto bearing No. MH-13-G-4327 on a salary of Rs. 8,000/- per month and Bhatta of Rs. 50/- per day. On 21.04.2009 on the instructions of respondent No. 1, the deceased was on duty in the said auto rickshaw. When he was proceeding near Indian Oil Corporation, on Pakani-Mohal road in the night hours, it is alleged that he did not give side to a jeep coming from rear side, therefore, the inmates of the jeep stopped the deceased and assaulted him causing his death. Therefore, the deceased was murdered by the inmates of the jeep. The deceased was aged about 22 years at the time of death. Solapur Police have registered a case in Cr. No. 100/2009 in respect of the said incident and the death of the deceased. The claimants who were fully depending on the income of the deceased have lost their bread earner, thereby they were put to much hardship. Respondent No. 2 is the insurer of the offending vehicle and that the incident has taken place during the course of his employment. Therefore, they claimed compensation before the Commissioner for Workmen’s Compensation.
4. Respondent Nos. 1 and 3 remained absent and they were placed ex-parte. Respondent No. 2 insurer appeared through counsel and filed written statement denying the allegations made in the claim petition. He has denied that the incident has taken place in the course of employment of the deceased, but it is a case of murder and as such, the insurer is not liable to pay compensation. He has also disputed that the alleged incident has taken place in the course of employment of the deceased under respondent No. 1. There is no nexus between the death of the deceased and his employment. Therefore, the claim petition is not maintainable and the same may be dismissed.
5. The learned Commissioner on the basis of the pleadings of the parties framed issues. Claimant No. 2, wife of the deceased was examined as PW-1 and she has got marked 4 documents. Thereafter, respondent No. 2 got examined his Assistant Manager as RW-1 and produced two documents. The learned Commissioner after hearing both the parties passed the impugned judgment awarding compensation of Rs. 4,36,940/- together with interest at 12% p.a. from 10.10.2010. Respondent No. 2 insurer was directed to deposit the compensation amount.
6. Being aggrieved by the said judgment and order, the respondent No. 2 insurer is before this Court contending that the learned Commissioner has committed a grave error in fastening the liability on the appellant, as the claimants have not established that the deceased was employee engaged by the insured in connection with the auto. Admittedly, the wife of the deceased lodged a complaint that her husband was done to death. As such, the case of murder being converted into WC case only to claim compensation. It is a clear case of fraud being played on the Court. There was no relationship of employer and employee with respondent Nos. 1 and 3 and deceased.
7. While admitting the appeal, this Court has raised the following substantial questions of law for consideration:
1. Whether the Commissioner for Workmen’s Compensation is justified in awarding a sum of Rs. 4,36,940/- with 12% interest, when the claimants failed to prove the relationship of employer and employee between the deceased and owner of the vehicle?
2.
