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2019 Supreme(Kar) 1260
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
P.G.M. Patil, J.
Chairman and Managing Director Athani Farmers Sugar Factory Ltd. – Appellant
Versus
Mayadevi Munnakumar Prasad @ Bhagat – Respondent
Miscellaneous First Appeal Nos. 21802, 25194 of 2011
Decided On : 12-06-2019
Advocate Appeared:
Vinay S. Koujalagi, K. Anandkumar, N.R. Kuppelur, Nagangouda R. Kuppelur, Vinay Koujalagi, V.M. Sheelavant.
Headnote:
Employees Compensation Act - Section 4-A - Payment of penalty - Claim with interest - Claim compensation - State of Bihar to bring skilled labours for working in factory of respondent It is further stated that said while returning from Bihar on way to Siwan Railway Station an unknown jeep dashed against him due to which he sustained fatal injuries and succumbed to said injuries- Therefore claimants claimed compensation of on ground that death of deceased was in course and out of employment with respondent –Held, Court holds that claimants have failed to prove that death of deceased is course of employment or out of employment or incidental to his employment with respondent -Therefore liability saddled against insurer is liable to be set aside and appeal filed Employees Compensation Act provides for awarding of compensation where death results from injury where permanent total disablement results from injury- Therefore as soon as death occurs due to injury sustained in course of employment or employee suffers from permanent total disablement due to injury sustained in accident amount of compensation becomes due Act provides for payment of compensation when it becomes due and penalty for default- Commissioner employer is liable to pay penalty as provided - Proviso to said Section provides that order for payment of penalty shall not be passed clause without giving a reasonable opportunity for employer to show cause why it should not be passed- In present case Commissioner for workmen compensation has observed judgment that show cause notice was issued to respondent as to why penalty should not be imposed as provided Act and it is further observed that respondent has not shown any cause for same and has not explained why penalty should not be imposed against him in terms -Therefore contention of insured employer that improvement of penalty is not sustainable in law cannot be accepted - Order accordingly
JUDGMENT :
P.G.M. Patil, J.
1. The insured and the insurer being aggrieved by the judgment and order dated 29.11.2010 passed in WCA/SR No. 19/2010 by the Labour Officer and Commissioner for Workmen Compensation, Sub-Division-2, Belgaum have filed these appeals.
2. The claimants filed the claim petition before the Commissioner for Workmen Compensation, Belgaum seeking compensation for the death of one Munnakumar alias Bhagat.
3. It is the case of the claimants that the deceased Munnakumar Prasad was working under the employment of respondent No. 1-M/s Athani Farmers Sugar Factory Ltd. Athani, Belgaum and he was drawing wages of Rs. 5,000/ p.m. It is further stated that on the direction of respondent No. 1-Athani Sugar Factory, the deceased Munnakumar went to the State of Bihar to bring skilled labours for working in the factory of the respondent no. 1. It is further stated that the said Munnakumar while returning from Bihar, on the way to Siwan Railway Station on 25.01.2008, an unknown jeep dashed against him, due to which he sustained fatal injuries and succumbed to the said injuries. Therefore the claimants claimed compensation of Rs. 4,00,000/- on the ground that the death of the deceased was in the course and out of the employment with respondent No. 1.
4. In pursuance of notice, the respondent No. 1 and respondent No. 2 insurer appeared before the Commissioner for Workmen's Compensation and filed separate objections. Respondent No. 1 filed the objections wherein he has admitted that the deceased was under his employment on the date of accident and that he further stated that the deceased was drawing wages of Rs. 2,600/- p.m. and not Rs. 5,000/- p.m. as claimed. Respondent No. 1 has further stated that it is false to state that the death is on account of his employment with the him and arising out of and in the course of employment. The applicants are put to strict proof of nexus between the death of the deceased and employment. He has further stated that the liability to pay compensation arising out of the employment injury with the appellant is insured with respondent No. 2 and therefore respondent No. 2 alone is liable to answer the claim of the claimants.
5. Respondent No. 2 filed written objections denying the averments made in the claim petition. The claim is time barred. He do not admit that the deceased Munnakumar was employee of respondent No. 1 and that his death is out of and during the course of employment under respondent No. 1. It is clear from the records that the deceased Munnakumar had been to meet his wife and parents at his native place in the State of Bihar and died due to road traffic accident and therefore death of Munnakumar was not during the course of and under the employment with respondent No. 1. He denied about the wages drawn by the deceased. He also denied the allegations that the deceased while discharging his duties entrusted to him by respondent No. 1 met with the accident and that the same was out of and arising out of his employment with respondent No. 1. He has denied that respondent No. 1 deputed the deceased workman to fetch skilled labours and there is no nexus in the death of the deceased and employment with respondent No. 1 and therefore the claim petition is liable to be dismissed.
6. On the basis of the pleadings of the parties, the Commissioner for Workmen Compensation framed issues.
7. In support of their claim petition, claimant No. 2-Rama Iqbal Bhagat was examined as PW-1 and they got marked 2 documents as Ex.P1 and P2. Respondent No. 2 examined its witness as RW-1 and got marked copy of the insurance policy at Ex.R1.
8. The learned Commissioner for Workmen's Compensation after hearing both the parties, passed impugned judgment awarding compensation of Rs. 4,11,900/- with interest at 12% p.a. from 25.01.2010 and further imposed penalty of Rs. 2,05,950/- on respondent No. 1 and directed respondent No. 2 to pay compensation amount and Respondent No. 1 to penalty within 30 days.
9. The insu
