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2022 Supreme(Kar) 370
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
H.P. SANDESH, J.
The Branch Manager, Oriental Insurance Co. Ltd. - Appellant
Versus
Smt. Tahaseentaj W/o. Shamiulla @ Gullab & Ors. - Respondents
M.F.A. No. 23205 of 2011 c/w M.F.A. No. 23206 of 2011 (WC)
Decided On : 26-08-2022
For the Appellant : Shri A.G. Jadhav.
For the Respondents: Shri B.M. Patil, Shri Anjaneya M.
Point of Law: Provisions of Rule 100 of the Karnataka Motor Vehicles Rules and Section 147 of the Motor Vehicles Act which insists statutory cover for employees employed in connection with the motor vehicle.
Headnote:
Constitution of India, 1950 - Article 142 - Motor Vehicles Act, 1988 - Section 147 - Karnataka Motor Vehicles Rules, 1989 - Rule 100 – Code of Civil Procedure, 1908 - Order XLI Rule 33 - Accident - Workmen’s Compensation - Whether claimants/respondents have made out a ground to invoke Order XLI Rule 33 of CPC to enhance compensation in appeals filed by Insurance Company - Whether Commissioner has committed an error in fastening liability on Insurance Company as contended by Insurance Company in both appeals - Whether Commissioner has committed an error in holding that there exists relationship of employer and employee between respective deceased and owner of vehicle - Whether Commissioner has committed an error in granting compensation in respect of claim for death of Irfan. [Para 9]
Finding of the Court: Having considered submissions and material on record, there is no dispute with regard to invoking of Order XLI Rule 33 of CPC to enhance compensation even in absence of an appeal by claimants - But same is applicable only if claim of claimants is not considered and not awarded just and reasonable compensation and if there is any error on record, then only Court can exercise power under Order XLI Rule 33 of CPC to meet ends of justice - In case of death of Shamiulla, an income of Rs.4,000/- p.m. has been taken into consideration as he was working as a driver and same is based on statutory provisions of wages fixed - Hence, question of invoking Order XLI Rule 33 of CPC does not arise - In case of death of Irfan, it is claim of claimants that he was working as cleaner and Court has to take note of age of deceased as 18 years - In terms of PM report, he was aged about 15 years and this Court while considering same has taken note of age assessed by doctor during course of conducting post-mortem and found difference as per records in terms of Ex.P.12 pertaining to Shamiulla there was a difference of 3 years and this Court taking note of said fact age of deceased Irfan would be 18 years - Insurance Company has not placed any documentary evidence except relying upon post mortem - Having considered said age and his avocation as a cleaner, Commissioner has rightly taken income of Rs.3,500/- and hence question of invoking Order XLI Rule 33 of CPC does not arise, Hence, Court do not find any force in contention of claimants’ counsel and Court answer point No.4 as negative.
Result: Appeals dismissed.
JUDGMENT :
These two appeals are filed challenging the judgment and award dated 28.02.2011 passed by the Commissioner for Workmen’s Compensation, Haveri, (for short ‘the Commissioner) in W.C.A.Nos.25/2010 and 26/2010 questioning the maintainability, liability and quantum.
2. The factual matrix of the case of the claimants before the Commissioner is that deceased Shamiulla, on 26.05.2009 when the husband of the Tahaseentaj (claimant/respondent No.1) was travelling in a lorry bearing registration No.KA-05/B-7009 as a second driver along with his son Irfan and the said vehicle was driven by his another son Majju @ Majjumeerpasha and the said vehicle met with an accident as a result of which Shamiulla and Irfan both sustained grievous injuries and succumbed to the injuries on the spot. Hence, wife of Shamiulla, son and daughter of Shamiulla filed two claim petitions before the Commissioner seeking for compensation for the death of Shamiulla and Irfan.
3. In support of their claim, the wife of Shamiulla got examined herself as PW-1 and also got marked documents Ex.P.1 to Ex.P.12. On the other hand, the Administrative Officer of Insurance Company is examined as RW-1 and got marked documents Ex.R.1 and Ex.R.2 and the owner of the vehicle was placed ex-parte. The Commissioner considering both oral and documentary evidence allowed the claim petitions awarding compensation of Rs.3,26,140/- in WCA No.25/2010 and Rs.3,99,945/- in WCA No.26/2010 with interest at the rate of 12% p.a. after 30 days of the accident. Being aggrieved by the said judgment and award, the Insurance Company has filed the present appeals.
4. In M.F.A.No.23205/2011 which is in respect of death of Shamiulla, the Insurance Company has vehemently contended that the Commissioner has blindly held that Shamiulla was the second driver in the vehicle when the claimants had failed to produce any documents to show the relationship of employer and employee between the deceased and respondent No.4 and also failed to produce the driving licence of the deceased which itself goes to show that the deceased was travelling as a passenger in the vehicle at the time of the accident. It is also contended that the driving licence produced by the claimants was not valid as on the date of the accident. Hence, the Commissioner would have held that as per the conditions of the policy issued, the appellant is not liable to pay the compensation. In the appeal memorandum, substantial questions of law are raised contending that the Commissioner was not justified in holding that the policy issued by the Insurance Company covered the second driver. In the absence of any premium, question of fastening the liability on the Insurance Company does not arise. It is also contended that the Commissioner was not justified in awarding interest at the rate of 12% p.a. and that no material is produced to show that there exists relationship of employer and employee between the deceased and the owner of the vehicle.
5. In M.F.A.No.23206/2011 in respect of the death of Irfan, the Insurance Company has urged similar grounds as urged in M.F.A.No.23205/2011. Apart from that contended that only on the version of claimant No.1, held that deceased was working as a cleaner in the lorry as on the date of the accident though no document was produced to show that he was working as a cleaner and the driver of the lorry is not examined in the case to prove the case of the claimants. Hence, it clearly shows that the deceased was travelling as a passenger in the lorry with his father. It is also contended that the Commissioner was not justified in awarding compensation in respect of a minor boy aged 15 years working as a cleaner.
6. Learned counsel for the appellant/Insurance Company reiterating the grounds urged in both the appeals, relied upon a judgment of the Hon’ble Apex Court in Civil Appeal No.5/2013 disposed of on 03.01.2013 wherein the Apex Court ordered to pay and recover the amount from the owner following the principles
