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2021 Supreme(Online)(KAR) 239
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL 2021 BEFORE THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA M.F.A.No.7410/2012 (WC)
BETWEEN:
ROYAL SUNDARAM ALIANCE INSURANCE COMPANY LIMITED., No.186/7, RAGAVENDRA COMPLEX, GROUND FLOOR, VILSON GARDEN, 1ST CROSS, HOSUR MAIN ROAD, BANGALORE – 560 007.
BY ROYAL SUNDARAM ALLIANCE COMPANY LTD., SUBRAMANIAM BUILDING, II FLOOR, NO.1, CLUB HOUSE ROAD, ANNA SALAI, CHENNAI – 600 002.
BY ITS MANAGER. … APPELLANT (BY SRI. O.MAHESH, ADV.)
AND:
1. SMT. LATHA, AGE 25 YEARS, W/O LOKESH, TATANAHALLI, VILLAGE, PIRIYAPATNA TALUK, MYSORE DISTRICT – 570 001. NOW PRESENTLY ADDRESSED AT C/O DYAVAIAH, NEAR ALUR OLD POST OFFICE, B.M.ROAD, HASSAN – 573 201. 2. SRI.S.K.MAHESH, MAJOR, S/O B.S. KUMARASWAMY, NO.870/2, CANARA BANK ROAD, T. NARASIPURA, MYSORE DISTRICT – 570 001.
DEAD BY HIS LRs., 2(a) SMT. UMA, MAJOR, W/O S.K. MAHESH, 2(b) DARSHAN, MAJOR, S/O S.K.MAHESH, 2(c) YASHAS, MAJOR, S/O S.K.MAHESH, NO.870/2, CANARA BANK ROAD, T. NARASIPURA. … RESPONDENTS (BY SRI. SHRIPAD V SHASTRI, ADV., FOR R-1;
SRI. P.MAHESHA, ADV., FOR R-2(a))
THIS APPEAL IS FILED UNDER SECTION 30(1) OF WORKMEN’S COMPENSATION ACT AGAINST THE JUDGMENT DATED:05.06.2012 PASSED IN £ÀA.PÁ¥ÀPÁ/J¥sï/J¸ïDgï-13/2011 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, HASSAN SUB DIVISION HASSAN, AWARDING A COMPENSATION OF Rs.7,08,967/- WITH INTEREST 12% FROM AFTER 30 DAYS OF ACCIDENT TILL DEPOSIT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. A claim petition was filed under the provisions of the Employee’s Compensation Act (hereinafter referred to as ‘the Act’, for short) by Smt.Latha. She contended that her husband – Sri Lokesh, while working as a driver of the lorry under the 2nd respondent, met with an accident on 21.06.2010 and as a result of this accident, he suffered serious injuries and ultimately succumbed to the same. She stated that her husband was earning a sum of `6,000/- per month along with batta of `200/- per day and the 2nd respondent, being the employer, was liable to pay the compensation as per the provisions of the Act.
2. The 2nd respondent i.e., the employer refused to receive the notice and hence, he was placed exparte.
3. The Insurer, which had insured the vehicle in question at the request of the 2nd respondent and had issued a certificate of Insurance, entered appearance and contested the proceedings by denying all averments.
4. The Trial Court, on consideration of the evidence produced before it, recorded a finding that the husband of the claimant Sri Lokesh was indeed an employee of the 2nd respondent and while he was driving the vehicle owned by the 2nd respondent, he met with an accident on 21.06.2010 and ultimately succumbed to the same.
5. The Trial Court also came to the conclusion that the deceased was earning a sum of `6,695/- per month and on that basis, by applying the relevant factor determined that the claimant was entitled to compensation of `7,08,967/-.
6. Being aggrieved by the said award, the Insurer is in appeal.
7. Sri O.Mahesh, learned counsel for the appellant/Insurer put forth the following contentions:
● The claimant had failed to prove that the deceased was an employee of the 2ndrespondent;
● The claimant did not prove that she was dependant on her husband;
● The claimant had since the filing of the claim petition remarried and therefore, could not maintain the claim as a dependant of the deceased;
● The deceased did not possess a valid and effective driving licence as on the date of the accident and the driving licence had been renewed with effect from 22.06.2010 i.e., a day after the accident and therefore, the liability of the Insurer would not arise;
● The compensation could not be paid to the proposed applicant i.e., the father of the deceased, since the averments in the petition clearly indicated that he was not dependant on the deceased at all.
8. Learned counsel for the claimant, on the other hand, contended that it was not open for the Insurer to put forth the contention that the deceased was not an employee of the 2nd respondent. He submitted that this question was essentially a question of fact which has been determined by the Trial Court and there was no question of law as such would arise in this regard.
9. He also submitted that the argument that the claimant was not a dependant and on her remarriage, she could not maintain the petition was an argument which was wholly untenable and should be rejected.
10. He submitted that the driving licence in question had been renewed and therefore, the contention that there was no valid licence cannot be entertained, especially when the statute clearly stated that the renewal would be from the date of expiry. He stated that this issue was already decided by a Division Bench of this Court in M.F.A.No.103680/2015 and connected matter disposed of on 08.02.2019.
11. I have considered the submissions of learned counsel for the respective parties and also perused the material on record.
12. As regards the first contention that the deceased was not an employee of the 2nd respondent, the question as to whether the deceased was an employee of the 2nd respondent would have to be determined only if the employment was disputed by the employer. Further, this question would be a question of fact, which is required to be determined by the Trial Court.
13. In this case, the 2nd respondent/owner chose to refuse to receive the notice issued by the Trial court. He thereby did not offer a
