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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 04^TH DAY OF JUNE 2015

BEFORE

THE HON’BLE MR.JUSTICE B.MANOHAR

MFA.NO.12615/2007 (WC)

BETWEEN:

DIVISIONAL MANAGER,

ICICI LOMBARDO GENERAL

INSURANCE CO. LTD, HUBLI,

NOW REPRESENTED BY ITS MANAGER LEGAL,

ICICI LOMBARDO GENERAL INSURANCE

CO.LTD., SVR COMPLEX, II FLOOR,

89, HOSUR ROAD,

BANGALORE – 560 068 ... APPELLANT

(BY SRI.S.K.KAYAKAMATH, ADVOCATE)

AND:

1. SMT GANGAMMA

W/O BASAVARAJ TOTAD

AGE MAJOR

2. KUMAR AKASH,

S/O BASAVARAJ TOTAD

AGED ABOUT 4 YEARS

3. KUMARI AISHWARYA

2

D/O BASAVARAJ TOTAD

AGED ABOUT 1 YEAR

4. SMT SHIVAGANGAMMA

W/O SHIVANAGAPPA TOTAD.

AGE MAJOR

RESPONDENTS NO.2 & 3 HEREIN SINCE

MINORS REPRESENTED BY THEIR

NATURAL GUARDIAN MOTHER THE 1^ST

RESPONDENT HEREIN

ALL ARE RESIDING AT ILLAKAL,

TALUK: HANAGUND

DISTRICT: BAGALKOT

5. SRIDHARAN N BAHETHI

AGE MAJOR

R/AT GAJENDRAGADA

TALUK: RON

DISTRICT: GADAG ... RESPONDENTS

(BY SRI.SHIVAKUMAR BADAWADAGI, ADV. FOR R1 TO R4,

SRI.VITTHAL TELI, ADV FOR R5)

THIS MFA IS FILED U/S 30(1) OF WC ACT, AGAINST

THE

ORDER

DATED

31.07.2007

PASSED

IN

CASE

NO.WC.A:F/41/2007 ON THE FILE OF THE LABOUR

OFFICER

AND

COMMISSIONER

FOR

WORKMEN’S

COMPENSATION, BAGALKOT DISTRICT, BAGALKOT.

AWARDING A COMPENSATION OF RS.3,84,280/- WITH

INTEREST 12% P.A.

THIS MFA COMING ON FOR HEARING AND

HAVING RESERVED FOR ORDER ON 17-04-2015, THIS

DAY, THE COURT PRONOUNCED THE FOLLOWING:

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JUDGMENT

The

Appellant-Insurance

Company

filed

this

appeal

challenging the judgment and order dated 31-07-2007 made in

WCA-F/41/2007 passed by the Labour Officer and the

Commissioner for Workmen’s Compensation, Bagalkot, (hereinafter

referred to as ‘the WCC’).

2.

Respondents 1 to 4 herein filed a claim petition before the

WCC contending that they are the legal representatives of deceased

Basavaraj Thotad, who was working as a driver in a lorry bearing

registration No.KA-26/4292 belonging to the 5^th respondent. On

23-04-2006, as per the instructions of the owner, after loading

granite stones at Ilkal while proceeding towards Bangalore, the said

vehicle met with an accident on NH-13 and Basavaraj Thotad

succumbed to injuries. At the time of accident, the deceased was

aged about 32 years and getting a salary of Rs.5,000/- per month and

batta of Rs.100/- per day. The claimants are dependants of the

deceased. The accident occurred during the course and arising out

of the employment. In view of the death of the bread earner, the

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family of the deceased became destitute and sought for

compensation of Rs.14,00,000/-.

3.

In pursuance of the notice issued by the WCC, the owner of

the vehicle entered appearance and filed statement of objections

admitting the occurrence of the accident on 23-04-2006 and also

relationship of master and servant and contended that he was paying

salary of Rs.3,000/- p.m. and batta of Rs.100/- per day. Since the

vehicle is covered by insurance policy, the insurer is liable to

compensate the claimants and sought for dismissal of the claim

petition as against the owner of the vehicle.

4.

The appellant-Insurance Company filed statement of

objections to the claim petition contending that, the deceased was

not working as a driver in the offending lorry. He was travelling as

an unauthorized passenger in the said goods vehicle. There is no

relationship of master and servant between the deceased and the

owner of the vehicle. Further, as on the date of the accident, the

deceased was not holding effective driving license to drive the goods

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vehicle, no document has been produced to show that he was

getting income of Rs.4,000/- p.m. and sought for dismissal of the

claim petition.

5.

On the basis of the pleadings of the parties, the WCC framed

necessary issues. The first claimant got examined herself as P.W.1

and got marked the documents as Ex.P1 to Ex.P10. The Insurance

Company examined Sri.M.N.Nagaraj Rao as D.W.1 and got marked

the insurance policy of the