1
IN THE HIGH COURT 0? KARNATAKA AT BANGALORE
DATED THIS THE 30"*DAx or AUGUST, 2o1Q"3
PRESENT
THE HON'BLE MR. JUSTICE K.L. MA§SSfiATfiS"
AND
TEE HON'BLE M. JUSTI&E $,$AN6HS$*'
MISC. FIRST APPEAL fiS}1o5S/2SoS7xS¢§""
E\fiA[fii\flT'x T, .
MISC. FIRST APSSAL_§o:i0éSSJT§e6 (WC)
BETWEEN :
MFA No . 11o55r2d'o'S:.
United India Insfirancé Co; Ltd.,
Mangalofe 9.0., thfeuéh its
Regional'officé~ét N6}25,
Shankaranafayana;Building,
_ M.G,3béd, Bafigglorewl.
"R/bymit$_Deputy'Eanager
.WSMr;M.Gopinatha Rao .. APPELLANT
.(By Afivocfité Sri.B.C.Seetharama Rao)
FT Amp:
_wfl 1J'Bh§Sk3T Devapaul Kundar S/o
'a Lata Prasad Kundar, 52 years,
*.S2T Eandini Sugandhi M.Kundar w/o
"'"Bhaskar Devapaul Kundar, 49 years,
'S/,
2
3. Sushmitha R.Kundar d/o Bhaskar
Devapaul Kundar, 24 years,
4. Crystal Kundar d/o Bhaskar
Devapaul Kundar, 22 years,
Rrl to 4 are R/at Karunya
Mission Compound, No.76, .»w.
Badabettu, Bailur village;
Udupi Tq., Udupi Dist. V
5. A.Ganesh Rao, Managing Qixector,
United Cars (p) Ltd., Kadpi Road,
Mangalore-3. »~ V "
,§*-RE§PONDENTS
(Advocate Sri.D.K£i$hnamoorEfi§a£O: Rul to 4)
(Advocate Sri.P.D,Yishwanathgfo;ufi-5)
BETWEEN: f4 §f* ": ?"f o;,o*.Wf
M?A No.1b25fiX2od§;j5foo**
A.Ganeah Eao,oH¢4agino"Di£ector,
M/% United Cars {§)"L§d,,
Kadri Roafi,VMangaloref3. .. APPELLANT
(By{Advocaێa$;i,P.D.Vishwanath)
AND:'
1. Bhagkagopfifiafiaul Kundar s/o
Lape Prasad Kundar,
,@g,$.,Nandini Sugandhi M.Kundar w/o
", Bhaskar Devapaul Kundar,
:3,Sޤhhitha R.Kundar d/o Bhaskar
x w Devapaul Kundar,
.\
the same. 1
3
4.Crystal Kundar d/o Bhaskar
Devapaul Kundar,
R--l to 4 are R/at Karinya
Mission Compound, No.46,
Badabettu, Bailur village,
Udupi Tq., Udupi Dist.
5. M/s United India Insurance[Co,_Ltd,}_V.d
Divisional Office, K' fl " "-'
2" Floor, Ram Bhavan Complexf '
Kodialbail, --_*g ".a'g y ::"w *
Mangalore. _ .'-..«Ai"'RES§PONDEN'I'S
(Advocate Sri.D.firishna Mirth? for fi¥l to 4)
(Advocate Sri.B.C.Seetharema¥Rao for R-5)
These two M,F+Es} are filed under Sec.30(l) of
WC Act against; the_"jndgment' and order dated
18.11.200,5l----pas*sed'i:;_.:Ln vwca/crv.-.2.o'/so/2004 on the file
of the L3bour*Qfficer§&_Commissioner for Workmen's
Compensation, l--fldn§i@mJ"ararding compensation of
Rs.4,42,740ff"with interest at 12% p.a. directing
the appellants in the respective cases to deposit
_. These Apfieals are coming on for final hearing
this"day,fMABJUN3EH J. delivered the following:
J U D G M E N T
hm Challenging the legality and correctness of the
l\_order lfiassed by the Commissioner for Workmen’s
Coinjiensation, Udupi dated 18.11.2005 in Case
W
4
No.WCA/CR/FC/20/2004 is called in question by the
appellants herein. MFA 1055/06 is filed by the
United India Insurance Co. Ld.. MFA is
filed by the employer of deceased Kenneth
Kundar. Therefore, these two~~ .appe’als” .4_’_hea.;:’d’ry
together.
2. Facts leading to this ¢a»s_é~ areiiasihereunder:
Respondent Bhaska:_r=,_ DeyapaulfiKundar” and three
others filed a claim compensation
on account off’ d:é..ath”;o’fA:.Vone..__..i{enneth Nishchal
Kundar about 6 p.111. while
discharging: in the course of his
employment Cars (P) Ltd. , Mangalore.
3-y,’neV”VcVl’a:i;mants, deceased was working as
driyerj-?Vc=1§:§«._yVSales; Promotion Officer on probationary
V”-~=’~bas;i.s’.__and on the unfortunate day he had taken
-«.i.i’_:’:..’Ifoyota Quailis bearing No.KA-19/21-8766 from Manipal
Chitpadi, bus bearing No.KA–20/B-7 dashed
‘a§jainst Qualis which was driven by the deceased, as
V”.:_'”va:.V’result of which she died. Claim petition was
19’
5
lodged on the ground that the deceased was a
driver–cum-Sales Promotion. Officer of R-1 gin_ the
claim petition lodged a claim petition.
3. The owner of the vehicle admitted the»deceasedgk
as its employee but denied dthat’ he. was :flQEC a
workmqp. It was further contended that on the date
of the accident without Vprioritpernission of the
employer had taken vehicle on his own even though
it was observed _as: a ‘§harat¥ Bundh and he was
driving the”tgvehicle+Elhy:l consuming alcohol.
Therefore} “em§;p§§g iiii Econtended; that there was no
relationshiee of ‘eastern and servant. Similarly,
insurance company contended that since deceased was
;§a1es btfiicer and net a driver, liability cannot be
4. Commissioner, considering the documents
:]produced by the parties and considering the oral
“Vi evidence let in by the parties, held that there was
a relationship of master and servant between United
3?’
6
Cars (P) Ltd. and the deceased since vehicle in
question was insured, insurance company is_i”l_4i~able
to pay compensation. Accordingly, compe__ns’at..ion§-‘.is
awarded . I _
5. It is to be noted», at this j1:1I:¢:ture’=.4i’thaty
immediately after the accident. claimants lodged
claim petition underzijthe sf’ the Motor
Vehicles Act, later on and
filed claim on that deceased
was a workmen. .3
6. The ‘ of both the appellants
herein is th__at_ deceased: was not a workmen, he was
an offiiicier ofillthe respondent, therefore petition
filedv. _yundeyr.4f”‘~–Workmen Compensation Act was not
igdxinsurance company further contends
that even if the deceased was considered as a
__:Vv;;ork:na!}, liability of the insurance company is not
there as he cannot be considered as a paid driver
“a.s””he was appointed as a Sales Promotion Officer.
6/
7
In the circumstances, both the appellants request
the court to set aside the order awarding
compensation by the Comissioner. Per contra,
counsel for the respondentswclaiments contends that
the deceased ‘was not an officer, he_,wasa:only”ma”g
workman, his duty was to promote the Saies business’
and on account of the instruction of the offiicerss
_ CL» . x V v_ x .. v~ V
‘”7_{1-Ina… {,.&Y’r~9{ _ xv ; iv a
was also eeqjésbed~to dreve the vehicie as a driver
in order to conduct test–driving and to satisfy the
customers. Considering the nature of work of the
deceased, even fiif d:ne~’a颧asedf could not be
considered as a driver, he-has to be considered as
a workmangc *thereforex’ his case falls under
Sec.2(n§(i) of the Workmen’s Compensation Act. In
the circuestances, he requests the court to dismiss
7, Haring heard the counsel for the parties, what
,fiis.tcrbe required to be considered by this court in
r; these afipeals are:
‘K/\\
8
“Whether the deceased was a workman and whether
policy issued by the Insurance Company covers
the risk of such workman?”
8. It is not in dispute that the deceased was an
employee of United Cars (P) Ltd.. The questlo5.1$xy
whether he was workman or an offiicerfygfifleimantsp
relying upon Ex.P-19 order of appointment isseed by
the employer in favour of deceased Kfindar contends
that the deceased has to be considered asia workman
considering the Vnaturel of yworkc assigned. to him.
According to thegclaimantsf_deceased was required
to drive iiii “the _vehicle} in “order to satisfy the
customers as a-testédriver and he has to promote
business of Rel- [In order to promote the business
§$£.a~:f he has to discharge all the work assigned
by the employer to satisfy the customers. So, in
V'<athe hcircumstances, on the ill–fated day he had
-@®gtaken Toyota Qualis for a test drive along with the
“Cfi$tQmér which vehicle met with an accident during
l,ghef course of employment. Even though the
h”«¢ontention is raised by the employer that on that
<"~/
9
day deceased has taken the vehicle without prior
permission of the employer has to be ruled fo’upt in
view of Ex.P-14 which is the certificate ieenefi by
the Managing Director of M/s United_Ca”rg
Mr.Ganesh Rao dated 6.2.2003 where he has certifiedii
the conduct of the deceased. Itfiwas alsLo’A.’cont.ehdedp
that the deceased had while
discharging his dutiesipbip ofvviinaterial is
placed before the deceased was
driving the Be that
as it may} .je’;r.cept4″‘–a’:’examiniv.ng- Einesh Somayaji
employer material to show that
the nature assigned to the deceased.
‘the hat-ipvretained all the documents with
its icustodyp ~,t”hough job card and other documents
deceased wjlisf/tfiavailable with the
employer, “”vAen’1ployer has not placed any material to
“ch.atv”‘ the deceased was an officer and not a
In the absence of such material withheld
byiwthe employer an adverse inference has to be
<"~
E0
drawn against the employer. Accordingly, we hold
that the deceased was a workman and not an officer.
considering the provisions of WC Act even thondh he
was not a driver as he was required to discharge =
with the work in any other capacity in connection"
with the motor vehicle as defined under 5e§.2}h)(ie
a) (c) of the Act, we are that the
case of the claimants. falle”p§%¢¢; the case of
workman. .According1y; lye tanswerigthe first point
against both the eppellantsgiji
9. Then’ eu.:estio’nV”Vlwould be whether the
appellantwinssraneeiycomnany is liable to satisfy
the award. of_ the Acomhissioner. So far as this
* ooint is concerned} admittedly the policy has been
issfied7hy the company only to cover the risk of a
“”vpaido_driver;l Qeceased was not a paid driver.
“:]*iherefore} liability fixed on the insurance company
‘=ha§=t§ be set aside only on this short ground.
3”
ii
10. in the circumstances, MFA 1055/2006 filed by
the insurance company is allowed” MA 10250/2006
filed by the employer is dismissed. Order of the
Comissioner is modified by holdiné ntnet “the
compensation awarded by the Commissioner has to Bed
satisfied by the owner of the yehioleofi/S United ”
Cars (P) Ltd..
Parties to bearstheir*co$temy
If any amount in deposit mede by the appellant-
insurance company_ie ordered to be refunded to the
appellantwinafirengg,oonyany in MA 1055/zooe.
Sd/’40
Judge
561/ i
Eedge
ee_0ff”»fR/010910