MFA No.902.9 of 2005 8: C__matters
: 1 :
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT BHARWAD
DATED THIS THE. 27TH my GP' NOVEMBER .
BEFORE A ' '
THE .'HON'BLE MR.JUST1CE_B.S_.'PATfi,. S
MISCELLANEOUS FIRST APP:E}ALj'1\}o;9(C)'2.§ /.12"(:ai>5V[j"e-.__
C /w MFA 520.9030/2005 8; MFA re«zo.'5o04/20,05', {we-1
En MFA No.9029/2005
BETWEEN:
Srnt. Rabiabi, W/0 1brah:m_Sh1S'e1:h,S~.._V
Aged about 39 years, C' I »
Resident of Mad1'€fSa',* V.
Teri Road, _I\,1{it*z;a1*i,V. K.umjt_a1"EalL1'k,f,' V
North Canaixa ...APPELLANT
(By Sr1}\_/.P._
AND:
- _1. Agrii, S/o.edAbbdL:'
V « .Aged"'rnaj40::, Badanitiyur,
1?est"'E(,;-1d.eii:e,"-"Dist. Udupi~5'76 101.
2; D;vi'sip15:a1 Manager,
Divisienal Office,
United'1~India Insurance Co.,
~ Iiaikifii Road, Karwar--5813O1.
: Vabfahim Shiekh,
is/o Ahmed Rahrnan Shiekh,
Aged about 45 years.
MFA No.9029 of 2005 & Cmmatters
4. Kum. Shama Banu,
D/0 Ebrahim Shiekh,
Aged about 20 years
5. Kum. Jasmin,
D / o Ebrahim Shiekh,
Aged about 19 years,
Respondent Nos.3 to 5 are 0
Resident of Near Arabi M.ad3:_asa, 2 0′
Mirjan, Tari Road,
Kumta Taluk–581343. …’RE_SPONgDENTS
(By Sri. S.K.Acharya, ”
Sri. M.G.Gadago1i, Aciivt, for’R2_}.__”–
This miscelljaneous ..’.first””app¢ei;1 is filed under
Section 30(1). c$f’d__-_the:A Workn1en’s Cldompensation Act
against the _§-i1dgm–ent’*~.s”j’.ari’d.__orde1′ dated 24.03.2005
passed__inv W_Cf¥:«1SR:4/’Z0004 on the file of the Labour
Officerj _ 3″fVCor’r1n*iission’er for Workmen’s
Compensation,”xU.,K;D’i’st§;w.Karwar, allowing the claim
petitiondfor coInpensatio_n.aLnd seeking enhancement of
compensa’£ion,V 0′ ”
En No.9o30«,f2_QQ5
:3″ 3
id; Sint.
WN/ 0 late «Shabuddin Kazi,
Aged about 4′? years,
, shabuddin,
‘S/’o Abdul Khader Kazi,
Aged about 52 years,
MFA No.9029 of 2005 & C_n”iatter*s
Both r/o at Meherna Manzil,
Janata Colony, Near Darga,
Kurnta,
Uttar Kannada District~»581343. …APPELLANTS
(By Sri. V.P.Ku.1karni, Advocate)
A N D :
1. Arif, S/o Abbu Saheb,
Aged 25 years, Badanitiyur, ‘
Post Kadake, Dist. Udupi.
2. The Divisional Manager,
Divisional Office, _
United India Insurance C0-3″ –
Kaikini Road, 17_30,’–1..,” ” §;..RESF’ONDENTS
(By Sri. Subhash Kuma.r.A_chaieyai, ;$;’c1~§%.’,7!iji:~i¥ R1
Sri. Ganga.d–h_aif Sangolli; A.dv.’,’_gfoi:’ R2)
This: ‘ixiiscefi-1aie1eo’x.:_S””-first appeal is fiied under
Section *30(1) ‘of’ ..iti’J.e’~~._}N’oi’kmen’s Compensation Act
against tuhe” j_ud’gm’en’t, order dated 24.03.2005
passed. in WCA’:SR:5’/2004 on the file of the Labour
Officer and”=.__COmmissi0ner for Workrnen’s
V .””C,on1pen’Sation, U.K.Dist., Karwar, allowing the claim
‘petiti,on._forucornpensation and seeking enhancement of
e–compens’ation’.- . V
In i1w.FA,:w’od.iss0o4/2005
1,” Ebiahim Shiekh,
E S / o Ahmed Rahman Shiekh,
it Aged about 45 years.
MFA N0.9029 of 2005 8: C__matters
2. Smt. Rabiabi,
W/0 Ibrahim Shiekh,
Aged about 39 years,
Both are resident of near Arbi Madrasa,
Teri Road, Mirzan, Kumta Taluk, ”
North Canara District. …A]F’$?EIgLAI’€’E’S u
(By Sri. V.P.Ku1karni, Advocate)
A N D : A’
1. Arif, S/0 Abbu Saheb,
Aged major, Badanitiyur,
Post Kadake, Dist. v’i’.__T”c:iv=,_1p;’.._’ .. .
Divisional Office, _ H _ ” ,
United India £i,:;.sL1′:af1ee:C’o., ”
Kaikini 1§1oa’d,Ke;1jWa1jg58.l3O1′;,_’ V
3. Kum, ‘ Sharha ‘ ‘ -. ~ «
D/0 Ebmhim vShiVe1.«;h,,
Aged about,_20.y’ears
. …..
A ,,’D__/,o,Ebrahim Shiekh,
V Aged.Tab2GL1,te~.19 years,
Aflespendendt Nos.3 8:: 4 are
Resident of Near Arabi Madrasa,
_ I\/Iirja;_r1,TariRoad,
VKumta Ta1uk–5814-40. …RESPONDEN’I’S
(Ey sri. Gangadhar Sangoili, Adv., for R2)
MFA No.9029 of 2005 & Cfimatters
This miscellaneous first appeal is filed under
Section 30(1) of the Workmen’s Compensation Act
against the judgment and order dated 24.03.2005
passed in WCA:SR:4/2004 on the file of the_.vLaho’e1r
Officer and Commissioner for \25!or}{riie’1;1’s ..
Compensation, U.K.Dist., Karwar, allowing-‘?the”‘-elatirii-.gig
petition for compensation and seeking enhance;nent of K
compensation. ‘C A ‘
These miscellaneous first
admission this day, the Court_4_de1iVered thecVfcFi1ovWing’;§ ‘
Junemggg
Shri M.G.Gadaga_1i;«. 1earn§eAd’ ‘CO1,iI’1Se1, who appears
in the connected matters,_ is ‘di1iectedVto_—-take notice for
the 2nd H Company (in
C
common questions of
law fact Cforiiiconsideration. Hence, they are
heardiflitogether and disposed of by this
‘fl Vi3.M.’Ff.’:flA;e1NO.9029/2005 and M.F.A.N0.5004/2005
‘share ifileda; the dependants of the deceased–Nayeem.
it 2»it/i5FLA.No.9O3O/2005 is filed by the dependants of the
MFA i\lo.9029 of 2005 & C_rnatters
deceased driver–Ansar. The deceased Nayeem and Ansar
were engaged as cleaner and driver respectively.Vinyjihe
lorry bearing registration No.KA–20/ _
involved in the accident. The _ ”
04.12.2003 as a result of
On the basis of the evidence-.V..oniirecord_,
found that the accident the
course of empioymentitifh and the
driver engaged_in__ regards the
iiability to” though the
concliision that the lorry in
question was with the respondent-
insurance cornpaiiyj-as he found that there was no
. i.°=mvateria1*progducedweither by the claimant or by the
‘s–..ins;L1raniCe. “company to show that the driver possessed
any’, iicence at the time of the accident, the
:”‘1ia}0i1ity»—iicould not be fastened on the insurance
‘cornpiany. Though the compensation payabie came to be
-determined, the entire responsibility to pay the amount
MFA No.9029 of 2005 & Cmmatters
:7:
has been fastened on the owner of the lorry. in these
appeals, the appellants are challenging the award
passed by the Commissioner. V. l
4. The essential grievance is with
fastening of the liability on the
insurance company. Thoughy. an attenipzt is
that the amount of compenlslation it the
lower side, on per1.isa.l”‘of onlrecord, I do
not find any
5’;’HHloWe}§rer,li thvelllfinding recorded stating
that the driver valid licence, learned
counsel for ltliel appe1i1a1i1: “drew the attention of the Court
‘ Vito the 5»appiication%filied seeking permission to adduce
eyidezlce. In the affidavit filed in support of
the’-~app}VicaVtioin, it is stated that the driver of the vehicle,
“in yfact,=..–possessed licence to drive a transport vehicle
.-WlV’i’i~’.’_’l”i’ was effective on the date of the accident. The
~»o:i’iginal endorsement issued by the licensing authority
Pi»
MFA No.9029 of 2005 & C_matters
is produced along with a memo dated 17.11.2006,
which is part of the records of this case. A perusallolfi
said endorsement makes it clear that
possess a licence as on the of the.acciden_It;t._. ,. ‘:1. V ‘ V i
6. It is Well established that
taken by the insurance ‘the if
driver did not possess 1iceriee,– theppresponsibiility lies
on the insurance burden by
producing from the
authorities? the driver of the
vehiclelidid licence so as to exonerate it
from liability. case, no such effort is
made, by the”in_snrance company. However, the
Cornrnis_sio11ervhas proceeded to fasten the liability only
on the ownfeurtholding that no material was produced to
Iphshovv that the driver possessed valid driving licence. The
A C_’appi’oaeh adopted by the Commissioner is, therefore,
i illegal. At any rate, now that an application is filed by
MFA No.9029 of 2005 8:. Cmmatters
the dependants of the deceased driver and cleaner with
an endorsement issued by the licensing a},1thority
showing that the deceased driver had, in .
a licence, the application deservehsggtopbe
endorsement has to be taken on
counsel for the respondent4in:s-tgrancelcc-mpiangfpsubmits = it
that evidence needs to be ~ to the
said endorsement recorded as to
Whether the.. ..1iQ¢’fiC€%’VV’ the deceased
authorised€.hiim__ vehicle in question, I
find it to this matter to the
Commissioner to permit the parties to
lead g.evidence._:Vvs/ith regard to the issue regarding the
l possessing driving licence on the date of the
A t-aceide11t.’* K ” – . .
7.V”‘}gIence, these three appeals are allowed in part.
V’ ‘..:if*I’hei”§7inding recorded by the Commissioner with regard
‘ to; the absence of valid licencee possessed by the driver
MFA No.9029 of 2005 & C_matters
:10:
and the consequent liability fastened only on the owner
is set aside. The matter is remitted to the Commyisysiojner
with a direction to record necessary findingsjaiitih .
to the liability of the insurer and .th.e,_owne’r”tjyf it”
fair and reasonable opportunityizto
lead their evidence. With otizflfifitfl=m.gg§_3¢Ir1’t .’ ,
award passed by the ‘isleift undisturbed.
Shri M.G.Gadagoii_f’~ for the
insurance company is;_”permitte’d’,’to filtzz Vakalath within
three Weeks. _ ….
by ysd/-.
JUDGE
Kms* _ . .