MFA 7698/2005
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15%! DAY or SEPTEMBER, 201D""'--..
BEFORE
THE HON'BLE MRJUSTICE A.s.eoP;§NN:A V Z" 'd
M.F.A.No.7698/2065 (WC! -1' D
BETWEEN:
National Insurance Company Limite
Davanagere DO,
through its Regional Office at
No.144, Subharam Complex}
M.G.Road, Bangalore M 560 001." .2
(By Sri B.c.seetha;gsuu__Rao_;'.§&v.§::
AND:
1. Smt. M _ -- .
W/o late A.M'.Siddiah;t'
Aged about 31 years.' , " '
2. A.M;Si1anmukh_as'Warny,
. S/_o':?1a't:c?_yfa M.Sid'diah... »
" Aged about' years.
D/OvaA.M.Sijd_daiah,
Aged abo11_tf9 years.
i;f~._Since R2 R3 are minors, they are
_ ' Rep1'esented by their mother and
n'atura1'.--'guardian the first
Q1-'espondent herein.
T ~ _. A. M.Nagendraiah,
Since deceased by his LR.
Shantharnma, Major,
W/o late A.M.Nagendraiah.
&.
pi
1%. .f.., }§1#PELLANT
MFA 7698/2005
All are residents of Gopanala, ._
Davanagere Taluk 3: District. RESPONDEEWS
(By Sri Gangadhar.G.D.. Adv. for R-1:
Sri S.MZ.Kalwad. Adv. for R4}
This Miscelianeous First Appea_iWi»s filed"'un:der"'Vi3eetion"
30(1) of W.C.Aet against the judgment' ivand
31.05.2005 passed in cWc:WcA;cR--zi1_;2a_03 on'§:_Ij.e».fiie'ef'the~.VV
Labour Officer and Con'1missione1'V for '*W0rk;nen's'W
Compensation, Chitradurga, awarding "c*o_1t1C1p:ensfation of
Rs.2.88.210/- with intere:s't..«_at _«12%n tpjeljxannum anti directing
the appellant herein to deposit It " -.
This appe§'.}"13(_)ii11ing::'_ or; day, the Court
made \5.:::§:,: "
1. The apr>"eiia11t5ii1su--rariee Company is calling in question
"'~the EiI.'G5--.2005 passed by the Commissioner for
.VWor}V{n1en"s:Co'1*z1i§>'e--t1sation, Chitradurga. The award is called in
question onground that the Commissioner has Wrongiy
' 'fastened liability on the appelianvinsurance Company who
impleaoed as respondent No.2 before the Commissioner.
3%»
MFA 7698/2005
3
2. Heard the learned Counsel for the parties and perused
the appeal papers including the records secured from the office
of the Commissioner for Workmen’s Compensation.
3. The contention of the appellant is
A.M.Siddaiah was none other than the son of respondent. _p V’
A.M.Nagendraiah who was the registered”oW_ner of
In that circumstance, it is contended’.th’atl. the o’~ecea’sed~.u
Siddaiah was not employed as a-dworkmatz. ‘under
No.1 before the Commissioner. ,Et”‘iscontended’that~’ex.cept for
the say of the claimant in this regard,” th_erefi.s “no other evidence
to establf;sh”Vlthe..:fact x.vas._Wen”lployed as a driver in the
tractor trvailer, it ,–contended that the appellant–
Insurance Coinpaiaycould have been made liable to pay the
.1
‘J”cornpe_nsation.c_whend tnerelationship of employer and employee
Cbetwelenep “:V”‘idTeceased and respondent No.1 before the
‘j__w5as not established. In this regard, learned
C.ounsel..for:_ the appellant would contend that the conclusion
reached’ by the Commissioner while answering this question is
to the evidence available on record, more particularly
” cross–examination of the claimant herself and the decision
is further without satisfact ry evidence being tendered by the
MFA 7698/2005
4
claimants and therefore, the same in itself would form a
substantial question of law for consideration as there is
perversity in the nature of conciusion reached by the
Commissioner.
4. Learned Counsel for the respondent, h0WeVGF,..’
justify the award passed by the Commissioner. _ V’
that the deceased and his father ~ respondent._No’.}ACs:_he_fore:V’the’«
Commissioner had partitioned the prope_rti’es and:theI*efore-Chadd
severed their joint status. it is thenffore contended_= thatuin such V
circumstance When respo”n.dent;tNo;i_:’jotiinped the'”t:ractor and
since to the tractor, respondent
No.1 had vvlemplolyed regard, it is contended that
respondent No}! had “filed the written statement admitting that
‘Shep wa’s’:”paj,Itng§_ the deceased, the monthly wages and also daily
.ValplowaI1cAe” the job of driving. it is also contended
that the’ who was not aware of the entire details has
_ adinitted. certain suggestions in the cross–examination and that
itslelficannot be held against the claimants. It is therefore
___”’contended that when the Commissioner has noticed the
“”e\.}idence available on record and has rendered a finding of fact
at;
,.
MFA 7698/2005
5
with regard to the relationship, the same does not call for
interference.
5. Having considered the rival contentions. the undisputed
facts in the present case is that the accident had occurred’~won
24.12.2oo1 and in the said accident involving fl1e__trac’t(gi*’ .
in question. the husband of the c1airnant_ had_.’die’d..: 0″‘
petition is flied before the Commissioner after’ aperiod of h.ea1:iy
three years, on 04.03.2004. In the
contended that deceased was driver” under
respondent No. 1. It is aisenot as on the date of
the accident; registered owner of the
tractor. .c1aimantsV_th_ere.foi’e contend that since by such
time there was severance of status between the members of
°°na__ine1.y, the “‘vro-thers of the deceased and respondent
an _ their:V”‘father, they were having their independent
avocation andfij_n.tt1e instant case even though the deceased was
e an agriculturist having the property, he was aiso working as a
driver”tinder his father. It is no doubt true that respondent
had filed written statement before the Commissioner and
0’ admitted the relationship. Though that is done, the fact to
be noticed in the instant case is in the absence of respondent
t
‘u
MFA 7698/2005
6
No.1 having been examined before the Commissioner and even
assuming the fact that he had subsequently died, whether the
claimants have produced any other material to indicate that in
fact there was relationship of employer and employeejbetvveen
the deceased and respondent No. l.
6. It is a fact that the partition deed..was.’t’produTC’ed” by
the Commissioner and the same wasprn-arl{ed.tt’~.The claitnailt
had, in that context conten’dc_:d~…. that” they t’bwere”‘v–res*iding’VJ’
separately and the deceased was “worki_rig under
respondent No.1. The evidence is the only
evidenceiavailablet Cornrnissioner. A perusal of the
cross–exaInination– of __clair:1ant would indicate that the
deceased _thadalso tal{enA’active part with regard to the purchase
“of in this’r’eg§Vrd, the admission is that in respect of
thel’vpu’rcha.se _of_the tractor, the amount was also arranged by
thedtdetceasedvftnd loan was also availed for purchase of the
tractor.’ also admitted by the claimant that installments
also paid by the deceased and in that circumstance, the
__t”tra’ctor’A was being owned by respondent No.1 before the
“”v(:3.ommissioner. It is no doubt true as contended by the learned
Counsel for the respondent that even assuming such
at
MFA 7698/2005
7
admissions are made, the fact that the tractor stood in the
name of respondent No.1 cannot be disputed. Even if this is
accepted as a fact, the issue is as to whether the deceased was
working as a driver under respondent No.1. On this .a’sp_’ect’=of
the matter, the law is also weil settled that there__A*is ~
another family member to work as_an__empiojfee–:’_nnderethe it”
other. However, the same has to be esAtab£,’ish*ed ‘hy’e\fider;:cc,
the instant case, except the oral say oflthe c1aimantv.which
fact has not withstood the test of regard
to the manner in which th«e.v:,tractor,i_ and the nature
of employment, I am of the..view».that :theA’Com§rnissioner has not
properly appreciate:l’:’the available on record to come to
the conclusion the relationship of the employer
_ and employee. ‘I’herefore,: in the facts and circumstances of the
ilfipprpesent “the claimant had not established that the
de”ceas_ed in:’i”apct working as a driver under respondent No.1
V and that too -in ” . a circumstance, where the burden was
it ” onrthe claimant when there was relationship of son and
father. between the deceased and respondent No. 1.
In view of the above, the conclusion reached by the
“claimant while answering points l\ios.1 & 2 which had been
J;
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MFA 7698/ 2005
raised for his consideration cannot be sustained. Accordingly,
the award dated 31.05.2005 is set aside. The
deposit shad} be refunded to the appellant.
8. The appea} stands disposed of Iaccordiiiéiyt 1\KIifI14’rx~-;§:»..Qrder«
as to costs.
di’*J¥idge