(Prayer: This MFA is filed under Section 30(1) of WC Act against the Order dated 24.12.2008 passed in WCA/Cr.No.12/2007 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, D.K., Sub Division – 1, Bendurvel, Mangalore, awarding a compensation of Rs.3,08,081/- with interest @ 12% p.a.
This MFA is filed under Section 30(1) of WC Act against the Judgment and Award dated 07.01.2009 passed in WCA/Cr.No.15/2007 on the file of the Labour Officer and Commissioner for Workmen Compensation, Sub Division – 1, Byndoor Well, Mangalore, dismissing the claim petition for compensation.)
1. Heard Sri. O Mahesh, learned counsel appearing for the insurance company and Sri. Ravishankar Shastry and Sri. P.Karunakar, learned counsels for the claimants in both the appeals.
2. Since the judgment and award challenged in these appeals consequent upon the accident dated 10.04.2005 involving the Compressor Tractor bearing No. KA-19-P-2595, they are taken together for disposal.
3. The clai
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mants are the dependants of deceased K.N. Manjunath and K. Pradeep. By the impugned judgments, the claim petition filed in respect of the death of K.N. Manjunath is dismissed and the claim petition filed by dependants of K.Pradeep is allowed by the Labour Officer and Commissioner for Workmen’s Compensation, D.K., Sub Division – 1, Bendurvel, Mangalore ( for brevity, “Commissioner”).
4. While the insurer is challenging the judgment and award passed in allowing the claim petition in MFA No. 4111/2009, the claimants are assailing the award in rejecting their claim petition in MFA 4413/2009.
5. Facts of the case are not in dispute between the parties. Claim petitions were filed contending that deceased K.Pradeep, son of the claimants of WCACR No.12/2007 (MFA 4111/2009) was working as a driver under the first respondent in his Compressor Tractor bearing No. KA 19-P-2595: on the direction of the employer, he was proceeding in his vehicle on 10.04.2005 from Kowdugoli to Gidubail: to avoid opposite vehicle, he took his vehicle to the extreme left, due to which, the vehicle turtled. He was admitted to the hospital and was declared dead.
6. The claimants in WCACR 15/2007 (MFA 4413/2009) are the widow, minor child and mother of the deceased K.N.Manjunath. The claimants contended that the deceased was working as a driller/breaker in the above vehicle and as per the direction of the employer, he was proceeding in the vehicle for his work and expired during the accident.
7. Both claims were contested. The employer filed his objection statement admitting the employer and employee relationship and also the mode of accident as alleged in the claim petitions. The insurer, among other things disputed the fact that the accident has occurred during the course of employment and arising out of the employment. The Commissioner vide order dated 24.12.2008 allowed the claim petition of parents of deceased K. Pradeep and on 07.01.2009 allowed the claim petition of dependents of the deceased, K.N.Manjunath.
8. The appeal MFA No. 4413/2009 is admitted to consider the following question of law:-
“Whether the Commissioner for Workmen’s Compensation was justified in holding that the death of K.N.Manjunath is not in the course of employment?”
9. While the question of law framed supra holds good for adjudication of both appeals.
10. Sri. O. Mahesh, learned counsel appearing for the insurance company submits that the very finding recorded by the Commissioner in WCACR No.12/2007 (MFA 4111/2009) that the death of the deceased occurred during the course of employment and arises out of employment is erroneous. The insurer during enquiry had produced the complaint lodged by one of the co-workers of the deceased to the jurisdictional police, wherein, it was stated that the deceased persons and the co-employee had taken the vehicle on Sunday to purchase grocery and during the return journey, said accident had occurred. Hence the accident occurred neither during the course of alleged employment nor out of employment since the vehicle was used without the instruction of the insured-employer. The same Commissioner rejected the similar contention in the claim filed in WCACR No.15/2007 and he could not have allowed the present petition. Moreover the accident occurred on a Sunday and as admitted by the witnesses it was a holiday. In that view of the matter, the insurer is not under any obligation to indemnify the risk of the employer/owner of the vehicle. That apart, no claim was made against the driver and owner of the offending vehicle and there was no actual impact between the two vehicles. The claimants could have claimed for compensation from the driver and owner of the offending vehicle, but they have given up. Further, learned counsel would seek to sustain the order passed by the Commissioner, which is under challenge in MFA No. 4413/2009 in rejecting the claim petition, as just and reasonable.
11. Sri. Ravishankar Shastry, learned counsel representing the respondents-claimants in MFA No.4111/2009 submits that either the insurer or the employer at the threshold had not pleaded that it was a Sunday and the accident had not occurred during the course of the employment. If such plea was there in the objection statement filed by them to the claim petition, the claimants would have an opportunity to meet the same and for the first time, before this court, that too at the time of submitting arguments, the insurer is advancing a new contention that it was a Sunday, same cannot be entertained at the stage of appeal. The employer has admitted the fact that deceased K.Pradeep was the driver of the vehicle KA-19-P-2595 involved in the accident and same is insured by the appellant/insurance company. The claimants all through contended that under the direction of the employer, the driver had taken the vehicle. Definitely the accident occurred during the course of employment and arises out the employment. If at all, the deceased had taken the vehicle unauthorizedly, the owner would have taken disciplinary action against the co-employees who accompanied the deceased in the vehicle. Merely, because it was Sunday, it cannot be presumed that the private employer would not deploy his vehicle and employees on work. The award passed by the Commissioner in allowing the claim of dependants of Late. K.Praddep in upholding the contention of the claimants that the accident occurred during the course of the employment and arises out of the employment is well founded and on proper appreciation of the evidentiary material borne on record and no question of law can be raised for the insurer and the appeal is liable to be dismissed.
12. Sri. P. Karunakar, learned counsel for the claimants in MFA No. 4413/2009 (pertaining to the claim on the death of Late. K.N.Manjunath, which is dismissed by the Commissioner) adopting the submission of Sri. Ravishankar Shastry would further submit that claimants are the young widow, minor child and the mother of the deceased. Having held that there exists employer and employee relationship between the first respondent and the deceased, the Commissioner was not justified in dismissing the claim petition. The theory of the incident occurring on Sunday was introduced subsequently and the Commissioner was not justified in taking a contrary view to the one he has taken in WCACR No.12/2005. Hence the award of dismissal of the claim petition may be set aside and the matter may be remanded to the Commissioner to compute compensation as per Section 4 of the Workmen’s compensation Act holding the employer and the insurer jointly and responsibly to pay the compensation amount.
13. With the above submissions, I have perused the judgments impugned and also the lower court records.
14. As rightly pointed by the learned counsels, it was nobody’s pleading that Sunday was a holiday and accident occurred on a holiday. However, the employer in his objection statement though had not disputed the fact that deceased were his employees and also had not disputed the occurrence of the accident while using his Compressor Tractor bearing No. KA-19-P-2295, had not specifically admitted that the accident occurred during the course of the employment and arises out of the employment. It emerged during the cross-examination that the deceased was working in a quarry of the employer and Sunday was a holiday.
15. The insurance company had examined its officer and had produced copies of the FIR and charge sheet of the criminal case pertaining to the said accident. The charge sheet is filed against the deceased K. Pradeep, since he was the man on the wheels of the vehicle as per prosecution case. One of the co-employee who was also travelling in the vehicle had lodged complaint to the effect that they had gone to purchase grocery and on return journey, accident occurred while taking the vehicle to the extreme left on observing the opposite vehicle coming in a high speed. Of course, the documents produced are not the certified copies obtained from the criminal court. Neither the complainant nor any of the eyewitnesses to the incident are examined during the enquiry before the Commissioner. Still it stands to clear from the evidence of the claimants and the employer that the vehicle used to be in the custody of the driver and it is weekly holiday on Sundays and there was no instruction by the employer to take the vehicle for work.
16. In that view of the matter, the findings recorded by the Commissioner in WCACR No.15/2007 that the accident has not occurred during the course of the employment and out of the employment cannot be found fault with. Hence the above point of law is answered in favour of the appellant-insurance company and against the claimants.
17. Accordingly, the appeal in MFA 4111/2009 is allowed. The award dated 24.12.2008 passed in WCA/CR.No.12/2007 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Sub Division – 1, Byndoor Well, Mangalore is modified. The insurance company is exonerated of its liability to pay compensation to the claimants without prejudice to the right of the claimants to execute the order against the employer.
The Appellant-insurer is entitled to withdraw the entire amount deposited in the Registry.
18. MFA No. 4413/2019 filed by claimants is rejected.
No order as to costs in both appeals.