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New India Assurance Co Ltd., Rep. by Deputy Manager, Bangalore v/s P.N. Harish & Others

    MFA. No. 45 of 2010 (WC)

    Decided On, 02 August 2021

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE H.T. NARENDRA PRASAD

    For the Appellant: R. Jaiprakash, Advocate. For the Respondents: -----



Judgment Text

(Prayer: This MFA id filed U/S 30(1) of W.C. Act against the order dated 25.11.2009 passed in WCA: CR. 12/2008F on the file of the labour officer and Commissioner for workmen compensation. Sub Division-1, Dakshina Kannada, Mangalore, awarding A Compensation of Rs.4,22,975/- with interest @ 12% P.A.)

1. This appeal is filed by the Insurance Company under Section 30(1) of Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’, for short) being aggrieved by the judgment dated 25.11.2009 passed by the Workmen Compensation, Sub-Division-I, Mangalore in WCA/CR-12/2008F.

2. Facts giving rise to the filing of the appeal briefly stated are that on 26.1.2008, the deceased Devaraj Acharya was driving the Maruthi Omni car Bearing No.KA-01-M-7012, on NH-7 near Jappina Moguru, the deceased lost control over the vehicle and dashed to the electric pole. As a result of the aforesaid accident, the electric pole fell on the vehicle and deceased was electrocuted.

3. The claimants filed separate petitions before the Commissioner for Workmen’s Compensation seeking compensation for the death of the deceased along with interest.

4. On service of summons, the respondents appeared through counsel and filed written statement in which the averments made in the petition were denied.

5. On the basis of the pleadings of the parties, the Commissioner for Workmen’s Compensation framed the issues and thereafter recorded the evidence and by impugned judgment, inter alia, held that the claimants are entitled to a compensation of Rs.4,22,975/- along with interest at the rate of 12% p.a. for the death of deceased and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

6. The learned counsel for the Insurance Company has contended that it is very clear from Ex.P-2, PM report, where the statement of Mr.Nagaraj was recorded, it is mentioned that the deceased was working as Carpenter. The Insurance Company has taken a specific contention before the Commissioner that the deceased was not an employee working under respondent No.1 The Commissioner contrary to the materials available on record has given a finding that the claimants have proved the there is employer and employee relationship and awarded compensation along with interest. This finding of the Commissioner is unsustainable. He further contended that if the deceased was a driver and working under respondent No.1, but the respondent No.1 has not produced the driving licence of the deceased to prove that the deceased was a driver. Hence, he sought for allowing the appeals.

7. Respondents are served and unrepresented.

8. Heard the learned counsel for the appellant and perused the records.

9. The appeal is admitted to consider the following substantial question of law.

“a) Whether the deceased was an employee working as driver under respondent No.1 at the time of his death in the facts and circumstances of the case?”

10. It is not is dispute that deceased Devaraj Acharya died in the accident occurred on 26.10.2009 during the course of his employment. The claimant No.2 who is the wife of the deceased has been examined as PW-1. She has stated that the deceased was working as driver under respondent No.1 and he died during the course of his employment. Her evidence is supported by the police records such as FIR and charge sheet. Even though the Insurance Company has taken a contention that the deceased was not a driver and he was working was carpenter, but they have not adduced any evidence to prove their case. Even though as per Ex.P-2, PM Report, it is mentioned by Mr.Nagaraj in his statement that the deceased was a Carpenter, but the same has been categorically denied by claimant No.2 in her evidence of PW-1 and FIR Ex.P-1, spot mahazar Ex.P-2, charge sheet Ex.P-5, has rightly held that the claimants have proved that the deceased was working as a driver under respondent No.1 and the deceased died during the course of his employment. Hence, the subs

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tantial question of law framed by this Court is answered accordingly. 11. In view of the above, I do not find any error in the finding of the Commissioner and hence, I decline to interfere with the judgment and award of the Commissioner. Accordingly, the appeal is dismissed. The amount is deposit, if any, before this court is ordered to be transferred to the Commissioner for Workmen’s compensation, Sub-Division-I, Mangalore forthwith.
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