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MFA No. 25462 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
ST
DATED THIS THE 31 DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA
MFA NO. 25462 OF 2011 (WC)
BETWEEN:
THE AREA MANAGER, BAJAJ ALLIANZ
GENERAL INSURANCE COMPANY LIMITED
TH
V.A. KALBURGI MANSION, 4 FLOOR
IN FRONT OF MUNICIPAL CORPORATION
LAMINGTON ROAD, HUBLI
NOW REPRESENTED BY AUTHORIZED OFFICER.
… APPELLANT
(BY SRI. S.K. KAYAKAMATH, ADV.)
AND:
1 . SMT. RATNAVVA W/O. IRAPPA @ VEERESH HULIHALLI
R/O: HEDIYAL, TQ: RANEBENNUR, DIST: HAVERI
2 . NAVEEN S/O. IRAPPA @ VEERESH HULIHALLI
R/O: HEDIYAL, TQ: RANEBENNUR, DIST: HAVERI
3 . NAIANA D/O. IRAPPA @ VEERESH HULIHALLI
R/O. HEDIYAL TQ: RANEBENNUR, DIST:HAVERI.
ND RD
2 AND 3 RESPONDENTS ARE MINORS,
Digitally signed by REP. BY THEIR GUARDIAN AND NATURAL
PRAJWAL A
MOTHER RESPONDENT NO.1
Location: HIGH COURT
4 . SMT. PARVATEVVA W/O. HANUMANTAPPA HULIHALLI
OF KARNATAKA
R/O: HEDIYAL TQ: RANEBENNUR, DIST:HAVERI
5 . SRI. NAYAJUDDIN S/O. M.K.SHIRAJUDDIN
R/O: BADA MAKAN, HORPET, CHITRADURGA.
… RESPONDENTS
(BY SRI. PRUTHVI K.S., ADV. FOR R1;
R2 AND R3 MINOR REPRESENTED BY R1;
NOTICE TO R5 SERVED; R4 DECEASED)
THIS MFA IS FILED UNDER SECTION 30(1) OF THE
W.C.ACT 1923, AGAINS THE JUDGMENT AND AWARD DATED
12.04.2011 PASSED IN W.C.A.F.-146/2008 ON THE FILE OF THE
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MFA No. 25462 of 2011
LABOUR OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, HAVERI DISTRICT HAVERI, AWARDING THE
COMPENSATION OF RS.4,07,700/- WITH INTEREST AT THE RATE
OF 12% P.A., FROM THE DATE OF THE PETITION AND SHALL BE
DEPOSITED WITHIN ONE MONTH FROM THE DATE OF ORDER.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA, J., DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA)
In this appeal, the insurance company is
challenging the judgment and award dated 12.04.2011 in
WCA/F.146/2008 passed by the Commissioner for
Workmen's Compensation, Haveri ('the Commissioner'
for short).
2. For the sake of convenience, the rank of the
parties will be referred to as stood before the
Commissioner.
3. Brief facts of the case are, one Erappa @
Veeresha Hulihalli, the deceased, who is the husband of
first petitioner, father of petitioner Nos.2 and 3 and son
of fourth petitioner, while working under first respondent
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MFA No. 25462 of 2011
as a driver in the lorry bearing Reg.No.KA-16/A-5293,
carried the onion load from Chitradurga to Goa. In his
return journey, on 12.06.2008 on Ramanagara-Alnavara
road canal Bridge No.56/1, after parking the lorry by the
side of the road while taking bath in the canal was
slipped, drowned and died. The petitioners being
dependants of the deceased have approached the
Commissioner for grant of compensation. Claim was
opposed by the respondents. The Commissioner after
taking the evidence and hearing on both the parties, by
the impugned judgment and award allowed the claim of
the petitioners awarding compensation of Rs.4,07,700/-
with interest @ 12% per annum, directed the
respondents to deposit the compensation. Aggrieved by
the same, the insurance company is before this Court
raising the several substantial questions of law.
4. After hearing the arguments of Shri.
S.K.Kayakamath, leaned counsel for the insurance
company and Shri.Pruthvi K.S., learned counsel for the
petitioners, the following substantial questions of law:
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MFA No. 25462 of 2011
(i) Whether the Commissioner is justified in saddling
the liability against the insurance company holding
there exists relationship of employee and employer
between deceased and first respondent?
(ii) Whether the Commissioner is justified in accepting
the final report of the police in holding that the death
of the deceased was by use of insured vehicle?
5. It is contended by the learned counsel for the
insurance company that there is no relationship of
employee and employer between the deceased and the
owner of the lorry. Acceptance of the final report by the
Commissioner is contrary to the statutory provision.
There is no involvement of the vehicle in question as the
death was occurred due to drowning. When the vehicle in
question was not involved and the relationship of
employee and the employer is under dispute, the
Commissioner erroneously accepted the relationship and
also assessed the compensation and fastened the liability
against the insurance company.
5.1. To support his contention, he has relied on the
judgment of Hon'ble Apex Court in Mamtaj Bi Bapusab
Nadaf and Ors v. United India Insurance Co. and
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MFA No. 25462 of 2011
1
Ors and Mallikarjun G. Hiremath v. The Branch
2
Manager, Oriental insurance company Ltd. the
judgment of the Coordinate Bench of this Court in
MFA.No.5142/2010 and MFA.No.21749/2010.
6. Per contra, learned counsel for the petitioners
has contended that the deceased was working as a driver
under first respondent for 2-3 years prior to the incident.
The deceased was carried onion load from Chitradurga to
Goa, while returning near Ramanagara he has parked the
lorry by the side of the road and gone for bath, slipped
and drowned inside the canal. The incident took place
during the course of employment. Under such
circumstances, the case laws relied upon by the
insurance company not applicable to the case on hand.
6.1. To buttress his arguments, he has relied on
the judgment of the Hon'ble Apex Court in Poonam Devi
and Others v. Oriental Insurance Company Ltd.
1
Manu/SC/0725/2010
2
Manu SC/0202/2009
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MFA No. 25462 of 2011
Civil Appeal No.1836/2020 (arising out of SLP(C)
No(s).33445 of 2014).
7. I have given my anxious consideration to the
arguments addressed on behalf of both parties and
perused the records.
8. With respect to the first Question of law is
concerned, the evidence on record goes to show that 4
months prior to the incident, the deceased was employed
by first respondent as driver of his lorry. The prosecution
papers clearly goes to show that at the time of accident,
the deceased was returning from Goa to Chitradurga.
One Basavraju reported the death of the deceased in the
canal on 13.06.2008. Based on the same, Ex.P2-FIR
came to be registered under Section 174C of Cr.P.C and
ultimately final report under Ex.P3 came to be filed. The
summary of said report that the deceased while working
as driver of the lorry was drowned in the canal as he was
taking bath by parking the lorry by the side of the road.
During the course of inquest, the statements of witnesses
have been recorded wherein it is specifically stated that
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MFA No. 25462 of 2011
the deceased was the driver of the lorry and he was
drowned in the canal while taking bath when he was
driving back the lorry to Chitradurga from Goa.
9. The officer examined on behalf of the insurance
company, during the course of cross-examination, has
categorically admitted that prosecution papers have not
been challenged by the insurance company. The material
on record is very clear at the time of dead body of the
deceased was traced, the lorry in question was parked by
the side of the road near the canal.
10. During the course of cross-examination of the
first petitioner who is examined as PW.1, nothing is
elicited that the deceased was not a driver nor he was
working under first respondent. The place where the
deceased was drowned is an unknown place, it is on the
middle of the route between Goa to Chitradurga. When
the death of the deceased was reported to the police, the
family members were not knowing anything about cause
of death. To explain that the deceased was the driver, his
DL is placed before the Commissioner. The Commissioner
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MFA No. 25462 of 2011
has re-appreciated all these factors and came to the right
conclusion that the deceased was died when he was
returning to Chitradurga from Goa having drowned in the
canal at Ramanagara.
11. On behalf of first respondent no evidence is
placed before the Commissioner that the deceased was
not employed by him. If the first respondent has not
employed the deceased how the lorry belonging to first
respondent carried the onion load from Chitradurga to
Goa and it was returned without a driver. The evidence
on record is sufficient to accept that at the time of
incident, the deceased was the driver of the lorry in
question. Accordingly, substantial question of law No.1 is
answered.
nd
12. As regarding 2 Question of law is concerned,
the Commissioner has considered the age of the
deceased at 32 and applied the formula as per Column
4(1) of the Workmen's Compensation Act by selecting
the factor 203.85 and taken
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MFA No. 25462 of 2011
the income at Rs.4,000/-.
Rs.4,000/2=2,000*203.85=Rs.4,07,700/-.
13. As regarding liability is concerned, the main
contention of the insurance company is that there is no
connection between the vehicle and death of the
deceased and the insurance company is not liable to
indemnify the owner. As discussed above, the lorry was
parked by the side of the road and the deceased was
taking the bath when he was drowned. The Hon'ble Apex
Court in Malikarjuna G. Hiremath as well as Mamtaj
Bi Bapusab Nadaf dealing with factual situation where
the driver of the lorry was reached the destination and
thereafter the incident had taken place. It goes to
indicate that the employment of the driver was
completed as he was no more the driver of the lorry.
Under such circumstances, it was held that the insurance
company is not liable.
14. The Coordinate Bench of this Court in The
Divisional Manager v. Smt.Chandbi and others in
MFA.No.21749/2010 relying on the judgment in Bajaj
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MFA No. 25462 of 2011
Allianz General Insurance Company Bellary v.
Kiranmai and others in MFA.No.5142/2010 by order
dated 16.06.2022 held that insurance Company is not
liable. The facts in Chandbi is that the driver of the lorry
was sleeping on the load, died because of fall therefrom
to the ground. The thin line difference is that driver has
already reached destination, in order to protect the goods
he was sleeping on the lorry. Therefore, the principles of
Malikarjuna G. Hiremath and Mamtaj Bi Bapusab
Nadaf (supra) not applicable to the facts of this case.
The facts of the case in Kiranmai (supra) is not clear.
15. The Hon'ble Apex Court in Poonam Devi's
discussed that during the course of employment the
incident has occurred. The facts is that the driver was in
the transit. Before reaching the destination due to
roaring temperature of 42.6°C in Yamunagar (Haryana)
he has parked the lorry and went to the canal to fetch
water for himself as well as the lorry, where he was
drowned. The Hon'ble Apex Court extends theory of
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notional extension as the incident was on the middle of
transit.
16. The Hon'ble Apex Court further referring to the
3
judgment in B.E.S.T. Undertaking v. Agnes and Leela
4
Bai and anr. v. Seema Chouhan and anr. held that
the facts and circumstances of each case will have to be
examined very carefully in order to determine whether
the accident arose out of and in the course of the
employment to give effect the theory of notional
extension.
17. In Mallikarjun G. Hiremath it was
distinguished that, the deceased had completed his
journey from Siraguppa to Gurugunta Angreshwar
temple, after which he went to the pond and while taking
a bath slipped and drowned. It is identical to the case of
Mamtab Bi's case. In Poonam Devi's case and in this
case facts are identical in nature. Mamtaj Bi Bapusab
Nadaf, Mallikarjuna G. Hiremath, Kiranmai as well as
3
AIR 1964 SC 193
4
(2019) 4 SCC 325
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MFA No. 25462 of 2011
Chandbi's cases were decided on a different set of
facts. The employment of the deceased was in force at
the time of incident as he was in transit and theory of
notional extension came to the aid of the petitioners.
18. Referring to the judgment of the House of
Lords in Quinn v. Leathem 1901 A.C. 495 Co-ordinate
bench of this Court observed that a decision is an
authority for the proposition that is actually laid down in
a given fact matrix and not for all that which logically
follows from what has been laid down, which means to
say that the principles laid down in each judgment is on
the set of facts of that case and it cannot be universally
applied to all the cases where the facts are different.
19. The appellant relaying the Judgments decided
on different set of facts which are not imparting the
impugned order of the Commissioner. There is no error
or illegality in the order of the Commissioner.
20. In view of the above findings, both the
substantial questions of law are answered against the
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MFA No. 25462 of 2011
insurance company. The appeal is devoid of merits, in
the result, the following:
ORDER
dismissed
(i) Appeal is ;
(ii) The insurance company is directed to satisfy the
award;
(iii) The office shall transmit the statutory deposit to
the Commissioner for disbursement;
(iv) The insurance company shall deposit the balance
compensation, if any with interest within 4 weeks
from the date of receipt of certified copy of this
judgment.
SD/-
(T. G. SHIVASHANKARE GOWDA)
JUDGE
MKM
List No.: 19 Sl No.: 1