Karnataka Land Army Corporation and anr. Vs. Smt. Somavva and ors. - Court Judgment

Chidananda Ullal, J.

1. In filing the instant appeal, the Karnataka Land Army Corporation had challenged the order dated 2.5.1996 in Case No. KA. NA. PA/NR.55/91 passed by the Workmen's Compensation Commissioner, North Canara District, Karwar. In passing the said' order, the Workmen's Compensation Commissioner, North Canara District, Karwar (henceforth in brief referred to as the WCC) had awarded a sum of Rs. 61,236/- together with interest @ 6% p.a. on that amount.

2. The learned Counsel for the appellants Mr. Prasad had taken me through the impugned order passed by the WCC. He had also taken me in brief the facts of the case. He had further taken me through the evidence of the respondent No. 1 on the one side and the appellant Corporation on the other.

3. At the outset, Mr. Prasad had argued that the NMR what his party had produced before the WCC under a memo on 30.11.1995, copy found as at page No. 180 of the records, is not at all forthcoming in the records. He had also pointed out that in the very memo it had been set out that the NMR's attested copies were containing in all 92 pages and, therefore, it is obvious that the said voluminous document was misplaced by the WCC. He had also pointed out that the learned WCC had also very well referred to the said document to base his orders but all the more the same is found to be missing on the records.

4. In that context, Mr. Prasad had also argued that it is quite possible even when the impugned order came to be passed by the WCC, that document was not at all before him. Therefore, according to him, on that short ground alone, the impugned order of the WCC is liable to be set aside.

Nextly, Mr. Prasad had argued that the respondent No. 1 having chosen the Forum in filing the claim under the Workmen's Compensation Act, did not produce even a problem of evidence in support of her case. It was also argued by him that the WCC neither considered the oral evidence adduced by the appellant Corporation in examining for witnesses nor appreciated the evidence adduced by the respondent No. 1 properly. While drawing my attention to the internal page No. 5 of the impugned award, Mr. Prasad submitted that in one place the WCC observed that the appellant Corporation had examined witnesses by name Marigowda, H.B. Rangarama Naik, but in the bottom of the very page, he had observed that the appellants herein did not produce either the oral evidence or any document in support of their case.

5. According to Mr. Prasad, the positive and the negative statement of the WCC in observing as above, go to show that he did not apply his mind to the facts and circumstances of the case. Therefore, he submitted that there is no wonder that the WCC had passed the impugned award in favour of the respondents. He had also pointed out that the WCC had given credence to false and got up document in Ex. A8 for, it was claimed that was the reply given by one H.B. Rangarama Naik, Deputy Director of the appellant. While drawing my attention to the signature of the said witness H.B. Rangarama Naik, very well found at page No. 3 (internal) and signature found in Ex. A8, he had argued that the falsity of the claim of the other side is very clear and glaring therefrom. Therefore, he prayed that the impugned award passed by the WCC be set aside in allowing die instant appeal before this Court.

6. The learned Counsel for the respondent No. 1 Mr. D.S. Shivanand appearing along with Mr. M.V. Hiremath while supporting the impugned award passed by the WCC submitted that his party being the illiterate widow had produced all the evidence that was under her command and it is on appreciation of that evidence, the WCC had allowed the claim of his party. He had also taken me through the original claim petition filed by his party and further the evidence adduced by her in examining herself as A.W. 1 and further examining the supporting witness A.W. 2 Chandrappa, a co-worker of the deceased working under the appellant-Corporation.

7. Mr. Shivanand had also taken me through the said evidence adduced by the respondent No. I herein. According to him, the evidence of the respondent No. 1 was totally supported by the evidence of the A.W. 2 Chandrappa. He had pointedly referred to Ex. P2, a notice issued by the jurisdictional police to the respondent No. 1 intimating her with regard to the details of the vehicle, insurance policy, the persons who had died in the accident, etc., (the same is found in page No. 120 of the records) and while referring to the same, he had also pointed out that in the said notice; the vehicle number in which the deceased was travelling was very well set out and further, the name of the owner was also shown therein as S.S. Gangavatri of Land Army, Karwar. Therefore, he submitted that the learned WCC had rightly allowed the claim of his party on appreciation of the material evidence, both oral and documentary, found in the records. According to him, the instant appeal does not merit any consideration in the hands of this Court.

8. I have carefully considered the arguments and counter arguments advanced by the learned Counsel for the parties at the outset, I have to observe here that the proceedings before the WCC is only the summary proceedings and as such, it is only the preponderance of probability of the case that matters before him as pointed out by the learned Counsel for the appellants Mr. Prasad, it is true that the NMR what the appellants had produced before the WCC is not forthcoming in the records, no matter that there is a memo to show that the appellants did produce the same before the WCC. It is also true that the said NMR had very well been referred to by the WCC inasmuch as he had observed therein that the same was produced by the appellants, but all the more as argued by Mr. Prasad, the same was not adverted to in detail at all in the impugned award. Even if it is taken that the name of the deceased was not found in the said NMR produced by the appellants before the WCC, I don't think that, that would be the fatal to the case of the claimants. Ultimately, the NMR produced by the appellant - Corporation was the product of the appellants themselves.

9. On going through the evidence on record, it is clear to me that the claimant in examining herself as P.W. 1, had clearly deposed that the deceased was working at Mudigeri Road Bridge at the relevant point of time of accident. As I see, in the work order produced by the appellant Corporation before the WCC marked as Ex. Dl at Sl. No. 2 therein it is shown that the Corporation in execution of construction work connected with water supply schemes pertaining to rehabilitation colony at Mudigeri in Karwar District. It was the evidence of both P.W. 1 as well as P.W. 2 that the deceased died in a road accident while the ATFC (Assistant Task Force Commander) was riding the motor cycle bearing No. MYE 8406 when the same was ridden by him near Karwar-Bellary Road. It is also found on the evidence that the deceased was a pillion rider in the motor cycle driven by the said S.S. Gangavathi. If it is true that the deceased was driven by the motor cycle of S.S. Gangavathi, I don't find good reason why the deceased Gangavathi had to take a small man as that of the deceased 'Goundi' as pillion rider in the motor cycle unless he had something to do with him.

10. It is relevant to observe here that in the evidence of P.W. 2, he had clearly deposed that the said Gangavathi was travelling towards Ankola with the deceased and he had also deposed before the WCC that he, Venkappa, Siddappa and another by name Hanmanthappa were laying pipes in a place called 'Byra', while the deceased Kanteppa was working at Mudigeri. Furthermore, P.W. 2 had also identified her as the wife of the deceased working under the said S.S. Gangavathi for the appellant No. 1 - Land Army Corporation. Therefore, I am but to endorse the argument of Mr. Shivanand that the evidence of the claimant examined as P.W. 1 was supported totally by the P.W. 2, the co-worker of the deceased and that evidence appears to be in a natural way; furthermore, he had also deposed before the WCC that he was in no way related to the P.W. 1 - the claimant.

11. It is pertinent to mention here that the appellant No. 1 had examined only its officers and among them P.W. 1 - Deputy Director of the appellant Corporation in the evidence had deposed that the Deputy Director of the Land Army was entrusting the work to the Asstt. Directors of Land Army and the Asstt. Directors in turn were entrusting the job to the TFC and ATFC and they in turn engaged the workers for the purpose of execution of the work. If it is true that the Deputy Director of Land Army were to entrust the work to the Assistant Director of Land Army and he in turn were to entrust the work to the TFC and ATFC and thereafter, the TFC or ATFC on their own were to engage the services of workers for the purpose of execution of the works in questions there was no reason for the officers either to know or identify them. In the instant case in hand it is more a probability; that on entrustment of work by the Asstt. Director of Land Army (D.W.3) to the T.C.F.S.S. Gangavathi, the said Gangavathi might have engaged the services of the deceased in connection with certain work to be executed by him at Mudigeri or else, it appears to me that there was no good reason for the deceased a 'goundi' by avocation to be on the pillion of the motor cycle driven by the said Gangavathi at the relevant time of accident. It is also relevant that the deceased was a 'goundi' by avocation and the TFC late Gangavathi by the very nature of job, had to do with the 'goundis' as that of the deceased in the matter of execution of works of the appellant - Corporation.

12. It is also pertinent to mention here that in Ex. Dl, work order, the work that had to be executed by the appellant-Corporation were spread over different places in N.K. District and, therefore, it is natural that after the execution of job in one particular place, the workers were moved from one place to another.

13. At this stage, the learned Counsel for the appellants Mr. Prasad had pointed out that the purpose of producing Ex. D1 - work order before the WCC was to show that S.S. Gangavathi had no work at the place of accident as it had been contended by them in filing the objection statement before the WCC.

14. Mr. Prasad had also drawn my attention to paras-6, 7 and 9 of the objection statement. To quote the said part of the objection statement of the appellants before the WCC, the same reads as hereunder:

6. It is not admitted that the deceased Gangavathi Engineer and deceased Kanteppa both of them were gone to the departmental work and due to rash and negligent driving of Gangavathi accident took place.

7. It is not admitted that the accident of Kanteppa accrued arising out of employment and during the course of the employment as a worker in the respondent's department. Since there is no relationship of employer and employee or master and servant this respondent's department is not liable for any compensation for the death of Kanteppa.

9. It is not correct to say that the deceased Kanteppa was under the employment of respondent Nos. 1 and 2 and while performing the duties as directed by this respondent, he was accompanying the Engineer.

15. It was also pointed out by Mr. Prasad that in tune with the case that had been made out as above, the witness H.B. Rangarama Naik had also deposed so before the WCC, but, I don't find that positive evidence by him though the case is made out to show that the deceased. Gangavathi had no work in Karwar. As I see, it is only in the cross-examination part when it was suggested to him that it was false to say that the deceased was entrusted with work in the place of accident.

16. In the facts and circumstances of the case, it appears to me that the best evidence appellant-Corporation would have adduced is the evidence of the worker or workers engaged for the purpose of execution of the work or works in question.

17. In my further considered view, if the evidence in its entirety be read together, I find there is a ring of truth in the case of claimants that the deceased was working for the appellants and it is for that good reason, the deceased was a pillion rider in the vehicle of S.S. Gangavathi, an officer of the appellant-Corporation. Ultimately, as observed earlier, it is only preponderance of probability of the case that matters in the case of the kind before the WCC.

18. That being the position, I feel that the instant appeal merits no consideration. Accordingly, the same fails and stands dismissed.

19. Let the sum in deposit before the WCC be paid to the respondent No. 1 and her other children, they being properly identified before him.