AI Structured Summary
Not yet generated for this judgment
Judgment
G. Narendar, J. - Heard the learned Counsel for the appellant and also tire respondents 1 to 5.
The appellant/insurer before this Court has called into question the order passed in Case No. CWC:B-3/FC:CR:22/2007 by the Commissioner for Workmen''s Compensation, Bengaluru, dated 29-11-2010.
The facts of the case in brief are that:
One Sri S. Bhaskaran was employed by the 6th respondent-M/s. S.K. Engineering, K.R. Puram, Bengaluru and that he was employed as a cutter and while executing the work on behalf of M/s. S.K. Engineering in the premises of M/s. Boruka Steel on Whitefield Road, Bengaluru, he suffered a fall from the third floor of the premises and the said incident occurred on 2-9-2002 at about 11.00 a.m. On account of the said fall, S. Bhaskaran suffered a grievous injury and thereafter, he was shifted to Hosmat Hospital, Bengaluru, wherein he was an inpatient for 10 days and despite the best efforts by the doctors, he succumbed to the injuries suffered. Thereafter, his wife and 4 children have filed a claim petition before the Commissioner for Workmen''s Compensation, claiming that the accident occurred during the course of the employment with the 6th respondent-M/s. S.K. Engineering and the deceased was drawing a salary of Rs. 3,759-00. He was aged about 41 years and that he was the only earning member of the family. The 1st claimant-wife is a housewife and claimants 2 to 5-children were students and on account of the fatal accident, they are entitled to a compensation of Rs. 3,40,000-00.
The 6th respondent-employer though notified by the Commissioner, did not choose to contest the claim.
The appellant-insurer has appeared through Counsel and filed its written statement to the claim petition. In the written statement, it was contended that the policy of the insured is with the 6th respondent-M/s. S.K. Engineering for the relevant period. However, the liability of the obligation of the insurer was.strictly subject to the terms and conditions, exceptions, limitation of the policy and a law governing thereto. It further denied the occurrence of the incident. It is also denied that the deceased was working as a cutter under M/s. S.K. Engineering. It is further contended that there is no specific proof of death. That the deceased has voluntarily subjected himself to the fatal accident without caring for safety measures provided to him and hence, the insurer is not obligatory to compensate for loss of earning on account of his death. It is also contended that not all the employees of M/s. S.K. Engineering are covered by the terms of the policy.
The 1st claimant got herself examined as P.W. 1 and in her affidavit evidence at para 2 it is stated as follows:
"I further submit that late S. Bhaskaran was my husband and father of petitioners 2 to 5 and he was working with the first respondent as welder-cum-cutter, and during the course of the employment with first respondent on 2-9-2002 at about 11.00 a.m. at Boruka Steels, Whitefield Road, Bangalore, met with an accident by falling from the 3rd floor, to the basement of the building and due to the said accident my husband late S. Bhaskaran suffered grievous injuries."
In support of the claim, the claimants produced and got marked Ex. P. 1-letter issued by the proprietor of M/s. S.K. Engineering stating that the deceased S. Bhaskar alias John Bhaskar, aged 42 years and was working as a cutter from 27-8-2002 to 2-9-2002 and he was getting a salary of Rs. 125-00 per day, Ex. P. 2 is the medical certificate issued by Hosmat Hospital, Bengaluru, evidencing the cause of death, Ex. P. 3 is the marriage certificate evidencing the marriage of Sri S. Baskaran with R. Rebina i.e., the claimant/appellant 1 herein, Ex. P. 4 is the death certificate of S. Baskaran, Ex. P. 5 is the death report and Exs. P. 6 to P. 9 are the birth certificates in respect of claimants/appellants 2 to 5.
The officer of the appellant-Insurance Company was examined as R.W. 1 and got marked Ex. R. 1-insurance policy issued by them, Ex. R. 2-declaration by M/s. S.K. Engineering prior to issuance of the policy, wherein it has declared regarding engaging workers for the purpose of dismantling of chimneys and sheets and the site described is Bhoruka Steel Limited, duration of the work is stated to be 3 months and it is declared that 8 workers have been engaged and the total amount is Rs. 96,000-00 and Ex. R. 3 is the proposal form for Workmen''s Compensation Insurance in respect of M/s. S.K. Engineering. On a perusal of the said form it is noticed that, the contract was for welding and cutting iron materials.
After hearing the parties and detailed consideration of the material on record, the Commissioner has rendered an order holding that the deceased-S. Bhaskaran was a workman and that he suffered fatal injury during the course of his employment and his employer i.e., M/s. S.K. Engineering is liable to compensate the loss suffered by the claimants and computed Rs. 2,99,276-00 as compensation payable to the claimants and M/s. National Insurance Company Limited, being the insurer is liable to indemnify the claim of M/s. S.K. Engineering as the policy of the insurance is subsisting on the date of the accident.
In this appeal before this Court, the learned Counsel for the appellant-insurer would contend that the deceased was an employee of M/s. Boruka Steels and not an employee of M/s. S.K. Engineering. He would draw the attention of the Court to the cross-examination of P.W. 1 i.e., the 1st claimant-wife; wherein during the cross-examination, it is stated as follows:
VERNACULAR MATTER
The learned Counsel for the appellant-insurer would contend that from a reading of the above deposition, it is apparent that the 1st claimant has admitted that her deceased husband viz., S. Bhaskaran was employed by M/s. Boruka Steel, which is neither a party in the proceedings nor the insured and hence the appellant-insurer cannot be fastened the liability of satisfying the claim by the representative of an employee nor employed by M/s. S.K. Engineering. It is further contended that the impugned order awarding compensation is vitiated and that the findings of the Commissioner for Workmen''s Compensation that the deceased was a workman is unsustainable and he would contend that the Commissioner has erred in not rendering a finding as to whether the deceased was a workman of M/s. Boruka Steel or a workman under M/s. S.K. Engineering.
A perusal of the statement of objections preferred by the insurer before the Commissioner would disclose that certain specific objections or defence have not been raised. It is also seen that the fact remains that the deceased died in the premises of M/s. Boruka Steel, where he was employed on the fateful day. It is reiterated by the wife of the deceased that her deceased husband was an employee of M/s. S.K. Engineering, who was working in the premises of M/s. Boruka Steel and in fact she has denied the suggestion that the insurer is not liable to compensate for the death of her husband as he was not working in M/s. S.K. Engineering. In the absence of a specific plea, the Commissioner has also not framed appropriate issue. That apart, it is seen that the material on record more particularly, Ex. P. 1-letter issued by M/s. S.K. Engineering certifying the fact that the deceased S. Bhaskar alias John Bhaskar was employed by it as a cutter between 27-8-2002 and 2-9-2002 and that he was being paid a salary of Rs. 125-00 per day. The other relevant material on record would demonstrate the case as pleaded by the claimants and the records produced by the insurer i.e., Ex. R. 3-proposal form submitted by the proprietor of M/s. S.K. Engineering, seeking for insurance coverage in respect of the employees, who were to be employed for the purpose of dismantling of chimneys and iron sheets and the proposal form shows the work awarded/contracted is welding and cutting of the iron materials. Ex. R. 2 is the declaration by M/s. S.K. Engineering, declaring that it has deployed 8 workers and the site is described as M/s. Bhoruka Steel Limited and the work allotted by M/s. Boruka Steel is dismantling of chimneys and sheets. Thereafter, Ex. R. 1-insurance policy came to be issued after receiving the premium. A combined reading of these material would go to show that the Commissioner has rightly arrived at a conclusion that the deceased S. Bhaskaran was an employee of M/s. S.K. Engineering, who had been contracted by M/s. Boruka Steel for the purpose of dismantling chimneys, welding and cutting iron materials. In the considered opinion of this Court, these materials prima facie demonstrate the case as pleaded by the claimants/respondents 1 to 5 herein. It is not in dispute that Ex. R. 1-insurance policy has been issued in favour of M/s. S.K. Engineering providing coverage for the workers, who were proposed to be employed in the site of M/s. Boruka Steel for executing the contract that would be awarded to M/s. S.K. Engineering. Exs. P. 2 to P. 4 demonstrate that the deceased suffered an accidental fall in the premises of M/s. Boruka Steel, sustained grievous injuries and succumbed to the injuries while undergoing treatment as an inpatient in Hosmat Hospital. Hence, the material on record prima facie demonstrate the plea of the claimants/respondents 1 to 5 herein. The appellant-insurer has not placed on record any material, which would discredit the exhibits marked on behalf of both the claimants and the insurer. In the above facts and circumstances, the Commissioner has rendered a finding holding that the deceased is to be a workman, employed by M/s. S.K. Engineering for executing the work in the site of M/s. Boruka Steel and that the accident has occurred in the said site and hence, the accident has occurred in the course of the employment and M/s. S.K. Engineering being the employer is liable to satisfy the claim made by the claimants/respondents 1 to 5 herein and the appellant being the insurer is liable to indemnify M/s. S.K. Engineering i.e., respondent 6 herein. The contention of the appellant-insurer that the deceased is an employee of M/s. Boruka Steel is not a case pleaded before the Commissioner. It is an issue of fact which ought to have been pleaded and proved by leading cogent evidence before the Commissioner. The insurer-appellant herein having failed to do so, it is not open for them to improve the case before the Appellate Court. Be that as it may, the issue raised by the insurer-appellant is an issue of fact. No substantial question of law arises in the facts and circumstances of the case. Hence, this Court is of the considered opinion that the appeal is devoid of merit and is liable to be rejected. The appeal is accordingly rejected.
The amount in deposit before this Court is ordered to be transmitted to the jurisdictional Commissioner/Civil Court.
The learned Counsel for the appellant submits that they had deposited the compensation on 1-8-2011 and seeks 8 (eight) weeks time to deposit the interest thereon. Accordingly, the insurer-appellant is directed to deposit the interest portion within 8 (eight) weeks from today up-to-date of deposit.
In view of the above order, Misc. Cvl. No. 6536 of 2011 filed for stay does not survive for consideration and the same is rejected.