ORIENTAL INSURANCE CO LTD Vs. MUNIREGOWDA @ MUNEERANNA

JUDGEMENT

(1.) This Miscellaneous First Appeal is filed challenging the Order passed by the Commissioner for Workmen's Compensation in WCA:CR:14/2008 dated 19.03.2009.

(2.) The main contention of the Company is that even though there was no relationship between the employer and employee, the Commissioner has erred in answering point Nos.1 and 2 to the effect that the claimants have established the relationship. It is further contended that order passed by the Commissioner is illegal and has failed to take note of the pleadings and defense of the insurance company. The Commissioner has erred in holding that there exists employer and employee relationship between respondent No.2 and respondent No.1, in the absence of any evidence in this regard. The other contention of the appellant is that the Commissioner failed to appreciate that respondent No.1, except stating that he was working as a cleaner did not produce any positive or corroborative documentary evidence to prove the nature of his employment. The Commissioner also failed to appreciate the evidence of the PW.2, who was not the Doctor treated the injured at any point of time and apparently, he has given higher percentage of disability and hence, the disability assessed by the Commissioner is on higher side is without any basis.

(3.) It is further contended that though the Commissioner while answering the point for consideration regarding his income is concerned, has come to the conclusion that his income is Rs.3,500/- per month, but while calculating the compensation considering the reliable fact has taken Rs.4,500/- as his monthly income, contrary to his own arrival of Rs.3,500/-. The Doctor who has been examined before the Commissioner has deposed the disability as 22.6% but while calculating the compensation has taken 60% as "Loss of Earnings". Hence, the interference of this Court is required in respect of two aspects. First is in respect of erroneous conclusion arrived that there exists relationship of employer and employee. The second aspect is with regard to awarding of higher compensation. The claimant's legal representatives though served have not choosen to appear before this Court. Though the owner is represented through his counsel but the learned counsel is not present before this Court. The learned counsel for the appellant also vehemently contended that the owner who has been examined before the Commissioner has categorically denied that the claimant is not his employee. However, the Tribunal has erred in answering point Nos.1 and 2 in the affirmative.