- 1 - HC-KAR NC: 2026:KHC:32523 MFA No. 8488 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF JULY, 2026 BEFORE THE HON'BLE MRS. JUSTICE P SREE SUDHA MISCELLANEOUS FIRST APPEAL NO. 8488 OF 2016 (WC) BETWEEN: MAHESHA S/O H.S. KUMAR, AGED ABOUT 38 YEARS R/AT 5TH CROSS, BHOVI COLONY, MANDYA CITY-571 401. …APPELLANT (BY SRI. SANATH KUMARA K.M., ADVOCATE) AND: 1. HARISH K H.S. KUMAR MAJOR, R/AT 5TH CROSS, BHOVI COLONY, MANDYA CITY-571 401. 2. THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., 2ND CROSS, ASHOK NAGAR, MANDYA CITY-571 401. …RESPONDENTS (BY SRI. S.T. RAJASHEKARA, ADVOCATE FOR R2; R1 - SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 30(1) OF WC ACT AGAINST THE JUDGMENT AND AWARD DATED 11.05.2016 PASSED IN E.C.A.NO.48/2014 ON THE FILE OF THE I ADDITIONAL SENIOR Digitally signed by PADMASHREE SHEKHAR DESAI Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:32523 MFA No. 8488 of 2016 CIVIL JUDGE, & CJM, MACT, MANDYA, DISMISSING THE CLAIM PETITION FOR COMPENSATION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA ORAL JUDGMENT Learned counsel for the appellant is present. 2. Learned counsel for the respondent No.2 remained absent on 12.09.2025, 30.06.2026 and also today, despite having been granted reasonable opportunities to appear. Accordingly, the argument of the learned counsel for the appellant was heard. Respondent No.1 is served and unrepresented. 3. This appeal is filed by the learned counsel for the appellant challenging the judgment and order dated 11.05.2016 passed by the I Additional Senior Civil Judge and MACT, Mandya (for short 'the Tribunal') in ECA No.48/2014, whereby the claim petition seeking compensation came to be dismissed. - 3 - HC-KAR NC: 2026:KHC:32523 MFA No. 8488 of 2016 4. The facts in brief are that, the injured met with an accident on 09.04.2008 and filed a petition claiming compensation of Rs.3,25,000/- with interest. Tribunal considering the entire evidence on record dismissed the application on the ground that there is no master and servant relationship between the parties. Aggrieved by this order, this appeal is preferred in which it is mainly contended that the Tribunal dismissed the application on the ground that the driver and respondent No.1-owner are brothers. Therefore, the master and servant relationship cannot be presumed. It was also further observed by the Tribunal that as they are brothers, there is an implied authorization to drive the vehicle and it cannot be presumed as master and servant relationship. 5. The following substantial questions of law are raised in this appeal for consideration of this Court: "a). Whether the lower court justified in dismissing the claim petition? - 4 - HC-KAR NC: 2026:KHC:32523 MFA No. 8488 of 2016 b). Whether the lower court justified in holding that there can not be relationship of Employer and Employee on the ground that the Appellant and the Respondent No.1 are Brothers? c). Whether the lower court justified in holding that there is an implied authority to drive the Auto Rickshaw as the appellant and the respondent No.1 are brothers?" 6. Learned counsel of the appellant submitted that appellant/claimant was working with his brother as a driver and getting a salary of Rs.5,000/- per month along with batta. Merely because the owner and the petitioner are brothers, it cannot be said that there is no master and servant relationship between them and the finding of the Tribunal to that extent is not satisfactory. 7. Learned counsel for the appellant relied on the judgment in the case of The Divisional Manager United India Ins. Co. Ltd v. Yallappa Bhimappa Alagudi and Another reported in ILR 2006 KAR 518 in which, it was stated as follows: "5. The contention that the petitioner is the son of the insured is not a ground to infer that there cannot be a relationship of master and servant. It is not uncommon that the family members are employed in - 5 - HC-KAR NC: 2026:KHC:32523 MFA No. 8488 of 2016 the course of business. The fact that the family members are not regularly employed and that no wages are paid is not valid reasons to defeat the case of relationship of master and servant. The concept of relationship of master and servant should not be understood in its literal sense any body doing gratuitously for the owner is deemed to be an authorised agent and the concept of master and servant relationship gets invoked." 8. Further, learned counsel for the appellant relied on the judgment of the Hon'ble Supreme Court in the case of T.S. Shylaja (Smt.) v. Oriental Insurance Co. Ltd. reported in [2015 Kant M.A.C. 104(SC)]. In the said case, the Commissioner held that there existed an employer-employee relationship. However, the said finding was reversed by the High Court. The Hon'ble Supreme Court set aside the judgment of the High Court and restored the order of the Commissioner, thereby affirming the finding regarding the existence of the employer- employee relationship. In the said judgment, the Hon'ble Supreme Court also observed as follows: "9. The Commissioner for Workmen's Compensation had, in the case at hand, appraised the evidence adduced before him and recorded a finding of fact that the deceased was indeed - 6 - HC-KAR NC: 2026:KHC:32523 MFA No. 8488 of 2016 employed as a driver by the owner of the vehicle no matter that the owner happened to be his brother. That finding could not be lightly interfered with or reversed by the High Court. The High Court overlooked the fact that the respondent owner of the vehicle had appeared as a witness and clearly stated that the deceased was his younger brother, but was working as a paid driver under him. The Commissioner had, in this regard, observed: “After examining the judgment of the Andhra Pradesh High Court relied upon by the second opponent it is seen that the owner of the vehicle being the sole witness has been unsuccessful in establishing his case but in this proceeding the owner of the vehicle has appeared before this Court even though he is a relative of the deceased, and has submitted in his objections, even evidence that even though the deceased was his younger brother he was working as a driver under him, and has admitted that he was paying salary to him. The applicant in support of his case has submitted the Hon'ble High Court judgment in [ILR 2006 KANT 518]. The divisional Manager, United India Insurance Co. Ltd. v. Yallappa Bhimappa Alagudi & Ors. which I have examined in depth which holds that there is no law that relatives cannot be in employer-employee relationship. Therefore it is not possible to ignore the oral and documentary evidence in favour of the applicant and such evidence has to be weighed in favour of the applicant. For these reasons I hold that the deceased was working as driver under first opponent and driving Toyota Quails No. KA 02 C 423, that he died in accident on 3-9-2005, that he is a ‘workman’ as defined in the Workmen's Compensation Act and it is held that he has caused accident in the course of employment in a negligent fashion which has resulted in his death.” 9. Respondent No.1 is the owner of the autorickshaw bearing Registration No.KA-11-5933. The - 7 - HC-KAR NC: 2026:KHC:32523 MFA No. 8488 of 2016 petitioner, in the course of his employment, was driving the said autorickshaw on the Koppa-Mandya Road and when he reached near Chikkamandya Kere halla bridge, a lorry bearing Registration No.KA-25-1951, came in a rash and negligent manner and dashed against the petitioner. As a result, he sustained injuries and the case is registered in Crime No.144/2008. He spent a sum Rs.15,000/- towards treatment. It is stated that he was drawing a salary of Rs.5,000/- per month along with a batta of Rs.50/- per day. It is further stated that respondent No.1 is the owner and respondent No.2 is insurance company and the insurance policy was in force as on the date of accident. Therefore, respondents are liable to pay the compensation. However, the Tribunal held that as both of them are brothers, the existence of master and servant relationship could not be presumed. 10. Though the petitioner stated that he was earning Rs.5,000/- per month, he has not produced any documentary evidence to substantiate the said income. - 8 - HC-KAR NC: 2026:KHC:32523 MFA No. 8488 of 2016 Since the accident occurred on 09.04.2008, as per the Workmen's Compensation (Amendment) Act, 2000 vide No.46 of 2000, which came into force on 08.12.2000, he is entitled for the income of Rs.4,000/-per month. The relevant provision reads as follows: "(iii) in Explanation II, occurring after clause (b) and before clause (c), for the words "two thousand rupees" occurring at both the places, the words "four thousand rupees" shall respectively be substituted." As this is a case of injury, 60% of the said income is taken into consideration as Rs.2,400/- per month. 11. The petitioner sustained the following injuries: "Abrasion over left hand Abrasion over left shoulder Swelling and deformity over forehead Abrasion over right leg and other injuries There was a fracture of left shoulder i.e., clavicle." 12. The Doctor examined the appellant and assessed the disability at 20% to the left upper limb. The petitioner was aged 30 years at the time of the accident, - 9 - HC-KAR NC: 2026:KHC:32523 MFA No. 8488 of 2016 and the relevant factor is 207.98. So the compensation comes to Rs.99,830/- [Rs.2,400X207.98X20%]. 13. In the result, the following order is passed: ORDER i. Appeal is allowed-in-part. ii. The judgment and award dated 11.05.2016 passed in ECA No.48/2014 by the I Additional Senior Civil Judge & MACT, Mandya is set aside; iii. Insurance company-respondent No.2 is directed to deposit the entire amount of Rs.99,830/- with interest at the rate of 12% p.a. from the date of the accident till today within one month from the date of this order. iv. On such deposit, appellant/claimant is permitted to withdraw the entire amount along with accrued interest. Sd/- (P SREE SUDHA) JUDGE VBS/ List No.: 1 Sl No.: 49