IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL NO.9077 OF 2018 (ECA) BETWEEN:
ASHOK S/O SABANNA, AGED ABOUT 38 YEARS, RESIDENT OF SHAHABAD VILLAGE, CHITTAPUR TALUK, GULBARGA TALUK AND DISTRICT. ...APPELLANT (BY SRI HIREMATHAD M R, ADVOCATE) AND:
1. SRI. ANWAR PASHA, S/O KHASIM PATEL, AGE MAJOR, R/O # 26/98/1, VINAYAKA MOTORS, DOOR NO.3975/16, SHAHABAD VILLAGE TALUK, CHITTAPUR, DIST:GULBARGA, OWNER OF THE LORRY BEARING REG NO.KA-32/A-0033 2. THE DIVISIONAL MANAGER, SHRIRAM GENERAL INSURANCE CO. LTD., E-8, EPIP, RIICO INDUSTRIAL AREA, SITAPUR, JAIPUR, RAJASTHAR:302022 INSURANCE POLICE NO.10003/31/12/314428 POLICY VALID FROM:
21/10/2011 TO 20/10/2012.
…RESPONDENTS (BY SRI PRADEEP B, ADVOCATE FOR R2, VIDE ORDER DATED 25.09.2019 NOTICE TO R1 IS DISPENSED WITH).
**** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF THE EMPLOYEE’S COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED: 23.01.2018, PASSED IN ECA NO.60/2014, ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND V ADDITIONAL MACT, DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The present appeal is filed by the claimant for enhancement of compensation against the impugned judgment and award dated 23.01.2018 made in ECA No.60/2014 on the file of I Addl. Senior Civil Judge & V Addl. MACT, at Davanagere, (hereinafter referred to as ‘Tribunal’) awarding total compensation of Rs.1,19,640/- with 12% interest after one month from the date of accident.
2. It is the case of the claimant that on 13.10.2012 at about 2.00 a.m. as per the direction of respondent No.1, he was engaged as a Cleaner in the lorry bearing Reg. No.KA-32/A-0033 proceeding from Honnur Golarahatti to Bijapur with a load of grains to unload the same at Bijapur and while proceeding near Jinises Hotel on NH-4 road, the driver of the lorry has stopped the lorry on the extreme left side of the road, at that time one lorry bearing Reg.No.MH-46/F-0156 came in a rash and negligent manner without observing the traffic rules and regulations by its driver and dashed behind the lorry, as a result, he fell down and sustained grievous injuries all over the body. Immediately he was shifted to Chigateri Hospital, Davanagere, wherein he took first aid treatment and then shifted to Navodaya Hospital and took treatment as inpatient from 13.10.2012 to 16.10.2012 and he underwent surgery. After discharge, he took treatment as out-patient by spending a sum of Rs.1,50,000/-. Inspite of best treatment, he could not come to normal position, still he is under treatment and facing difficulties. The jurisdictional Police registered a case against the driver of the lorry bearing Reg.No.MH- 46/F-0156 in Crime No.170/2012 for the offence punishable under Sections 279 and 338 of IPC. It is the further case of the claimant that prior to accident he was working under respondent No.1 as a Cleaner by getting monthly wages of Rs.5,000/- with bata of Rs.100/- per day. The accident has arisen out of and during the course of employment. Hence, respondent Nos.1 and 2 being the owner and insurer are jointly and severally liable to pay compensation, etc., 3. In response to the notice issued, respondents appeared through their respective counsel. Respondent No.2 being the insurer of the offending vehicle has filed its objection statement denying the averments made in the claim petition. Respondent No.2 has also denied the issuance of the policy in favour of respondent No.1 in respect of the offending vehicle and the petitioner and respondent No.1 have to strict proof about the existence of the policy, then only its liability is subject to the terms and conditions of the policy. It is also contended that the accident occurred due to rash and negligent driving of the offending vehicle without following the traffic rules and regulations, as a result, the claimant fell down and sustained grievous injuries. It is further contended that respondent No.1 has entrusted the vehicle to the person who was not holding valid and effective driving licence. Hence, respondent No.2- insurance company is not liable to pay any compensation and sought for rejection of the claim petition.
4. Based on the aforesaid pleadings of the parties, the Tribunal has framed the following issues:
“1. Whether the petitioner is proves that he is working as a Cleaner of Lorry bearing Reg.No.KA 33/A-0033, belonging to the Respondent No.1 and there was a relationship between them as Employee and Employer?
2. Whether the Respondent No.2 proves that, Insurance company is not liable for pay any compensation to the petitioner for the reasons mentioned in their objection statement?
3. Whether the petitioner is entitle for the compensation as sought for?
4. What order?”
5. In order to prove his case, the claimant examined himself as P.W.1 and the doctor is examined as P.W.2 and got marked the documents as Exs.P-1 to P-9.
Respondents have not examined any witness except production of policy, which is marked with consent as Ex.R-1.
6. The Tribunal considering both oral and documentary evidence, has recorded the finding that the claimant has proved that he was working as a Cleaner of lorry bearing Reg.No.KA-32/A-0033 belonging to respondent No.1 and there was employee and employer relationship between them and further proved that the accident has arisen out and during the course of employment and respondent No.2-insurance company failed to prove that it is not entitled to pay compensation. Accordingly, by the impugned judgment and award, the Tribunal awarded total compensation of Rs.1,19,640/- together with interest at the rate of 12% p.a. after expiry of one month from the date of accident. Hence, the present appeal is filed.
7. This Court, while admitting this appeal, has framed the following substantial question of law:
“Whether the Tribunal is justified in assessing the monthly wages of the claimant at Rs.5,000/- when the accident occurred on 13.10.2012 in view of the provisions of sub-section (1B) of Section 4 of the Employees Compensation Act, 1923, wherein the Central Government specifies monthly income at Rs.8,000/-?”
8. I have heard the learned counsel for the parties to the lis.
9. Sri N Ramakrishna, learned counsel for the appellant has mainly contended that the Tribunal erred in assessing the monthly wages of the claimant at Rs.5,000/- ignoring the fact that the accident occurred on 13.10.2012 and the claimant is entitled for monthly wages of Rs.8,000/- in view of sub-section (1B) of Section 4 of the Employees Compensation Act 1923. Therefore, he sought to allow this miscellaneous first appeal.
10. Per contra, Sri B.Pradeep, learned counsel for the respondent No.2-insurance company sought to justify the impugned judgment and award would contend that in the absence of any material documents produced, the Tribunal is justified in taking the monthly wages of the claimant at Rs.5,000/- and accordingly, passed the impugned judgment and award. Therefore, he sought for dismissal of the miscellaneous first appeal.
11. Having heard the learned counsel for the parties, it is an undisputed fact that the claimant was working as Cleaner in the lorry bearing Reg.No.KA- 33/A-0033 belonging to respondent No.1 and the accident occurred on 13.10.2012 arising out of and during the course of employment. It is the specific case of the claimant that he was working as Cleaner under respondent No.1 on a monthly wages of Rs.5,000/- with bata of Rs.100/- per day, therefore, the Tribunal is not justified in taking the monthly wages of the claimant at Rs.5,000/- instead of Rs.8,000/- as contemplated under sub-section (1B) of Section 4 of the Employees Compensation Act. It is also not in dispute that the jurisdictional Police registered a case against the driver of the lorry bearing Reg.No.MH-46/F-0156 in Crime No.170/2012 for the offence punishable under Sections 279 and 338 of IPC as is evidenced from the material documents marked as per Exs.P-1 to P6.
12. Admittedly, the accident occurred on 13.10.2012, after the amendment of Section 4 of Employees Compensation Act and Central Government by the notification dated 31.05.2010 specified the monthly wages at Rs.8,000/-, the Tribunal ought to have taken the monthly wages of the claimant at Rs.8,000/- instead of Rs.5,000/-.
13. In view of the aforesaid admitted facts, the substantial question of law framed in this appeal has to be answered in the negative holding that the Tribunal is not justified in assessing the monthly wages at Rs.5,000/- instead of Rs.8,000/-.
14. As per the provisions of sub-section (1B) of Section 4 of the Employees Compensation Act, the monthly income of the claimant is taken at Rs.8,000/-. 60% of the monthly income as per Section 4 (1)(b) of the Act comes to Rs.4800/-. Hence, the loss of income due to disability is calculated as under:
Rs.4,800 X 199.40 X 20% =1,91,424/-
15. The total compensation payable is Rs.1,91,424/-. The Tribunal has awarded the compensation of Rs.1,19,640/-. Hence, the claimant is entitled for enhanced compensation of Rs.71,784/- (Rs.1,91,424 -1,19,640) 16. In view of the above, the appeal filed by the claimant is allowed-in-part. The impugned judgment and award dated 23.01.2018 made in ECA No.60/2014 on the file of I Addl. Senior Civil Judge & V Addl. MACT, at Davanagere, is modified and the claimant is entitled for enhanced compensation of Rs.71,784/- with interest at the rate of 12% p.a. after one month from the date of accident till realization.
Sd/- JUDGE BSR