IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL No.153/2018(WC) BETWEEN:
SMT. GOWRAMMA, W/O LATE MARIYAPPA AGED ABOUT 47 YEARS, RESIDING AT WARD NO.1 TEMPLE ROAD, CHIKKAMALURU VILLAGE, DODDAMALURU POST CHANNAPATNA TOWN, RAMANGARA DISTRICT.
...APPELLANT (BY SRI GOPAL KRISHNA N, ADVOCATE) AND:
1 . SRI K. V. RAJU, S/O VENKATARAMEDGOWDA MAJOR IN AGE, RESIDING AT KALLAMNATTI DODDI VILLAGE, KEREGODU HOBLI, MANDYA TALUK & DISTRICT.
2 . THE UNITED INDIA INSURANCE CO. LTD., NO.1119/B, M.C. ROAD, MANDYA 571401.
REP: BY ITS MANAGER.
…RESPONDENTS (BY SRI L. SREEKANTA RAO, ADVOCATE AND SMT. S. VIDYA RAO, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 30.05.2017 PASSED ON ECA No.27/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, CHANNAPATTANA, RAMANAGAR DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant filed the present Miscellaneous First Appeal for enhancement against the judgment and award dated 30.05.2017 passed in ECA No.27/2015 on the file of the Commissioner for Workmen’s Compensation/Senior Civil Judge & JMFC, Channapattana, Ramanagara District, awarding total compensation of `6,61,775/- with interest at 12% per annum from the date of accident i.e., 30.11.2011, till its realisation.
2. It is the case of the claimant that, her son deceased C.M. Mahesh was working as driver of the canter bearing registration No.KA-12/156 under the 1st respondent and the said vehicle was insured with the 2nd respondent. On 30.11.2011 at about 10.30 pm the deceased was driving the canter owned by the 1st respondent and when he reached near M.R.F. Tyre (Srinivasa Traders), Mysuru-Bengaluru Road, at that time, driver of the 407 tempo bearing registration No.KA-34/3646 who was moving in front of the vehicle driven by the deceased, drove the said 407 tempo in a rash and negligent manner and suddenly applied brake and stopped the tempo without any indication, as a result of which, the deceased C.M.Mahesh got struck to the tempo and caused the accident. Due to the impact, deceased sustained grievous injuries and he was immediately shifted to Government Hospital, Channapattana for treatment. After first aid, he was shifted to Sanjayagandhi Hospital, Bengaluru and later he succumbed to the injuries on 01.12.2011 at about 7.05 am. The deceased C.M.Mahesh, died in the accident arising out of and during the course of employment.
3. It is the case of the claimant that the deceased was aged 21 years as on the date of accident and death and was the only earning member of the family. She has spent `75,000/- towards funeral expenses. The 1st respondent being the owner and the 2nd respondent being the insurer, are jointly and severally liable to pay the compensation. Therefore, she claimed compensation of `15,00,000/-.
4. The 1st respondent-owner of the vehicle remained ex-parte before the Tribunal. The 2nd respondent- insurance company appeared through counsel and filed written statement denying the entire averments made in the claim petition including the accident, wages and the age of the deceased. It was further contended that the accident occurred due to the rash and negligent act of the deceased and therefore, sought to dismiss the claim petition.
5. Based on the aforesaid rival contentions, the Tribunal framed the following issues:
1. CfðzÁgÀgÀÄ/ªÀÄÈvÀgÀÄ/PÁ«ÄðPÀ £ÀµÀÖ ¥ÀjºÁgÀ PÁAiÉÄÝ, 1923gÀ PÁ«ÄðPÀ JA§ ¥ÀzÀzÀ ªÁåSÁå£ÀzÀr §gÀÄvÁÛgÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¹gÀĪÀgÉÃ?
2. CfðzÁgÀgÀÄ/ªÀÄÈvÀgÀÄ/¼ÀÄ vÀªÀÄä PÀvÀðªÀå¢AzÀ PÀvÀðªÀå¤gÀvÀgÁVzÁÝUÀ C¥ÀWÁvÀ ºÉÆA¢ ªÀÄÈvÀ ¥ÀnÖgÀÄvÁÛgÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¹gÀĪÀgÉÃ?
3. CfðzÁgÀgÀÄ C¥ÀWÁvÀ ¸ÀªÀÄAiÀÄzÀ°è ªÀÄÈvÀjUÉ JµÀÄÖ ªÀµÀð ªÀAiÀĸÁìVvÀÄÛ ºÁUÀÆ JµÀÄÖ ªÉÃvÀ£À ¥ÀqÉAiÀÄÄwÛzÀÝgÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¹gÀĪÀgÉÃ?
4. CfðzÁgÀgÀÄ/ªÀÄÈvÀ£À/¼À CªÀ®A©vÀgÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¹gÀĪÀgÉÃ?
5. CfðzÁgÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ ¥ÀjºÁgÀzÀ ªÉÄð£À §rØUÉ CºÀðgÀÄ?
6. ¥ÀjºÁgÀ ªÉÆvÀÛ ªÀÄvÀÄÛ §rØAiÀÄ ªÉÆvÀÛªÀ£ÀÄß AiÀiÁªÀ ¥ÀæwªÁ¢ F £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ oÉêÀt EqÀ®Ä ¨ÁzÀå¸ÀÜgÀÄ?
7. F §UÉÎ K£ÀÄ DzÉñÀ?
6. The claimant, in order to establish her case, got examined herself as P.W.1 and marked the documents Exs.P.1 to P.13. The 2nd respondent-insurer got examined its Administrative Officer as R.W.1 and got marked Exs.R.1 and R.2.
7. The Tribunal, considering both oral and documentary evidence on record, recorded a finding that the claimant proved that the deceased was working as driver under the 1st respondent and the accident occurred arising out of and during the course of employment and the deceased was aged 21 years as on the date of the accident and death, and the claimant was depending on the deceased for her livelihood. Accordingly, the Tribunal, by the impugned judgment and award, awarded total compensation of `5,61,775/- with interest at 12% per annum. Hence, the present Miscellaneous First Appeal is filed for enhancement of compensation.
8. The Insurance Company has not filed any appeal against the impugned judgment and award passed by the Tribunal.
9. Sri Gopal Krishna.N, learned counsel for the appellant-claimant contended with vehemence that the Tribunal erred in taking monthly wages of the deceased at `5,000/- ignoring the oral evidence of P.W.1 and the provisions of Section 4(1B) of the Employee’s Compensation Act, which specifies that the monthly wages has to be taken at `8,000/-. Therefore, the appellant sought to allow the present Miscellaneous First Appeal.
10. Per contra, Sri L.Sreekanta Rao, learned counsel for the respondent No.2-insurer, sought to justify the impugned judgment and award passed by the Tribunal.
11. Having heard the learned counsel for the parties, the following substantial questions of law arise for consideration:
“Whether the Commissioner for Employee’s Compensation/Tribunal is justified in not taking the monthly wages at `5,000/- ignoring both oral and documentary evidence and in view of notification issued by the Central Government dated 31.05.2010 exercising powers under sub-section (1B) of Section 4 of the Employee’s Compensation Act, 1923, which specifies the minimum monthly wages at `8,000/-?”
12. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, carefully.
13. It is not in dispute that deceased C.M.Mahesh- son of the claimant was working as driver under the 1st respondent. On 30.11.2011, at about 10.30 pm, when the deceased was driving the canter bearing registration No.KA-12/156, accident occurred and he died in the hospital due to the grievous injuries sustained in the said accident. The relationship of employer and employee is not in dispute. It is the specific case of the claimant that the deceased was earning `8,000/- per month + 100 batta per day. The Tribunal proceeded to take monthly wages of the deceased at `5,000/- per month. It is also not in dispute that the accident occurred on 30.11.2011, subsequent to amendment of the provisions of Section 4(1B) of the Employee’s Compensation Act, 1923. The Central Government, by the notification dated 31.05.2010, specified that `8,000/- has to be taken as monthly income. Therefore, the Tribunal ought to have taken monthly wages of the deceased at `8,000/-. The amended provisions of Section 4(1B) of the Act is not disputed by the Insurance Company. Therefore, the Tribunal was not justified in taking income of the deceased at `5,000/- per month.
14. For the reasons stated above, the substantial question of law framed in the present Miscellaneous First Appeal has to be answered in the negative holding that the Tribunal is not justified in taking the monthly wages of the deceased at `5,000/- ignoring both oral and documentary evidence on record and the provisions of Section 4(1B) of the Employee’s Compensation Act, 1923.
15. Taking monthly wages of the deceased at `8,000/- deducting 50% as envisaged under Section 4(1)(a) of the Employee’s Compensation Act, 1923 and applying the relevant factor 222.71 for the age 21 of the deceased, the claimant is entitled to compensation of `8,90,840/- (`4,000/-x222.71) + `5,000/- towards funeral expenses, in all, total compensation of `8,95,840/-.
16. In view of the above, the Miscellaneous First Appeal is allowed in part. The impugned judgment and award is modified awarding total compensation of `8,95,840/- with interest at 12% per annum after one month from the date of the accident.
Ordered accordingly.
Sd/- JUDGE kcm