IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA M.F.A.No.56/2018 (WC) BETWEEN 1. SMT. H V SUDHA W/O. LATE. R MANJUNATHA, AGED ABOUT 26 YEARS, 2. MASTER. UDAYAKUMAR, S/O. LATE R.MANJUNATHA, AGED ABOUT 5 YEARS, MINOR, REP. BY MOTHER AND NATURAL GUARDIAN H V SUDHA, 3. SMT. KARIYAMMA W/O. RAJANNA AGED ABOUT 47 YEARS, 4. SRI. RAJANNA S/O. LATE RAMAIAH AGED ABOUT 54 YEARS, ALL ARE R/O. SAPTHAGIRI BADAVANE, NEAR JAJI KATTE, SIRA TOWN-572 137, TUMAKURU DISTRICT.
... APPELLANTS (BY SRI. V B SIDDARAMAIAH, ADVOCATE) AND 1. THE UNITED INDIA INSURANCE CO. LTD., 1ST FLOOR, RAJA COMPLEX, AMBEDKAR ROAD, SIRA TOWN-572 137. TUMAKURU DISTRICT.
REP. BY ITS BRANCH MANAGER 2. SRI. RAGHAVENDRA S DADDI S/O. S SHIDRAMAPPA DADDI, AGED ABOUT 37 YEARS, R/O. NO. 535, NAGARABHAVI, 2ND STAGE, 3RD BLOCK, OPP: BDA COMPLEX, NAGARABHAVI, BENGALURU-560072.
ALSO R/AT VINAYAKANAGARA, NIDAGUNDI VILLAGE, BASAVANA-BAGEWADI TALUK, BIJAPUR DISTRICT-586 213.
... RESPONDENTS (BY SRI. S KRISHNA KISHORE, ADVOCATE FOR R1 NOTICE TO R2 IS DISPENSED WITH V/O DATED 24-7-2019) THIS MFA IS FILED UNDER SECTION 30(1) OF THE WORKMEN’S COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 04.8.2017 PASSED ON ECA NO.3/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SIRA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimants/appellants are wife, son and parents of the deceased are before this Court for enhancement against the judgment and award dated 04-8-2017 made in E.C.A.No.3/2016 on the file of the Senior Civil Judge & Additional MACT at Sira, awarding compensation of Rs.7,47,495/- along with interest at the rate of 9% per annum from the date of filing of petition till its realization.
2. It is the case of the claimants that the deceased- R.Manjunatha was aged about 27 years, working as a driver under respondent No.1 in his Toyota Moto Cab Car bearing Reg.No.KA.03.AC.7150 on monthly wages of Rs.12,000/- and daily batta of Rs.100/- and while he was discharging his duty during the course of employment under the first respondent in his Car bearing Reg.No.KA.03.AC.7150 met with an accident on 21-4-2016 at about 2:00 a.m., early in the morning, when he was driving the said Car. The accident took place while he was going from Sira to Bellary to attend the marriage and the owner of the said Car i.e. the first respondent and another person by name Abhishaik Mahadev Chauvan were also with him in the said Car. When the said Car reached near NH.150(A) near BSNL Tower, B.G.Kere, Molakalmuru Taluk, Chitradurga District, he lost control over the Car and dashed to a tree situated by the right side of the road. Due to which, the said Car toppled on the right side of the road and the deceased- R.Manjunatha has sustained bleeding injuries on the head, face right hand and other parts of the body and died at the spot itself.
3. It is further case of the claimants that the deceased was hale and healthy before the accident and he was aged about 27 years as on the date of accident. The claimants were entirely depending upon the income of the deceased, hence they sought for enhancement of compensation.
4. The first respondent (second respondent in MFA.No.56/2018) filed objections, denied the averments made in the claim petition and contended that very claim petition is not maintainable and admitted the fact that deceased-R.Manjunatha was working as a driver under him and he was paying monthly wages of Rs.10,000/- along with daily batta of Rs.50/-. Further stated that if the compensation to be paid to the deceased, the same shall be indemnified by the second respondent as the policy was in force at the time of the accident. The second respondent- insurance company (first respondent in MFA.No.56/2018) filed the objections, denied the relationship of the deceased with respondent No.1 as employer and employee and also denied that the accident was occurred during the course of employment and also denies that the first respondent was paying salary of Rs.10,000/- per month along with daily batta of Rs.50/-. Further contended that the claimants have not produced any document to show the monthly wages and age of the deceased. It is further contended that the driver of the Car was not holding a valid and effective driving license at the time of accident. Therefore, sought for dismissal of the appeal.
5. Based on the pleadings, the Commissioner/Tribunal framed the following issues:
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3. ºÁVzÀÝ°è ¢£ÁAPÀ: 21.4.2016 gÀAzÀÄ vÁ£ÀÄ 1£Éà JzÀgÀÄzÁgÀgÀ PÉ®¸ÀªÀ£ÀÄß ¤ªÀð»¸ÀÄwÛzÁÝUÀ D PÉ®¸ÀzÀ PÁgÀt¢AzÀ GAmÁzÀ C¥ÀWÁvÀzÀ°è ªÀÄAdÄ£ÁxÀ CªÀgÀÄ ªÀÄgÀt ºÉÆA¢gÀÄvÁÛgÉ JA§ÄzÀ£ÀÄß CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
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6. In order to prove the case of the claimants, the first petitioner/claimant wife of the deceased examined herself as PW-1 and marked 12 documents as per Ex.P1 to Ex.P12. The respondents have not lead any evidence nor produced any documents.
7. The Commissioner/Tribunal, after considering the entire material on record has recorded a finding that the claimants have proved that they were depending on the income of the deceased-R.Manjunatha and he was the employee under respondent No.1 and died during the course of his employment under respondent No.1 and they have also proved the age and monthly wages of the deceased.
Accordingly, by the impugned judgment and award, the Commissioner/Tribunal awarded a total compensation of Rs.7,47,495/- with interest at the rate of 9% per annum from the date of filing of petition till its realization. Hence, the present appeal is filed by the claimants for further enhancement of compensation. Insurance company has not filed any appeal against the impugned judgment and award passed by the Tribunal.
8. I have heard the learned counsels for the parties to the lis.
9. Sri. V.B.Siddaramaiah, learned counsel for the appellants/claimants contended that the Commissioner/Tribunal erred in taking monthly wages of the deceased at Rs.7,000/- per month, when PW-1-wife of the deceased stated on oath that he was earning Rs.12,000/- per month along with batta. He further contended that respondent No.1 under whom deceased was working as a driver, filed objections and has not disputed the relationship of employer and employee and also admitted the payment of deceased as monthly wages of Rs.10,000/-. He further contended that the Commissioner/Tribunal proceeded to award interest only at the rate of 9% per annum, which is against the provisions of Section 4A(3)(a) of the Employee’s Compensation Act, 1923. Therefore, sought to allow the appeal.
10. Per contra, Sri. S. Krishna Kishore, learned counsel for respondent No.1 sought to justify the impugned judgment and award passed by the Commissioner/Tribunal and contended that in the absence of material produced, the Commissioner/Tribunal has taken monthly wages of the deceased as Rs.7,000/- per month, taking into consideration the peculiar facts and circumstances of the case, rightly awarded 9% interest. Therefore, sought to dismiss the appeal.
11. This Court while admitting the appeal framed the following substantial questions of law for consideration:
1. Whether the Commissioner for Employee’s Compensation/Tribunal is justified in taking monthly wages of the deceased at Rs.7,000/- per month, when the accident took place on 21-4-2016, in view of the amendment of provisions of sub-Section 1(B) of Section 4 of the Employee’s Compensation Act, 1923 and the notification issued by the Central Government dated 31-5-2010 specifying the monthly wages as Rs.8,000/-?
2. Whether the Commissioner for Employee’s Compensation/Tribunal is justified in awarding 9% interest instead of 12% in the facts and circumstances of the case.
12. Having heard the learned counsels for the parties, it is undisputed fact that the deceased-R.Manjunath, aged about 27 years was working as a driver under respondent No.1 in his Toyota Moto Cab Car bearing Reg.No.KA.03.AC.7150 and met with an accident on 21-4-2016 and due to the said accident, the deceased died on the spot during the course and out of his employment under respondent No.1. It is also not in dispute, that the jurisdictional police have registered the case as is evidenced from the material on record documents Ex.P1 to P8. It is also not in dispute that respondent No.1 filed objections before the Commissioner/Tribunal by admitting the relationship of the employer and employee and payment of monthly wages of Rs.10,000/- per month. The Commissioner/Tribunal, while noticing the contention at paragraph No.13 has stated that the deceased was aged about 27 years and the claimants have claimed that he was earning Rs.12,000/- as monthly wages and batta of Rs.100/- per day. By taking into consideration the material on record, the Commissioner/Tribunal proceeded erroneously to decide the monthly wages of the deceased as Rs.7,000/- per month ignoring the fact that the accident occurred on 21-4-2016. Therefore, Commissioner/Tribunal was not justified in taking Rs.7,000/- as monthly wages of the deceased. It is also noticed that while awarding interest the Commissioner/Tribunal proceeded to award only 9% interest per annum contrary to the provisions of Section 4A(3)(a) of the Act. The claimants are entitled for 12% interest, after one month from the date of accident.
13. In view of the aforesaid reasons, the substantial questions of law have to be held in negative holding that Tribunal is not justified in taking monthly wages at Rs.7,000/- and awarding 9% interest. Therefore, the impugned judgment and award passed by the Commissioner/Tribunal has to be modified holding monthly wages at Rs.8,000/- after deducting 50% as contemplated under provisions of Section 4(1)(a) of the Act, the monthly wages of the deceased would be at Rs.4,000/- per month and taking into consideration the age of the deceased, the relevant factor would be 213.57. Therefore, the claimants are entitled for total compensation of Rs.8,54,280/-
(4000x213.57=8,54,280) with interest at the rate of 12% per annum, after one month from the date of accident.
Accordingly, appeal is allowed in part.
Sd/-
JUDGE SMJ