IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL NO.7793 OF 2016 (WC) BETWEEN 1. HASSAIN SAB, S/O LATE ABDULLA SAB, AGED ABOUT 61 YEARS.
2. SMT ZEENATH, W/O HASSAIN SAB, AGED ABOUT 56 YEARS.
3. SALMA K, W/O LATE BABER, AGED MAJOR, ALL ARE R/O SANTHE MAIDANA, NEAR ACKSA MASJID, CHIKKAMAGALURU – 577022. ... APPELLANTS (BY SRI PRAKASH SALMANI, ADVOCATE FOR SRI SATISH R GIRJI, ADVOCATE) AND 1. D AFROZ, S/O MOHAMMED KHASIM, AGED ABOUT 51 YEARS, VEGETABLE MERCHANT, AND OWNER OF LORRY, NO.KA018/B-3242, NEHRU NAGAR, CHIKKAMGALURU – 577022.
2. THE BRANCH MANAGER, UNITED INDIA ASSURANCE CO. LTD., THOGARIHANKAL CIRCLE, K M ROAD, CHIKKAMAGALURU - 577022. ... RESPONDENTS (BY SRI M U POONACHA, ADVOCATE FOR R2, R1 IS SERVED BUT UNREPRESENTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF WORKMEN COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED:27.06.2016 PASSED IN E.C.A.NO.4/2015 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellants, who are the parents and wife of deceased Baber Pasha, have filed the present Miscellaneous First Appeal against the judgment and award dated 27.06.2016 made in ECA No.4/2015 on the file of II Addl. Senior Civil Judge and JMFC, Chikkamagaluru, awarding total compensation of Rs.8,61,120/- to the petitioners/claimants with interest at the rate of 6% p.a. after expiry of 30 days from the date of accident.
2. It is the case of the appellants/claimants that the deceased Baber Pasha was the driver under respondent No.1 in respect of lorry bearing Reg.No.KA-18-B-3242. On 25.09.2014 at midnight when Baber Pasha was inspecting/checking the battery of the lorry bearing KA-18-B-3242 at Antharasanahalli village Bypass road of Tumkur Town on the National Highway in front of Beluru Bayar Biotech Limited Factory, a lorry, whose number is not traced out, has dashed against the said Baber Pasha. As a result, Baber Pasha sustained multiple injuries over the body and died on the spot. The dead body was taken to Tumkur Government Hospital and postmortem was done. The deceased Baber Pasha was aged about 25 years on the date of accident and getting monthly wages of Rs.10,000/- and batta at Rs.200/- per day. The claimants were depending on the income of the deceased Baber Pasha. The said accident arising out of and during the course of employment under respondent No.1. The respondent No.1 is the employer of deceased and owner of the above said lorry, which was insured with respondent No.2 and the policy was in force as on the date of accident. Hence, the claim petition has been filed claiming compensation.
3. Inspite of service of notice, respondent No.1 remained absent and he has been placed exparte.
4. Respondent No.2-Insurance Company has filed objections denying the averments made in the claim petition and also denied the relationship of the employer-employee, so also, denied the accident and death arising out of and during the course of employment under respondent No.1. The monthly wage and the age of deceased are specifically denied.
However, respondent No.2 has admitted the issuance of policy in favour of respondent No.1 in respect of lorry bearing Reg.No.KA-18-B-3242 and the same was in force as on the date of accident and the liability, if any, on respondent No.2 is governed by the terms and conditions of the policy. Therefore, sought for dismissal of the claim petition.
5. Based on the aforesaid pleadings, the Commissioner for Workmen’s Compensation / Tribunal has framed the following issues:
1. Whether the petitioners prove that deceased Baber Pasha was an employee under the first respondent as defined under the workmen compensation Act?
2. Whether the petitioners prove that deceased Baber Pasha met with an accident on 25-09-2014 at midnight sustained injuries and died during the course of employment?
3. Whether the petitioners prove that at the time of accident deceased was aged 25 years and was drawing salary of Rs.10000/- p.m. as wages?
4. Whether the petitioners are entitled for compensation? If so at what quantum and from whom?
5. What order/award?
6. In order to establish the case of the claimants, claimant No.3/wife has been examined as P.W.1 and got marked the documents as per Exs.P-1 to P-6. The respondent-Insurance Company did not adduce any evidence nor produced any documents.
7. The Tribunal, after considering both oral and documentary evidence, has recorded the finding that the claimants have proved that the deceased Baber Pasha was an employee under respondent No.1 and the accident occurred on 25.09.2014 was arising out of and during the course of employment and also proved the age of the deceased as 25 years as on the date of incident and he was drawing monthly wage of Rs.8,000/-. Accordingly, the Tribunal, by the impugned judgment and award, has awarded compensation of Rs.8,61,120/- with interest at the rate of 6% p.a. after expiry of 30 days from the date of accident. Hence, the present appeal is filed by the claimants seeking enhancement of compensation.
8. The respondent No.2-Insurance Company has not filed any appeal against the impugned judgment and award.
9. I have heard the learned counsel for the parties to the lis.
10. Sri Prakash Salmani, learned counsel appearing on behalf of Sri Satish R.Girji, learned counsel for the appellants mainly contended that the Tribunal has granted only 6% interest p.a., which is contrary to the provisions of Section 4A(3)(a) of the Employee’s Compensation Act, 1923 (hereinafter referred to as “Act”) and contended that the claimants are entitled for interest at the rate of 12% p.a. and not 6% p.a. He would further contended that the Tribunal has not awarded any compensation towards funeral expenses as contemplated under the provisions of Section 4(4) of the Act. Therefore, sought to allow the petition as prayed for.
11. Per contra, Sri M.U.Poonacha, learned counsel for respondent No.2-Insurance Company sought to justify the impugned judgment and award passed by the Tribunal. He would further contend that the claimants have not produced any material documents to prove that they have spent Rs.5,000/- towards funeral expenses. Taking into consideration the date of accident, the Tribunal is justified in awarding interest at the rate of 6% p.a. after expiry of 30 days from the date of accident. Therefore, sought to dismiss the appeal.
12. This Court, while admitting the appeal, has framed the following substantial questions of law:
“1. Whether the Commissioner for Employee’s Compensation/Tribunal is justified in awarding interest at the rate of 6% p.a. in view of the provisions of Section 4A(3)(a) of the Employees’ Compensation Act, 1923?
2. Whether the Commissioner for Employee’s Compensation/Tribunal is justified in not awarding any compensation towards funeral expenses as contemplated under Section 4(4) of the Employee’s Compensation Act, 1923?”
13. Having heard the learned counsel for the parties, it is an undisputed fact that deceased Baber Pasha was died in a road accident occurred on 25.09.2014 arising out and during the course of employment as is evidenced from the material documents i.e., Exs.P-1 to P-6 issued by the concerned official/authority during the course of their regular employment.
14. The material on record clearly depicts that the deceased was an employee under respondent No.1, which is not in dispute. It is also not in dispute that as on the date of incident the policy was in force. The age of the deceased as on the date of incident is 25 years, which is also not in dispute. The Tribunal, considering the date of incident i.e., 25.09.2014, has taken the monthly wage of the deceased at Rs.8,000/-, and proceeded to award compensation of Rs.8,61,120/-. While awarding the said compensation, the Tribunal has awarded interest only at the rate of 6% p.a., which is contrary to the provisions of Section 4A(3)(a) of the Employee’s Compensation Act, which reads as under:
“4A. Compensation to be paid when due and penalty for default.-
(1) xxxxxxx (2) xxxxxxx (3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall-
(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due.”
15. The material on record clearly depicts that the deceased died on the spot and the jurisdictional police registered crime in Cr.No.169/2014 for the offence punishable under Sections 279, 304A of IPC read with Section 134(a) & (b) of M.V. Act and the same is also not in dispute.
16. When the death of the deceased was arisen out of and during the course of employment, the claimants are entitled for funeral expense of Rs.5,000/- as contemplated under the provisions of Section 4(4) of the Act, but the same has not been awarded by the Tribunal in the present case.
17. In view of the aforesaid admitted facts, the substantial question of law No.1 has to be answered in the negative holding that the Tribunal is not justified in awarding interest at the rate of 6% p.a. after expiry of 30 days from the date of accident. Hence, the claimants are entitled for interest at the rate of 12% p.a. after expiry of 30 days from the date of accident. The substantial question of law No.2 is also answered in the negative holding that the Tribunal is not justified in not awarding any compensation in respect of funeral expenses as contemplated under Section 4(4) of the Act.
18. For the reasons stated above, the appeal is allowed-in-part.
The impugned judgment and award dated 27.06.2016 made in ECA No.4/2015 on the file of II Addl. Senior Civil Judge and JMFC, Chikkamagaluru, is hereby modified. The claimants are entitled for funeral expenses of Rs.5,000/-. Hence, in total, claimants are entitled for Rs.8,66,120/- (Rs.8,61,120/- + Rs.5000/-) with interest at the rate of 12% p.a. after expiry of 30 days from the date of accident.
Accordingly, appeal is disposed of.
Sd/-
JUDGE BSR