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.3598 OF 2016 (ECA) BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE 1ST FLOOR, TUMKUR, COMPLEX BUILDING, B H ROAD, TUMKUR, REPRESENTED BY MOTOR THIRD PARTY, CLAIMS HUB, MAHALAKSHMI CHAMBERS, NO.9, 2ND FLOOR, M G ROAD, BANGALORE-560001 BY ITS DULY CONSTITUTED ATTORNEY.
...APPELLANT (BY SRI RAVISHANKAR C R, ADVOCATE) AND:
1. SMT CHIKKATHAYAMMA, AGED ABOUT 52 YEARS, W/O LATE YALAVAIAH.
2. SRI NAGARAJU, AGED ABOUT 41 YEARS, S/O LATE YALAVAIAH .
THE RESPONDENTS NO.1 AND 2 ARE RESIDING AT BALLAGERE VILLAGE, TUMKUR TALUK, TUMKUR DISTRICT.
3. SRI NANJAPPA, AGED ABOUT 57 YEARS, S/O SRI GANGAIAH, RESIDING AT MARUR HAND POST, N H 48, MAGADI ROAD, RAMANAGARA DISTRICT-571511.
…RESPONDENTS (BY SRI K R RAMESH, ADVOCATE FOR C/R1 AND R2 R3 SERVED BUT UNREPRESENTED) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF EMPLOYEES COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED: 13.01.2016 PASSED IN ECA NO.8/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND CJM, TUMAKURU, AWARDING COMPENSATION OF RS.2,65,000/- WITH INTEREST @ 9% P.A. FROM 30TH DAY OF THE ACCIDENT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant-insurance company has filed the present appeal for reduction of compensation against the judgment and award dated 13.01.2016 made in E.C.A.No.8/2014 on the file of the Addl. Senior Civil Judge and CJM, Tumakuru, awarding total compensation of Rs.2,65,000/- with interest at the rate of 9% p.a. from 30th day of the accident from respondents.
2. It is the case of the claimants that the deceased Yalavaiah was working as a Cleaner under respondent No.1 in his lorry bearing Reg.No.KA-20- 7740 on a monthly salary of Rs.3,500/- and Rs.50/- per day as batta. On 24.10.2009 at about 8.15 p.m. said deceased Yalavaiah while discharging his duties, met with an accident due to rash and negligent driving of the driver of the said lorry. Due to which said deceased Yalavaiah sustained multiple and grievous injuries on his head and all over the body. He was shifted to A.C.Hospital at Adichunchanagiri and then referred to Victoria Hospital, Bangalore and taken treatment as an inpatient and while taking treatment on 27.10.2009 at about 8.20 p.m. he succumbed to injuries, thereafter, post mortem was conducted. The jurisdictional police registered a case in Crime No.174/2009 for the offence punishable under Sections 279, 337 and 304A of Cr.P.C. It is further contended that respondent No.1 is the owner of the said lorry and respondent No.2 is the insurer of the said lorry and the insurance policy was in force, hence, both the respondents are jointly and severally liable to pay compensation.
3. In response to the notice, respondent Nos.1 and 2 have appeared and filed written statement. Respondent No.1 filed the written statement denying the averments made in the claim petition and admitted that deceased Yalavaiah was working as Cleaner in his lorry bearing Reg.No.KA- 20-7740 and he was paying monthly wages of Rs.3,500/- per month and Rs.50/- per day as bata. He further contended that the policy was in force as on the date of the accident, therefore, respondent No.2 is liable to pay the compensation.
4. Respondent No.2-insurance company has filed written statement and denied averments made in the claim petition and also denied the relationship of the petitioners with the deceased. The age and wages of the deceased is also denied and further contended that there is no relationship of employer and employee between respondent No.1 and the deceased. The liability is subject to conditions of the policy and hence, sought for dismissal of the petition.
5. The Tribunal based on the aforesaid pleadings, framed the following issues:
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2. ¥ÀæwªÁ¢AiÀÄ §½ ªÀÄÈvÀ AiÀļÀªÀAiÀÄå CªÀgÀÄ PÁAiÉÄÝAiÀÄ°è ªÁåSÁ夹zÀAvÉ PÁ«ÄðPÀ£ÁVzÀÝ JA§ÄzÀ£ÀÄß CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
3. ºÁVzÀÝ°è ¢£ÁAPÀ: 24.10.2009 gÀAzÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ PÉ®¸ÀªÀ£ÀÄß ¤ªÀð»¸ÀÄwÛzÁÝUÀ D PÉ®¸ÀzÀ PÁgÀt¢AzÀ GAmÁzÀ C¥ÀWÁvÀzÀ°è AiÀļÀªÀAiÀÄå CªÀgÀÄ ªÀÄgÀt ºÉÆA¢gÀÄvÁÛgÉ JA§ÄzÀ£ÀÄß CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
4. C¥ÀWÁvÀ ªÉüÉAiÀÄ°è ªÀÄÈvÀ£À ‘ªÀAiÀĸÀÄì’ ªÀÄvÀÄÛ ‘ªÉÃvÀ£’À JµÀÄÖ JA§ÄzÀ£ÀÄß CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
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6. G¨sÀAiÀÄ ¥ÀæwªÁ¢UÀ¼ÀÄ AiÀiÁªÀ jÃwAiÀÄ°è F ¥ÀjºÁgÀ ºÁUÀÆ EvÀgÀ G¥À±ÀªÀÄ£À ¥ÁªÀw¸À®Ä ¨sÁzÀågÀÄ?
7. F §UÉÎ K£ÀÄ DzÉñÀ?
6. In order to prove the case, petitioner No.1 i.e., wife of the deceased, got herself examined as P.W.1 and got marked 13 documents as per Exs.P-1 to P-15. The insurance company examined its Senior Branch Manager as R.W.1 and got marked the documents as per Ex.R1 and R2.
7. The Tribunal, considering both oral and documentary evidence, has recorded the finding that the claimants are the dependants of deceased Yalavaiah and deceased was a workman died in a road traffic accident occurred on 24.10.2009 arising out of and during the course of employment. The age of the deceased is proved as 60 years along with the monthly wages. Accordingly, the Tribunal, by the impugned judgment and award, awarded total compensation of Rs.2,65,000/- with interest at the rate of 9% p.a. from 30th day of the accident from respondents. Therefore, the present miscellaneous first appeal is filed for reduction of compensation.
8. 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 deceased at Rs.4,500/- in view of the provisions of Explanation-II of Section 4 of the Workmen’s Compensation Act, 1923?”
9. I have heard the learned counsel for the parties to the lis.
10. Sri C.R.Ravishankar, learned counsel for the appellant-insurance company has contended that admittedly the accident occurred on 24.10.2009, as on the date of accident as per Explanation II to Section 4 of the Workmen’s Compensation Act, the Central Government specifies the monthly wages at Rs.4,000/-, but the Tribunal proceeded to take the monthly wages as Rs.4,500/-, the same is contrary to the said proviso. Therefore, he sought to allow the miscellaneous first appeal.
11. Per contra, Sri K.R.Ramesh, learned counsel for respondent Nos.1 and 2 sought to justify the impugned judgment and award passed by the Tribunal and contended that it is the specific case of the claimant-P.W.1, who stated on oath that the deceased was a Cleaner under respondent No.1 earning Rs.3,500/- per month along with Rs.50/- as per day bata, the same was also admitted by the owner of the vehicle. Therefore, the Tribunal is justified in taking the monthly wages of the deceased at Rs.4,500/-. He would further contend that though in the claim petition the claimants have sought for interest at the rate of 12% p.a. on the compensation to be awarded, the Tribunal proceeded to grant interest at the rate of 9% p.a. Though the appeal is not filed by the claimants, this Court can take judicial notice under Section 4A(3)(a) of the Employees Compensation Act. Therefore, he sought to dismiss the miscellaneous first appeal.
12. Having heard the learned counsel for the parties, it is an undisputed fact that the deceased Yalavaiah was working under respondent No.1 as Cleaner in lorry bearing Reg.No.KA-20-7740. It is also not in dispute that the deceased died due to the accidental injuries arising out and during the course of employment. The jurisdictional police have registered a case in Crime No.174/2009 for the offence punishable under Sections 279, 337 and 304A of Cr.P.C. against the driver of the lorry, the same is evidenced from the material documents Exs.P-1 to P-6.
13. It is the specific case of P.W.1 that her husband was earning monthly income of Rs.3,500/-
and bata of Rs.50/- per day. Admittedly, the accident occurred on 24.10.2009, as on the date of accident in terms of Explanation II to Section 4 of the Workmen’s Compensation Act, Central Government specifies the monthly wages of a workman exceed Rs.4000/-, his monthly wages for the purpose of Clause (a) and (b) shall be deemed to be Rs.4000/- only. In view of the aforesaid provisions of the Act, the Tribunal is erred in taking the monthly wages of Rs.4,500/- instead of Rs.4,000/-, on that ground alone, the monthly wages fixed to the deceased by the Tribunal is erroneous and the same cannot be sustained. Admittedly, the accident occurred on 24.10.2009 as on the date of accident under the provisions of Section 4A(3)(a) was substituted by Act 30 of 1995 with effect from 15.09.1995. The accident occurred after the said amendment, therefore, the Tribunal ought to have awarded interest at the rate of 12% p.a. not 9% p.a. and to that extent the impugned judgment is to be modified.
14. For the reasons stated above, the substantial question of law has to be answered in the negative holding that the Tribunal is not justified in assessing the monthly wages of deceased at Rs.4,500/- instead of Rs.4,000/-.
15. If the monthly wages of deceased is taken as Rs.4,000/- in view of the provisions of Section 4(1)(a) of the Act, 50% of the income is taken into consideration i.e., Rs.4,000-50%=Rs.2,000/-, taking into consideration the age of the deceased as 60 years, the relevant factor would be 117.41, hence, it is calculated as under:
Rs.2,000 X 117.41= Rs.2,34,820/-.
Therefore, the reassessed compensation is Rs.2,34,820/-.
16. In view of the provision of Section 4A(3)(a) of the Employees Compensation Act, the claimants are entitled to interest at the rate of 12% p.a. after one month from the date of accident. In view of the above, the appeal filed by the appellant-insurance company is allowed-in-part. The judgment and award dated 13.01.2016 made in E.C.A.No.8/2014 on the file of the Addl. Senior Civil Judge and CJM, Tumakuru, is modified and the claimants are entitled for total compensation of Rs.2,34,820/- with interest at the rate of 12% p.a. after one month from the date of accident.
The amount in deposit by the insurance company, if any, shall be transmitted to the jurisdictional Tribunal forthwith.
Sd/- JUDGE BSR