IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.3146/2012 (WC) BETWEEN:
THE NEW INDIA *ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE-VII, 6TH FLOOR, VOKKALIGARA BHAVAN, HUDSON CIRCLE, BENGALURU-560 027.
BY ITS DULY CONSTITUTED ATTORNEY. … APPELLANT (BY SRI C.R. RAVISHANKAR, ADVOCATE) AND:
1. SMT. SHASHIKALA, AGED ABOUT 26 YEARS, W/O LATE RAVI @ RAJU.
2. KUM. BINDU, AGED 5 YEARS, SINCE MINOR REPRESENTED BY MOTHER AND NATURAL GUARDIAN SMT. SHASHIKALA.
BOTH ARE R/AT ANEGUNDI ESTATE, ROW HOUSE, KOOVE VILLAGE, BALUR HOBLI, MUDIGERE TALUK, CHIKMAGALUR DISTRICT.
3. M/S. ANEGUNDI ESTATE, KOOVE VILLAGE, BALUR HOBLI, MUDIGERE TALUK, CHIKMAGALUR DISTRICT, REPRESENTED BY ITS MANAGER. ... RESPONDENTS *CORRECTED VIDE COURT ORDER DATED 07.02.2020 (BY SRI K. VENKATE GOWDA, ADVOCATE FOR R-1 AND R-2, SRI. G. VEERENDRA BABU, ADVOCATE FOR R-3) THIS M.F.A IS FILED UNDER SECTION 30(1) OF WC ACT AGAINST THE JUDGMENT DATED 28.12.2011 PASSED IN WCA/FC- 03/2009 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISION- 2, CHIKMAGALUR, AWARDING A COMPENSATION OF RS.3,71,358/- WITH INTEREST @ 12% P.A.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Though this matter is listed for admission, with the consent of both the counsel, it is taken up for final disposal.
2. This appeal is filed by the Insurance Company challenging the judgment and award dated 28.12.2011 passed in W.C.A/F.C.No.03/2009 passed by the Labour Officer and Commissioner for Workmen Compensation, Sub-Division II, Chikmagalur, aggrieved by the quantum of compensation determined by the Commissioner for Workmen Compensation.
The brief facts of the case are:
3. The claimants are the wife and children of the deceased.
In their claim petition they have contended that on 22.8.2008 at about 3.00 p.m. when the deceased Ravi @ Raju was carrying aluminum ladder, he came in contact with electric wire and he has suffered electrocution and consequently he died. The claimants had contended that the deceased was earning Rs.4,000/- per month and due to the death of the deceased, the family lost the income.
4. The Insurance Company appeared and contested the matter disputing the quantum of wages, age of the deceased and their liability. The claimants in support of their case examined one witness as P.W.1 and got marked the documents at Exs.P.1 to 6. The respondent examined one witnesses as R.W.1 and got marked the documents at Exs.R.1 to 3. The Insurance Company did not choose to lead any evidence. The Commissioner for Workmen Compensation considering the oral and documentary evidence allowed the petition in part granting compensation of Rs.3,71,358/- with interest at 12% per annum. Being aggrieved by the judgment and award, the present appeal is filed by the Insurance Company contending that the judgment and award is contrary to law and as against the evidence and the Trial Court has awarded excessive and exorbitant compensation saddling the liability to pay unreasonable compensation on the Insurance Company.
5. The substantial questions of law raised by the Insurance Company before this Court are:
1. Whether the Commissioner for Workmen Compensation was right in considering the wages of the deceased at Rs.3,450/- as per Minimum Wages Act, when the employer had declared the wages of the deceased being less than Rs.2,000/- per month?
2. Whether the Commissioner for Workmen Compensation was right in considering the age of the deceased at 26 years, when the petitioners had declared the age of the deceased being 28 years as on the date of the alleged accident?
3. Whether the Commissioner for Workmen Compensation was right in awarding interest at 12% per annum after 30 days from the date of accident till realization, ignoring the latest decision of the Hon’ble Supreme Court regarding payment of interest at 7½% per annum from the date of filing the petition till adjudication and future interest at 12% per annum from the date of realization?
6. The learned counsel for the appellant reiterating the grounds urged in the appeal memo and also the substantial questions of law raised by him, reiterates that the Commissioner for Workmen Compensation has committed an error in passing such an order and the same has to be reconsidered mainly on two grounds that interest has to be paid by the owner and not by the Insurance Company. The other contention is that when the income of the deceased was declared as Rs.2,000/- per month, the Commissioner for Workmen Compensation ought not to have taken the income as Rs.3,450/- and hence it requires modification of the order.
7. Per contra, the learned counsel for the respondent/claimants would contend that the age of the deceased is rightly taken by the Commissioner for Workmen Compensation considering the post mortem report and the same discloses the age as 26 years and not 28 years. Hence, the contention of the Insurance Company cannot be accepted. The learned counsel with regard to taking of the income would contend that the Commissioner for Workmen Compensation has taken the minimum wages and hence has rightly taken the income as Rs.3,450/- per month and does not require any interference of this Court.
8. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondents, the points that arise for the consideration of this Court are:
(i) Whether the Commissioner for Workmen Compensation has committed an error in taking the wages of the deceased at Rs.3,450/- per month as per the Minimum Wages Act as against Rs.2,000/- per month, which was declared by the employer?
(ii) Whether the Commissioner for Workmen Compensation has committed an error in considering the age of the deceased as 26 years and whether it requires interference of this Court?
(iii) Whether the Commissioner for Workmen Compensation has committed an error in fastening the liability of payment of interest on the Insurance Company and whether it requires interference of this Court?
(iv) What order?
Point No.(ii):
9. Having heard the arguments of both the counsel with regard to age is concerned, the contention of the Insurance Company is that the deceased was aged about 28 years and the Commissioner has committed an error in considering the age as 26 years. Having considered the material on record, it is evident that the Insurance Company has not examined any witnesses and also not placed any material to show that the deceased was aged 28 years. The Commissioner considering the post mortem report has taken the age of the deceased as 26 years and hence the very contention of the Insurance Company that he was aged 28 years cannot be accepted. Hence, the very contention of the Insurance Company is not substantiated by any piece of material before the Commissioner and hence the Commissioner has not committed an error in considering the age of the deceased as 26 years.
Point No.(i):
10. Insofar as point No.(i) is concerned, there is force in the contention of the Insurance Company that the claimants have not placed any material before the Court with regard to the income of the deceased as Rs.4,000/- per month. The Commissioner while considering the material on record discussed in page No.5 of the judgment with regard to taking the income as Rs.3,450/- per month, but failed to consider Ex.R.3, which is produced by R.W.1. On perusal of Ex.R.3, it is clear that the income of the deceased is less than Rs.2,000/- per month and also the evidence of R.W.1 is clear that he was not paid monthly salary of Rs.4,000/- and was a casual labourer on daily wages. The claimants in the cross-examination of R.W.1 have not disputed the document at Ex.R.1. Only a suggestion was made that he was earning more than Rs.4,000/- per month and the said suggestion was denied. When the documentary evidence is relied upon by R.W.1, and on that basis only a policy was taken disclosing the income as Rs.2,000/- per month, the Commissioner ought not to have taken the income as Rs.3,450/- per month. The evidence of R.W.1 is also clear that he was a casual labourer. Hence, the Commissioner has committed an error in taking the income as Rs.3,450/- per month instead of Rs.2,000/- per month, which has been declared while taking the policy. Hence, it requires interference of this Court and the judgment and award has to be modified with regard to taking the income.
11. Taking the income as Rs.2,000/- per month and after deducting 50%, it comes to Rs.1,000/- per month and the relevant factor is 215.28 (Rs.1,000/- x 215.28 = Rs.2,15,280/-). Hence, the judgment and award of the Commissioner is modified as Rs.2,15,280/- as against Rs.3,71,358/-.
Point No.(iii):
12. The other contention of the Insurance Company is that the amount has not been deposited within 30 days by the owner and in terms of the document at Ex.R.1, the owner has to deposit the interest. For non-compliance of the same, the liability of payment of interest cannot be fastened on the Insurance Company. The owner has also not placed any material before the Court with regard to depositing of the amount. Ex.R.1 is specific that, if the owner has not complied, the interest or penalty cannot be fastened on the Insurance Company. Hence, it requires the modification of the order passed by the commissioner.
13. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is partly allowed.
(ii) The judgment and award dated 28.12.2011 passed in W.C.A/F.C.No.03/2009 by the Labour Officer and Commissioner for Workmen Compensation, Sub- Division II, Chikmagalur, is modified granting the compensation of Rs.2,15,280/- as against Rs.3,71,358/-.
(iii) The Insurance Company is entitled for excessive amount deposited i.e., Rs.1,56,078/- with interest, if the amount is deposited in the Bank.
(iv) The balance amount is to be transmitted to the Jurisdictional Court. The owner has to pay the interest at the rate of 12% per annum from after one month of the date of the incident.
Sd/- JUDGE MD