IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL NO.224/2017(WC) BETWEEN:
1 . SMT. JAYALAKSHMI, W/O. GOVINDARAJU @ M.G. GOVINDARAJU, AGED ABOUT 24 YEARS, 2 . M.G. GIRISH S/O. GOVINDARAJU @ M.G. GOVINDARAJU, AGED ABOUT 16 YEARS, 3 . M. G. YOGESH S/O. GOVINDARAJU @ M.G. GOVINDARAJU, AGED ABOUT 14 YEARS, APPELLANT No.2 AND 3 ARE MINORS, REPRESENTED BY HER NATURAL GUARDIAN, I.E., MOTHER APPELLANT 1, ALL ARE RESIDENTS OF MADAKARIPURA VILLAGE, CHITRADURGA TALUK AND DISTRICT-577 501.
...APPELLANTS (BY SRI SPOORTHY HEGDE NAGARAJA, ADVOCATE) AND:
1 . Y. KUMAR S/O. YARAPPA, AGED ABOUT 34 YEARS, OWNER OF APPE PIAGGIO AUTO NO. KA-16/A-4468, R/O. KYADIGERE VILLAGE, DODDASIDDAVANAHALLI POST, CHITRADURGA TALUK AND DISTRICT-577 501.
2 . RELIANCE GENERAL INSURANCE CO. LTD. REP BY ITS BRANCH MANAGER, MAGANUR BASAPPA COMPLEX, B.D. ROAD, NANJUNDESHWARA PETROL BUNK, CHITRADURGA-577 501.
…RESPONDENTS (BY SRI H. S. LINGARAJ, ADVOCATE FOR R2; R1 IS SERVED BUT UNREPRESENTED) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF THE EMPLOYEE’S COMPENSATION ACT, 1923 AGAINST THE JUDGMENT AND AWARD DATED 11.11.2016 PASSED IN ECA No.72/2015 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE & COMMISSIONER FOR COMPENSATION, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING UP FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING.
J U D G M E N T The claimants who are the wife and two minor children of the deceased have filed the present Miscellaneous First Appeal for enhancement of compensation against the Judgment & Award dated 11.11.2016 made in ECA No.72/2015 on the file of the Commissioner for Employee’s Compensation/Tribunal awarding total compensation of Rs.5,08,320/- with interest at 9% per annum from 30th day of accident till realization and directing the 1st respondent to pay compensation and dismissing the claim petition against the 2nd respondent – Insurance company.
2. It is the case of the claimants that the deceased Govindaraju @ M.G. Govindaraju was working as a driver since two years prior to the accident in an autorickshaw bearing Registration No.KA-16-A-4468 under the employment of respondent No.1, who used to pay monthly wages of Rs.8,000/- and daily batta of Rs.200/-. On 29.5.2013 at about 8.10 p.m. as per the instructions of Respondent No.1, the deceased was driving the said vehicle from Chitradurga to Madakaripura and near Venkateshwara Extension, Challakere road, Chitradurga, the deceased met with an accident and sustained severe injuries. Immediately, he was shifted to Government Hospital at Chitradurga, where he was reported as dead. After the post-mortem examination, the dead body of the deceased was handed over to the claimants. It is further case of the claimants that due to untimely death of the deceased, the claimants are suffering from mental shock and agony and have also lost love & affection. The accident occurred arising out of and in the course of employment under the 1st respondent. The 1st respondent who is the owner and the 2nd respondent – insurer are jointly liable to pay compensation.
3. The 1st respondent filed objections and denied the averments made in the claim petition and contended that the offending vehicle was insured with the 2nd respondent and the policy was in force as on the date of the accident and compensation claimed is excessive and abnormal. The 1st respondent further contended that he has paid Rs.10,000/- to the claimants for shifting the dead body from hospital to native place for performing funeral ceremonies. Therefore, sought for dismissal of the claim petition.
4. The 2nd respondent – Insurance company filed objections and denied the averments made in the claim petition and contended that the deceased did not possess effective valid Driving Licence to drive the autorickshaw. The 1st respondent has allowed the driver, who has not possessed valid Driving Licence to drive the autorickshaw. The claimants are not dependants of the deceased and they are independents and there is no relationship of employer and employee between the 1st respondent and the deceased and there was no payment of salary or batta as claimed by the claimants. Therefore, the 2nd respondent is not liable to pay compensation and sought for dismissal of the claim petition.
5. Based on the aforesaid pleadings, the Tribunal framed the following issues:
1. Whether the petitioner proves that, deceased M.G. Govindaraju @ Govindaraju P. was engaged by Respondent-1 as a driver of Ape Piaggio auto bearing Reg. No.KA-16A-4468 on 29-05-2013 at about 8.10 p.m. from Chitradurga to Madakaripura, infront of Venkateshwara extension, Challakere Road, Chitradurga met with an accident, due to his rash and negligent driving of said vehicle?
2. Whether petitioners are entitled for compensation, if so, how much and from whom?
3. What order or decree?
6. In order to prove their case, claimant No.1 examined herself as PW.1 and marked the documents – Ex.P1 to Ex.P10. The 2nd respondent examined its Legal Claims Officer as RW.1 and Superintendent RTO as RW.2 and marked the documents – Ex.R1 to Ex.R6.
7. The Tribunal considering both oral and documentary evidence, recorded a finding that the claimants proved that the deceased M.G. Govindaraju was working under the 1st respondent as a driver as on the date of the accident and the accident arising out of and in the course of his employment and the claimants are entitled to compensation. Accordingly, the Tribunal by the impugned Judgment & Award awarded total compensation of Rs.5,08,320/- and the claim petition against the insurance company came to be dismissed. Hence, the present Miscellaneous First Appeal is filed for enhancement of compensation.
8. The 1st respondent – owner though served, has remained unrepresented. The Respondent Nos.1 and 2 have not filed appeal against the impugned Judgment & Award passed by the Tribunal.
9. This Court while admitting the Appeal on 10.7.2019, has framed the following substantial questions of law:
1) Whether the Workmen’s Compensation Commissioner/Tribunal is justified in fixing the monthly wages at Rs.6,000/- when the accident has occurred on 29.05.2013 after the amendment to Section 4(1B) of Employee’s Compensation Act in the year 2010 whereby the Central Government has specified Rs.8,000/- as monthly wages?
2) Whether the Tribunal is justified in awarding interest at 9% p.a. ignoring the provisions of Section 4A(3)(a) of Employee’s Compensation Act?
3) Whether the Tribunal is justified in fastening the liability on the owner when the deceased was holding light motor vehicle license?
10. I have heard the learned counsel for the parties to the lis.
11. Sri Spoorthy Hegde Nagaraja, learned counsel for the appellants – claimants contended that the deceased driver of the autorickshaw was holding the driving license to drive Light Motor Vehicle (‘LMV’ for short), which is valid to drive the autorickshaw as there was no passenger in the vehicle and no Endorsement is required on the Driving Licence to that effect. The vehicle at the time of accident was used personally to go to his house along with his son. Further, the definition of the LMV also includes ‘transport vehicle’ which squarely covers the vehicle on hand i.e., autorickshaw bearing Regn. No.KA-16 A-4468. Therefore, it is necessary to fix the liability on both owner and insurer of the autorickshaw. He further contended that the Tribunal erred in taking the monthly wages of the deceased at Rs.6,000/- ignoring the evidence of PW.1, who has stated on oath that the deceased was getting monthly wages of Rs.8,000/- and Rs.200/- daily batta. The accident occurred on 29.5.2013 after the amendment came into force. In view of the provisions of sub-section (1B) of Section 4 of the Employee’s Compensation Act, 1923 (‘the Act’ for short), the Central Government has specified monthly wages at Rs.8,000/- by the notification dated 31.5.2010. He further contended that the Tribunal erred in taking monthly wages at Rs.6,000/- and the same is contrary to the provisions of the Act and the material on record.
12. Sri Spoorthy Hegde Nagaraja would further contend that the Tribunal awarded interest on the compensation at 9% ignoring the provisions of Section 4A(3)(a) of the Act, wherein the Legislature has fixed 12% interest on the compensation amount. He further contended that this Court in MFA No.101023/2016 c/w MFA No.102750/2015 decided on 22.09.2017 held that the Insurance Company is liable to pay compensation relying upon the judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in (2017)14 SCC 663, wherein the Hon’ble Supreme Court held that “The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect”.
Therefore, he sought to allow the present Miscellaneous First Appeal.
13. Per contra, Sri H.S. Lingaraj, learned counsel for the respondent No.2 – Insurance company sought to justify the impugned Judgment & Award passed by the Tribunal and contended that the deceased was holding licence for driving Light Motor Vehicle and therefore, he is not entitled to drive the offending vehicle. Further, in the absence of any material documents produced by the claimants, the monthly wages fixed by the Tribunal at Rs.6,000/- is just and proper. Therefore, he sought to dismiss the claim petition.
14. Having heard the learned counsel for the parties, it is an undisputed fact that the deceased was driver under the 1st respondent and died in the road accident on 29.5.2013 arising out of and during the course of his employment. Though the 1st respondent – owner denied the averments made in the claim petition, he has admitted that the offending vehicle is insured with the 2nd respondent and the policy was in force as on the date of the accident. The contention taken by the learned counsel for the insurance company is that the deceased has not possessed any effective Driving Licence. The Tribunal considering the entire material on record, recorded the evidence of RW.2 that the deceased Govindaraju possessed Driving Licence to drive private car and also motor cycle, three wheeler NT and tractor. Ex.R1 - Driving Licence extract depicts that the deceased possessed “Driving Licence to drive MC with gear issued on 10.4.2010 and LMV-3 wheeler NT and LMV- Tractor on 10.2.1995” and that licence was valid from 2.12.1996 to 1.2.2016. Thus, as on the date of the accident, the insurance policy of the offending vehicle was in force. Therefore, the Insurance Company is liable to pay the compensation.
15. It is also not in dispute that the accident occurred on 29.5.2013 when the deceased was working as a driver under the 1st respondent. The Tribunal proceeded to take the notional income at Rs.6,000/- ignoring the evidence of PW.1 and ignoring the fact that the accident occurred on 29.5.2013 after the amendment of the provisions of sub- section (1B) of Section 4 of the Act, whereby the Central Government by a notification dated 31.5.2010 specified monthly wages at Rs.8,000/-. Therefore, the monthly wages of the deceased has to be taken at Rs.8,000/-. In terms of the provisions of Section 4(1)(a) of the Act, the compensation shall be an amount equal to 50% of the monthly wages of the deceased multiplied by the relevant factor. As on the date of the accident, the age of the deceased was 45 years and the relevant factor applicable to his age is Rs.169.44. Therefore, the claimants are entitled for compensation of Rs.6,77,760/- {Rs.8,000 x 50% x 169.44}. Further, the Tribunal has not awarded any compensation in respect of funeral expenses as contemplated under the provisions of Section 4(4) of the Act and hence the claimants are entitled to compensation of Rs.5,000/- towards funeral expenses. In all, the claimants are entitled to total compensation of Rs.6,82,760/- with 12% interest as contemplated under the provisions of Section 4A(3)(a) of the Act after one month from the date of the accident.
16. Admittedly, the insurance company has not disputed the fact that the accident occurred when the deceased was holding LMV licence. The vehicle involved is autorickshaw, which is also Light Motor Vehicle. As on the date of the accident, the insurance policy of the offending vehicle was in force. This Court while considering the provisions of the Act in MFA No.101023/2016 decided on 22.09.2017 relying upon the judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Co. Ltd., reported in (2017)14 SCC 663 held that the insurance company is liable to pay compensation and observed at paragraph-4 as under:
“4. In view of the aforesaid decision of the Hon’ble Supreme Court, I hold that the insurance company is liable to pay the compensation. Accordingly, the appeal filed by the employer is allowed. The judgment and order dated 19.6.2015 passed by the Commissioner for Employee’s Compensation, Ranebennur, in ECA No.142 of 2014, fastening the liability on the employer to pay the compensation is set aside. The insurance company is held liable to pay the compensation awarded by the Commissioner for Employee’s Compensation within eight weeks from the date of receipt of copy of this order. Amount in deposit is ordered to be refunded to the appellant.”
17. The Hon’ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Co. Ltd., reported in (2017)14 SCC 663 held at paragraphs 60.1, 60.2, 60.3 and 60.4 as under:
60. Thus, we answer the questions which are referred to us thus:
60.1. “Light motor vehicle” as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.
60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, “unladen weight” of which does not exceed 7500 kg and holder of a driving licence to drive class of “light motor vehicle” as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form.
60.3. The effect of the amendment made by virtue of Act 54 of 1994 w.e.f. 14-11-1994 while substituting clauses (e) to (h) of Section 10(2) which contained “medium goods vehicle” in Section 10(2)(e), “medium passenger motor vehicle” in Section 10(2)(f), “heavy goods vehicle” in Section 10(2)(g) and “heavy passenger motor vehicle” in Section 10(2)(h) with expression “transport vehicle” as substituted in Section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of Section 10(2)(d) and Section 2(41) of the Act i.e. light motor vehicle.
60.4. The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.
18. For the reasons stated above, the 1st substantial question of law raised in the present Miscellaneous First Appeal is answered in the negative holding that the Commissioner for Employee’s Compensation/Tribunal is not justified in fixing the monthly wages at Rs.6,000/- when the accident has occurred on 29.5.2013 after the amendment to Section 4(1B) of the Act, whereby the Central Government has specified Rs.8,000/- as monthly wages. Accordingly, the monthly wages of the deceased is fixed at Rs.8,000/-. The 2nd substantial question of law is also answered in the negative holding that the Tribunal is not justified in awarding interest at 9% per annum ignoring the provisions of Section 4A(3)(a) of the Act and the claimants are entitled to interest at 12% per annum on the compensation amount after one month from the date of the accident. The 3rd substantial question of law is also answered in the negative holding that the Tribunal is not justified in fastening the liability on the owner when the deceased was holding Light Motor Vehicle licence. Accordingly, the 2nd respondent – Insurance Company is liable to pay compensation to the appellants – claimants.
19. In view of the above, I pass the following order:
i) The Miscellaneous First Appeal is allowed in part.
ii) The impugned Judgment & Award passed by the Tribunal fastening the liability on the respondent No.1 – owner is set aside.
iii) The impugned Judgment & Award passed by the Tribunal dismissing the claim petition against the Respondent No.2 – Insurance Company is modified. The 2nd respondent – Insurance company is liable to pay compensation to the appellants – claimants.
iv) The appellants – claimants are entitled to total compensation of Rs.6,82,760/- (Rupees six lakhs eighty-two thousand seven hundred and sixty only) as against Rs.5,08,320/- awarded by the Tribunal, together with interest at 12% per annum after one month from the date of the accident.
v) The rest of the impugned Judgment & Award passed by the Tribunal is left undisturbed.
Gss/-
Sd/- JUDGE