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.1755/2016(WC) BETWEEN:
1 . SMT. KATHIJAMMA, W/O LATE B.MOHAMMED AGED ABOUT 48 YEARS, 2 . WAHEEDA BANU D/O LATE B.MOHAMMED AGED ABOUT 37 YEARS, 3 . SAMEEDHA BANU D/O LATE B.MOHAMMED AGED ABOUT 36 YEARS, 4 . ZUBAIDA BANU D/O LATE B.MOHAMMED AGED ABOUT 32 YEARS, 5 . RAZIA D/O LATE B.MOHAMMED AGED ABOUT 30 YEARS, 6 . REHANA D/O LATE B.MOHAMMED AGED ABOUT 28 YEARS, 7 . SUMMAYYA D/O LATE B.MOHAMMED AGED ABOUT 26 YEARS, 8 . ARIEF S/O LATE B.MOHAMMED AGED ABOUT 24 YEARS, ALL ARE RESIDING AT JALAPADI HOUSE NEAR K.E.B.JUNCTION, BANTWAL TALUK.
...APPELLANTS (BY SRI GURUPRASAD B. R., ADVOCATE) AND:
1 . MR. T K KARIM, S/O LATE IBRAHIM AGED 63 YEARS, NAVAZ MANZIL, THUMBE VILLAGE, BANTWAL TALUK, 2 . NATIONAL INSURANCE CO. LTD., BRANCH OFF: 2ND FLOOR, GANESH BUILDING, B.C.ROAD, BANTWAL TALUK, REPRESENTED BY ITS MANAGER.
…RESPONDENTS (BY SRI ASHOK N PATIL, ADVOCATE FOR R2; VIDE ORDER DATED 05.04.2019 NOTICE TO R1 IS DISPENSED WITH) **** THIS MFA IS FILED UNDER SECTION 30(1) OF EMPLOYEES COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED 30.07.2015 PASSED IN ECA No.07/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, & JMFC, BANTWAL, D.K., PARTLY ALLWOING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING UP FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING.
J U D G M E N T The appellants – claimants have filed the present appeal for enhancement of compensation against the Judgment & Award dated 30.7.2015 made in ECA No.7/2014 on the file of the Commissioner for Employee’s Compensation/Tribunal awarding total compensation of Rs.4,38,600/-.
2. The claimants filed the claim petition claiming compensation on account of death of B. Mohammed, husband of the 1st claimant and father of the other claimants, contending that the 1st respondent is the registered owner of the lorry bearing No.KA-19-C-104 and the 2nd respondent is the insurance company of the aforesaid lorry. The deceased Mohammed was the driver of the said lorry under Respondent No.1 on a monthly wages of Rs.8,000/- and Rs.50/- as daily batta. On 30.9.2011, the deceased Mohammed, after unloading the load of sand at Panemangalore, was returning back towards Bantwal side by driving the tipper lorry and when it reached near Railway station, in front of Rickshaw Bhavan, at about 8.30 a.m., said lorry fell to the left side of the road, due to which he sustained grievous injuries to the head, chest and other parts of the body. Immediately, he was shifted to Government Hospital at Bantwal, where he was declared as dead. The post-mortem examination was conducted and thereafter the dead body of the deceased was handed over to the claimants. It is further stated that the claimants are entirely depending on the income of the deceased for their livelihood and the death of the deceased has occurred during the course of his employment under the 1st respondent while discharging his duty as driver of the lorry. The 1st respondent being the R.C. owner and Respondent No.2 being the insurer of the lorry are jointly and severally liable to pay the compensation.
3. In response to the notice issued by the Commissioner for Employee’s Compensation/Tribunal, the 1st respondent filed objections, wherein he has admitted that he is the owner of the vehicle and the deceased was driver under him and drawing monthly wages of Rs.8,000/- and Rs.50/- as daily batta and he has denied his liability to pay compensation. He has further stated that the lorry was insured with the 2nd respondent – Insurance company and the Insurance Company is liable to pay compensation and sought for dismissal of the claim petition against him.
4. The 2nd respondent – Insurance Company has filed the written statement denying the ownership of the 1st respondent as well as the relationship of employer and employee between the 1st respondent and the deceased and contended that the amount claimed is exorbitant and sought for dismissal of the claim petition.
5. Based on the aforesaid pleadings, the Commissioner for Employee’s Compensation/Tribunal framed the following issues:
1) CfðzÁgÀgÀÄ ªÀÄÈvÀ£ÀÄ 1£Éà ¥æÀwªÁ¢UÀ¼À C¢üãÀzÀ°è ZÁ®PÀ£ÁV PÉ®¸ÀªÀ£ÀÄß ªÀiÁqÀÄwÛzÀÝ£ÉAzÀÆ ºÁUÀÆ DvÀ£ÀÄ PÁ«ÄðPÀ £ÀµÀÖ ¥ÀjºÁgÀ PÁAiÉÄÝ 1923gÀ PÀ®A 2(1) (J£ï) gÀ PÁ«ÄðPÀ JA§ ¥ÀzÀzÀ ªÁåSÁå£ÀzÉƼÀUÉ M¼À¥ÀqÀÄvÁÛ£ÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
2) CfðzÁgÀgÀÄ 1£Éà ¥æÀwªÁ¢UÀ¼À C¢üãÀzÀ°è ZÁ®PÀ£ÁV PÉ®¸ÀªÀ£ÀÄß ªÀiÁqÀÄwÛzÁÝUÀ, ¸ÀzÀj PÉ®¸ÀzÀ zɸɬÄAzÀ C¥ÀWÁvÀQÌÃqÁV ªÀÄÈvÀ¥ÀnÖgÀÄvÁÛ£ÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
3) CfðzÁgÀgÀÄ ªÀÄÈvÀ¤UÉ ªÀÄÈvÀ¥ÀlÖ PÁ®PÉÌ 52 ªÀµÀð ªÀAiÀĸÁìVvÉÛAzÀÆ ºÁUÀÆ ªÀÄÈvÀ£ÀÄ 1£Éà ¥æÀwªÁ¢UÀ½AzÀ wAUÀ¼ÉÆAzÀPÉÌ gÀÆ.8000/- ªÉÃvÀ£À ªÀÄvÀÄÛ ¢£ÀªÉÇAzÀPÉÌ gÀÆ.50/- ¢£À¨sÀvÉå ¥ÀqÉAiÀÄÄwÛzÀÝ JAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
4) CfðzÁgÀgÀÄ ªÀÄÈvÀgÀ CªÀ®A©vÀgÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
5) ¥æÀwªÁ¢UÀ¼À°è ¥ÀjºÁgÀ ªÀÄvÀÄÛ ¥ÀjºÁgÀ ªÉÆvÀÛzÀ ªÉÄÃ¯É §rØAiÀÄ£ÀÄß ¥ÁªÀw ªÀiÁqÀ®Ä AiÀiÁgÀÄ ¨ÁzsÀå¸ÀÜgÀÄ?
6) DzÉñÀªÉãÀÄ?
6. In order to prove their case, the claimants examined the 6th claimant – Rehana as PW.1 and got marked Ex.P1 to Ex.P8. The respondent - Insurance company has not adduced any evidence except production of Ex.R1 – insurance policy which was in force as on the date of the accident.
7. The Tribunal considering both oral and documentary evidence recorded a finding that the claimants proved that the deceased was working under the 1st respondent as a workman and died in the accident arising out of and in the course of his employment and also proved that he was aged about 52 years and the claimants are dependents of the deceased. The Tribunal fixed the notional income of the deceased at Rs.6,000/- Accordingly, the Tribunal awarded total compensation of Rs.4,38,600/-. Hence, the present Miscellaneous First Appeal is filed for enhancement of the compensation.
8. The respondent - Insurance company has not filed any appeal against the impugned Judgment and Award passed by the Tribunal.
9. This Court while admitting the appeal on 11.9.2019 has framed the following substantial questions of law:
1. “Whether the Commissioner, Workmen Compensation/Tribunal is justified in taking monthly wages of the deceased at Rs.6000/- when admittedly the accident occurred on 30.09.2011, in view of the provisions of Section 4(1B) of the Employee’s Compensation Act, 1923 wherein, the Central Government has fixed the monthly wages at Rs.8,000/- by notification dated 31.05.2010?
2. Whether the Commissioner, Workmen Compensation/Tribunal is justified in awading total compensation of Rs.4,38,600/- without any interest as contemplated under Section 4A(3a) of the Act?”
10. I have heard the learned counsel for the parties to the lis.
11. Sri Guru Prasad, learned counsel for the appellants – claimants contended that the Commissioner for Employee’s Compensation/Tribunal is not justified in taking the monthly wages of the deceased at Rs.6,000/- ignoring the evidence of PW.1 and the statement made by the owner of the vehicle that the deceased was earning monthly wages of Rs.8,000/- and daily batta of Rs.50/-. He would further contend that admittedly the accident occurred on 30.9.2011, in view of the provisions of sub-section (1B) of section 4 of the Employee’s Compensation Act, 1923 Act (‘the Act’ for short), the Central Government specified monthly wages at Rs.8,000/- by the notification dated 31.5.2010. The Tribunal erred in taking monthly wages at Rs.6,000/- and the same is contrary to the provisions of the Act stated supra and contrary to the material on record. He also contended that the Tribunal is not justified in not awarding any interest on the compensation amount and the claimants are entitled for interest at 12% per annum as contemplated under the provisions of Section 4A(3)(a) of the Act. Therefore, he sought to allow the present Miscellaneous First Appeal.
12. Per contra, Sri Ashok N. Patil, learned counsel for the Respondent No.2 sought to justify the impugned Judgment & Award passed by the Tribunal and contended that in the absence of any material documents produced, the Tribunal is justified in taking the notional income at Rs.6,000/- and after deducting the amount as contemplated under the provisions of Section 4(1)(a) of the Act, the Tribunal awarded the compensation of Rs.4,38,600/- by the impugned Judgment. The Tribunal considering the entire material on record, has not awarded any interest on the compensation amount and the same is in accordance in law and therefore, sought to dismiss the appeal.
13. Having heard the learned counsel for the parties, it is an undisputed fact that the deceased Mohammed was working as driver of the lorry bearing No.KA-19-C-104 belonging to the 1st respondent on a monthly wages of Rs.8,000/- and Rs.50/- daily batta as stated by PW.1 on oath. The 1st respondent filed objections and does not dispute that the deceased was working under him as a driver and he was paying Rs.8,000/- monthly wages and Rs.50/- batta. The accident occurred is not in dispute. The relationship of employer and employee between the 1st respondent and the deceased is also not in dispute. As on the date of the accident i.e. 30.9.2011, it is also not in dispute that the said vehicle was insured with the 2nd respondent and insurance policy was in force.
14. In view of the aforesaid admitted facts, the Tribunal ought to have taken the income of the deceased at Rs.8,000/- as the accident occurred on 30.9.2011 after the amendment came into force since the Central Government fixed monthly wages at Rs.8,000/- by notification dated 31.5.2010 under the provisions of sub-section 1B of Section 4 of the Act.
15. The Tribunal while awarding compensation has not awarded any interest as mandated by the provisions of Section 4A(3)(a) of the Act and therefore, the claimants are entitled to interest at 12% per annum on the compensation amount after one month from the date of the accident.
16. As per the notification stated supra, the monthly wages of the deceased has to be taken at Rs.8,000/- and 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. The age of the deceased was 52 years and the relevant factor applicable to his age is 146.20. Therefore, the claimants are entitled to compensation of Rs.5,84,800/-
{Rs.8,000 x 50% x 146.20}. Further, the Tribunal has not awarded any compensation in respect of the 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. Therefore, the claimants are entitled to total compensation of Rs.5,89,800/-.
17. In view of the above, the substantial questions of law are answered in the negative holding that the Tribunal is not justified in taking the monthly wages of the deceased at Rs.6,000/- when admittedly the accident occurred on 30.9.2011, in view of the provisions of sub-section 1B of Section 4 of the Act and the monthly wages has to be fixed at Rs.8,000/- in view of the notification dated 31.5.2010. Accordingly, the 2nd point is also held in the negative holding that the Tribunal is not justified in not awarding interest on the compensation amount and the claimants are entitled for interest at 12% per annum on the compensation amount as contemplated under the provisions of Section 4A(3)(a) of the Act.
For the reasons stated above, the Miscellaneous First Appeal is allowed in part. The impugned Judgment & Award passed by the Tribunal is hereby modified and the claimants are entitled to total compensation of Rs.5,89,800/- (Rupees five lakhs eighty-nine thousand eight hundred only) with interest at 12% per annum after one month from the date of the accident.
Sd/- JUDGE Gss/-