IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA MISCELLANEOUS FIRST APPEAL NO.7488/2018 (WC) BETWEEN:
1. SMT. KEMPAMMA W/O LATE ANNAJIGOWDA AGED ABOUT 49 YEARS, 2. KUM. MANI D/O LATE ANNAJIGWODA AGED ABOUT 32 YEARS, 3. MANJEGOWDA S/O LATE ANNAJIGWODA AGED ABOUT 30 YEARS, ALL ARE R/O DODDAMALLENAHALLI VILLAGE SHANTHIGRAMA HOBLI HASSAN TALUK-573201.
(BY SRI JAGADEESH H. T., ADV.) AND:
... APPELLANTS 1. SMT. RAJAMMA NO.33, 3RD C MAIN ROAD, 2ND CROSS, SRIRAMA NAGARA MAHALAKSMIPURA BANGALURU-560 001 2. THE MANAGER RELIANCE GENERAL INSURANCE CO LTD 1ST FLOOR, OPPOSITE TO TRADE CENTRE, K.S.R.T.C. BUS STAND MYSURU - 571015.
(BY SRI D. VIJAYKUMAR, ADV. FOR R2 VIDE COURT ORDER DATED 21.08.2019, NOTICE TO R1 IS DISPENSED WITH) ... RESPONDENTS THIS MFA IS FILED UNDER SECTION U/S.30(1) OF THE EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DT.13.11.2017 PASSED ON ECA NO.46/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND COMMISSIONER FOR EMPLOYEES COMPENSATION, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION ETC.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the matter is listed for orders, with the consent of learned counsel for both parties, it is taken up for final disposal.
2. The appellants - claimants are mother, sister and brother of the deceased – Harish filed the present miscellaneous first appeal against the judgment and award dated 13.11.2017 made in ECA.No.46/2014 on the file of the Additional Senior Civil Judge and CFEC, Hassan, (hereinafter referred to as ‘the Tribunal’ for brevity) awarding total compensation of Rs.4,35,560/- with interest at 12% per annum from one month after the date of accident till realisation.
3. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.
4. It is the case of the appellants – claimants of the deceased Harish, who filed the claim petition under the provisions of Section 3 of the Employee’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’), seeking compensation for the death of said Harish, who was working as a cleaner in the Lorry bearing registration No.KA-34-B-8829 under the employment of respondent No.1 – owner of the said Lorry. They contend that on 21.08.2011, at about 5.00 a.m., at Durgambha Petrol Bunk, D. Hiriyalu Mandala, while the deceased was checking the air of rear wheel of the Lorry, the driver of the said Lorry moved it to backside in a negligent manner and dashed against the deceased. Due to the said accident, the deceased sustained bleeding injuries and he died on the way to the hospital. It is their case that the deceased was earning Rs.4,000/- per month and Rs.100/- batta as a cleaner under the employment of respondent No.1. Hence, they contend that the accident has arisen out of and during the course of his employment. Respondent No.1 is the owner and the respondent No.2 is the insurer of the offending vehicle and both are liable to pay the compensation jointly and severally.
5. On receipt of the notice, respondent No.1 remained absent and he is placed exparte by the tribunal. Respondent No.2 filed objections denying the averments made in the claim petition, age, vocation and the income of the deceased. The insurer further denied that the deceased was not working under the employment of respondent No.1 as on the date of the accident. It is further denied that the policy in respect of the offending vehicle and contended that the liability is subject to the terms and conditions of the insurance policy and that the driver of the Lorry was not holding valid and effective driving license as on the date of the accident. The relationship of employer and employee between the deceased and respondent No.1 – owner of the Lorry is also denied and sought for dismissal of the claim petition.
6. Based on the pleadings, the Tribunal framed the following issues:
“1. Whether the petitioners prove that Harish died in road traffic accident, during the course of his employment, that was taken place on 21.08.2011 at about 5 a.m., at Durgambha Petrol Bunk, D. Hiriyalu Mandala, due to negligent driving of the driver of Lorry bearing Reg. No.K.A.34-B- 8829, while discharging his duty as a cleaner of the said lorry as an employee of respondent No.1?
2. Whether the petitioners are entitled for compensation? If yes, to what extent and from whom?
3. What order or award?
7. In order to establish the case, the claimant No.3 has examined himself as PW.1 and got marked documents as Exs.P.1 to P.12. On the other side, the legal officer of the insurance company examined as RW.1 and marked documents as Exs.R1 and R2.
8. The Tribunal after considering the oral and documentary evidence on record has recorded the finding that the claimants have proved that the deceased Harish died in the road accident that occurred on 21.08.2011, arising out of and during the course of employment under respondent No.1, due to the rash and negligent driving of the driver of the Lorry bearing registration No.KA-34-B-8829 and the claimants are entitled for compensation. Accordingly, the tribunal by the impugned judgment and award dated 13.11.2017 awarded total compensation of Rs.4,35,560/- with 12% interest per annum after one month from the date of the accident till realisation. Hence, the claimants – appellants being aggrieved by the said compensation have filed the present appeal seeking enhancement of compensation.
9. The Insurance Company has not filed any appeal against the impugned judgment and award passed by the tribunal.
10. I have heard the learned counsel for the parties to the lis.
11. Sri Jagadeesh H.T., learned counsel for the appellants – claimants contended that admittedly, the accident occurred on 21.08.2011. The tribunal has erred in taking the monthly wages at Rs.4,000/- p.m. ignoring the evidence of PW.1 and amended provisions of Sub-section (1B) to Section 4 of the Act and contended that as on the date of the accident, the monthly wages payable as per the notification dated 31.05.2010, issued by the Central Government is Rs.8,000/-. Hence, he sought to allow the appeal filed by the claimants.
12. Per contra, Sri D. Vijaykumar, learned counsel for respondent No.2 - insurer sought to justify the impugned judgment and award and contended that the claimants have stated in their evidence that the deceased was earning Rs.4,000/- as monthly wages and Rs.100/- as batta per day and hence, the tribunal has considered the same while calculating the compensation. Hence, he sought to dismiss the appeal.
13. This Court while admitting the appeal framed the following substantial question for its consideration:
“1. Whether the Tribunal is justified in taking the monthly wages of the deceased at Rs.4,000/- when the accident has occurred on 21.08.2011, in view of the notification issued by the Central Government exercising the powers under Sub-section (1B) to Section 4 of the Employee’s Compensation Act, 1923 specifying Rs.8,000/- with effect from 31.05.2010 in facts and circumstances of the present case?”
14. Having heard the learned counsel for the parties, it is undisputed fact that the deceased Harish was working under respondent No.1 as cleaner and died in the road accident that occurred on 21.08.2011, arising out of and during the course of his employment, due to rash and negligent driving of the driver of the Lorry bearing registration No.KA-34-B-8829 The same is evidenced by the material documents Exs.P.1 to P.6. The accident has occurred after the amendment of the provisions of Sub-section (1B) to Section 4 of the Act and in view of the notification dated 31.05.2010, issued by the Central Government, the monthly wages is to be taken at Rs.8,000/- p.m. The tribunal ought to have taken monthly wages at Rs.8,000/- p.m., instead of Rs.4,000/-. If we take monthly wages at Rs.8,000/-, in view of the provision of Section 4(1)(a) of the Act and deduct 50%, the net income comes to Rs.4,000/- p.m. Taking into consideration the age of the deceased, the relevant factor would be 215.28. The amount of compensation comes to Rs.8,61,120/- (Rs.4,000/- x 215.28).
15. The tribunal has awarded Rs.5,000/- towards funeral expenses, which is just and proper and interference is uncalled for.
16. For the reasons stated above, the substantial questions of law framed in the present appeal is to be answered in the negative holding that the tribunal is not justified in taking the monthly wages of Rs.4,000/- as stated supra.
17. Accordingly, the claimants are entitled for the compensation is as under:
Compensation as per ] Section 4(1)(a) Rs.8,61,120/- (Rs.4,000/- x 215.28) Funeral expenses Rs. 5,000/-
Total Rs.8,66,120/-
18. In total, the claimants are entitled to Rs.8,66,120/- as against Rs.4,35,560/- awarded by the Tribunal, with interest at the rate of 12% per annum after one month from the date of accident till realization.
19. Accordingly, the appeal filed by the claimants is allowed-in-part. The impugned judgment and award dated 13.11.2017 in ECA.No.46/2014 is hereby modified and the claimants are entitled to the compensation of Rs.8,66,120/- with 12% interest per annum after one month from the date of accident till realization.
The enhanced compensation shall be disbursed to the claimants in terms of the judgment and award passed by the tribunal.
Sd/- JUDGE nvj