IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL NO.2355/2019 (ECA) BETWEEN SMT. LAKSHMIDEVI, W/O LATE BALAIAH, AGED ABOUT 51 YEARS R/O VENKATESHWARANAGAR, CHALLAKERE TOWN-577 522 CHITRADURGA DISTRICT.
(BY SRI V.B. SIDDARAMAIAH) ... APPELLANT AND 1. THE SHRI RAM GENERAL INSURANCE CO LTD E-8, RIICO INDUSTRIAL AREA, SOTAPURA-JAIPUR, RAJASTHAN-302 022 REP BY ITS BRANCH MANAGER ADDRESS FOR SERVICE THE SHRI RAM GENERAL INSURANCE CO. LTD., BASAVANAGUDI, NO.41, AJ CHAMBER, R.V.ROAD, BASAVANAGUDI, BENGALURU-560 004, OPPOSITE TO INDIAN OIL PETROL BUNK, BENGALURU REP BY ITS BRANCH MANAGER.
2. SHILPA V.R. D/O V. RAMU, AGED ABOUT 30 YEARS R/O CHALLAKERE TOWN-577 522, CHITRADURGA DISTRICT.
3. SMT. NANDAKUMARI M., W/O LATE LOKESH, AGED ABOUT 23 YEARS R/O MUBARAK MOHALLA, BHOVI COLONY, MOLAKALMURU TOWN-577 535.
CHITRADURGA DISTRICT 4. KUMAR GOWRAV L., S/O LATE LOKESH, AGED ABOUT 3 YEARS MINOR REPTD. BY HIS GUARDIAN MOTHER SMT. NANDA, W/O LATE LOKESH, R/O MUBARAK MOHALLA, BHOVI COLONY, MOLAKALMURU TOWN-577 535 CHITRADURGA DISTRICT.
... RESPONDENTS (BY SRI B.C. SHIVANNE GOWDA, ADVOCATE FOR R1; SRI B.M. SIDDAPPA, ADVOCATE FOR R3;
R4-MINOR, REPRESENTED BY R3;
R2-NOTICE DISPENSED WITH V/O DTD.07.08.2019 ) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 30(1) OF EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED:
28/07/2018, PASSED IN ECA NO.5/2018, ON THE FILE OF THE SENIOR CIVIL JUDGE AND COMMISSIONER FOR EMPLOYEES COMPENSATION, CHALLAKERE, AWARDING COMPENSATION OF RS.8,19,300/- WITH 9% INTEREST P.A., FROM THE DATE OF PETITION, TILL DATE OF DEPOSIT OF THE AMOUNT.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is filed by Lakshmidevi Balaiah - respondent No.3 before the Court of Senior Civil Judge and Commissioner for Employees Compensation, Challakere (for short ‘the Tribunal’) seeking for enhancement of compensation against the judgment and award dated 28.07.2018 made in ECA No.5/2018 awarding at Rs.8,19,300/- along with interest at 9% per annum from the date of petition till realization.
2. The respondents 3 and 4 were claimants before the Tribunal filed a claim petition seeking compensation of Rs.50,00,000/- together with 12% interest per annum for the death of husband of 3rd claimant, father of 4th claimant and son of the appellant herein, in a road traffic accident which occurred on 29.08.2017, when the deceased was driving a lorry bearing registration No.KA-16/B-2774 towards Challakere from Bellary at about 1.00 p.m., on NH-150(A) road, near Giriyammanahalligate, Challakere Taluk, Chitradurga District. Due to which he sustained fatal injuries to his head and other vital parts of the body and died on the spot. It was their case that they have spent Rs.5,000/- towards shifting the dead body from the accident spot to the hospital and from hospital to their native in a hired car and also have spent Rs.1,00,000/- towards performance funeral and other last rites of the deceased. It is the further case of the claimants that the deceased Lokesh was hale and healthy, aged about 24 years at the time of accident and was working under the 1st respondent on monthly wages of Rs.15,000/- and Rs.200/- per day as batta and looking after the welfare of the family as his family was entirely depending on him. Since, the appellant-mother of the deceased has shown non-cooperation she was made as 3rd respondent in the claim petition. It was their further case that the deceased died while he was discharging his duties as driver under employment of respondent No.1 and during the course of his employment.
3. On issuance of notice by the Tribunal, the 1st respondent-owner of the alleged vehicle in her objection statement denied the entire averments of the claim petition. She has not taken any specific defence in the case, except making formal denial of entire petition averments and in turn she has prayed for dismissal of the claim petition with costs.
4. The 2nd respondent-Insurance Company also filed its objections denying the petition averments and contended that petition is not maintainable either in law or on facts. It was also contended that the owner had willfully entrusted the lorry to a person who do not possessed with the valid and effective Driving License and also denied the income of the deceased at Rs.15,000/- per month.
5. Based on the aforesaid pleadings, the Tribunal framed the following issues for its consideration:
“1. Whether the petitioners prove that the deceased Lokesha, S/o. Balaiah, died in the accident of lorry bearing reg. No.KA-16/B- 2774 while he was working as driver under respondent No.1, due to the accident taken place on 29.08.2017 at about 1.00 p.m. at NH-150(A) road, near Giriyammanahalligate, Challakere taluk, Chitradurga district, when the deceased was driving and in the course of employment of driving the said vehicle?
2. Whether the petitioner proves that the deceased was aged 24 years, at the time of death and getting salary of Rs.15,000/- per month and Rs.200/- daily batta, when he was working as driver in the vehicle of respondent No.1?
3. Whether respondent No.2 proves that the deceased Lokesh was not having valid and effective D.L. to drive HGV and respondent No.2 is not liable to pay any compensation?
4. Whether the petitioners are entitled to the compensation? If so, from whom and to what extent?
5. What order or award?”
6. In order to establish the case of the claimants, the wife of the deceased - claimant No.1 was examined as PW.1 and got marked the documents at Exs.P1 to P12. The appellant herein was also got examined as RW1. On behalf of respondents – the Owner of the alleged vehicle and the Insurance Company have not examined any witness, however, the policy was marked as Ex.R1.
7. The Tribunal after considering the entire oral and documentary materials available on record, recorded the findings that the claimants have proved that the deceased-Lokesha was workman as contemplated under the provisions of the Act and it was also proved he died in the road traffic accident arisen out of and during the course of employment on 29.08.2017. It is further held that the claimants have proved that the deceased was aged 24 years at the time of accident and he was getting monthly wages of Rs.7,500/-. It is further held by the Tribunal that the Insurance Company failed to prove that the deceased was not having valid and effective Driving License to drive the alleged vehicle. Accordingly, the Tribunal, by its judgment and award dated 28.07.2018 proceeded to award Rs.8,19,300/- as compensation along with 9% interest from the date of filing of petition till the date of deposit. Aggrieved by the same, the present appeal is preferred by the mother of the deceased.
8. The Insurance Company has not preferred any appeal against the impugned judgment and award passed by the Tribunal.
9. I have heard the learned counsel for the parties to the lis.
10. Sri V.B. Siddaramaiah, learned counsel for the appellant contended that the impugned judgment award passed by the Tribunal is not just and proper. He contended that the Tribunal erred in assessing the monthly wages of the deceased at Rs.7,500/- is against the evidence of PW1 and against the provisions of Section 4(1B) of the Employees Compensation Act wherein the Central Government relying upon the provisions fixed the minimum monthly wages at Rs.8,000/-. He would further contend that the Tribunal proceeded to award only 9% interest after one month from the accident, which is against the provisions under Section 4A(3)(a) of the Employees Compensation Act. Therefore, he sought to allow the appeal filed by the mother of the deceased.
11. Per contra, Sri B.C. Shivanne Gowda, learned counsel for the Insurance Company contended that in the absence of any material document produced by the claimants and in the absence of any evidence adduced by the employer, the Tribunal was justified in taking the monthly wages of the deceased at Rs.7,500/- and awarding 9% interest. Hence, the impugned judgment and award passed by the Tribunal is just and proper and does not call for any interference by this Court and sought for dismissal of the appeal.
12. This Court while admitting the present appeal has framed the following substantial questions of law consideration in this appeal:
1. Whether the Commissioner, Workmen’s Compensation was justified in taking monthly wages of the deceased at Rs.7,500/- when the accident occurred on 29.08.2017, in view of the provisions of Sub-Section (1B) of Section 4 of the Employees’ Compensation Act?
2. Whether the Tribunal is justified in awarding 9% interest in view of the provisions of Section 4A(3(a)) of the Employees Compensation Act?
13. Having heard the learned counsel for the parties and on perusal of the impugned judgment and award it is an undisputed fact that the deceased Lokesh husband of the 1st claimant died in a road traffic accident on 29.08.2017 arising out of and during the course of employment under 2nd respondent-owner of the alleged lorry. The same is evidenced by the material documents marked at Exs.P1 to P9 issued by the concerned authorities during the course of the official duty.
14. It is the specific case of the appellant that the deceased was earning Rs.15,000/- per month and Rs.200/- batta per day. But the claimants have not examined the employer to prove the same. It is not in dispute that the accident was occurred on 29.09.2017 i.e. after the amendment to the provisions of Sub Section (1B) of Section 4 of the Act, wherein the Central Government by notification dated 31.05.2019 specifies the monthly wage at Rs.8,000/-. In view of the said notification, the Tribunal ought to have taken monthly wages at least Rs.8,000/-. Therefore, the same is required to be modified. Further, the Tribunal ought to have awarded compensation with 12% interest per annum instead of 9%, which also required to be modified as contemplated under the provisions of Sub- Section (3(a)) of Section 4A of the Act. Therefore, the claimants are entitled to 12% interest instead of 9%.
15. For the reasons stated above, the substantial questions of law has to be held in the negative holding that the Tribunal was not justified in assessing the monthly wages at Rs.7,500/- and awarding 9% interest. The claimants are entitled to monthly wages at Rs.8,000/- and 12% interest per annum on the entire compensation.
16. In view of above discussion, if we take monthly wages of the deceased at Rs.8,000/-, as per provisions of Section 4(1)(a) of the Act, 50% is to be deducted and if it is multiplied by the relevant factor ‘218.47’ which is applicable to the present appeal, the amount of compensation works out as follows:
Rs.4,000/- x 218.47 x 100 = Rs.8,73,880/-
17. Further, the Tribunal has also not awarded any compensation towards funeral expenses of Rs.5,000/- in terms of the provisions of Section 4(4) of the Act. Therefore, the appellant is entitled to Rs.5,000/- towards funeral expenses. In all, the total compensation works out to Rs.8,78,880/- with 12% interest per annum from the date of petition till realization. The appellant is entitled to the enhanced compensation of Rs.59,980/- with interest.
18. The Insurance Company shall deposit the compensation after deducting the amount already deposited with 12% interest on entire compensation, in accordance with law. The enhanced amount shall be released in favour of the appellant immediately after deposit.
Accordingly, the appeal is allowed in part.
Sd/- JUDGE Sbs*