IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA M.F.A.No.2889/2019(ECA) BETWEEN:
1. SMT.MANGALAMMA W/O T M MANJANNA AGED ABOUT 48 YEARS 2. SRI T M MANJANNA S/O MUDALAGIRAIAH AGED ABOUT 50 YEARS 3. SRI UMESHA S/O T M MANJANNA AGED ABOUT 27 YEARS ALL ARE R/AT TURUVEKERE VILLAGE TURUVEKERE TALUK TUMAKURU DISTRICT – 577 101.
(BY SRI M B RYAKHA, ADVOCATE) AND:
1. THE PROPRIETOR M/s-LV TOURS & TRAVELS # 19/12, DEEPAK COMPLEX RING ROAD, PAPA REDDY PALYA NAGARABHAVI, 2ND STAGE ..APPELLANTS BENGALURU – 560 072.
2. THE ORIENTAL INSURANCE CO. LTD., # 70/5, SUVARNA TOWER VIJAYA NAGARA, BENGALURU.
SERVICE ADDRESS THE BRANCH MANAGER THE ORIENTAL INSURANCE CO. LTD., J.C.ROAD, TUMAKURU – 577 101.
..RESPONDENTS (BY SRI R GUNASHEKAR, ADVOCATE FOR R-2, NOTICE TO R-1 IS DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF THE EMPLOYEE’S COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED:28.08.2018 PASSED IN ECA No.6/2014-15 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, TURUVEKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appellants, the legal representatives of deceased T.M.Ashoka have filed the present appeal against the Judgment and award dated 28.08.2018 made in ECA No.6/2014-15 on the file of Senior Civil Judge and JMFC, Turuvekere, awarding total compensation of Rs.6,41,000/- along with interest @ 12% p.a. from 30 days after the accident till the date of deposit.
2. It is the case of the claimants that deceased T.M.Ashoka was working under first respondent as driver in Tata Indica car bearing registration No.KA- 41-8243. On 14.01.2012 deceased T.M.Ashoka on instructions of his employer –first respondent went to pick up passengers to temple in Tata Indica car and while returning along with passengers on 15.01.2012 at 1.30 a.m. in the midnight near Aremallenahalli he lost his control over the car as opposite vehicle put high beam and as a result said T.M.Ashoka hit the car to a road side tree and caused accident. Due to the impact the driver T.M.Ashoka succumbed to injuries at the spot and other inmates of the car sustained multiple injuries. Jurisdictional police registered a case against driver of Tata Indica. It is further contended that the deceased died arising out of and during the course of employment under the first respondent and earning monthly wages of Rs.8,000/- and Batta Rs.50/-. Due to untimely death, the claimants who were all depending on the sole bread winner filed petition for compensation.
3. The first respondent in response to notice issued filed objections to the claim petition and contended that the claim petition filed by claimants is not maintainable and liable to be dismissed. First respondent denied the averment that T.M.Ashoka was working under first respondent and also other averments. Therefore, sought to dismiss the petition.
4. The second respondent –insurance company also filed objections denied the averments and contended that deceased Ashoka was not an employee under first respondent and there is no relationship of `employer’ and `employee’ between Ashoka and first respondent and also denied other averments. Further contended that second respondent is not liable to pay any compensation. Liability if any is subject to conditions of the policy. Therefore sought for dismissal of the petition.
5. Based on the aforesaid pleadings Tribunal framed following issues:
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6. In order to establish the case of the claimants, T.M.Manjanna examined as PW-1 and marked Exhibits P-1 to P-12. Respondent No.1 examined RW-1 – Assistant Manager and marked Exhibits R-1 and R-2.
7. Tribunal considering both oral and documentary evidence on record has recorded a finding that the claimants are depending on the deceased and deceased was `workman’ under first respondent and died arising out of and during the course of employment and they have proved the age and monthly wages of deceased as Rs.6,000/-. Accordingly, Tribunal proceeded to award compensation of Rs.6,41,000/- with interest @ 12% p.a. Hence, present appeal by claimants for enhancement.
8. This court while admitting the appeal has framed following substantial question of law:
“Whether the Commissioner for Workmen’s Compensation Act, is justified in taking monthly wages of the deceased at Rs.6,000/- in view of the provisions of Section 4(1B) of the Employees Compensation Act, 1923?”
9. I have heard learned counsel for the parties to the lis.
10. Sri M B Ryakha, learned counsel for appellants mainly contended that the impugned Judgment and award passed by the Tribunal taking monthly wages of deceased as Rs.6,000/- is erroneous and contrary to record. He would further contend in view of Section 4(1B) of the Employee’s Compensation Act, 1923, the Central Government issued notification on 31.05.2010 specifying Rs.8,000/- and as accident occurred on 14.01.2012 Tribunal ought to have taken monthly wages as Rs.8,000/- instead of Rs.6,000/-. Therefore he sought to allow the appeal.
11. Sri R.Gunashekar, learned counsel for the insurance company sought to justify the impugned Judgment and award and contended that in the absence of material evidence produced by the claimants Tribunal was justified in taking monthly wages as Rs.6,000/- and sought for dismissal of the appeal.
12. Having heard the learned counsel for the parties, the undisputed fact that the deceased T.M.Ashoka died in the road traffic accident on 14.01.2012 arising out of and during the course of the employment as driver under respondent No.1. The same is evidenced from the material documents Ex.P-1, P-6, 7, 8. It is specific case of the claimants that deceased was working as driver under first respondent and used to earn monthly wages of Rs.6,000/- and Rs.50/- as Batta. The Central Government by exercising powers under the provisions of Section 4(1B) of the Act issued notification on 31.05.2010 specifying Rs.8,000/- monthly wages. Admittedly accident occurred on 14.01.2012. The Tribunal ought to have taken monthly wages of deceased as Rs.8,000/- instead of Rs.6,000/-.
13. Taking into consideration the age of deceased as 27 years, the relevant factor would be 213.57 after deducting 50% under the provisions of Section 4(1)(a) of the Employee’s Compensation Act, claimant is entitled for compensation as under:
8,000x50%x 213.57= 8,54,280/-
14. For the reasons stated above substantial question of law in the present appeal is answered in the negative holding that the Tribunal is not justified in taking monthly wages of deceased as Rs.6,000/- instead of Rs.8,000/-.
15. For the reasons stated above, appeal is allowed in part. Impugned Judgment and award dated 28.08.2018 passed in ECA No.06/2014-15 is modified. Claimants are entitled for compensation of Rs.8,54,280/- with interest @ 12% p.a. after one month from the date of accident.
16. Second respondent-insurance company is directed to deposit the compensation amount of Rs.8,54,280/- with interest @ 12% p.a. within eight weeks from the date of receipt of certified copy of this order.
Sd/- JUDGE SBN