IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA M.F.A. No.3446/2018 (WC) BETWEEN:
1. Vanajakshamma, W/o Prabhakara, Aged about 25 years, 2. Obakka @ Obamma, W/o Thippeswamy, Aged about 51 years, Both Residents of Halechuri Papaihnahatti, Chitradurga Taluk and Chitradurga District – 577 501.
... Appellants (By Sri.Krishnaoji Rao N., Advocate for Sri.B.Pramod, Advocate) AND:
1. Maruthi Yadav, S/o B.Srinivasa, Major, R/o G.G.Samudaya Bhavan, Stadium Road, Chitradurga Town – 577 501.
2. Branch Manager, New India Assurance Co. Ltd., Branch Office, P.B. Road, Opp: Maganuru, Basappa Petrol Bunk, Chitradurga – 577 501. … Respondents (By Sri. P.B.Raju, Advocate for R-2; R1 is served but unrepresented) This MFA is filed under Section 30(1) of Employee’s Compensation Act against the Judgment and Award dated 22.12.2017 passed in ECA No.6/2017 on the file of the I Additional Senior Civil Judge and Commissioner for Compensation, Chitradurga, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for admission this day, the Court delivered the following:
J U D G M E N T This appeal is filed by the appellant/claimants who are wife and mother of deceased Prabhakara for enhancement against the judgment and award dated 22.12.2017 passed in E.C.A.No.6/2017 on the file of I Additional Civil Judge and Commissioner for Compensation at Chitradurga awarding total compensation of Rs.8,61,120/- with 9% from 30 day of the accident till realization.
2. It is case of the claimant that the deceased was working as cleaner in lorry bearing registration No.KA- 17/7901 under the first respondent and the accident occurred on 8.12.2016 at about 8.00 p.m. in between Varanivara Hatti-Dorehatti village, near Nannivala Village, Challakere Taluk, arising and during the course of employment. It is further stated that the husband of claimant No.1-Prabhakara was working as cleaner in the said lorry and the driver of the lorry drove the same in a rash and negligent manner and dashed against the road side tree due to which the deceased sustained injuries to his head, chest, abdomen and all over the body. Immediately said Prabhakara was shifted to Government Hospital, Challakere but he died during the course of treatment. It is the claim of the claimant that they spent Rs.50,000/- towards funeral expenses and he died in the accident arising out of employment. The first respondent used to pay salary of Rs.10,000/- per month and Rs.200/- per day as batta to the deceased. The deceased was the only earning member of the family. Respondent No.1 being the owner and respondent No.2 being the insurer are liable to pay compensation.
3. In response to the notice issued by tribunal, the first respondent appeared but failed to file objection. Second respondent - Insurance Company filed objection, denied the averments made in the claim petition and contended that the deceased was not cleaner at the time of the accident and he has not died in the course of employment. There was no employer and employee relationship between the respondent No.1 and the deceased and the liability of the Insurance Company is in accordance with the conditions stipulated in the policy. Therefore, the learned counsel sought for dismissal of the appeal.
4. The Tribunal, based on the aforesaid pleadings framed the following issues:
1. Whether the petitioners prove that, Prabhakara was engaged by respondent No.1 as a cleaner of lorry bearing registration No.KA-17/7901 on 8.12.2016 at about 8.00 a.m. in between Varanivara Hatti-Dorehatti village, near Nannivala Village, Challakere Taluk, due to rash and negligent manner of driving the lorry by its driver, the said lorry dashed to a road side tree as a result he sustained injuries and died?
2. Whether the petitioners are entitled for compensation? If so, what is the quantum and from whom?
3. What order or award?
5. Claimant No.1 wife of deceased examined herself as PW.1 and got marked documents Exs.P.1 to P.8. The insurance company has not let in any evidence but got marked Ex.R.1-Policy, in force.
6. The Tribunal considering both oral and documentary evidence on record, recorded a finding that claimants proved that deceased Prabhakar who was a cleaner in lorry bearing registration No.KA- 17/7901 had sustained grievous injuries subsequent to the accident arising during the course of employment on account of rash and negligent driving of the lorry by its driver. Accordingly, the Tribunal proceeded to award compensation of Rs.8,61,120/- with interest at 9% per annum from 30th day of the accident till realization. The present appeal is filed seeking enhancement of compensation.
7. I have heard learned counsel for the parties and perused the records.
8. This Court admitted the appeal for considering the following substantial questions of law:
(1) Whether the Tribunal is justified in not awarding funeral expenses as contemplated under Section 4(4) of the Employees Compensation Act, 1923?
(2) Whether the Tribunal is justified in awarding the interest at the rate of 9% p.a. from 30th day of the accident till realisation instead of 12% p.a. in view of the provisions of Section 4A(3)(a) of the Employees Compensation Act, 1923?
9. Sri.Krishnoji Rao.N., learned counsel appearing for the appellants contended that the Tribunal erred in awarding interest at 9% per annum while awarding compensation, which is contrary to the provisions of Section 4A(3)(a) of the Employees Compensation Act, 1923 (for short ‘the Act’) and the Tribunal ought to have awarded interest at 12% p.a. He would further submit that the Tribunal has not awarded any compensation towards funeral expenses as contemplated under Section 4(4) of the Act. Therefore, he sought for allowing the appeal.
10. Per contra, Sri.P.B.Raju, learned counsel appearing for respondent No.2-Insurance Company sought to justify the impugned order and contended that the Tribunal taking consideration of the entire material on record has awarded Rs.8,61,120/- with interest at 9% p.a. from 30th day of the accident till realisation. The claimants have not produced any material documents before the Court to support the monthly income of the deceased. Therefore, the Tribunal was justified in not awarding any compensation under the head of funeral expenses.
11. Having heard the learned counsel for the parties, the undisputed facts are that the deceased Prabhakara was working as cleaner under the first respondent in the lorry bearing registration No. KA-
17/7901. In the accident occurred on 8.12.2016 due to the rash and negligent driving of the driver of the lorry, said Prabhakara sustained grievous injuries and subsequently died during the course of treatment. The same is evidenced by the material documents Exs. P.1 to P.7. The finding recorded by the Tribunal against the driver of the lorry is not challenged by the Insurance Company. As on the date of the accident, the Policy was in force. The Tribunal taking consideration of the monthly wages of the deceased at Rs.8,000/- and after deducting 50% out of it and by taking the relevant factor of 215.28, has come to the conclusion that the claimants are entitled to Rs.8,15,120/- as compensation with interest at 9% p.a. instead of 12% p.a. as contemplated under Section 4A(3)(a) of the Act which reads as under:
“4A. (1) xxx (2) xxx (3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent. per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due;
12. Therefore, the claimants are entitled to interest at 12% p.a. on the compensation amount from 30th day of the accident till realisation. The Tribunal has not awarded any compensation towards funeral expenses as contemplated under Section 4(4) of the Act. Therefore, the claimants are entitled to an amount of Rs.5,000/- under the head funeral expenses.
13. For the reasons stated above, the substantial questions of law framed in the appeal has to be answered in the negative in holding that the Tribunal was not justified in awarding interest at 9% p.a., and not awarding Rs.5,000/- towards funeral expenses.
14. In view of the above, the appeal filed by the claimants is allowed-in-part and the claimants are entitled to total compensation at Rs.8,66,120/- along with interest at the rate of 12% per annum from 30th day of the accident till realisation.
Sd/-
JUDGE RS/* CT:SN