IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous first Appeal No.5381 OF 2010 (WC) Between:
NATIONAL INSURANCE CO LTD., SHIMOGA DO.
THROUGH ITS REGIONAL OFFICE, # 144, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE – 560 001, REP. BY ITS ASSISTANT MANAGER, MR.M.KHAJA PASHA ... APPELLANT (BY SRI B.C.SEETHARAMA RAO, ADVOCATE) And:
1. SRI BASAVARAJU AGED ABOUT 45 YEARS, SON OF BORAPPA, 2. SMT.BYATAMMA AGED ABOUT 43 YEARS, WIFE OF SRI BASAVARAJU, BOTH ARE RESIDENTS OF OTHIGHATTA VILLAGE, SHIMOGA TALUK.
3. SRI K.G.SHIVAKUMAR AGED ABOUT 38 YEARS, SON OF SRI K.G.RAMAPPA, RESIDENT OF KADADA KATTE VILLAGE, BHADRAVATI TALUK, SHIMOGA DIST. (OWNER OF LORRY NO.KA.35/278) ... RESPONDENTS (BY SRI S.V.PRAKASH, ADVOCATE FOR R1 & R2;
SRI R.GOPAL, ADVOCATE FOR R3) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SEC 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 12.01.2010 PASSED IN WCA:F:CR:37/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SHIMOGA DISTRICT, SHIMOGA, AWARDING A COMPENSATION OF RS.4,48,000/- WITH INTEREST.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the insurer calling in question the judgment and award dated 12.01.2010 in WCA:F:CR:37:2007 on the file of the Labour Officer and Workmen’s Compensation Commissioner, Shivamogga (for short, the Commissioner). This claim petition is filed by the respondent Nos.1 and 2, who are the parents of the deceased Ananth Kumar under the Employee’s Compensation Act, 1923 seeking compensation on the demise of their son contending that their son was working as a cleaner with the respondent No.3, and he succumbed to the injuries suffered in the course of his employment. The Commissioner holding that the respondent Nos.1 and 2 are the dependents of the deceased and that the deceased was in employment with the respondent No.3 as a cleaner, has allowed the claim petition granting a sum total of Rs.4,48,000/-. The Commissioner has determined the salary of the deceased at Rs.3,000/- per month with an additional sum of Rs.50/- as daily “batta”, but has taken the income at Rs.4,000/- per month in view of the extent notification issued by the Central Government under Section 4(1B) of the Employee’s Compensation Act, 1923.
2. The learned counsel for the appellant argued in support of the appeal contending that the evidence on record, most specifically the complaint lodged by the deceased’s paternal uncle and the inquest report, establish that the deceased was returning in the lorry along with his family members after attending the wedding. The uncle has stated in the complaint that he had hired the lorry so that the family members could travel to attend the wedding. This evidence being crucial, is ignored by the Commissioner, and if considered, it would demonstrate that the deceased was not in employment with the respondent No.3 and he was travelling as a gratuitous passenger along with 35 persons. As such, his death was not in the course of the employment. The failure to consider this material on record has resulted in mis-carriage of justice. Therefore, the following substantial questions:-
“Whether the Commissioner in overlooking the evidence viz., the statement in the complaint and statement in the Inquest report, has acted perversely resulting in mis-carriage of justice.”
3. The learned counsel submitted that even otherwise, the compensation awarded is contrary to the evidence on record. The respondent No.3, the alleged employer, who is examined as PW2, is categorical that he was paying only a sum of Rs.900/- per month as salary to the deceased. He has denied that he was paying Rs.3,000/- per month as salary and an additional sum of Rs.50/- per day as “batta”. Despite this evidence, the Commissioner has taken income of the deceased at Rs.4,300/- per month but confined the income to Rs.4,000/- per month because of the extant notification issued by the Central Government under Section 4(1B) of the Employee’s Compensation Act, 1923. Therefore, the following substantial question:-
“Whether the Commissioner is justified in taking the income of the deceased at Rs.4,000/- despite the evidence of the respondent No.2 that he was only paying a sum of Rs.900/- per month.”
4. The learned counsel for the respondents refuting these submissions, submitted that the statements in Ex.P1 viz., the complaint lodged by the deceased’s paternal uncle cannot be read to conclude that the deceased was not in employment and was travelling as a gratuitous passenger in a goods vehicle. The learned counsel submitted that the uncle of the deceased has stated in the complaint that he hired the vehicle, but he has not stated anything about the status of the deceased as an employee. From the material on record, it cannot be reasonably inferred that the deceased was travelling as a gratuitous passenger and not as an employee.
5. The learned counsel further argued that the appellant is unable to controvert the claimants’ assertion that the deceased was being paid a sum of Rs.3,000/- per month apart from daily “batta” at Rs.50/- per day. The only contra evidence on record is the statement by the employer, who has stated that he was paying only Rs.900/- per month. The learned counsel argued that once employment is proved, the minimum salary as notified vide the extant notification issued by the Central Government under Section 4(1B) of the Employee’s Compensation Act, 1923 will have to be considered. Therefore, there is no room for interference with the impugned judgment and award.
6. The employer viz., the respondent No.3 who is examined as PW2, is categorical in his evidence that the deceased was in his employment as a cleaner. He has denied all suggestions about the deceased not being in his employment and that the deceased was travelling as a gratuitous passenger. In fact, his evidence is that the vehicle was engaged for transporting chairs, tables and such other items for the purpose of wedding celebrations and the deceased was travelling in the vehicle as his employee. In the complaint lodged immediately after the accident, which is relied upon by the learned counsel for the appellant, the complainant- deceased’s paternal uncle has stated that the vehicle was hired by him and about 35 persons were travelling in the vehicle at the time of the accident. Though he mentions that the deceased succumbed to the injuries suffered because he was standing in the rear of the vehicle, he does not mention that the deceased was also travelling as a member of the family or otherwise. There is nothing in the complaint to reasonably infer that the deceased wasn’t in employment, and it would be too contrived to read that the deceased could not have been in employment because his uncle had hired the vehicle. The Commissioner on appreciation of the evidence on record has concluded that the deceased was in employment and died in the course of such employment. Therefore, no substantial question of law arises in this regard.
7. The fact that the deceased was in employment with the respondent No.2 is established, and it is also established that the deceased died because of an accident in the course of his employment. The Commissioner has taken the income of the deceased at Rs.4,000/- per month for the purposes of computation of the compensation though his conclusion is that the deceased’s salary was Rs.3,000/- per month and he was also being paid “batta” at the rate of Rs.50/- per day. The appellant’s grievance stems from the fact that the employer, the respondent No.2, has stated in his evidence that the deceased was being paid only a sum of Rs.900/- per month. However, the irrefutable fact is that the Central Government has issued notification under Section 4(1B) of the Employee’s Compensation Act, 1923, prescribing monthly wages for the purposes of determining compensation under this Act, and the monthly wages as per the notification prevailing as of the date of accident was Rs.4,000/- per month could not have been ignored. The Employee’s Compensation Act, 1923, is a piece of social beneficial legislation intended inter alia to protect the rights of an employee, or his/her dependent if injured in the course of employment. This Court, is of the considered opinion that when it is established that an employee is injured, or has breathed his/her last, because of an accident in the course of employment, the benefits assured under the provisions of the enactment will have to be given full play, otherwise it would amount to denial of a right assured in law. The employer’s statement that he was paying salary below the threshold prescribed in law cannot prevail over the mandate in law. In the light of the facts established, and the law, the judgment and award by the Commissioner cannot be faulted with. Therefore, there is no substantial question of law even in this regard.
Accordingly, the appeal is dismissed.
Sd/- Judge KPS