IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL No.8241/2016 BETWEEN:
1 . SMT. SHANTHAMMA W/O LATE RAMACHANDRA AGED ABOUT 47 YEARS 2 . RAJESH, S/O LATE RAMACHANDRA, AGED ABOUT 23 YEARS BOTH ARE R/O BUDHA NAGARA, MILAGHATTA, SHIVAMOGGA – 577201.
(BY SRI ADHITYA KUMAR, ADVOCATE FOR SRI RAVINDRANATH M., ADVOCATE) AND:
1 . GIRISH, S/O D B LINGARAJU, AGE MAJOR, OWNER OF THE LORRY BEARING REGN. NO. KA-14-A-5380 R/AT NMC MAIN ROAD, BHADRAVATHI TALUK, SHIVAMOGGA DT. - 577301 2 . THE MANAGER UNITED INDIA INSURANCE CO. LTD., A. A. CIRCLE, B. H. ROAD, ...APPELLANTS SHIVAMOGGA – 577201.
(POLICY NO. 240402/31/12/01/00008876 VALID UPTO 02-11-2013) …RESPONDENTS (BY SRI RAVISH BENNI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 4.12.2017) …..
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF WORKMEN’S COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED 23.4.2016 PASSED IN ECA No.86/2014 ON THE FILE OF THE PRINCIPAL SENIOR JUDGE, & MACT-VI, COMMISSIONER OF EMPLOYEE COMPENSATION SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION ETC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimants filed the present Miscellaneous First Appeal against the judgment and award dated 23.04.2016 passed in ECA No.86/2014 on the file of the Prl. Senior Civil Judge and MACT-VI, Shivamogga, awarding total compensation of `6,17,360/- with interest at 9% per annum from the date of petition till realisation.
2. The claimants, who are the wife and son of deceased Ramachandra filed E.C.A.No.86/2014 claiming compensation, contending that, on 11.01.2013, at about 8.30 pm, on the instructions of the first respondent-owner of the lorry bearing registration No.KA-14/A-5380, the deceased Ramachandra after loading the gas cylinders in the said lorry, parked the same infront of Ravi Bhattara shop, NHP Circle, Koppa. The front space of the lorry was slant and a 407 vehicle was parked before the lorry at a distance of 25 feet. After parking the lorry, deceased Ramachandra got down and just walked 10 feet away. At that time, suddenly the lorry started moving towards him. The deceased made his best efforts to stop the moving lorry, but the back portion of the lorry touched him and he fell down. Later the lorry dashed against the 407 vehicle. Due to the said accident, Ramachandra sustained grievous injuries to his head, hands as well as legs. Immediately, he was shifted to Koppa Government Hospital in 108 ambulance. Thereafter, on the advise of the Doctor, he was shifted to Mc.Gan Hospital, Shivamogga, where he took treatment as inpatient for two days. Thereafter, he was shifted to Victoria Hospital, Bengaluru for higher treatment. Then he was shifted to KMC Hospital, Manipal and Wenlock Hospital, Mangaluru. After getting treatment from the above said hospitals, he was again shifted to Mc.Gann Hospital, Shivamogga and after getting one week treatment, he died on 28.01.2013 at about 7.15 am. It is further contended that the first respondent-owner was paying monthly wages of `6,000/- plus `100 batta per day, to the deceased. Due to sudden death of Ramachandra, the claimants became penniless. Respondent No.1-owner and respondent No.2-insurer both are liable to pay the compensation.
3. The first respondent-owner of the lorry bearing registration No.KA-14/A-5380 filed objections denying the entire case of the claimants and contended that the deceased was working under him as driver and he was paying monthly wages of `4,000/- plus `100 batta per day. After the accident, he managed to pay all medical expenses of the deceased and the lorry was duly insured with the 2nd respondent as on the date of the accident. Therefore, he sought to dismiss the claim petition.
4. The respondent No.2-Insurance Company filed objections, though denied the entire case of the claimants and contended that the claim petition is filed with an ulterior motive to harass the respondent and to make unlawful gain, admitted that the offending lorry was insured with the 2nd respondent as on the date of the accident and sought to dismiss the claim petition.
5. Based on the aforesaid pleadings, the Tribunal/ Commissioner for Workmen Compensation, framed the following issues:
(i) Whether the petitioners prove that Ramachandra was the employee of the 1st respondent?
(ii) Whether the petitioners further prove that Ramachandra who being the driver of lorry bearing Regn. No.KA-14/A-5380 died in an accident during the course of his employment under 1st respondent on 11.01.2013 at about 8.30 pm near N.H.P. Circle, Opp. Ravi Bhatta’s shop, Koppa?
(iii) Whether the petitioners are entitled for compensation? If so, at what quantum and from whom?
(iv) What Award or Order?
6. In order to prove their case, the first claimant-wife of the deceased examined herself as P.W.1 and marked the documents Exs.P.1 to P.11. Though no oral evidence was adduced on behalf of the respondents, the 2nd respondent got marked copy of the insurance policy with consent, as Ex.R.1 and the Driving License as Ex.R.2.
7. The Tribunal, considering both oral and documentary evidence on record, recorded a finding that the claimants proved that deceased Ramachandra was an employee under the 1st respondent and also proved that deceased Ramachandra died on 28.01.2013 due to the accident that occurred on 11.01.2013 during the course of employment under the 1st respondent. Accordingly, the Tribunal awarded total compensation of `6,17,360/- alongwith interest at the rate of 9% per annum from the date of petition till its deposit. Hence, the present Miscellaneous First Appeal is filed by the claimants for enhancement of compensation.
8. The respondent No.2-Insurance Company has not filed any appeal against the impugned judgment and award.
9. Sri Adhitya Kumar, learned counsel for Sri M.Ravindranath, learned counsel for the appellants- claimants, contended that the Tribunal is not justified in taking the age of the deceased as 50 years, ignoring the material documents, Ex.P.6-postmortem report and Ex.P.10- ration card, which clearly depicts that the deceased was aged 47 years as on the date of the accident and death. He further contended that the Tribunal erred in awarding interest at the rate of 9% per annum from the date of the petition till payment, which is contrary to the provisions of Section 4-A(3)(a) of the Employees’ Compensation Act, 1923, which stipulates that interest at 12% has to be awarded. Therefore, he sought to allow the Miscellaneous First Appeal.
10. Per contra, Sri Ravish Benni, learned counsel for the respondent No.2-Insurance Company, sought to justify the impugned judgment and award and contended that, in the absence of any material document produced, the Tribunal is justified in taking the age of the deceased as 50 years, as per Ex.P.11- identity card of the deceased. Since the accident is of the year 2013, the Tribunal is justified in awarding 9% interest on the award amount and therefore, he sought to dismiss the Miscellaneous First Appeal.
11. Having heard the learned counsel for the parties, the following substantial questions of law arise for consideration:
(i) Whether the Commissioner for Employee’s Compensation/Tribunal is justified in taking the age of the deceased as 50 ignoring the material document – Ex.P6 – postmortem report and Ex.P.10-ration card, which clearly depicts the age of the deceased as 47 years?
(ii) Whether the Commissioner for Employee’s Compensation/Tribunal is justified in awarding interest on the award amount at 9% p.a. ignoring the provisions of Section 4-A(3)(a) of the Employees’ Compensation Act, 1923, which contemplates 12% p.a. on the award amount?
12. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, carefully.
13. It is not in dispute that the deceased Ramachandra was working as a driver under the 1st respondent. It is the case of the claimants that the accident occurred arising out of and during the course of employment. After taking treatment in several hospital, Ramachandra succumbed to the injuries on 28.01.2013. In order to prove the age of the deceased, P.W.1-wife of the deceased has stated on oath that her husband was aged 47 years as on the date of his death. The Tribunal, considering Ex.P.11-identity card, proceeded to hold that the deceased was aged 50 years ignoring the material documents Ex.P.6-postmartem report and Ex.P.10-ration card, issued by the competent authority, depicts that the deceased was aged 47 years. Therefore, the Tribunal was not justified in taking the age of the deceased at 50 years. It ought to have taken it as 47 years.
14. Since the accident is of the year 2013, taking monthly wages of the deceased at `8,000/-, deducting 50% of the wages as per Section 4(1)(a) of the Employee’s Compensation Act, 1923, and applying the relevant factor 163.07 for the age 47 years of the deceased, the claimants are entitled to `6,52,280/- (`4,000/-x163.07). Though at para-17 of the impugned judgment and award, the Tribunal has held that the claimants are entitled to interest at 12% p.a., in the operative portion, the Tribunal has awarded 9% interest, which is contrary to the provisions of Section 4-A(3)(a) of the Employee’s Compensation Act, 1923.
15. For the reasons stated above, the substantial questions of law framed in the present Miscellaneous First Appeal are answered in the negative holding that the Tribunal is not justified in taking the age of the deceased at 50 years ignoring the material documents Ex.P.6-postmortem report and Ex.P.10-ration card, which clearly depicts that the deceased was aged 47 years as on the date of the accident. So also, the Tribunal is not justified in awarding interest at 9% per annum on the award amount, in view of the provisions of Section 4-A(3)(a) of the Employee’s Compensation Act.
16. For the reasons stated above, the Miscellaneous First Appeal is allowed in part. The impugned judgment and award is modified. The claimants are entitled to total compensation of `6,52,280/- + `5,000/- towards funeral expenses, in all, `6,57,280/- as against `6,17,360/- awarded by the Tribunal, with interest at 12% per annum after one month from the date of the accident, till realization.
Sd/- JUDGE kcm