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.643/2017 (WC) BETWEEN SRI HANUMANTHARAYAPPA S/O HANUMANTHAPPA, AGED ABOUT 48 YEARS, R/A HANUMANTHANAGARA, SIRA TOWN - 572 137 TUMKUR DISTRICT.
... APPELLANT (BY SRI V.B. SIDDARAMAIAH, ADVOCATE) AND 1. THE NATIONAL INSURANCE CO LTD., BRANCH OFFICE: ABOVE CANARA BANK, KASTURI MANSION, BEHIND KRISHNA TALLIES, M.G.ROAD, TUMKUR TOWN - 572 101 REP BY ITS BRANCH MANAGER.
2. SRI WAHAB KHAN S/O AMANULLA KHAN, AGED ABOUT 48 YEARS, R/AT ASSAR MOHALLA, A.G.ROAD, CHALLAKERE TOWN, CHITRADURGA DISTRICT - 577 522.
... RESPONDENTS (BY SRI S. SRISHAILA, ADVOCATE FOR R1 R2-NOTICE DISPENSED WITH V/O. DRD.08.03.2018) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 30(1) OF WC ACT AGAINST THE JUDGMENT AND AWARD DATED:29.07.2016 PASSED IN ECA NO.14/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC, ADDITIONAL MACT, SIRA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is posted for admission, with the consent of learned counsel for both the parties, it is taken up final hearing.
2. The appellant-claimant filed this appeal for enhancement against the judgment and award dated 29.07.2016 passed in ECA No.14/2014 awarding compensation of Rs.2,32,888/- with 9% interest per annum on the file of the Court of Senior Civil Judge and Addl. MACT at Sira (for short ‘the Tribunal’).
3. The appellant filed a claim petition before the Tribunal seeking compensation on account of disablement suffered by him in a road traffic accident which occurred on 23.12.2010 when he was engaged as Hamal in a lorry bearing Registration No.AP-21/TU- 6446 by its owner lorry to load and unload the parcels which came from Bangalore to different places at Sira town. It was his case that the accident was due to rash and negligent driving by its driver, resulting which the claimant fell down and sustained injuries, shifted to the Government Hospital, Sira and after the first aid he was shifted to other Hospital and undergone operations. He further urged that he was aged 45 years at the time of accident, earning Rs.4,500/- per month and Rs.50/- per day as bata and the accident arisen out of and during the course of employment under the owner of alleged lorry and there was employer and employee relationship between him and the owner of lorry. Due to disablement he has lost his job and his family is entirely depending on his income.
4. On issuance of notice by the Tribunal, the 2nd respondent-owner of the alleged lorry and the 1st respondent Insurance Company filed separate written statements and denied the averments made in the claim petition. The Insurance Company contended that the claimant was traveling in the said lorry as an unauthorized passenger and there is no relationship of employer and employee either directly or indirectly between the him and owner of alleged lorry at any point of time and further contended that the driver of the insured lorry was not having DL at the time of accident. On these grounds the respondents prayed for dismissal of the petition.
5. Based on the aforesaid pleadings, the Tribunal framed the following issues for its consideration:
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6. F §UÉÎ DzÉñÀ K£ÀÄ?
6. In order to establish his case, the claimant has examined himself as PW1 and also examined the Doctor as PW2 and marked the documents Exs.P1 to P12 on his behalf. The 2nd respondent-Insurance Company examined its Assistant Manager as RW1 and marked the documents at Exs.R1 and R2. The 1st respondent owner of the vehicle did not examined any witnesses.
7. The Tribunal after considering the entire oral and documentary materials available on record, recorded the findings that the claimant has proved that he was workman as contemplated under the provisions of the Act and he has proved that the accident occurred is arisen out of and during the course of employment. Accordingly, the Tribunal has awarded the compensation of Rs.2,32,888/- along with 9% interest from the date of filing of petition till the entire amount is deposited. Aggrieved by the same, the present appeal is preferred.
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 awarding compensation of Rs.2,32,888/- with 9% interest is on the lower side. He further contended that the Tribunal erred in assessing the monthly wages of the deceased at Rs.4,500/- including bata against the evidence of PW1. He further contended that admittedly the accident was occurred after the amendment to the provisions of Sub Section (1)(B) of Section 4 of the Employees Compensation Act (for short ‘the Act’), wherein the Central Government specifies the minimum monthly wages at Rs.8,000/-. He further contended that the Tribunal proceeded to award only 9% interest after one month from the date of accident, which is also not against the provisions under Section 4A(3(a)) of the Act. Therefore, he sought to allow the appeal.
11. Per contra, Sri S. Srishaila, learned counsel for the Insurance Company sought to justify the impugned judgment and award passed by the Tribunal and contended that in the absence of proof of income, the Tribunal is justified in taking the monthly wages of the deceased at Rs4,500/- including bata and also 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 for its consideration in this appeal:
1. Whether the Tribunal is justified in assessing monthly wages of the deceased at Rs.4,500/- when the accident occurred date 23.12.2010, in view of the notification by Central Government dated 21.05.2010 specifying the monthly wages at Rs.8,000/- in the facts and circumstances of the present case?
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 not in dispute that the appellant sustained injuries in a road traffic accident while he was discharging the duty as Hamal/Loader and Unloader under respondent No.2 in his lorry. Further, it is not in dispute that he was aged about 45 years at the time of accident and hale and healthy before the accident and by earning Rs.4,500/- as monthly wages and also getting Rs.50/- per day as bata he was looking after the welfare of his family. The treated Doctor was examined as PW2 and he has stated that the petitioner has sustained multiple injuries all over the body. On perusal of the case papers, the Tribunal has observed that the claimant has suffered the following injuries in the accident.
1. Trochantric fracture right femur, post traumatic arthritis, shortening of right lower limb-5 cms, Mal union, implant institu, adhesions, restricted painful terminal movements, weakness, neurological deficit, parasthisia, osteroporoisis – 70%.
2. Left knee joint haemarhtrosis, post traumatic arthritis, painful movements, fibrosis, weakness – 20%.
3. Other soft tissue injury, right shoulder and a left ankle post traumatic arthritis, weakness, wasting – 15%.
14. Admittedly, the accident occurred is on 23.12.2010 i.e. after the amendment to the provisions of Sub Section (1)(B) 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 (3a) of Section 4A of the Act.
15. For the reasons stated above, the substantial questions of law have to be held in the negative holding that the Tribunal was not justified in assessing the monthly wages at Rs.4,500/- and awarding 9% interest. The claimant is entitled to monthly wages at Rs.8,000/- and 12% interest per annum on the entire compensation.
16. In view of above discussion, if the monthly wages of the claimant is taken at Rs.8,000/-, as per provisions of Section 4(1)(b) of Schedule IV of the Act and if it is multiplied by the relevant factor ‘169.44’ which is applicable to the claimant, the loss of income works out as follows:
Rs.4,800/- x 169.44 x 35/100 = Rs.2,84,659.22/-
17. However, the compensation towards medical bills at Rs.4,144.00 awarded by the Tribunal as per medical bills and prescriptions is just and proper.
18. In all, the total compensation works out to Rs.2,88,803/- with 12% interest per annum from the date of petition till realization. The appellant is entitled to the enhanced compensation of Rs.59,923.00/- with interest.
19. The Insurance Company shall deposit the compensation after deducting the amount already deposited with 12% interest on entire compensation, in accordance with law.
Accordingly, the appeal is allowed in part.
Sd/- JUDGE Sbs*