IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.No.5512 OF 2013 (WC) BETWEEN SRI KAREEGOWDA S/O. DODDATAMMEGOWDA AGED ABOUT 39 YEARS R/O MADEGOWDANKOPPALU VILLAGE DUDDA HOBLI, MANDYA TQ MANDYA – 571 401.
(BY SRI L RAJA, ADVOCATE) AND 1. MANCHEGOWDA S/O. JAVAREGOWDA DEAD BY L.RS 1(A). MAHADEVU S/O. LATE MANCHEGOWDA AGED ABOUT 45 YEARS 1(B). PUTTASWAMY S/O. LATE MANCHEGOWDA AGED ABOUT 42 YEARS 1(C). JAVAREEGOWDA S/O. LATE MANCHEGOWDA AGED ABOUT 36 YEARS ... APPELLANT ALL ARE RESIDENT OF MADEGOWDANKOPPALU VILLAGE DUDDA HOBLI, MANDYA TQ MANDYA – 571 401.
2. THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD., M.C. ROAD, MANDYA – 571 401.
... RESPONDENTS (BY SRI M.Y. SREENIVASAN, ADV. FOR R1(A) TO (C)) SRI A.M. VENKATESH, ADVOCATE FOR R2 THIS MFA IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT DATED 9.5.2013 PASSED IN WCA NO./NFC/CR-1/2012 ON THE FILE OF THE LABOUR COFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISION-2, MANDYA, 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:
JUDGMENT The claimant is in appeal under Section 30(1) of Workmen’s Compensation Act, 1923, (for short the ‘Act’) praying for enhancement of compensation, not being satisfied with the compensation awarded by the Labour Officer and Commissioner for Workmen’s Compensation at Mandya in WCA/NFC/CR-1/2012 dated 09.05.2013.
2. The claim petition was filed under Section 10 of Workmen’s Compensation Act, 1923 claiming compensation for the injuries sustained by the appellant – claimant during the course of employment with respondent No.1. It is stated that the claimant was working as loader and unloader with respondent No.1 in tractor and trailer bearing registration No.KA-11-T- 6360/6361. On 03.12.2011, the appellant–claimant on the direction of respondent No.1 was proceeding in a tractor and trailer to load the stones, at that time, the driver of the said tractor and trailer drove the same in a rash and negligent manner and suddenly applied brake. Due to which, the tractor turtled and claimant sustained grievous injuries. He took treatment at Government hospital, Mandya from 03.12.2011 to 24.12.2011. Due to the accident, the claimant suffered fracture of both bones of left leg. It is stated that he was getting wages of Rs.7,000/- per month along with batta of Rs.20/- per day. He was aged about 39 years as on the date of the accident.
3. On issuance of notice, respondent No.2 appeared and filed its objection, admitting issuance of policy, but denied the fact that the claimant was working with respondent No.1. It is further stated that there is no relationship of employer and employee between the claimant and respondent No.1. It is also contended that the driver of the tractor and trailer had no valid and effective driving license as on the date of the accident.
4. Based on the pleadings of the claim petition, the Commissioner framed the following issues:
1) CfðzÁgÀgÁzÀ PÀjÃUËqÀ ©£ï zÉÆqÀØ vÀªÉÄäÃUËqÀ EªÀgÀÄ £ËPÀgÀgÀ £ÀµÀ× ¥ÀjºÁgÀ PÁAiÉÄÝ 1923gÀ PÀ®A 2(1) (J£ï)gÀ ¥ÀæPÁgÀ £ËPÀgÀgÁVzÁÝgÉAzÀÄ, ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
2) CfðzÁgÀgÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ ¸ÀA¸ÉÜAiÀÄ°è PÁ«ÄðPÀgÁV PÁAiÀÄ𠤪Àð»¸ÀÄwÛzÁÝUÀ ¢£ÁAPÀ: 03-12-2011 gÀAzÀÄ ¸ÀA¨sÀ«¹zÀ C¥ÀWÁvÀzÀ°è UÁAiÀÄUÉÆAqÀÄ ¤§ð®vÉAiÀÄ£ÀÄß ºÉÆA¢gÀÄvÁÛgÉAzÀÄ, ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
3) CfðzÁgÀgÀÄ 1£Éà ¥ÀæwªÁ¢¬ÄAzÀ ªÀiÁ¹PÀ 7000-00 gÀÆ. UÀ¼À ªÉÃvÀ£À ¥ÀqÉAiÀÄÄwÛzÀÝgÉAzÀÄ ºÁUÀÆ C¥ÀWÁvÀzÀ ªÉÃ¼É DvÀ¤UÉ 39 ªÀµÀð ªÀAiÀĸÁìVvÉÛAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
4) CfðzÁgÀgÀÄ AiÀiÁªÀ ªÉÆvÀÛzÀ ¥ÀjºÁgÀPÉÌ CºÀðgÁVzÀÄÝ CzÀ£ÀÄß AiÀiÁªÀ ¥ÀæwªÁ¢¬ÄAzÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÁVzÁÝgÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
5) F §UÉÎ DzÉñÀªÉãÀÄ?
5. In order to prove his case, the claimant examined himself as PW1 and also examined doctor as PW2, apart from marking exhibits Ex.P1 to P6. Ex.P7 to P11 were marked through doctor. No evidence was let in on behalf of respondent-insurer. The Commissioner, based on the material placed on record awarded total compensation of Rs.2,45,586/-. While awarding the above compensation, the Commissioner assessed income of the claimant at Rs.4,380/- per month and assessed functional disability at 50%. The claimant not being satisfied with the quantum of compensation awarded by the Commissioner, the appellant is before this Court in this appeal.
6. The only substantial question of law arises for consideration is ‘Whether Commissioner in law justified in assessing the income of the claimant at Rs.4,380/- per month’?.
7. The learned counsel for the appellant and the learned counsel for respondent were heard on the above substantial question of law.
8. The learned counsel for the appellant would submit that the Commissioner committed an error in assessing the income of the claimant at Rs.4,380/-. The claimant stated that he was receiving a total wages of Rs.7,600/- per month including batta of Rs.20/- per day. He further submitted that the accident occurred on 03.12.2011 and as on the said date as per notification issued under Section 4(1-B) of the Act, the minimum wage was at Rs.8,000/- per month. Thus, he further submitted that income of the claimant ought to have been assessed at Rs.7,600/- per month as claimed by him and prays for enhancement accordingly.
9. Per contra, the learned counsel for the respondent submits that the claimant has not placed any material to establish his income. Further he submits that batta cannot be included while assessing the monthly wages. Thus, he prays for dismissal of the appeal.
10. The accident occurred on 03.12.2011 and the accidental injury sustained by the claimant during the course and out of his employment is not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. There is also no dispute and the claimant has established employer and employee relationship between him and respondent No.1. The Commissioner, based on the material placed on record including the evidence of PW2–Doctor, assessed the functional disability of the claimant at 50%, is also not in dispute in this appeal. The only dispute is assessment of the income by the Commissioner. The claimant stated that he was receiving wages of Rs.7,000/- per month and was receiving Rs.20/- per day as batta which would come to Rs.7,600/- per month. As the alleged accident is of the year 2011, as per notification issued under Section 4(1-B) of the Act, the minimum wage was Rs.8,000/- per month. When the claimant stated that he was receiving wages of Rs.7,600/- per month, the same could be taken as income of the claimant. The Division Bench of this Court in the decision of New India Assurance Co., Ltd., and another vs. Subhas, reported in 2005 ACJ 479 has held that batta received by the employee would form part of the wages. Relevant portion of the judgment at paragraph Nos.18 and 21 reads as follows:
“18. If any allowance is paid in consideration of the work done by the workman, even if it is paid daily to facilitate the employee to meet his daily needs, it will be a part of the ‘wage’. Similarly, if any allowances is paid to an employee by the employer to meet any special needs or circumstances (relating to his employment) that will also be part of the ‘wages’. This is because definition of ‘wage’ is an inclusive definition which includes any privilege or benefit which is capable of being estimated in money except those enumerated in the definition itself. It is also significant to note that the term ‘benefit’ is included in the definition of wages under the WC Act, while it is not included in the definition of ‘wages’ under the Payment of Wages Act. However any allowance paid to a workman can be excluded from ‘wages’ for purposes of the Act, if it is established that such payment was (a) traveling allowance; or (b) value of traveling concession; or (c) contribution towards pension or provident fond; or (d) amount paid to a workman to cover any special expenses entailed on him by the nature of his employment. As daily batta paid to a driver does not fall under any of those exceptions, it will necessarily be a part of ‘monthly wages’ for purposes of the Act”.
“21. In view of the above, subject to evidence to the contrary in any given case, any allowance paid as ‘batta’ to a driver or cleaner of a lorry/vehicle will have to be treated as benefit forming part of ‘wages’ under the Act”.
11. Thus, by following the above decision, I am of the considered view that the claimant’s wages including the batta could be taken at Rs.7,600/- per month and accordingly, claimant would be entitled for compensation as follows:
4,560(60% of 7,600)x186.90x50/100 = Rs.4,26,132/-
( Since the claimant was aged about 39 years as on the date of the accident, the appropriate factor would be 186.90) 12. Thus, the claimant would be entitled for enhanced modified compensation of Rs.4,26,132/- as against Rs.2,45,586/-, with interest at the rate of 12% per annum from 30 days after the date of accident till its realization as awarded by the Commissioner.
13. The judgment and award passed by the Commissioner is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE NMS