IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.6775/2013 [WC] BETWEEN:
1. SRI KRISHNANAIK S/O HANUMANAIK AGED ABOUT 47 YEARS 2. SMT. RATHNAMMA @ RATHI BAI W/O KRISHNA NAIK AGED ABOUT 42 YEARS 3. MANJULA D/O KRISHNA NAIK AGED ABOUT 20 YEARS ALL ARE R/O GEDHAL GEMANAYAKNA THANDA CHIKKANAYAKANAHALLI TUMKUR DIST.-572101.
(BY SRI.SPOORTHY HEGDE N, ADV.) AND:
1. M/S. SRI RAM GENERAL INS. CO.LTD., BY ITS GENERAL MANAGER 10003-E-8, R.I.C.C.O. INDUSTRIAL AREA, SITAPUA RAJASTHAN-325206.
...APPELLANTS 2. SYED ALIM S/O SYED SAFIULLA OWNER OF LORRY NO. KA-44/1395 R/O AJADNAGAR, HULIYAR CHIKKANAIKANAHALLI (T) TUMKUR DIST.-572101.
(BY SRI.O MAHESH, ADV. FOR R1 …RESPONDENTS R2-NOTICE D/W VIDE ORDER DATED 07.10.2016) THIS M.F.A. IS FILED UNDER SECTION 30(1) OF WC ACT AGAINST THE JUDGMENT DATED 18.03.2013 PASSED IN WCA/F/CR-92/2011 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, CHITRADURGA DISTRICT, CHITRADURGA, ALLOWING THE CLAIM PETITION FOR COMPENSATION.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellants/claimants are in appeal before this Court under Section 30(1) of the Workmen’s Compensation Act, 1923, (for short ‘the Act’) praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 18.03.2013 passed in WAC:WCA:F:CR-92/2011 on the file of the Labour Officer and Commissioner for Workmen Compensation, Chitradurga District, Chitradurga.
2. The claimants are parents and sister of the deceased Hanumeshi. Claimants filed claim petition under Section 22 of the Act, claiming compensation for the death of one Hanumeshi in a Road Traffic Accident involving Lorry bearing No.KA.44/1395 during the course of his employment. It is stated that the deceased Hanumeshi was working as a cleaner in Lorry bearing No.KA.44/1395, which was owned by the 2nd respondent herein. It is stated that he was earning salary of Rs.10,000/- per month and Rs.50/- as bata per day. He was aged 22 years as on the date of accident. It is further stated that while the deceased was traveling in Lorry bearing No.KA.44/1395 from Bellary to Tumkur, On N.H.19 Road, near B.G. Kere the driver of the Lorry drove the same in a rash, negligent manner and dashed to another lorry from behind, which was stationed on the left side of the road. The deceased succumbed to the injuries on the spot. As the accidental death of Hanumaeshi had taken place during the course and out of his employment, claim petition was filed before the Commissioner for Workmen’s Compensation seeking compensation for the death of Hanumeshi.
3. On issuance of summons, respondent No.1 and respondent No.2 – Insurance Company appeared before the Commissioner and filed their written statement. Respondent No.1 – Owner admitted the employer employee relationship between the deceased and 1st respondent. He also admitted the salary and bata paid to the deceased. It is also admitted by respondent No.1 that the accident occurred due to the rash and negligent driving of the lorry by its driver. Respondent No.1 – Insurer filed its objection denying the claim petition averments. It is also specifically denied that the deceased was not working as a cleaner in the lorry in question. The insurer also disputed the employer and employee relationship between the 1st respondent and the deceased. Based on the pleadings the Commissioner framed the following points for consideration :-
“-: ªÁzÁA±UÀ À¼ÄÀ :-
1. ªÀÄÈvÀ ºÀ£ÀĪÉÄò gÀªÀgÀÄ PÁ«ÄðPÀ £ÀµÀÖ ¥ÀjºÁgÀ PÁAiÉÄÝAiÀÄ PÀ®A 2(1)(J£ï) ¥ÀæPÁgÀ PÁ«ÄðPÀ£ÁVzÀÝ£ÉAzÀÄ CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀÀĪÀgÉÃ?
2. ªÀÄÈvÀ£ÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ ¯Áj ¸ÀASÉå: PÉJ-
44/1395gÀ°è QèãÀgï DV PÉ®¸ÀªÀ£ÀÄß ¤ªÀð¸ÀÄwÛzÁÝUÀ ¢£ÁAPÀ:13-05-2011gÀAzÀÄ GzÉÆåÃUÀ¢AzÀ ªÀÄvÀÄÛ GzÉÆåÃUÀzÀ ¸ÀªÀÄAiÀÄzÀ°è ¸ÀA¨sÀ«¹zÀ C¥ÀWÁvÀzÀ°è wêÀæªÁV UÁAiÀÄUÉÆAqÀÄ ¸ÀzÀj UÁAiÀÄUÀ¼À zɸɬÄAzÀ ªÀÄÈvÀ¥ÀnÖgÀÄvÁÛgÉAzÀÄ CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
3. ªÀÄÈvÀ£ÀÄ 1£Éà ¥ÀæwªÁ¢¬ÄAzÀ ªÀiÁ¹PÀ gÀÆ.10,000-00 UÀ¼À ªÉÃvÀ£ÀªÀ£ÀÄß ºÁUÀÆ gÀÆ.50-00UÀ¼À ¢£À¨sÀvÉÀåAiÀÄ£ÀÄß ¥ÀqÉAiÀÄÄwÛzÀÝgÉAzÀÄ ºÁUÀÆ ªÀÄgÀtzÀ ªÉÃ¼É ªÀÄÈvÀ¤UÉ 22 ªÀµÀð ªÀAiÀĸÁìVvÉÛAzÀÄ CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
4. CfðzÁgÀgÀÄ ªÀÄÈvÀ£À CªÀ®A©vÀgÁVzÀÝgÉA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
5. G¨sÀAiÀÄ ¥ÀæwªÁ¢UÀ¼À ¥ÉÊQ AiÀiÁªÀ ¥ÀæwªÁ¢¬ÄAzÀ ¥ÀjºÁgÀ ºÁUÀÆ CzÀgÀ ªÉÄÃ¯É §rØAiÀÄ£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀðgÁVgÀÄvÁÛgÉ?
6. F §UÉÎ DzÉñÀªÉãÀÄ?”
In support of their case, claimant No.1 – father of the deceased examined himself as PW.1 and marked the documents Exs.P1 to P9. Insurer got marked Ex.R.1 – copy of the Insurance Policy. The Commissioner based on the material placed on record awarded total compensation of Rs.4,09,534/-. While awarding the compensation, the Commissioner assessed the income of the deceased at Rs.4,000/- per month. Aggrieved by the quantum of compensation awarded by the Tribunal the claimants are before this Court in this appeal.
4. Heard the learned counsel for the appellants and learned counsel for the 2nd respondent – Insurance Company. Perused the entire material on record.
5. The learned counsel for the appellants would submit that the monthly wage assessed by the Commissioner at Rs.4,000/- is on the lower side. He submits that as on the date of accident i.e., on 13.05.2011, the Central Government in pursuance to Section 4 (1-B) of the Act, by notification dated 31.05.2010 had fixed Rs.8,000/- as monthly wage. The Commissioner failed to take note of the same and he relied upon the monthly wage as stipulated in pre- amended notification and assessed the monthly wage of the deceased at Rs.4,000/- p.m . The accident in question is subsequent to the amendment, as such the Commissioner ought to have taken the monthly wage at Rs.8,000/-. He further submits that the Tribunal failed to award any compensation on the head funeral expenses under Section 4 of the Act. Thus he prays for enhancement of compensation.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the compensation awarded by the Commissioner for Workmen’s Compensation is just compensation, which requires no interference.
7. On hearing the learned counsels for the parties and on perusal of the material on record, the substantial question of law that would arise for consideration is as to “Whether the monthly wages taken by the Commissioner at Rs.4,000/- is proper and correct ?”
Answer to the above question is in the negative for the following reasons :-
The occurrence of the accident on 13.05.2011 involving Lorry bearing Reg.No.KA-44/1395 and the accidental death of Hanumeshi, Son of claimant Nos.1 and 2, is not in dispute in this appeal. The claimant’s have sought for enhancement of compensation. Admittedly the accident is on 13.05.2011. Act was amended on 18.01.2010 inserting sub Section (1-B) to Section 4 of the Act. In exercise of power under Section 4(1-B) of the Act notification dated 31.05.2010 was issued fixing monthly wages at Rs.8,000/-. But the Commissioner failed to take note of the same and assessed the income at Rs.4,000/- which was the monthly wage fixed prior to notification dated 31.05.2010. The Commissioner committed an error in taking the monthly wage at Rs.4,000/-. The monthly wage of the deceased is to be taken at minimum of Rs.8,000/-, for calculating compensation. The deceased was aged 22 years as on the date of accident and the proper factor to be adopted would be 221.37, which the Commissioner has correctly applied. The Commissioner failed to award any compensation towards funeral expenses, which the claimant would be entitled to at Rs.5,000/- as per Section 4 of the Act. Thus the claimant would be entitled for the following modified compensation :-
a. Loss of dependency (Rs.8,000/- less 50% = Rs.4,000/-
Rs.4,000/- x 221.37 = 8,85,480/-
b. Funeral Expenses 5,000/-
Total Rs.8,90,480/-
8. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimants are entitled to enhanced compensation in a sum of Rs.8,90,480/- as against Rs.4,09,534/- awarded by the Commissioner with interest at 12% p.a. from 30 days after the date of accident till the date of realization.
Sd/- JUDGE NG* CT:bms