IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL NO.2945 OF 2018 (WC) BETWEEN:
1. SMT.T.G.BHAGYA, W/O LATE G.MUTHARAJU, AGED ABOUT 25 YEARS.
2. DHANYASHRI M, D/O LATE G.MUTHARAJU, AGED ABOUT 5 YEARS.
3. GOPALAIAH, S/O LATE KRISHNAPPA, AGED ABOUT 73 YEARS, APPELLANT NO.2 IS MINOR REPRESENTED BY HER NATURAL GUARDIAN AND MOTHER 1ST APPELLANT ALL ARE R/AT KONTIHALLI VILLAGE, KORAB HOBLI, TUMAKURU TALUK AND DISTRICT – 572101. ... APPELLANTS (BY SRI SHANTHARAJ K, ADVOCATE) AND:
1. MUTHURAYAPPA, S/O LAKSHMAIAH, AGED ABOUT 55 YEARS, R/AT NAYAKANAPALYA VILLAGE, KORA HOBLI, TUMAKURU TALUK-572101.
2. THE NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY ITS MANAGER, KASTURI MANSION, BEHIND KRISHNA TALKIES, ABOVE CORPORATION BANK, TUMAKURU-572101. ... RESPONDENTS (BY SRI K.N.SREENIVASA, ADVOCATE FOR R2, NOTICE TO R1 D/W (V/O DATED 12.02.2019) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD DATED 19.08.2017 PASSED IN ECA NO.14/2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, TUMAKURU, 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:
JUDGMENT The appellants, i.e., wife, daughter and father of the deceased are before this Court for enhancement of compensation against the judgment and award dated 19.08.2017 passed in E.C.A. No.14/2015 on the file of the I Addl. Senior Civil Judge & CJM, Tumakuru, awarding the total compensation of Rs.4,94,887/- with proportionate cost and future interest at 12% per annum from the date of the petition till realization of entire amount.
02. It is the case of the claimants that the deceased G.Mutharaju was working as a labourer in the Tractor-Trailer bearing registration No.KA-06-B-2952-2953 for more than a year under the respondent No.1 and as per the direction of respondent No.1 on 03.07.2012 at about 8.00 A.M., the deceased G.Mutharaju and his elder brother loaded the boulders in the said Tractor-Trailer at Konthihalli, and he was traveling in the Trailer so as to unload the boulders at Kodihalli. When the Tractor-Trailer was proceeding in front of government hospital, the driver of the said Tractor-Trailer drove the same in a rash and negligent manner, as a result, the deceased fell down on the road and at that time, the wheel of the vehicle ran over on the body of G.Mutharaju and he died on the spot.
03. It is further contended that, the accident occurred during the course of the employment of G.Mutharaju under respondent No.1 and he was aged 23 years on the date of the accident and respondent No.1 was paying Rs.10,000/- per month and a bata of Rs.50/- per day. The Tractor-Trailer was insured with respondent No.2. Therefore, respondent Nos.1 and 2 are jointly liable to pay compensation.
04. The respondent No.1 who is the owner of the Tractor-Trailer has filed objections admitting that the deceased was working under him as a labourer since more than one year and also admitted the occurrence of the accident and death of the deceased and contended that the deceased G.Mutharaju died during the course of his employment and he was paying Rs.350/- per day including bata to the deceased and therefore, he contended that respondent No.2 -Insurance Company is liable to pay the compensation.
05. The respondent No.2 – Insurance Company filed objections denying the averments made in the claim petition; denied the relationship between the deceased and respondent No.1; denied the monthly wages and bata and also denied the occurrence of the accident and that the risk of coolie did not cover any terms under the policy. As per R.C. Book, the sitting capacity of the vehicle is only one and hence, respondent No.2 is not liable to pay compensation and sought for dismissal of the appeal.
06. Based on the aforesaid pleadings, the Tribunal framed the following issues:
i. Whether the petitioners prove that they are legal heirs of deceased G.Mutharaju?
ii. Whether the petitioners prove that the deceased G.Mutharaju was employee under respondent No.1?
iii. Whether the petitioners prove that deceased G.Mutharaju succumbed to injuries in an accident that occurred on 03.07.2012 at about 8.00 a.m. in front of Kestur Government hospital, in the course of employment?
iv. What is the quantum of compensation petitioner is entitled to and from whom?
v. What order or award?
07. In order to establish the case of the claimants, the appellant No.1., i.e., wife of the deceased was examined as PW1 and through her, Exhibits-P1 to P9 were got marked.
The Administrative Officer of respondent No.2 was examined as RW1 and got exhibited Ex.R1.
08. The Tribunal after considering both oral and documentary evidence on record, has recorded a finding that the claimants proved as the legal heirs of the deceased G.Mutharaju and he died during the course and arising out of employment under respondent No.1. Accordingly, by the impugned judgment and award, the Tribunal proceeded to award a sum of Rs.4,94,887/- with proportionate cost and future interest at 12% per annum from the date of the petition till realization of entire amount. Hence, the present appeal is filed by the claimants for further enhancement.
09. The Insurance Company has not filed any appeal against the impugned judgment and award of the Tribunal.
10. Heard the learned counsels for the parties to the lis.
11. Sri. Shantharaj K, learned counsel for the appellants/claimants contended that the Tribunal erred in taking the monthly wage of the deceased at Rs.4,500/-
instead of Rs.11,500/- per month, as stated by the appellants as well as the employer – respondent No.1. He would further contend that the Tribunal was not justified in awarding interest from the date of filing the petition. The interest ought to have been awarded after one month from the date of the accident and sought to allow the appeal.
12. Per contra, Sri. K.N.Sreenivasa, learned counsel for respondent No.2 – Insurance Company, justified the impugned judgment and award passed by the Tribunal and contended that in the absence of any material documents produced, the Tribunal was justified in taking income as Rs.4,500/- and taking into consideration the peculiar facts and circumstances, the Tribunal has awarded the compensation with 12% interest from the date of petition and sought for dismissal of the appeal.
13. This Court while admitting the appeal, has framed the following substantial question of law:
Whether the Tribunal is justified taking the income of the deceased at Rs.4,500/-, when the accident occurred on 03.07.2012, in view of the Notification issued by the Central Government dated 31.05.2010 exercising the powers conferred by sub- section (1B) of Section 4 of the Employee’s Compensation Act, 1923, specifying the monthly wage as Rs.8,000/-?
14. Having heard the learned counsels for the parties, it is an undisputed fact that deceased G.Mutharaju died in a road accident which occurred on 03.07.2012 during the course and arising out of employment under respondent No.1. The respondent No.1 who filed objections before the Tribunal has stated on Oath that the deceased was working under him as a labourer and he was paying daily wages of Rs.350/- including bata. According to the claimants, the deceased was earning a sum of Rs.10,000/- per month and bata of Rs.50/- per day. It is also not in dispute that the accident occurred on account of rash and negligent driving of the Driver of the Tractor-Trailer and the same is evident by the material documents i.e., Exhibits-P1 to P5. Admittedly, the Tribunal has recorded the finding that there is a relationship between the respondent No.1 and deceased is the master and servant. The said finding is not challenged by the Insurance Company.
The Tribunal proceeded to take the monthly wages of the deceased as Rs.4,500/- ignoring the evidence of PW1 on the ground that PW1 has not produced any material documents and therefore, notional income of Rs.4,500/- has to be taken as monthly income.
15. The Tribunal failed to notice that admittedly the accident occurred on 03.07.2012, i.e., subsequent to the amended provisions of sub-Section (1B) of the Section 4 of the Employee’s Compensation Act, 1923, specifying the monthly wages at Rs.8,000/-. Therefore, the Tribunal ought to have taken the monthly wages of the deceased as Rs.8,000/-. If the monthly wages of the deceased is taken as Rs.8,000/-, 50% has to be deducted in view of the provisions of Section 4 (1) (a) of the Employees Compensation Act, 1923, would come to Rs.4,000/-. The age of the deceased at the time of accident was 23 years and the relevant factor would be 219.95.
4000 x 219.95 = Rs.8,79,800/-
16. The Tribunal further proceeded to grant interest at 12% per annum from the date of the petition, ignoring the dictum of the Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. v. Siby George and others, reported in 2012 ACJ 2126. The claimants are entitled to compensation after one month from the date of the accident and not from the date of the petition. The Tribunal has not awarded any funeral expenses as contemplated under the provisions of Section 4(4) of the Employees Compensation Act, 1923. Therefore, the claimants are entitled for a sum of Rs.5,000/- as funeral expenses.
17. For the aforesaid reasons, the substantial question of law framed by this Court has to be held in the negative holding that the Tribunal is not justified in taking the monthly wages at Rs.4,500/- and awarding 12% from the date of the petition and it has not awarded any compensation in respect of funeral expenses.
18. For the reasons stated above, the appeal is allowed in part. The impugned judgment and award dated 19.08.2017 passed in E.C.A. No.14/2015 on the file of the I Addl. Senior Civil Judge & CJM, Tumakuru, is modified. The claimants are entitled for compensation as under:
i. Rs.8,79,800/- as compensation with interest at 12% per annum, after one month from the date of the accident.
ii. Rs.5,000/- for funeral expenses.
19. In all, the claimants are entitled for a total compensation of Rs.8,84,800/- as against Rs.4,94,887/- with interest at 12% per annum, after one month from the date of the accident.
20. The enhanced compensation would be Rs.3,89,913/-. Out of the enhanced compensation, Rs.1,00,000/- shall be deposited in the name of the minor daughter till she attains majority and the periodical interest if any, shall be paid to the mother - natural guardian of the minor. The remaining amount shall be disbursed in the ratio of 60 : 20 to both wife and father of the deceased.
Ordered accordingly.
Sd/- JUDGE SJ