IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL NO.6196 OF 2016 BETWEEN:
UNITED INDIA INSURANCE CO., LTD., DIVISIONAL OFFICE CRESCENT COURT, K.M.ROAD CHICKMAGALUR – 577 101.
... APPELLANT (BY SRI.SEETHARAMA RAO B.C., ADV.,) AND:
1. SMT.ALAMELU AGED ABOUT 39 YEARS W/O.LATE SATHYARAJU @ ARUNACHALAM COOLIE 2. SRI.A.PACHAPPA AGED ABOUT 20 YEARS S/O.LATE SATHYARAJU @ ARUNACHALAM 3. SRI.A.VIJAYA AGED ABOUT 17 YEARS S/O.LATE SATHYARAJU @ ARUNACHALAM SINCE MINOR REP. BY HIS MOTHER THE FIRST RESPONDENT HEREIN NO.1 TO 3 ARE RESIDENTS OF BYNEKHAN ESTATE ATTIGUNDI, BISAGNIMUTT POST KOLAGAVE, JAGARA HOBLI CHIKKAMAGALURU TALUK – 577 101.
4. THE MANAGER M/S.BYNEKHAN ESTATE ATTIGUNDI, BISAGNIMUTT POST KOLAGAVE, JAGARA HOBLI CHIKKAMAGALUR TALUK – 577 101.
…RESPONDENTS (BY SRI.M.C.JAYAKIRTHI, ADV., FOR R1 & R2, R3 IS MINOR, REPRESENTED BY R1, R4 IS SERVED, BUT UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 30(1) OF THE EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 14.07.2016 PASSED ON ECA NO.23/15 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & CJM, CHIKKAMAGALURU, AWARDING COMPENSATION OF RS.7,58,240/- WITH INTEREST AT 12% P.A. AFTER EXPIRY OF 30 DAYS OF THE INCIDENT, TILL THE DATE OF PAYMENT.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant – Insurance Company has filed the Miscellaneous First Appeal against the judgment and award dated 14.07.2016 made in ECA No.23/2015 on the file of Principal Senior Civil Judge & C.J.M., Chikkamagaluru, awarding total compensation of Rs.7,58,240/- with interest at 12% per annum after expiry of 30 days of the incident, till the date of payment.
2. The parties are referred to as per their ranking before the Tribunal.
3. The respondents / claimants are wife and children of the deceased – Sri.Satyaraju @ Arunachalam filed the petition claiming compensation contending that on 28.02.2014 at about 5.00 p.m while the deceased was cutting the wood in the estate, a snake was bitten him. Immediately, he was shifted to M.G.Hospital, Chikkamagaluru, but he died on the way to the hospital. However, the post mortem of the dead body was conducted in M.G.Hospital, thereafter, the petitioners peformed last rites of the deceased. It was further contended that the death of the deceased has occurred arising out of and during the course of his employment under the first respondent. The deceased was aged 38 years and he was earning monthly wages of Rs.8,000/-. Therefore, the petitioners being the dependants of the deceased have filed the petition for claiming compensation.
4. After receipt of summons, respondents before the Tribunal filed objections. The first respondent who is the employer / owner of the Estate filed objections and admitted that the deceased was his employee and he died during the course of employment, but denied the quantum of monthly wages of the deceased and contended that he was paying the wages as per the Minimum Wages Act with all admissible facilities and further contended that the first respondent taken the workmen Insurance Policy from the second respondent and same was in force as on the date of accident. Therefore, the second respondent is liable to pay the compensation to the claimants.
5. The second respondent – Insurance Company / appellant filed written statement denying the relationship of employer and employee between the deceased and the first respondent and also denied the age, monthly wages of the deceased and contended that the first respondent obtained the workmen insurance policy from the second respondent and the same was in force as on the date of the accident and the liability of the second respondent shall be determined in accordance with the declared wages by the first respondent while obtaining the Insurance Policy and sought for dismissal of the claim petition.
6. Based on the pleadings, the Tribunal framed the following issues:-
“1. Whether the petitioners prove that deceased Sathyaraju @ Arunachalam was an employee under respondent No.1 as defined under the provisions of Employees Compensation Act?
2. Whether the petitioners prove that Sathyaraju @ Arunachalam died during the course of employment?
3. Whether the petitioners prove that they are the dependants of deceased Sathyaraju @ Arunachalam?
4. Whether the petitioners prove the earnings and age of deceased at the time of his accident?
5. Whether the petitioners are entitled for compensation? If so, what is the quantum of compensation and from whom?
6. What order or award?”
7. In order to prove the case of the claimants, claimant No.2 was examined as PW-1 and got marked Exs.P1 to P10. The second respondent – Insurance Company got marked the policy – Ex.R1 and did not chose to lead evidence on its behalf. The first respondent examined its Manager - Sri.B.M.Chalukya as RW.1 and got marked Exs.R2 to R12.
8. The Tribunal considering both oral and documentary evidence on record recorded a finding that the claimants proved that the deceased – Satyaraju @ Arunachalam was employed with the first respondent and further proved that the deceased died arising out of and during the course of employment. Accordingly, by the impugned judgment and award, the Tribunal proceeded to award total compensation of Rs.7,58,240/- with interest at 12% p.a. after receipt of date of accident till the date of payment. Hence, the Insurance Company filed the present appeal.
9. The claimants have not filed any appeal against the impugned judgment and award for enhancement.
10. This Court by the order dated 03.07.2019 while admitting the appeal framed the following substantial questions of law:-
1. “Whether the Tribunal is justified in awarding the total compenaiton of Rs.7,58,240/- with interest at the rate of 12% p.a. after expiry of 30 days of the incident, till the date of payment when the insurance company depicts the relationship as employer and employee or master and servant?
2. Whether the Tribunal is justified in taking the monthly wages of the deceased at Rs.8,000/- p.m., when Ex.R2 to R12 clearly depicts that the deceased was earning only Rs.5,280/-?
3. Whether the Tribunal is justified in awarding the impugned compensation under the facts and circumstances of the present case?”
11. I have heard the learned counsel for the parties to the lis.
12. Sri.B.C.Seetharam, learned counsel for the appellant has contended that as per the oral and documentary evidence on record, it is stated that the proved wages was Rs.4,500/- has stated by the employer of the deceased. The Tribunal has erred in taking monthly wages of Rs.8,000/- without any basis. He would further contend that photo identity card produced at Ex.P10 related to one Arunachalam born in 1984 i.e., 30 years of age in the year 2014. Whereas the deceased person is said to be of 38 years age having name as Sathyaraju. No record was produced to show that the deceased person was also known as Arunachalam or Sathyaraju.
13. He would further contend that as per Ex.P2 – complaint given by the son of the decased who was examined as PW-1, there is some doubt in the complaint as well as in the evidence of PW-1, hence, Section 3 of the Employee’s Compensation Act, 1923 (for short ‘the Act’) would not attract. He would also contend that the claimants have not produced any material to prove that the deceased died due to snake bite arising out of and during the course of employment under the first respondent. Therefore, the impugned judment and award passed by the tribunal cannot be sustained and sought to allow the appeal.
14. Per contra, Sri.M.C.Jayakirthi, learned counsel for respondent Nos.1 and 2 sought to justify the impugned judgment and award. He contended that the Central Government exercising the power under sub Section 1(B) of Section 4 of the Act issued notification on 31.5.2010 and specified the monthly wages of Rs.8,000/-. Therefore, the Tribunal has rightly taken the monthly wages of the deceased as Rs.8,000/- after deducting 50% as per Section 4(1) (a) of the Act. He would further contend that RW-1 who is the employer of the deceased was cross-examined and stated on oath in his categorical statement that the deceased was his employee and he died during the course of employment and contended that the he had taken workmen insurance policy from the second respondent and the same was in force as on the date of accident. Therefore, the Tribunal is justified in awarding the compensation. Hence, sought for dismissal of the appeal.
15. Having heard the learned counsel for the parties, it is undisputed fact that the deceased – Satyaraju @ Arunachalam was working as a coolie in the Estate of the first respondent and died on 28.02.2014 at about 5.00 p.m. due to snake bite arising out of and during the course of employment. It is the specific case of the claimants that the deceased was working with the first respondent and first respondent paid monthly wages of Rs.8,000/- per month. The claimants are dependants. The second respondent filed objections before the claim’s Tribunal admitting the averments made in para No.2 that on 28.03.2014 at about 5.00, the deceased – Satyaraju @ Arunachalam was cutting the wood in the estate, a snake was bitten him, immediately, he was shifted to M.G.Hospital, Chikkamagaluru, but died on the way to hospital. But denied that the claimants have incurred more than Rs.40,000/- expenses and further stated that he was paying wages to the deceased as per the Minimum Wages Act with all admissible facilities. He also admitted that the deceased was employee under him and he died during the course of employment due to snake bite and he obtained insurance policy from the second respondent and the said policy was in force at the time of accident and first respondent also intimated the incident to the second respondent. On these grounds, he contended that the Insurance Company is liable to pay the compensation to the claimants.
16. The learned counsel for the appellant has contended that there is no relationship of employer and employee between the deceased and first respondent, but he has not produced any material to show the same. The employer who was examined as RW-1 has stated on oath in examination-in-chief conducted on 30.07.2016 in paragraph No.6 in categorically terms as under:-
“6. I submit that the deceased was employee of our firm and he died during the course of his employment due to snake bite. We have obtained a workman policy insurance from the 2nd respondent and the said policy was in force at the time of accident and we have already intimated the incident to the 2nd respondent and hence, if the Hon’ble Court comes to conclusion that the petitioners ar entitled for compensation then the same may be made good by the 2nd respondent only.”
This categorically statement made in the examination-in-chief was not cross-examined by the learned counsel for the Insurance Company.
17. Insofar as the contention of the learned counsel for the appellant that the proved income of the deceased was only Rs.4,500/-, but the Tribunal was not justified in taking the monthly wages of Rs.8,000/-
cannot be accepted for the simple reasons that PW-1 who categorically stated that on oath that the deceased was drawing Rs.8,000/- as monthly wages and same was reiterated by RW-1 who stated on oath that he was paying monthly wages to the deceased as per Minimum Wages Act. It is also not in dispute that the accident occurred on 28.02.2014, after the amendment to sub Section 1(b) of Section 4 of the Act, whereby the Central Government by notification dated 31.5.2010 specified the monthly wages of Rs.8,000/-. Therefore, the contention of learned counsel for the appellant cannot be accpeted and Tribunal is justified in taking the montly wages at Rs.8,000/-.
18. Further contention of the learned counsel for the appellant that as per documents Ex.R2 to R12 the deceased – Sri.Sathyaraju was paid monthly wages by his employer for the period between September 2013 to March was Rs.1,540/- to Rs.5280/-. But when the accident as occurred on 28.02.2014 after the amendment of the provisions to sub Section 1(B) of Section 4 of the Act, whereby the Central Government by notification dated 31.5.2010 specified the monthly wages of Rs.8,000/-. Hence, the Tribunal is right in taking the monthly income of the deceased as Rs.8,000/- as per the Central Government notification and also as per the evidence of PW-1.
19. Taking into consideration the materials on record, the Tribunal has catergorically recorded the finding that the claimants have proved the relationship of the deceased and first respondent as employee and employer and deceased died arising out of during the course of the employment. Accordingly, the Tribunal has passed the impugned judgment and award taking into consideration the montly wages of the deceased as Rs.8,000/- multiplied by relevant factor as per Section 4(1) (a) of the Act and taking into consideration the age of the deceased and relevant factor at 189, awarded total compensation of Rs.7,58,240/- with interest at 12% p.a. Therefore, the Tribunal is justified in passing the impugned judgment and award.
20. For the reasons stated above, the substantial question of law framed by this Court is answered in the affirmative holding that the Tribunal is justified in awarding total compensation of Rs.7,58,240/- with interest at the rate of 12% p.a. and also justified in taking income of Rs.8,000/- in view of the categoricaly statement made by PW-1, RW-1 and in view of the amended provisions to sub Section 1(B) of Section 4 of the Act. The appellant has not made out any ground to interefere with the impugned judgment and award passed by the Tribunal. Accordingly, the appeal is dismissed.
The amount in deposit made by the Insurance Company shall be transmitted to the jurisdictional Tribunal forthwith.
Sd/- JUDGE VMB