Karnataka High Court
Smt. Shahnaz Bi And Ors vs Rajmohammed And Anr on 2 July, 2024
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NC: 2024:KHC-K:4481
MFA No. 200438 of 2018
C/W MFA No. 200553 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 200438 OF 2018 (WC-D)
C/W
MISCL. FIRST APPEAL NO. 200553 OF 2018 (WC)
IN MFA.NO.200438/2018:
BETWEEN:
1. SMT. SHAHNAZ BI W/O LATE NASEER AHMED
AGE: 28 YEARS, OCC: HOUSEHOLD,
2. AFREEN BEGUM D/O LATE NASEER AHMED
AGE: 20 YEARS,
Digitally signed by 3. ZAINUDDIN S/O LATE NASEER AHMED
SHIVALEELA AGE: 17 YEARS, (MINOR)
DATTATRAYA UDAGI
Location: HIGH
COURT OF 4. MUSKIN D/O LATE NASEER AHMED
KARNATAKA AGE: 14 YEARS, (MINOR)
5. NEHA BEGUM D/O LATE NASEER AHMED
AGE: 10 YEARS, (MINOR)
6. HAJRA BEGUM D/O LATE NASEER AHMED
AGE: 08 YEARS, (MINOR)
7. MASTANBI W/O MOINUDDIN MOAZAN
AGE: 63 YEARS,
APPELLANTS NO.3 TO 6 ARE MINORS U/G,
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NC: 2024:KHC-K:4481
MFA No. 200438 of 2018
C/W MFA No. 200553 of 2018
OF THEIR MOTHER I.E. APPELLANT NO.1,
ALL ARE R/O. MASIMAD, TQ. BHALKI-585328.
...APPELLANTS
(BY SRI BASAVARAJ R. MATH, ADVOCATE)
AND:
1. RAJMOHAMMED S/O QUTUBUDDIN
AGE: MAJOR OCC: BUSINESS,
R/O H.NO.9-5-301, BADRUDDIN COLONY,
CHIDRI ROAD, BIDAR-585401.
2. THE AUTHORISED SIGNATORY
M/S SHRIRAM GENERAL INSURANCE COMPANY LTD,
E-8, RIICO, INDUSTRIAL AREA, SITAPUR JAIPUR,
RAJASTHAN-302022
...RESPONDENTS
(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2;
VIDE ORDER DATED 27.11.2019 NOTICE TO R1 IS,
DISPENSED WITH)
THIS MFA IS FILED U/S 30 (1) OF WC ACT, PRAYING TO,
CALL FOR RECORDS AND MODIFY THE IMPUGNED JUDGMENT
AND AWARD DATED 02.12.2017 PASSED BY THE
COMMISSIONER FOR EMPLOYEES COMPENSATION, BIDAR AND
PRINCIPAL SENIOR CIVIL JUDGE AND CJM, BIDAR IN ECA
NO.03/2015.
IN MFA.NO.200553/2018
BETWEEN:
SHRIRAM GENERAL INSURANCE CO. LTD
E/8,EPIP RIICO, INDUSTRIAL AREA, SITAPUR
JAIPUR, RAJASTHAN-302022,
THROUGH AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI SUBHASH MALLAPUR, ADVOCATE)
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NC: 2024:KHC-K:4481
MFA No. 200438 of 2018
C/W MFA No. 200553 of 2018
AND:
1. SMT. SHAHNAZ BI W/O LATE NASEER AHMED
AGE: 28 YEARS, OCC: H. HOLD,
2. AFREEN BEGUM D/O LATE NASEER AHMED
AGE: 20 YEARS,
3. ZAINUDDIN S/O LATE NASEER AHMED
AGE: 17 YEARS, MINOR
4. MUSKAN D/O LATE NASEER AHMED
AGE: 14 YEARS, MINOR
5. NEHA BEGUM D/O LATE NASEER AHMED
AGE: 10 YEARS, MINOR
6. HAJRA BEGUM D/O LATE NASEER AHMED
AGE: 08 YEARS, MINOR
7. MASTANBI W/O MOINUDDIN MOAZAN
AGE: 63 YEARS, OCC: H. HOLD,
(R2 TO R6 BEING MINORS U/G R-1),
ALL R/O. MASIMAD, TQ. BHALKI, BIDAR-584101.
8. RAJ MOHAMMED S/O QUTUBUDDIN
AGE: MAJOR, OCC: BUSINESS,
R/O H.NO. 9-5-301, BADRUDDIN COLONY,
CHIDRI RD. BIDAR-584101.
...RESPONDENTS
(BY SRI BASAVARAJ R. MATH, ADVOCATE FOR R1 AND R7;
R2 AND R8 ARE SERVED;
R3 TO R6 ARE MINORS REPRESENTED BY R1)
THIS MFA IS FILED U/S.30 OF EMPLOYEE
COMPENSATION ACT, PRAYING TO CALL FOR RECORDS IN ECA
NO.3/2015 ON THE FILE OF THE COMMISSIONER FOR
EMPLOYEES COMPENSATION AND PRINCIPAL SENIOR CIVIL
JUDGE AND CJM AT BIDAR, EXAMINE THE SAME AND ON
BEING SATISFIED BE PLEASED TO ALLOW THE APPEAL BY
SETTING ASIDE THE JUDGMENT AND ORDER DATED
02.12.2017 PASSED IN ECA NO.3/2015
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NC: 2024:KHC-K:4481
MFA No. 200438 of 2018
C/W MFA No. 200553 of 2018
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals arise out of common judgment and award passed by the Commissioner for Employees Compensation and Prl. Senior Civil Judge & CJM, Bidar (hereinafter for short referred to as 'the Commissioner') in ECA No.3/2015 dated 02.12.2017.
2. Though these appeals slated for orders, with the consent of the learned counsels, they are taken up together for final disposal.
3. The parties will be referred as per their ranks before the Commissioner for sake of convenience.
4. The deceased-Naseer Ahmed was employed as cleaner in lorry bearing Reg.No.AP-11/X-8528 belonging to respondent No.1 and respondent No.1 was paying salary of Rs.10,000/- per month and also paying Rs.100/- per day as bhatta to him. On 14.02.2014 deceased went to -5- NC: 2024:KHC-K:4481 MFA No. 200438 of 2018 C/W MFA No. 200553 of 2018 Tandur in the said lorry to bring Shahbad stone to Bidar. after loading of the stone, deceased were returning in the said lorry towards Bidar. Around 11:00 p.m., the lorry reached near Konchavaram cross the driver of the said lorry instructed the deceased to joint the Shahbad stones loaded in the lorry. Deceased had done the said work and while alighting from the said lorry, the driver of the said lorry negligently drove the vehicle, as a result of which, the deceased fell down from the lorry and sustained grievous injury.
5. It is further case of the claimants that deceased was taken to different hospital and provided treatment, but still it was not effective and improved. Therefore, he was discharged from the hospital and brought home for follow up treatment. While undergoing treatment on 15.03.2014, the deceased succumbed to the injuries sustained in the accident.
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NC: 2024:KHC-K:4481 MFA No. 200438 of 2018 C/W MFA No. 200553 of 2018
6. The claimants being the wife and children of deceased have filed present claim petition to award compensation under the provisions of Employee's Compensation Act, 1923 (for short, 'the E.C.Act').
7. The respondent/insurer denied the contentions of the claim petitioners and contended that the alleged accident as narrated in the petition is fabricated only to claim the compensation from respondent No.2. His death was not at all on the reasons stated in the petition or involvement of the said vehicle. And prayed to dismiss the claim petition.
8. Respondent No.1/owner of the lorry admitted that deceased was serving in the said lorry as a cleaner and he was paying him salary of Rs.6,000/- per month. Respondent No.1 denied other averments stated in the petition and prayed for dismissal of same. -7-
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9. From the rival contentions of the parties, the Commissioner had framed the necessary issues for its determination.
10. The claimants have examined PWs.1 and 2 and got marked Ex.P.1 to 9. Respondent No.2 has examined RW.1 and got marked Ex.R1.
11. The Commissioner after hearing both the parties and appreciating the evidence available on record had awarded the compensation of Rs.5,67,510/- with interest at the rate of 12% per annum from 17.03.2024 till its realization.
12. The said judgment is challenged by the insurer in MFA No.200553/2018 and the claimants in MFA No.200438/2018.
13. I have heard the arguments of learned counsel for both the parties.
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14. The learned counsel for the insurer has vehemently contended that the claimants have been contending that the deceased was taken to Government hospital at Chincholi, Government hospital at Gulbarga and thereafter Government hospital at Bidar and then shifted to Gandhi hospital at Hyderabad. In none of the hospital it was reported that the deceased met with vehicle accident and sustained injuries. No medical records are produced before the Commissioner to substantiate its contentions. The date of incident alleged to taken place on 14.02.2014, however, FIR was registered after the death of said Naseer Ahmed on 16.03.2014 by PW.2, who is said to be the eyewitness to the incident. These facts clearly indicates that deceased had sustained injures in some other incident and only with an intention to claim the compensation, a false story was created in collision with friends, relatives, respondent No.1 and the concerned Police Officer. -9-
NC: 2024:KHC-K:4481 MFA No. 200438 of 2018 C/W MFA No. 200553 of 2018 Therefore, the claimants are not entitled for the compensation. The Commissioner did not consider these facts. Hence, prayed to set aside the impugned judgment.
15. The learned counsel for the claimants has submitted that in the midnight of 14.02.2014 after attending the duties as directed by the driver while alighting from the lorry, the driver of the said lorry suddenly and negligently drove the vehicle because of which deceased fell down from the said lorry and sustained fatal injuries. PW.2 immediately shifted him to Government hospital at Chincholi, wherein first aid treatment was given. Thereafter as per medical advise, he was shifted to one after another hospital. In the said process PW.2 could not file any complaint to the police station regarding the incident. All of them involved in providing him good treatment to save him. The claimants are wife, mother and minor children of the deceased, who
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NC: 2024:KHC-K:4481 MFA No. 200438 of 2018 C/W MFA No. 200553 of 2018 are rustic villagers. They had no complaining to police. After the death of deceased-Naseer Ahmed, to conduct the post mortem, it was told to them that FIR should be registered. In view of the same, PW.2, who saw the incident had lodged the complaint before the police. Thereafter the process of investigation was commenced.
16. The learned counsel for the claimants has further contended that in Ex.P8 it is specifically mentioned that deceased had sustained injuries and first aid was given from the said hospital. The claimants were unable to secure the medical records from the Government hospital, Gulbarga and Bidar. During the trial of the case, the insurer did not seriously dispute the fact of accident. Therefore, the claimants did not try to secure the said documents. The incident had taken place during the year 2014, when the claimants came in contact with concerned hospital at Hyderabad, the hospital authorities refused to
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NC: 2024:KHC-K:4481 MFA No. 200438 of 2018 C/W MFA No. 200553 of 2018 give records on the ground that the said treatment was given about ten years back and they had no records. However they gave zerox copy of the discharge summary. These particulars are submitted to show that it was a genuine case and due to lack of knowledge, complaint was not filed. It was properly explained. Considering all these facts, the Commissioner has rightly awarded relief.
17. The learned counsel for the claimants has further submitted that the Commissioner had taken income of the deceased as Rs.6,000/- accepting the contentions of respondent No.1. On the contrary the claimants have categorically stated in pleading and evidence that deceased was earning Rs.10,000/- per month and in the cross-examination nothing was brought to disbelieve the same. As per notification issued under the E.C.Act, a maximum income of an unskilled employee could be taken as Rs.8,000/- per month. The same could
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NC: 2024:KHC-K:4481 MFA No. 200438 of 2018 C/W MFA No. 200553 of 2018 be applied to the facts in the present case. Since the accident of the year 2014, accordingly, prayed to enhance the amount compensation.
18. This appeal was admitted to consider the following substantial question of law.
1) Whether the claimants have falsely implicated the said vehicle only with an intention to claim compensation though the deceased-Naseer Ahmed had sustained injuries in some other incident?
2) Whether the claimants are entitled for enhancement of compensation?
19. The Commissioner in the impugned judgment considered the contentions of respondent/insurer and did not accept the same. It is not in dispute that FIR was registered after the death of Naseer Ahmed, on
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NC: 2024:KHC-K:4481 MFA No. 200438 of 2018 C/W MFA No. 200553 of 2018 16.03.2014. The post mortem report discloses that the deceased "sustained spinal cardiac injury at cervical region and fracture of C4 and C5 vertebra". It is also noted in the post mortem report that partial section of the spinal cord at C4 & C5 level hemorrhage around it. It also reveals the fracture of right clavicle and neck of the right humorous, bleeding from the pelvis because of forced catheter removed. The cause of death is shown as cardiac respiratory arrest as a result of respiratory failure and cardiac arrest (because injury to spinal cord, cerebellum and pontine region.
20. Even in Ex.P8 the Medical Officer of Taluka General Hospital, Chincholi endorsed that on 15.02.2014 in the midnight at 12:10 hours the deceased-Naseer Ahmed was brought to the hospital and first aid was given to him and thereafter he was sent to higher medical centre. The very same doctor had conducted post mortem
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NC: 2024:KHC-K:4481 MFA No. 200438 of 2018 C/W MFA No. 200553 of 2018 after his death on 15.03.2014. These documents corroborate the case of the claimants.
21. The respondent/insurer could not secure any other records to show that deceased sustained injuries in some other incident. What is source of information for respondent No.2, to contend that deceased sustained injury in some other incident? It appears on the assumption and presumption of respondent No.2, contending that it is a fabricated case.
22. RW.1 is legal officer of Insurance Company, did not explain regarding source of information of contend that the deceased sustained injury in some other incident. It appears, the insurer has been contending that it is a false case on the ground that FIR was belatedly registered from the date of incident. In this case there are materials to show that the deceased had taken to different hospitals immediately after the incident. Reasons for delay is
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NC: 2024:KHC-K:4481 MFA No. 200438 of 2018 C/W MFA No. 200553 of 2018 properly explained. The Medical Officer of the PHC, Bidar and Gulbarga appears to be not intimated the fact of the incident to the concerned police station or the police failed to register the case even after receipt of information.
23. Deceased was poor coolie. Poor family members were taking him one after another hospital to provide him best treatment to save him. The mental agony and trauma, in which they might be suffering, even one could not think of legal formalities. It is evidence on record that after his death, the Medical Officer informed that post mortem would be done only if criminal case registered and thereafter they lodged complaint. The facts and circumstances reveal that it was a genuine case. Mere delay in registering the case is not total in all the cases and merely there is a delay does not have any presumption that it is a false case.
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24. For the above said reason, the substantial question No.1 is answered in the Negative.
25. The claimants have contended that the deceased was an employer under respondent No.1 and respondent No.1 had been paying Rs.10,000/- per month and Rs.100/- per day as bhatta. As per the contentions of respondent No.1 he was paying salary of Rs.6,000/- per month. The claimants entered the witness box and deposed the facts which are stated in the claim petition and given an opportunity to other side to testify their evidence. However, respondent No.1 did not enter the witness box and gave an opportunity to the claimants to cross-examine him and elicit truth regarding wages, he was paying to the deceased. Therefore, the Commissioner has erred in holding that the deceased was earning Rs.6,000/- per month on the basis of contentions of respondent No.1.
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26. Even though the claimants have been contending that deceased was earning Rs.10,000/- per month as wages, however, as per the structured formula, the Commissioner/Court cannot take the income as contended by the claimants. As per the notification issued under the provisions of E.C.Act of the year 2010, maximum income of victim of an incident could be taken as Rs.8,000/- per month. Hence, same is considered. It is not in dispute that applicable factor is 184.17 and 50% income has to be deducted from the said calculation claimants are entitled for compensation under the head of loss of dependency Rs.7,36,680/-. In addition to that the claimants are also entitled for compensation of Rs.15,000/- towards conventional heads.
27. In all the claimants are entitled for total compensation of Rs.7,51,680/- and claimants are entitled enhancement of compensation of Rs.1,84,170/- with
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NC: 2024:KHC-K:4481 MFA No. 200438 of 2018 C/W MFA No. 200553 of 2018 interest at the rate of 12% per annum from 17.03.2014 till the date of realization. Accordingly, the substantial question of law No.2 is answered in the partly in the affirmative.
28. For the aforesaid discussions, I pass the following:
ORDER i. The appeal in MFA No.200553/2018 filed by the Insurance Company is dismissed. ii. The appeal in MFA No.200438/2018 filed by the claimants is partly allowed.
iii. The impugned judgment and award passed by
the Commissioner for Employee's
Compensation and Prl. Senior civil Judge & CJM, Bidar in ECA No.3/2015 dated 02.12.2017 is modified.
a) The claimants are entitled for
enhancement of compensation of
Rs.1,84,170/- along with interest at the
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NC: 2024:KHC-K:4481 MFA No. 200438 of 2018 C/W MFA No. 200553 of 2018 rate of 12% per annum from 17.03.2014 till its realization.
iv. The respondent No.2 - insurance company shall deposit the said amount with interest within a period of six weeks from the date of receipt of copy of this order.
v. The order pertaining to apportionment, deposit and release, etc., passed by the Commissioner is not disturbed.
vi. The amount in deposit, if any, in MFA No.200553/2018 shall be transmitted to the Court of Commissioner.
vii. The registry is directed to send back the Trial Court Records along with copy of this judgment to the Court of the Commissioner.
Sd/-
JUDGE SDU LIST NO.: 1 SL NO.:
CT:PK