United India Insurance Co.Ltd. vs Gangabai @ Gangubai W/O Namdev ...
2021 Latest Caselaw 3147 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

      DATED THIS THE 13TH DAY OF AUGUST, 2021

                       BEFORE

 THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

             MFA No.30290/2013 (WC)
                      C/W
             MFA NO.30166/2013 (WC)

MFA NO.30290/2013

BETWEEN

UNITED INDIA INSURANCE CO.LTD.,
BIJAPUR, REPRESENTED HEREIN BY ITS
DIVISIONAL MANAGER, SUPER MARKET
GULBARGA - 585101
                                          ...APPELLANT
(BY SRI. SHIVANAND PATIL, ADVOCATE)

AND

1.    GANGABAI @ GANGUBAI W/O NAMDEV DARGA
      AGE: 42 YEARS, OCC. HH WORK,
      R/O. AINAPUR, TQ & DIST. BIJAPUR-586101

2.    VITABAI W/O HUSANAPPA
      AGE: 67 YEARS, OCC: HH WORK,
      R/O. AINAPUR, TQ & DIST. BIJAPUR

3.    MR. JEETENDRA MULACHAND SHAHA
      AGE: 42 YEARS, OCC. BUSINESS,
      R/O. GANAPATI CIRCLE, NEHRU ROAD,
                            2




     BIJAPUR - 586101
                                      ...RESPONDENTS

(BY SRI S. S. MAMADAPUR, ADVOCATE FOR R1;
SRI C. L. KOUJALAGI, ADVOCATE FOR R2;
SRI SANGANABASAVA B. PATIL, ADVOCATE FOR R3)

     THIS APPEAL IS FILED UNDER SECTION 30(1) OF
THE WORKMEN'S COMPENSATION ACT, PRAYING TO SET
ASIDE THE ORDER/AWRD DATED 16.11.2012 OF THE
LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S
COMPENSATION    SUB-DIVISION-I,    BIJAPUR   IN   FILE
NO.KAPAKA/SR-45/2011 WITH COST THROUGH OUT IN
THE INTEREST OF JUSTICE AND EQUITY.


MFA NO.30166/2013


BETWEEN


1.   SMT. GANGABAI @ GANGUBAI W/O NAMDEV DARGA
     AGE: 42 YEARS, OCC: HOUSEHOLD WORK


2.   SMT. VITHABAI W/O HUSNAPPA DARGA
     AGE: 67 YEARS, OCC: HOUSEHOLD WORK,


     APPELLANTS ARE R/O AINAPUR,
     TQ. & DIST. BIJAPUR
                                        ...APPELLANTS
(BY SRI ASHOK R. KALYANASHETTY, ADVOCATE )
                            3




AND


1.    SHRI JITENDRA MULCHAND SHAH
      AGE: 42 YEARS, OCC: BUSINESS
      R/O GANAPATI CIRCLE, NEHRU ROAD,
      BIJAPUR


2.    THE BRANCH MANAGER,
      THE UNITED INSURANCE CO.LTD.
      BIJAPUR
                                          ...RESPONDENTS
(BY SRI C. L. KOUJALAGI, ADVOCATE FOR R1;
SRI SHIVANAND PATIL, ADVOCATE FOR R2)


     THIS MFA IS FILED U/S 30(1) OF WC ACT AGAINST
THE JUDGMENT AND ORDER DT- 16.11.2012 PASSED IN
WCA/CR/NO. 45/2011 ON THE FILE OF THE LABOUR
OFFICER    AND     COMMISSIONER       FOR    WORKMEN'S
COMPENSATION SUB-DIVISION NO-1 BIJAPUR, PARTLY
ALLOWING     THE   CLAIM       PETITION   AND   SEEKING
ENHANCEMENT OF COMPENSATION.


      THESE APPEALS HAVING BEEN HEARD, RESERVED
FOR JUDGMENT ON 27.07.2021 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
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                                 JUDGMENT

MFA No.30290/2013 is filed by the insurer

challenging the liability and the quantum of compensation,

while the appeal in MFA No.30166/2013 is filed by the

claimants seeking enhancement of the compensation

awarded by the Commissioner for Workmen's

Compensation, Sub-Division-I, Vijayapur (henceforth

referred as 'Commissioner') in WCASR No.45/2011 dated

16.11.2012.

2. The claimants are the legal representatives of

Namdev Darga, who was employed as a daily wager by

respondent No.1 herein in a lorry owned by him bearing

registration No.KA-28/A-8429 (henceforth referred as

'offending vehicle'). It is claimed that the said Namdev

was earning a monthly income of Rs.6,000/-. On

31.03.2011, the said Namdev on the direction of

respondent No.1 herein was employed in the said lorry and

while he was unloading cotton bales, the same accidentally

fell on him and he suffered serious injuries and later he

died on 07.04.2011. A case of unnatural death was

registered by the Golgumbaz police station in UDR

No.4/2011. The claimants contended that they spent a

sum of Rs.50,000/- for his funeral expenses. The

claimants also contended that the deceased was aged 40

years old. The claimants contended that the death

occurred during and in the course of the employment of

the deceased. The claimants therefore filed a claim

petition claiming compensation in a sum of Rs.7,00,000/-.

Since the vehicle in question was insured by the insurer,

the insurer was also arrayed as a party. The owner of the

offending vehicle entered appearance and admitted the

claim. However, the insurer denied each and every

averments of the claim petition and sought for dismissal of

the same. The insurer also filed an application under

Section 170 of the Motor Vehicles Act, which was allowed.

3. Based on these rival contentions, the case was

set down for trial. The claimants were examined as PWs.1

and 2 and Exs.P1 to P4 were marked while the insurer

examined its official as RW.1 and marked the policy of

insurance as EX.R2(1). Based on the oral and

documentary evidence available on record, the

Commissioner held that the accident occurred during and

in the course of the employment and that the deceased

was employed as a coolie in the offending vehicle. The

Commissioner considered the monthly income of the

deceased at a sum of Rs.4,000/- and awarded

compensation of a sum of Rs.3,38,800/-.

      4.    Being          aggrieved           by      the        quantum      of

compensation      awarded           by        the     Commissioner,           MFA

No.30166/2013         is    filed        by    the         claimants     seeking

enhancement of compensation.                    MFA No.30290/2013 is

filed by the insurer challenging the liability as well as the

quantum of compensation awarded by the Commissioner.

5. The learned counsel for the appellant -

claimants contended that the deceased was earning a sum

of Rs.6,000/- per month and respondent No.1 did not deny

the same but admitted the averments of the claim petition.

The learned counsel contended that the claimants belong

to an under privileged section of the society and therefore

there was no record of the salary paid to the deceased.

However, having regard to the provisions of the

Workmen's Compensation Act, 1923, which provide that

the income could be taken at a sum Rs.8,000/- per month,

he contended that the Commissioner ought to have

considered the income at Rs.6,000/- per month. Even

otherwise, he contended that since the accident occurred

on 31.03.2011, the minimum wages payable during the

relevant period was not less than Rs.200/- per day and

therefore, the Commissioner ought to have considered the

income at a sum of Rs.6,000/- per month.

6. The learned counsel for the insurer contended

that there was nothing on record to show that the

deceased died due to the injuries during and in the course

of the employment as no complaint was filed after the

accident and the case sheet of the hospital where the

deceased was treated was produced. The learned counsel

also contended that there was no proof regarding the

monthly wages of Rs.4,000/- claimed by the claimants.

7. This appeal was admitted to consider the

following substantial question of law:

"Whether the judgment of the Commissioner for Workmen's Compensation is perverse in misreading the material and evidence on record in not holding an appropriate income for the deceased"

8. I have considered the submissions made by

the learned counsel for the parties.

9. The occurrence of the accident is established

by Exs.P1 to P4. There is no contra evidence adduced by

the insurer challenging the occurrence of the accident.

The employer did not contest the case of the claimants.

The fact that the deceased was a coolie is evident from the

inquest report as well as the evidence of the claimants

themselves. Since the Commissioner took into account the

probability of the case and has awarded compensation and

it cannot be held that the accident did not arise in the

course of employment. The evidence on record clearly

point out that the accident occurred during the course of

employment and the income taken into consideration by

the Commissioner is far less than what the claimants were

entitled to.

10. In that view of the matter, the substantial

question of law is answered against the insurer. Hence,

the appeal filed by the insurer is liable to be rejected.

Accordingly, it is rejected.

11. Insofar as the appeal filed by the claimants for

enhancement of compensation is concerned, the claimants

claimed that the deceased was earning a sum of

Rs.6,000/- per month. However, the Commissioner has

accepted a sum of Rs.4,000/- per month and has awarded

compensation in a sum of Rs.3,38,880/-. It is relevant to

note that during the year 2011, the minimum wages was

Rs.175/- per day. Therefore, the income of the deceased

had to be considered at a sum of Rs.5,250/- per month.

In that view of the matter, the compensation awarded by

the Commissioner deserves to be enhanced and

accordingly the compensation is enhanced to

Rs.4,44,780/-.

12. In addition, a sum of Rs.5,000/- is liable to be

awarded towards funeral expenses of the deceased.

Therefore, the total compensation payable is a sum of

Rs.4,49,780/-.

13. In that view of the matter, the appeal filed by

the claimants is allowed in part and the compensation is

enhanced to a sum of Rs.4,49,780/-. The enhanced

compensation shall carry interest at 12% per annum from

one month from the date of the accident.

The amount, if any, deposited by the insurer is

ordered to be transmitted to the Commissioner for passing

necessary orders.

The insurer shall deposit the enhanced compensation

within one month from the date of receipt of a certified

copy of this order.

Sd/-

JUDGE

Srt