Duragamma @ Duragavva vs Govindaraj
2021 Latest Caselaw 5807 Kant

                         1




        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 9TH DAY OF DECEMBER, 2021

                     BEFORE

      THE HON'BLE MR.JUSTICE M.G.S.KAMAL

           M.F.A.No.200272/2018 (WC)
                      C/W
           M.F.A.No.200820/2018 (WC)

MFA 200272/2018

BETWEEN

1. DURAGAMMA @ DURAGAVVA
   W/O SANGAPPA KATTIMANI,
   AGE: 47 YEARS, OCC: COOLIE

2. SANGAPPA S/O BHIMAPPA KATTIMANI,
   AGE: 52 YEARS OCC: COOLIE,
   BOTH ARE R/O HUNASAGI, TQ: SURAPUR
   DIST: YADAGIRI
                                    ...APPELLANTS

(BY SRI GOPALKRISHNA B. YADAV, ADVOCATE)

AND

1. GOVINDARAJ S/O VENKANNA DORI,
   AGE: MAJOR, OCC: BUSINESS
   R/O HUNASAGI, TQ: SURPUR
   DIST: YADAGIRI-585622.

2. THE BRANCH MANAGER
   CHOLAMANDALAM M.S. GENERAL
   INSURANCE CO. LTD.,
                            2




  KALABURAGI PROPOSAL NO.20978572
  PERIOD FROM: 20.10.2015 TO 19.10.2016
                                   ...RESPONDENTS

(BY SRI. C. S. KALBURGI, ADVOCATE FOR R2;
SRI VEERANGOUDA MALIPATIL, ADVOCATE FOR R1)

   THIS    MFA   FILED   U/S.    30(1)   OF    EMPLOYEES
COMPENSATION ACT, PRAYING TO ALLOW THE APPEAL BY
MODIFING   THE   IMPUGNED       JUDGMENT      AND   AWARD
DATED 10.01.2018 IN E.C.A.NO.5/2016 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC AND BEFORE THE
COMMISIONER FOR EMPLOYEES COMPENSATION ACT AT
MUDDBEBIHAL, BY ENHANCING THE COMPENSATION AS
CLAIMED IN THE CLAIM PETITION.


MFA 200820/2018

BETWEEN

THE BRANCH MANAGER
CHOLAMANDALAM GENERAL INSURANCE
CO. LTD., 9/1 HUNSUR ROAD, BANGALORE
NOW REPRESENTED THROUGH CHOLAMANDALAM
MS GENERAL INSURANCE CO. LTD.,
UNIT NO.4 GOLDEN HEIGHTS COMPLEX, 59TH
'C' CROSS, INUDSTRIAL SUBARB,
RAJAJINAGAR 4TH M BLOCK, BANGALORE-560010
                                     ...APPELLANT
(BY SRI MANJUNATH M., ADVOCATE FOR
SRI C. S. KALBURGI, ADVOCATE)

AND

1. DURAGAMMA @ DURAGAVVA W/O SANGAPPA
   KATTIMANTI, AGE: 46 YEARS, OCC: COOLIE
                         3




2 . SANGAPPA S/O BHIMAPPA KATTIMANI
   AGE:51 YEARS, OCC:COLLIE

  BOTH ARE R/O HUNASAGI, TQ.SURAPUR
  DIST:YADGIRI

3. GOVINDARAJ S/O VENKANNA DORI
   AGE:MAJOR, OCC:BUSINESS,
   R/O HUNASAGI, TQ. SURAPUR,
   DIST:YADGIR.
                                  ...RESPONDENTS

(BY SRI G. B. YADAV, ADVOCATE FOR R1 & R2;
SRI.VEERANGOUDA MALIPATIL, ADVOCATE FOR R3)

    THIS MFA FILED U/S. 30(1) OF WC ACT, PRAYING
TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT
DATED 10TH DAY OF JANUARY, 2018 PASSED BY THE
SENIOR CIVIL   JUDGE AND JMFC AND BEFORE THE
COMMISSIONER FOR EMPLOYEES COMPENSATION ACT AT
MUDEEBIHAL IN ECA NO.5/2016 AND TO MODIFY THE
COMPENSATION AWARDED TO PASS SUCH OTHER ORDER
OR ORDERS AS THIS HON'BLE COURT FIT UNDER FACTS
AND CIRCUMSTANCES OF THE CASE, INCLUDING THE
COSTS.


    THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
                                 4




                          JUDGMENT

MFA No.200272/2018 is filed by the claimants while

MFA No.200820/2018 is filed by the insurance company

under Section 30(1) of the Employees Compensation Act,

1923 (for short 'E. C. Act') against the judgment and order

dated 10.01.2018 passed in ECA No.5/2016 by the Senior

Civil Judge and JMFC before the Commissioner for

Employees Compensation Act, Muddebihal (for short

'Commissioner').

2. Brief facts leading up to filing of the present

appeal are that one Hanamant was working as a driver

with respondent No.1 in respect of his cruiser jeep bearing

No.KA-28/1851 on a salary of `500/- per day and `100/-

as allowance. That on 29.04.2016, at the instructions of

respondent No.1, said Hanamant had taken the jeep as a

driver to carry the lunch boxes to the coolie workers at

Konnur village near canal and when he was returning at

about 9.15-9-30 a.m. near Balaganur village, suddenly a

goat came across the road and while avoiding the collision

with the goat, he lost control and the jeep turned turtle

resulting in the accident, in which, the said Hanumanth

sustained grievous injuries and succumbed to the same. A

case in Crime No.86/2016 was registered at Talikoti police

station for the offences under Sections 279 and 304-A of

IPC. The body of the deceased after postmortem was

handed over to his family.

3. Thereupon, the claimants being the parents of

the deceased filed a claim petition seeking compensation

on the grounds that the deceased was aged about 28

years and was earning wages of `500/- per day and `100/-

as allowance from his work as a driver. That since the

accident had occurred during and in the course of the

employment, respondent Nos.1 and 2 are jointly and

severally are liable to pay the compensation.

4. Upon service of notice, respondent No.1

appeared through his counsel and filed his statement of

objections and admitted that the deceased was working

under him as a driver in the said jeep for about 7 to 8

months prior to the accident. He also admitted that he

was paying wages of `500/- + `100/- per day as

allowance. He further admitted that on 29.04.2016, the

deceased on his instructions had carried lunch boxes to the

coolie workers at Konnur village near canal side and the

accident is also admitted. It is further contended that the

vehicle in question was insured with respondent No.2 and

if the claimants are entitling for compensation, the same

shall be fastened on the insurance company. Hence, seeks

for dismissal of the claim petition as against him.

5. Respondent No.2 - insurance company in the

statement of objections denied the mode and manner of

the accident and also age, occupation and income of the

deceased. It was contended that the notice as required

under the E. C. Act has not been served on respondent

No.2. It is further contended that the deceased did not

have valid and effective driving licence as on the date of

the accident. It is also contended that the claim made by

the claimants is exorbitant, excessive and hence, sought

for dismissal of the claim petition.

6. Based on the pleadings of the parties, the

Commissioner framed issues and recorded evidence. The

claimant No.2 being the father of the deceased examined

himself as PW.1 and exhibited nine documents, which are

marked as Exs.P1 to P9. On behalf of the respondents,

one Govindraj and Rajashekharappa have been examined

as RWs.1 and 2 and no document has been produced.

7. On evaluation of evidence, the Commissioner

held that the deceased was an employee as per Section

2(i)(n) of the E. C. Act and the accident had occurred

during and in the course of the employment under

respondent No.1 resulting in the death of the deceased.

Consequently, held that the claimants being the parents of

the deceased are entitled for total compensation of

`7,63,306/- together with interest at 12% per annum from

the date of the accident and since the offending vehicle

was insured with respondent No.2, it directed the

insurance company to pay the compensation within 60

days from the date of drawing the award. Aggrieved by

the same, the claimants are before this Court seeking

enhancement of the compensation in MFA

No.200272/2018 while the insurance company is before

this Court questioning the liability to pay the

compensation.

8. The learned counsel for the

appellants/claimants reiterating the grounds urged in the

appeal memorandum submitted that the Commissioner has

erred in assessing the income of the deceased at `6,720/-

per month while the accident in question had occurred in

the year 2016 and as per the notification issued by the

Ministry of Labour and Employment dated 31.05.2010, in

exercise of powers conferred under Sub-Section (1B) of

Section 4 of the E. C. Act, the monthly wages is fixed at

`8,000/- per month. He submits that said notification is in

effect and the accident in question had occurred on

29.04.2016. Therefore, the benefit of the said notification

should be given to the claimants and seeks for allowing of

the appeal.

9. On the other hand, the learned counsel for the

appellant - insurance company reiterating the grounds

urged in the appeal memorandum submitted that from the

contents of the complaint dated 29.04.2016 given by

claimant No.1, the mother of the deceased, it is clear that

the offending vehicle was let on hire charges basis by

respondent No.1. Thus, he submits that the same

amounts to breach of terms of the policy conditions

resulting in exoneration from the liability of the insurance

company from payment of compensation. Hence, he seeks

for allowing of the appeal.

10. Heard the learned counsel for the parties.

11. On thoughtful consideration of the submissions

made by the learned counsel for the parties, the points

that arise for consideration in these appears are:

"1. Under the facts and circumstances of the case, whether the Commissioner is justified in assessing the notional income of the deceased at `6,720/- per month even the notification issued by the Ministry of Labour

and Employment fixing the minimum wages at `8,000/- per month?

2. Whether the insurance company in the facts and circumstances of the case has established that respondent No.1 had given the offending vehicle on hire charges basis resulting in breach of terms and conditions of the policy?"

12. The accident in question resulting in death of

the deceased is not in dispute. The deceased was working

as a driver under respondent No.1 is also not in dispute.

Respondent No.1 being the employer of the deceased in

the statement of objections has stated that the he was

paying `500/- per month as wages and `100/- per day as

allowance. The Commissioner however taking into

consideration the minimum wages fixed by the

Government of Karnataka under NREGA Scheme, wherein,

the rate of wages per day during the year 2016 was

determined at `224/- per day, calculated the notional

monthly income of the deceased at `6,720/- per month

and thereafter deducting 50% of the said amount and

applying the relevant factor of 222.71, awarded

compensation of `7,48,306/- + `15,000/- towards funeral

expenses. Thus, awarded total compensation of

`7,63,306/- together with interest at 12% per annum

thereon.

13. As rightly submitted by the learned counsel for

the appellants/claimants, the notional income of the

deceased needs to be fixed taking into consideration the

notification dated 31.05.2010 issued by the Ministry of

Labour Employment in exercise of powers conferred under

Sub-Section (1B) of Section 4 of the E. C. Act, wherein,

the minimum monthly wages fixed at `8,000/- is effective

from the date of notification. In the instant case, since the

accident has occurred on 29.04.2016, which is subsequent

to issuance of the notification, the monthly income of the

deceased has to be taken at `8,000/- per month.

Therefore, deducting 50% of the same i.e., `4,000/- and

applying the relevant factor of 222.71, the compensation is

re- determined as under:

`4,000 x 222.71= `8,90,840/-

14. The Commissioner has awarded `15,000/-

towards funeral expenses and the same is maintained.

Thus, the claimants are entitled for enhanced

compensation of `9,05,840/- (`8,90,840 + `15,000).

Thus, point No.1 is answered accordingly.

15. Adverting to point No.2 with regard to the

liability, though it is strenuously contended by the learned

counsel for the insurance company that there was violation

of the terms and conditions of the policy by respondent

No.1, who had deliberately let out the offending vehicle on

hire charges basis and hence, the insurance company is

not liable to pay the compensation. He heavily relies on

the contents of the complaint at Ex.P2, which is said to

have been given by claimant No.1, the mother of the

deceased, wherein, it is stated that her son/deceased was

driving the vehicle of respondent No.1 and that the said

vehicle was given to one Nagappa Vajjal on hire charges

basis. Except the said complaint, the insurance company

has not led any evidence to establish the breach of terms

and conditions of the policy. Respondent No.1, owner of

the vehicle has specifically taken a stand that the said

vehicle was given on the said date at the request of

Nagappa Vajjal, who was a Class-I Contractor, who was his

acquaintance for the purpose of delivery of lunch boxes to

the workers in the canal side. The owner of the offending

vehicles has been examined as RW.1 and nothing has been

elicited from him. The insurance company has also not

examined any witness with regard to the vehicle having

been used for hire purpose. In the absence of any

material evidence, the contention of the insurance

company cannot be accepted merely on the basis of the

statement in the complaint by the mother of the deceased.

It has also not brought on record the circumstances under

which the said complaint was given. Whether it was

written personally by the complainant or not is also not

established. The author of the said complaint has not

been examined. Therefore, under the circumstances, the

insurance company has failed to make out a case for

interference. Thus, point No.2 raised above is answered

accordingly. Hence, the following:

ORDER

i. The appeal filed by the

appellants/claimants is allowed in part.

      The    appeal    filed   by      the     insurance

      company is dismissed.

      ii.    The judgment and award passed

      by the Commissioner in ECA No.5/2016

      is modified.

iii. The appellants/claimants are held

entitled for enhanced compensation of

`9,05,840/- instead of `7,63,306/-

awarded by the Commissioner together

with interest at 12% per annum from the

date of the accident.

iv. The appellant - insurance company

shall deposit the compensation amount

within a period of eight weeks from the

date of receipt of a certified copy of this

judgment.

      v.    The order regarding deposit and

      apportionment       made       by      the

Commissioner shall remain unaltered.

Sd/-

JUDGE Srt