The Divisional Manager The ... vs Aruna @ Annapurna W/O Late Vilas ...
2021 Latest Caselaw 6056 Kant

                          1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 14TH DAY OF DECEMBER, 2021

                      BEFORE

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

             MFA No.201212/2016 (WC)

BETWEEN

THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO.LTD.,
N.G. COMPLEX, 1ST FLOOR,
OPPSITE MINI VIDHAN SOUDHA, KALABURAGI
(NOW REPRESENTED BY AUTHORIZED
SIGNATORY D.O KALABURAGI).
                                     ...APPELLANT

(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)

AND

1.     ARUNA @ ANNAPURNA W/O LATE VILAS SHINDE
       AGE: 31 YEARS, OCC: HOUSEHOLD

2.     PRIYA D/O LATE VILAS SHINDE
       AGE: MINOR U/G OF HER MOTHER
       RES.NO.1 HEREIN

       BOTH R/O KHADAKWADI, MANTHAL
       TQ: BASAVAKALAYAN- 585 327

3.     AMBAJIRAO S/O RANOJI TRIMUKA
       AGE: MAJOR, OCC: BUSINESS AND
       OWNER OF LORRY BEARING
                             2




     NO.KA-39/8021,R/O VILLAGE MANTHAL,
     TQ: BASAVAKALYAN-585 327
                                   ...RESPONDENTS

(BY SRI B. C. JAKA, ADVOCATE FOR R1;
R2 MINOR REPTD. BY R1; R3 SERVED)

    THIS MFA FILED U/S 30(1) OF MV ACT, PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO CALL FOR THE
RECORDS ALLOW THIS APPEAL AND SET ASIDE THE
IMPUGNED JUDGMENT AND ORDER IN ECA NO.4/15
DECIDED BY THE SENIOR CIVIL JUDGE AND JMFC AND
COMMISSIONER FOR EMPLOYEES COMPENSATION AT
BASAVAKALYAN DTD. 23.04.2016 AS COMPENSATION TO
THE RESPONDENT NO.1 AND 2 HEREIN, IN THE INTEREST
OF JUSTICE.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-

                      JUDGMENT

This appeal is filed by the insurance company under

Section 30(1) of the Employees Compensation Act (for

short 'E. C. Act') aggrieved by the judgment and order

dated 23.04.2016 passed in ECA No.4/2015 on the file of

Senior Civil Judge, JMFC and Commissioner for Employees

Compensation at Basavakalyan (for short 'Commissioner').

2. Brief facts leading up to filing of the present

appeal are that, one Vilas S/o. Wagaji Shinde was working

as a driver of a lorry bearing registration No.KA-39/8021

belonging to respondent No.1. That on 19.07.2008, at

about 8.00 a.m., while he was driving the said lorry in

Manthal village, the said vehicle abruptly stopped on

account of problem in self start. Therefore, the deceased

alighted from the lorry and went beneath and while he was

inspecting the part of the lorry, suddenly, it started,

thereby the right wheel of the lorry ran over on the head

of the deceased crushing him to death on the spot. Thus,

the deceased died during the course of employment under

respondent No.1.

3. The claimants thereupon filed a claim petition

on the premise that the deceased was aged about 40 years

and was hale and healthy, working as a driver of

respondent No.1, earning Rs.3,500/- per month as a salary

apart from Rs.100/- towards allowance and was

contributing his income for welfare of the family. That

untimely death of the deceased in the manner referred to

above has caused financial and emotional distress to the

claimants. That the lorry in question belonged to

respondent No.1 and was insured with respondent No.2

and hence, they are jointly and severally liable to pay the

compensation. That an UDR case was registered in UDR

No.5/2008 in Manthal police station in this regard. Hence,

sought for compensation under the provisions of E.C. Act.

4. Upon service of notice, respondent No.1 filed

statement of objections admitting that the deceased was

working as a driver under him in his lorry bearing

registration No.KA-39/8021 for the past two years. It was

contended that he was paying only Rs.3,000/- per month

as salary and allowance of Rs.100/- per day to the

deceased. Since the lorry was insured with respondent

No., the compensation, if any, shall be paid by respondent

No.2. Hence, sought for dismissal of the petition.

5. Respondent No.2 appeared through its counsel

and filed statement of objections denying the petition

averments. It was contended that respondent No.1 had

not furnished any list of employees and the salary

particulars being given by him. Thus, disputed the

relationship of employer and employee between

respondent No.1 and the deceased. It was further

contended that the accident had occurred on account of

negligence on the part of the deceased himself and there

was violation of terms and conditions of the policy. As

such, respondent No.2 was not liable to pay the

compensation.

6. The Commissioner based on the evidence of

the parties, framed issues and recorded evidence. It is

necessary at this juncture that on an earlier occasion, the

Commissioner by order dated 18.05.2009 had allowed the

claim petition. Aggrieved by the same, the insurance

company had preferred an appeal in MFA No.31228/2009

before this Court. This Court by order dated 23.01.2012

had allowed the said appeal and remanded the matter with

a specific purpose of permitting the insurance company to

lead evidence. The operative portion of the said order is

extracted hereunder:

"Order of the Workmen's Compensation Commissioner is set aside. The matter is remanded with a specific purpose to permit the insurance company to lead the evidence. Insurance Company is reserved liberty to adduce evidence only in respect of disproving relationship of employer and employee. Both parties are directed to appear before the Workmen's Compensation Commissioner on 27.09.2012."

7. Upon remand as above, the Commissioner took

up the matter afresh and conducted denovo enquiry by

framing issues. The claimant No.1 being the wife of the

deceased examined herself as PW.1 and exhibited 7

documents as Exs.P1 to P7. One Ambaji has been

examined as RW.1 and no documents have been marked

on behalf of the respondents.

8. The Commissioner on appreciation of evidence,

held that the claimants have proved that the deceased was

a workman under respondent No.1 as defined under the

E. C. Act and that he died on account of the injuries

sustained in the accident, which occurred during and in the

course of his employment under respondent No.1.

Consequently, held that the claimants are entitled for

compensation of Rs.7,19,000/- with interest at 12% per

annum after expiry of 30 days from 19.07.2008 till its

realization. Aggrieved by the same, the insurance

company is before this Court seeking to set aside the said

judgment and order.

9. The learned counsel for the appellant -

insurance company reiterating the grounds urged in the

appeal memorandum submitted that even after the

remand of the matter, the claimants have not produced

any fresh material evidence to establish the relationship of

employer and employee between the deceased and

respondent No.1 and in the absence of any material

evidence, the acceptance of the relationship is perverse.

She further submitted that the Commissioner has erred in

assessing the income at Rs.8,000/- per month taking into

consideration the notification, which had been issued under

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

31.05.2010 by the Ministry of Labour and Employment,

but, the accident in question having taken place on

19.07.20008, much prior to issuance of the said

notification, which was giving retrospective effect. Hence,

sought for allowing of the appeal.

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

respondents/claimants submits that all the contentions and

issues with regard to payment of compensation have been

settled by this Court in its judgment and order dated

23.08.2012 passed in MFA No.31228/2009 and the matter

was remanded only for a specific purpose of permitting the

insurance company to lead further evidence disputing the

relationship between the deceased and respondent No.1.

He further submits that in view of the finding given by the

Commissioner establishing the relationship between the

deceased and respondent No.1, nothing remains for

consideration. Therefore, he submits that the appeal be

dismissed without interfering with the impugned judgment

and order of the Commissioner. As regards quantum of

compensation, he submits that the Commissioner has

assessed the compensation in a just and equitable manner

and no fault can be found with the same. Hence, seeks

from dismissal of the appeal.

11. Heard the learned counsel for the parties.

12. Having heard the learned counsel for the

parties, the following substantial questions of law arise for

consideration:

i. Whether the Commissioner was justified in holding that there exists employer and employee relationship between the deceased and respondent No.1 in the absence of material evidence in this regard?

ii. Whether the Commissioner is justified in assessing the income of the deceased at Rs.8,000/- per month taking into consideration the notification issued by the Ministry of Labour and Employment under Sub-Section (1B) of Section 4 of the E. C. Act, which come into force from 31.05.2010 by giving retrospective effect thereon?

13. The learned counsel for the appellant -

insurance company referring to Ex.P1 submitted that the

said document is a statement recorded by the police upon

the information given, which suggests that the deceased

was checking the technical snag in the lorry beneath, in

which the lorry seems to have suddenly got started and

ran over the deceased. She submits that the police having

registered a case of unnatural death in UDR No.5/2008,

there cannot be case of accident justifying invocation of

provisions of E. C. Act. The contents of Ex.P1 at column

No.7 read with Ex.P2 complaint, it is clear that claimant

No.1 had filed a complaint at an undisputed point of time

narrating the facts and circumstances of the death of the

deceased. In that, it is mentioned that on the fateful day,

in the morning, the lorry stopped suddenly and deceased

had got down from the lorry and went beneath it to check

the technical snag and while he was hitting the starter with

a stone, the lorry suddenly got started on its own and ran

over the head of the deceased, crushing him on the spot to

death. This statement found at Ex.P2 is consistently found

at every documents of the police records. These

documents are produced by the claimants in support of

their claim regarding the death of the deceased during the

course of employment. The said documents have not been

disputed or discredited by the insurance company. On the

other hand, it is contended by the insurance company that

the said document is not an FIR, which is generally filed in

the case of this nature and since the death of the deceased

has been registered as UDR No.5/2008, it suggests that

there was no case of accident during the course of

employment. Hence, there was no basis or foundation for

the Commissioner to entertain the claim petition. The

contention of the appellant-Insurance Company cannot be

contenanced in as much as the fact that the deceased was

admittedly working as a driver of the lorry. Admittedly,

death occurred while he was on duty. The cause of the

accident was while the deceased was attempting to fix the

technical snag of the vehicle by getting beneath it. These

admitted facts categorically establish that the death of the

deceased had occurred during the course of the

employment. Merely because the Police have registered

the case under unnatural death report (UDR), the same

would not render it invalid for want of registering the same

as F.I.R. The point No.1 raised above is answered

accordingly.

14. Adverting to the income of the deceased, it is

submitted that the Commissioner has erred in taking

Rs.8,000/- as the notional income of the deceased based

on the notification issued by the Ministry of Labour and

Employment dated 31.05.2010, whereas, the said

notification is given prospective effect, cannot made

applicable to the accidents, which have taken place during

the year 2008 i.e., two years prior to the accident.

Therefore, she submits that the claimants cannot take the

benefit of the said notification. There is considerable force

in the arguments made by the learned counsel for the

appellant - insurance company that the Commissioner has

erred in adopting Rs.8,000/- per month as the notional

income of the deceased being the minimum wages in

respect of the deceased, who had died in the accident

much prior to coming into force of the said notification.

Prior to the notification, the minimum wages is fixed at

Rs.4,000/-. Therefore, the judgment and order of the

Commissioner to that extent required to be modified.

15. Though respondent No.1 in his evidence has

admitted that the deceased to be the driver and earning

Rs.3,000/- per month as salary and Rs.100/- as allowance,

no documentary evidence has been produced in this

regard. In the absence of the same, the minimum wages

of the deceased needs to be taken at Rs.4,000/- per

month as per the provisions prevailing prior to the

notification issued on 31.05.2010. Considering the age of

the deceased, the relevant factor applicable is 178.49.

Therefore, deducting 50% of the same i.e., `2,000/- and

applying the relevant factor of 178.49, the compensation is

re-determined as under:

`2,000 x 178.49= `3,56,980/-

16. The Commissioner has awarded `5,000/-

towards funeral expenses and the same is maintained.

Thus, the claimants are entitled for compensation of

`3,61,980/- (`3,56,980 + `5,000). Thus, point No.2 is

answered accordingly.

17. In view of the above, the appeal filed by the

insurance company is partly allowed. Hence, the

following:

ORDER

i. The appeal filed by the

appellant/insurance company is allowed

in part.

      ii.    The judgment and award passed

      by the Commissioner in ECA No.4/2015

      is modified.

iii. The appellants/claimants are held

entitled for compensation of `3,61,980/-

instead of `7,19,000/- awarded by the

Commissioner together with interest at

12% per annum from the date of the

accident.

iv. The registry is directed to return

the records the concerned Court.

Sd/-

JUDGE

Srt