M/S Kathle Khan Estate vs Smt Mallikamma @ Mallika
2021 Latest Caselaw 6358 Kant

                         1




  IN THE HIGH COURT OF KARNATAKA, BENGALURU

   DATED THIS THE 17TH DAY OF DECEMBER 2021

                      BEFORE

        THE HON'BLE MR.JUSTICE P.N.DESAI

             MFA NO. 10158/2013 (WC)
BETWEEN:

M/S. KATHLE KHAN ESTATE
SAMPIGEKHAN POST TARIKERE TALUK,
CHICKMAGALORE,
REP. BY SENIOR GENERAL MANAGER,
SRI.CHIDAMBARAM
S/O CANDREGOWDA,
AGED ABOUT 49 YEARS,
CHICKMAGALORE-577101.

                                         ...APPELLANT
(BY SRI. VINOD GOWDA, ADVOCATE.)



AND:

1. SMT. MALLIKAMMA @ MALLIKA
   C/O MARISIDDAPPA,
   AGED ABOUT 45 YEARS,
   R/O HOSAGANGUR VILLAGE,
   KALATHIPURA POST,
   TARIKERE TALUK,
   CHIKMAGALUR DISTRICT-577101.


2. THE MANAGER
   ORIENTAL INSURANCE COMPANY LTD.,
   T.A.P. M.S.BUILDING, K.M.ROAD,
   CHIKMAGALORE-577101.
                                       ...RESPONDENTS

(SRI. VENKATE GOWDA, ADVOCATE FOR R1;
 SRI.H.C.VRUSHABENDRAIAH, ADV FOR R2)
                               2




      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
AGAINST THE JUDGMENT DATED 17.03.2011 PASSED IN
WCA/F-30/2007 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMEN COMPENSATION, SUB-
DIVISION-1, CHICKMAGALUR, AWARDING COMPENSATION
OF RS.1,93,173/-.

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

                             JUDGMENT

This appeal arises out of the judgment and award

dated 17.03.2011 passed by the workmen

Compensation Commissioner in WCA (F) No.30/2007 on

the file of Workmen Compensation, Dvi.No.1 at

Chickmagalur, wherein the order was passed holding

that the claimant is entitled for a compensation of

Rs.1,93,173/- with interest. It is ordered that the 2nd

respondent shall deposit the said amount before the

Court/Tribunal within a period of thirty days from the

date of the order, failing which, the 2nd respondent shall

deposit the entire amount along with 12% interest, till

the date of deposit. It is further ordered that the 1st

respondent shall pay interest at 12% per annum

through Demand Draft from 16.04.2005 till the date of

the order. The same is now challenged before this Court

by the appellants.

      2.    Learned     counsel     for    the   appellant

contended     that    the     claimant's   husband     late

Sri.Marisiddappa @ Siddappa was employed him the

appellant. On the advice of the appellant management,

late Marisiddappa was assigned a work in the appellant

estate on 15.03.2005. While working, late Marisiddappa

received personal injuries and died on the spot in the

appellant Estate. Since, the accident occurred during

the course of employment, the claim petition was filed.

and 2 appeared before the commissioner and filed their

separate objections. The 1st respondent denied that the

deceased was aged about 45 years and he was getting a

salary of Rs.4,000/- per month. The 2nd respondent

admitted that the Insurance policy was in-force as on

the date of accident. The 2nd respondent contended

that the liability of 2nd respondent if any, is governed by

the terms and conditions of the policy.

6. Before the Court of Commissioner, the

petitioner got herself examined as PW.1 and got marked

four documents as Ex.P1 to P4. On behalf of

respondents, account officer got examined as RW1 but

insurance company has neither examined any of its

officials nor produced any documents.

7. After hearing the arguments, the workmen

commissioner allowed the appeal awarding

compensation of Rs.1,93,173/- with interest directing

the 2nd respondent to pay the compensation to the

claimants and 1st respondent shall pay the interest at

the rate of 12% on the compensation amount from

16.04.2005 till the date of this order. Aggrieved by the

same this appeal is filed.

8. This Court by order dated 11.02.2020,

framed the following substantial questions of law which

reads as under:

"I. Whether the Commissioner is justified in

directing this appellant to pay the interest. Even though

the Apex Court held in Civil Appeal No.5669/2012, in

the case of Oriental Insurance Vs. Seby George and

Others, the interest has to pay by insurance Company?

II. Whether the Commissioner is justified in

saddling the entire interest on this applicant?

8. Heard learned counsel for the appellant and

also the learned counsel for the insurance company and

perused the appeal memo, order passed by the

workmen Commissioner and other records.

9. As far as quantum of compensation awarded

is concerned, same is not disputed. The only question

that arise for consideration is whether the Commissioner

is justified in saddling the liability to pay the interest on

the owner/employer?

10. Learned counsel for the appellant argued

that the Court of Workmen Commissioner wrongly

directed the appellant to pay interest to the claimant.

But according to policy, the 2nd respondent insurance

company is liable to pay the interest to the claimant.

The 2nd respondent paid only award amount but denied

to pay interest amount. Learned counsel for the

appellant further argued that in view of the decision of

Hon'ble Apex Court in the case of Oriental Insurance

Company Limited Vs. Siby George and others

reported in AIR 2012 SUPREME COURT 3144 wherein

the Oriental Insurance Company had challenged the

levy of penalty on the employer and also interest and

the said challenge came to be dismissed by the

appellate court. Therefore, the learned counsel argued

that in the absence of any evidence, the Commissioner

was not justified in ordering the payment of interest by

the owner/employer.

10. Against this, learned counsel for the 2nd

respondent-insurance company relied upon the decision

of co-ordinate bench of this Court in MFA

No.3651/2018 dated 12.03.2020 in the case of Jaya

Sagay Meri Vs. the Manager and another wherein

the order 'for being spoken to', the court held that the

interest on the enhanced compensation amount of

RS.3,18,710/- at the rate of 12% per annum shall be

satisfied by the respondent No.1/employer.

11. I have perused the decision and also

relevant Sections of The Employee's Compensation Act'

1923.

12. In MFA No.3651/2018, Jaya Sagay Meri

Vs. the Manager and another, it is observed that the

2nd respondent insurance company has produced

insurance policy which clearly contemplates that in the

event of any incident, the interest and penalty part has

to be imposed on the employer. There is a relevant

recital in this regard. But in this case, the insurance

company has not produced any records or policy to

show that there was any recital that in the event of any

incident, the interest and penalty part has to be

imposed on the employer. Further, the tribunal relied

upon the decision of this Court report in ILR 2009 KAR

1422 in the case of Shri Aleemuddin and others Vs.

the Divisional Manager M/s New India Assurance

Company limited, Gulbarga. On the other hand,

insurance company has admitted its liability and that

the same is governed by the terms and conditions of the

policy. It is contended that the insurance company is

not liable to pay interest or penalty. However, in the

absence of any evidence by the insurance company,

such contention cannot be accepted. Further, the

Commissioner has also not stated anything in this

regard but has simply mentioned in the operative

portion of the order fixing the liability of payment on

employer without discussing as to why the insurance

company is not liable. No reasons are assigned in this

regard. Therefore, such a finding needs to be set aside.

as far as payment of interest paid by appellant

commissioner is concerned needs to set aside and

modified. Accordingly, substantial questions of law

framed is answered in the affirmative and in respect of

second question, the order in respect of compensation

has no modification and only in respect of interest

portion needs modification as stated above.

Accordingly, I pass the following:

ORDER

1) The appeal is allowed in part;

2) The impugned order passed by the Workmen Commissioner as far as payment of Rs.1,93,173/- with interest is confirmed. It is further ordered

that the 2nd respondent is liable to pay 12% interest from 16.04.2005 till the date.

3) The order directing the 1st respondent/employer to pay 12% interest from 16.04.2005 till the order is set aside.

4) Rest of the order passed by the tribunal is kept in tact.

5) No costs.

6) Amount deposited shall be refunded immediately to the owner after proper verification and acknowledgment.

7) Send back the records immediately to the concerned court/Commissioner under Employee's Compensation Act,1923.

Sd/-

JUDGE

JS/-