Smt Lalith vs Narayana Pille
2021 Latest Caselaw 6437 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF DECEMBER, 2021

                         BEFORE

         THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

               MFA NO.3676/2012(WC)
                        C/W
               MFA NO.12253/2011(WC)

IN MFA NO. 3676/2012
BETWEEN:

1.     SMT LALITH
       W/O LATE YATHINDRA SHETTY
       NOW AGED ABOUT 52 YEARS

2.     AMITHA
       D/O LATE YATHINDRA SHETTY
       NOW AGED ABOUT 32 YEARS

3.     HARISH @ HARIPRASAD
       S/O LATE YATHINDRA SHETTY
       NOW AGED ABOUT 29 YEARS

4.     VANITHA
       D/O LATE YATHINDRA SHETTY
       NOW AGED ABOUT 26 YEARS

       ALL ARE R/A KUDALA HOUSE,
       ICHLAMPADY VILLAGE,
       PUTTUR TALUK,
       DAKSHINA KANNADA DISTRICT-574 201
                                           ... APPELLANTS

(BY SRI. VISHWANATHA POOJARY.K., ADVOCATE)


AND:
                               2




NARAYANA PILLE
S/O KRISHNAN PILLE
NOW AGED ABOUT 60 YEARS,
R/O MANADAKA HOUSE,
ICHLAMPADYVILLAGE, NERLA POST,
PUTTUR TALUK,
DAKSHINA KANNADA DISTRICT-574 201

                                            ... RESPONDENT
(BY Ms. VAIBHAVI, ADVOCATE FOR
    SMT. D. LEELA KRISHNAN, ADVOCATE)

       THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT AND AWARD DATED 22.11.2011 PASSED IN
WCA/SR.19/2010(F) ON THE FILE OF THE LABOUR OFFICER
AND    COMMISSIONER    FOR        WORKMEN   COMPENSATION,
DAKSHINA     KANNADA    SUB       DIVISION-2,   MANGALORE,
ALLOWING THE CLAIM PETITION FOR COMPENSATION &
SEEKING ENHANCEMENT OF COMPENSATION.



IN MFA NO. 12253/2011
BETWEEN:

SRI NARAYANA PILLAI
S/O SRI KRISHNA PILLAI
AGED 60 YEARS
R/AT 'SRIKRISHNA VILASAM HOUSE',
MANADAKA,INCHILAMPADY VILLAGE & POST,
PUTTUR TALUK,
DAKSHINA KANNADA DISTRICT-574 229

                                                ... APPELLANT

(BY Ms. VAIBHAVI, ADVOCATE FOR
    SMT. D. LEELA KRISHNAN, ADVOCATE)

AND:
                           3




1.   SMT LALITHA
     W/O LATE YATHINDRA SHETTY
     NOW AGED ABOUT 51 YEARS

2.   SMT. AMITHA
     D/O LATE YATHINDRA SHETTY
     NOW AGED ABOUT 31 YEARS

3.   SRI. HARISHA @ HARIPRASAD
     S/O LATE YATHINDRA SHETTY
     NOW AGED ABOUT 28 YEARS

4.   SMT. VANITHA
     D/O LATE YATHINDRA SHETTY
     NOW AGED ABOUT 26 YEARS

     ALL ARE R/A KUDALA HOUSE,
     ICHILAMPADY VILLAGE AND POST
     PUTTUR TALUK,
     DAKSHINA KANNADA DISTRICT-574 229.

                                          ... RESPONDENTS

(BY SRI. VISHWANATHA POOJARY.K.,
     ADVOCATE FOR R1 TO R4)

     THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST
THE JUDGMENT AND AWARD DATED 22.11.2011 PASSED IN
WCA/SR.19/2010(F) ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB
DIVISION-2, MANGALORE, AWARDING A COMPENSATION OF
RS. 2,71,120/- WITH INTEREST @ 12% P.A.



     THESE MFA's COMING ON FOR ADMISSION, THIS DAY,
THROUGH VIDEO CONFERENCE/ PHYSICAL HEARING, THE
COURT DELIVERED THE FOLLOWING:
                                4




                         JUDGMENT

Both the claimants as well as respondent before the

learned Commissioner have come up with these 2 appeals

calling in question the legality and correctness of the award

dated 22.11.2011 passed by learned Labour Officer and

Commissioner for Workmen's Compensation in

WCA:SR.19/2010.

2. It is the case of claimants that one Yathindra

Shetty was the husband of claimant No.1 and father of

claimant Nos.2 to 4. It is the further case of the claimants

that deceased Yathindra Shetty was working as a coolie and

on the fateful day of 01.11.2009 he had gone to work in the

house of respondent before the learned Commissioner by

name Sri.Narayana Pille for demolishing the said house and

while they were working there, a wall of the building collapsed

on Yathindra Shetty and he died under the debris.

3. The claim petition filed was contested by the

respondent, who filed statement of objections denying the

material averments made in the claim petition including the

employer and employee relationship.

4. Before the learned Commissioner during the

enquiry claimant No.1 examined herself as PW1 and she also

examined 2 witnesses namely PW2-Poovappa, who was also

said to be working with the deceased for demolishing the

house on the date of incident and PW3 - B.K.Janardhan, who

was the police Head Constable, who had carried out the

investigation in the criminal case. Exs.P-1 to P-11 were

marked on behalf of claimants and for respondent, RW2 -

Vijayan was examined as witness.

5. The Workmen's Compensation Commissioner upon

hearing the learned counsel on both sides and considering all

the materials placed before him, allowed the claim petition in

part by awarding a compensation of Rs.2,71,120/- with

interest @ 12% p.a.

6. The only grievance made out by the learned

counsel for the claimants is that even though deceased

Yathindra Shetty was getting a monthly wage of Rs.4,500/-

the learned Commissioner has erroneously taken the same at

Rs.4,000/- per month. He therefore submitted that the

compensation ought to have been awarded at a higher sum

taking the monthly income of the deceased at Rs.4,500/- per

month and accordingly, he requested that the compensation

is required to be suitably enhanced.

7. It is argued on behalf of the owner of the house,

who is appellant in MFA No.12253/2011 that there was no

employer and employee relationship between him and the

deceased and he had taken the said stand from the very

beginning including in the statement of objections. Further, he

had examined the necessary witnesses, who have supported

his case. It is also urged that PW1 has stated during the

cross-examination that deceased was selling vegetables in

Puttur vegetable market. It is therefore urged that a

substantial question of law regarding the jural relationship of

employer and employee arises in this case and in view of the

materials placed in support of the same, his appeal is required

to be allowed and award is liable to be set aside.

8. I have given anxious consideration to the

submissions made on the both sides and I have carefully

perused the records of this case.

9. There is no dispute about the fact that claimants

are the widow and the children of deceased Yathindra Shetty.

The police records filed including the charge sheet and

complaint - Ex.P-1 clearly shows that deceased had died on

account of fall of wall of the house of Narayana Pille, who is

the respondent before the Commissioner. A perusal of the

evidence of witnesses examined on both the sides also very

clearly shows that deceased had died on account of falling of

wall on him. The only point of controversy emanating from

the evidence of witnesses examined on behalf of respondent-

Narayana Pille is that deceased at the time of incident had

casually visited the place of demolition of the house for having

a chat with 2 persons namely, Poovappa-PW2 and Ganesh

and at that time, the incident had taken place accidentally on

account of Yathindra Shetty getting under the falling wall.

10. The fact that Ganesh and Poovappa had also

worked on the demolition of the house, is not open to be

disputed by the respondent - Narayana Pille as could be seen

from the admission made by him in the statement of

objections as also from the evidence of witnesses examined.

11. As noticed by the learned Commissioner, witness-

Poovappa who was admittedly working as a workmen under

the Narayan Pillai has very clearly stated that deceased was

also working as an employee of said Narayana Pille for

demolishing the house.

12. Careful perusal of the evidence of the witnesses

examined and the charge sheet papers clearly show that

finding of the learned Commissioner that deceased was an

employee under the owner of the house of Narayana Pille, is

fully supported by the evidence and therefore, it is not open

to be interfered by this Court in exercise of power vested

under Section 30 of the Employees Compensation Act, 1923.

13. Even in the cross examination of PW1 she has

clearly stated that on the date of incident the deceased had

gone to work as an employee under Narayana Pille for

demolishing the house. Therefore, I do not find any

substantial question of law of employer and employee

relationship arising in this case and there is no error or

illegality in the finding recorded by the learned Commissioner.

Accordingly, there is no merit in the appeal filed by

respondent - Narayana Pille and therefore, MFA

No.12253/2011 is liable to be dismissed.

14. Even though learned counsel appearing for the

claimants has vehemently contended that learned

Commissioner has committed an error in taking income of the

deceased at Rs.4,000/- per month, such an argument is not

liable to be accepted in view of maximum notional income

fixed by the statute itself at Rs.4,000/- per month in a claim

made for compensation under The Employees Compensation

Act, 1923. The accident had taken place on 01.11.2009 and

at that time maximum notional income that could have been

taken for a workman was Rs.4,000/-, which undoubtedly the

learned Commissioner has taken for the purposes of

computing the compensation to the claimants. Accordingly,

there is no substantial question of law arising in the appeal

preferred by the claimants and same is liable to be dismissed.

Hence, the following:

JUDGMENT

(1) MFA No.3676/2012 and MFA

No.12253/2011 are dismissed.

(2) Registry to return the records along with

deposit of compensation, if any, made

before this Court to the trial court

forthwith.

Sd/-

JUDGE

DR