Shri. Fakirappakareppa Kaladagi vs Rudrappamallappa Chavan
2021 Latest Caselaw 2538 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

            DATED THIS THE 01ST DAY OF JULY 2021

                          BEFORE

          THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


                 MFA NO.23560 OF 2013 (WC)

BETWEEN
1.   SHRI. FAKIRAPPA
     KAREPPA KALADAGI
     AGE: 45 YEARS,
     OCC: AGRICULTURE,
     R/O. LAKKANAYAKANAKOPPA,
     TQ: RAMDURG,
     DIST: BELGAUM.

2.   KUMAR GADIGEPPA
     S/O. FAKIRAPPA KALADAGI
     AGE:18 YEARS, OCC: NIL,
     R/O. LAKKANYAKANAKOPPA
     TQ: RAMDURG,
     DIST: BELGAUM

3.   KUMAR RAJU
     S/O. FAKIRAPPA KALADAGI,
     AGE:17 YEARS, OCC: NIL,
     R/O. LAKKANYAKANAKOPPA
     TQ: RAMDURG,
     DIST: BELGAUM

4.   KUMAR SIDDAPPA
     S/O. FAKIRAPPA KALADAGI
     AGE:15 YEARS, OCC: NIL,
     R/O. LAKKANYAKANAKOPPA
     TQ: RAMDURG,
     DIST: BELGAUM
                                 2


      APPELLANTS 3 AND 4 ARE MINOR
      REPRESENTED BY MINOR GUARDIAN
      NATURAL FATHER APPELLANT NO.1
                                                  ...APPELLANTS

(BY SRI. SHAILA BELLIKATTI, ADV.,)

AND
1.    RUDRAPPA MALLAPPA CHAVAN
      AGE:48 YEARS,
      OCC: BUSINESS,
      R/O. SIRASANGI
      TQ: SAUNDATTI,
      DIST:BELGAUM,

2.    DIVISIONAL MANAGER,
      THE UNITED INDIA INSURANCE CO.LTD.,
      MARUTI GALLI, BELGAUM,

                                              ...RESPONDENTS

(BY SRI. RAVINDRA R MANE, ADV., FOR R2;
APPEAL AS AGAINST R1 DISMISSED
VIDE ORDER DATED 28.02.2019)


      THIS MFA IS FILED UNDER SECTION 30 OF THE WORKMEN'S
COMPENSATION ACT, 1923 AGAINST THE JUDGMENT AND ORDER
DATED 09.07.2012 IN W.C.NO.164/2008 ON THE FILE OF THE
LABOUR    OFFICER    AND    COMMISSIONER    FOR    WORKMEN'S
COMPENSATION, SUB DIVISION II, BELGAUM, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

      THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
                                        3


                                 JUDGMENT

This is a claimants' appeal calling in question the legality of

the award dated 09.07.2012 in W.C.No.164/2008 passed by the

learned Labour Officer and Commissioner for Workmen's

Compensation, Sub Division II, Belgaum (for short "the

Commissioner").

2. Brief facts are that deceased-Shivakka, who is wife

of claimant No.1 and mother of claimants 2 to 4, was working as

a Hamali in Tata-407 goods vehicle bearing registration No.KA-

24/1734 owned by Rudrappa Mallappa Chavan, who was

respondent No.1 and insured with respondent No.2-the United

India Insurance Company Limited. On 27.02.2008, while

deceased-Shivakka was working as a Hamali in Tata-407 goods

vehicle in question, at about 5.00 p.m., on account of rash and

negligent driving of the vehicle by its driver, it turned turtle and

Shivakka suffered grievous injuries and after being treated as an

inpatient in District Hospital, Belagavi, on 10.03.2008 she

passed away.

3. During the claim proceedings, respondent No.1

entered appearance but did not file any written statement.

Respondent No.2-Insurance Company filed its separate written

statement denying the averments made in the claim petition.

4. During the enquiry, claimant No.1 examined himself

before the learned Commissioner and Ex.P1 to Ex.P10 were

marked. Respondent No.2-Insurance Company produced the

policy of insurance and got it marked as Ex.R2(1).

5. Upon consideration of the entire materials produced

before him, learned Commissioner answered the points arising

for consideration in favour of the claimants and against the

insurance company and awarded a compensation of

Rs.2,64,738/- with interest thereon at 12% per annum.

6. It is urged on behalf of the claimants-appellants that

the learned Commissioner has committed an error in taking the

monthly wages of the deceased-Shivakka at Rs.2,500/- even

though the accident resulting in the death of the deceased had

taken place on 27.02.2008 and w.e.f. 31.05.2010 the maximum

notional wages of the workman was increased from Rs.4,000/-

to Rs.8,000/-. He submitted that at least a sum of Rs.3,500/-

should have been taken as the monthly wages. It was further

contended that the learned Commissioner has committed an

error in not granting the interest on the compensation w.e.f. 30

days from the date of the accident.

7. I have heard the learned counsel Sri. R. R. Mane. He

submitted that the learned Commissioner being the authority on

the finding of facts, has considered all the relevant materials and

has come to the right conclusion and therefore, no interference

is called with the same. He, particularly, draws my attention to

the fact that learned Commissioner fixed the monthly wages of

the claimant-driver at Rs.3,300/- and since the driver has not

challenged it, it has become final and if the wages of the

deceased is fixed by the learned Commissioner is considered to

be inadequate, that cannot be at any rate be fixed above

Rs.3,300/- since the driver-claimant, in the companion case,

has accepted the fixing of Rs.3,300/- per month as his wages.

8. The deceased was working as a Hamali in Tata-407

goods vehicle bearing registration No.KA-24/1734 insured with

respondent No.2 in this appeal. The accident resulting in the

death of the deceased had taken place on 27.02.2008. At that

time, the maximum notional income for a workman was

Rs.4,000/- per month as per the statute and subsequently

w.e.f.31.05.2010 the maximum notional income came to be

increased to Rs.8,000/- per month. Therefore, by taking a

practical view of the matter, I am of the view that the wages of

the deceased-Shivakka, who was a Hamali, is required to be

fixed at Rs.3,500/-. It needs to be noticed that if the driver who

filed the companion claim petition has accepted the wages fixed

by the learned Commissioner at Rs.3,300/- per month, the same

cannot come in the way of this Court in taking a practical view of

the matter and fixing the wages of the deceased at Rs.3,500/-

per month, when an appeal is filed by the claimants calling in

question such fixing of the wages.

9. Outcome of the claim made by these claimants in

regard to their case on merits cannot be made to depend on the

filing of appeal or non-filing of appeal by the companion

claimant. The outcome of appeal by claimants should depend

purely on the facts of this case and not on the vagaries of the

other claimant filing or not filing appeal. Accordingly, the

compensation is required to be recalculated as follows:

Rs.3,500 x 50% x 211.79 = Rs.3,70,632/- as against

Rs.2,64,738/- awarded by the learned Commissioner.

10. Further, as per the statute itself, claimants are

entitled to award of interest at the rate of 12% per annum w.e.f.

30 days from the date of the accident till the date of realization.

Accordingly, the following:

ORDER

The appeal is allowed in part.

The claimants are entitled to compensation of

Rs. Rs.3,70,632/- with interest thereon at 12% per

annum w.e.f. 30 days from the date of the accident

till the date of entire realization.

Since there was a delay of 363 days in filing the

appeal by the claimants, it is held that the claimants

are not entitled to interest for the period of 363 days

on enhanced compensation.

In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration.

Sd/-

JUDGE

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