Savakka W/O. Kareppa Asundi vs Hanamant S/O. Ramappa Chennal
2021 Latest Caselaw 2247 Kant

           IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

        DATED THIS THE 15TH DAY OF JUNE 2021

                       BEFORE

      THE HON'BLE MR. JUSTICE P. KRISHNA BHAT


             MFA NO. 22681 OF 2013 (WC)
                        C/W
             MFA NO.20548 OF 2013 (WC)

IN MFA NO.22681/2013

BETWEEN:

1.   SMT. SAVAKKA W/O KAREPPA ASUNDI
     AGE:34 YEARS, OCC:HOUSEHOLD WORK,
     R/O JEEVAPUR, TQ:RAMDURG,
     DIST:BELGAUM.

2.   KUMARI LAXMAWWA D/O KAREPPA ASUNDI
     AGE:14 YEARS, OCC:STUDENT,
     R/O JEEVAPUR, TQ:RAMADURG,
     DIST:BELGAUM.

3.   KUMARI. MAYAWWA D/O KAREPPA ASUNDI
     AGE:12 YEARS, OCC:STUDENT,
     R/O JEEVAPUR, TQ:RAMDURG,
     DIST:BELGAUM.

4.   KUMARI MANJAWWA D/O KAREPPA ASUNDI
     AGE:10 YEARS, OCC:STUDENT,
     R/O JEEVAPUR, TQ:RAMDURG,
     DIST:BELGAUM.
                             2


5.     KUMAR NINGAPPA S/O KAREPPA ASUNDI
       AGE:08 Y EARS, OCC:STUDENT,
       R/O JEEVAPUR, TQ:RAMDURG, DIST:BELGAUM.

6.   KUMARI DEEPA D/O KAREPPA ASUNDI
     AGE:6 YEARS, OCC:STUDENT,
     R/O JEEVAPUR, TQ:RAMDURG,
     DIST:BELGAUM
     APPLTS 2-6 ARE MINORS REP/BY THEIR MOTHER-
APPLT-1.

7.     SHRI VITTAL S/O YALLAPPA ASUNDI
       AGE:62 YEARS, OCC:NIL,
       R/O JEEVAPUR, TQ:RAMDURG,
       DIST:BELGAUM.

...APPELLANTS
(BY SRI.HANAMANT R LATUR, ADVOCATE)

AND:

1.     SHRI. HANAMANT S/O RAMAPPA CHENNAL
       AGE:50 YEARS, OCC:AGRICULTURE,
       R/O CHIPPALAKATTI, TQ:RAMADURG,
       DIST:BELGAUM.

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

3.     SHRI. SAYYADASAB S/O HUSAISAB PINJAR
       @ NADAF, AGE:50 YEARS, OCC:BUSINESS,
       R/O CHIPPALAKATTI, TQ:RAMDURG,
       DIST:BELGAUM.

4.     THE DIVISIONAL MANAGER
       THE UNITED INDIA INSURANCE CO. LTD.,
       DIVISIONAL OFFICE, MARUTI GALLI,
       BELGAUM.
                           3



                                     ...RESPONDENTS

(BY SRI. N.R. KUPPELUR, ADV. FOR R2 & R4) (R1 & R2- SERVED)

THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S COMPENSATION ACT, 1923 PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD PASSED BY THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S COMPENSATION, SUB-DIV-2, BELGAUM, KA PA KA/SR NO.114/2011, DATED 30.10.2012 IN THE INTEREST OF JUSTICE AND EQUITY.

IN MFA NO.20548/2013

BETWEEN:

UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE SEETA SMRITI P.B. NO.156, 1568, MARUTI GALLI, BELGAUM, REP. BY ITS SR. DIVISIONAL MANAGER.

...APPELLANT (BY SRI. N.R. KUPPELUR, ADVOCATE)

AND:

1. SMT. SAVAKKA W/O KAREPPA ASUNDI AGE:34 YEARS, OCC:HOUSEWIFE,

2. KUMARI LAXMAWWA D/O KAREPPA ASUNDI AGE:14 YEARS, OCC:STUDENT,

3. KUMARI. MAYAWWA D/O KAREPPA ASUNDI AGE:12 YEARS, OCC:STUDENT,

4. KUMARI MANJAWWA D/O KAREPPA ASUNDI AGE:10 YEARS, OCC:STUDENT,

5. KUMAR NINGAPPA S/O KAREPPA ASUNDI AGE:08 Y EARS, OCC:STUDENT,

6. KUMARI DEEPA D/O KAREPPA ASUNDI AGE:6 YEARS, OCC:STUDENT,

7. SHRI VITTAL S/O YALLAPPA ASUNDI AGE:62 YEARS, OCC:NIL,

ALL ARE R/O JEEVAPUR, TQ:RAMDURG, DIST:BELGAUM.

RESPTS 2-6 ARE MINORS REP/BY THEIR MOTHER-RESPT-1.

8. SHRI. HANAMANT S/O RAMAPPA CHENNAL AGE:MAJOR, OCC:AGRICULTURE, R/O CHIPPALAKATTI, TQ:RAMADURG, DIST:BELGAUM.

9. SHRI. SAYYADASAB S/O HUSAISAB PINJAR @ NADAF, AGE:MAJOR, OCC:BUSINESS, R/O CHIPPALAKATTI, TQ:RAMDURG, DIST:BELGAUM.

...RESPONDENTS (R1-SERVED) (R2-R6 MINORS REP. BY R1) (R7, R8 AND R9-SERVED)

THIS APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN'S COMPENSATION ACT, 1923 PRAYING TO CALL FOR RECORDS CONNECTED WITH WCA/SR/NO.114/2011 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S COMPENSATION SUB-DIVISION-2, BELGAUM, EXAMINE THE SAME AND SET-ASIDE THE ORDER DATED 30.10.2012 AS AGAINST THE APPELLANT IN THE INTEREST OF JUSTICE.

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

COMMON JUDGMENT

MFA No.20548/2013 is filed under Section 30(1)

of the Employees' Compensation Act, 1923

(for short, 'Act') by the Insurance Company calling in

question the award dated 30.10.2012 passed in

WCA/SR No.114/2011 by the learned Labour Officer

and Commissioner for Workmen's Compensation,

Sub-division-2, Belgaum (for short, 'Commissioner')

and the companion appeal i.e. MFA No.22681/2013 is

filed by the claimants being dissatisfied with the

quantum of compensation as well as interest

awarded.

2. Brief facts are that the deceased Kareppa

Asundi was working as a Hamali(loader) in a Tractor

and Trailer bearing registration No.KA-24-T/9239-

9849 owned by respondents 1 and 3 respectively

before the learned Commissioner. It is stated that

on 17.5.2011, the said tractor and trailer was taken

to Godachigudda for loading stones and at that time,

on account of rash and negligent driving of the

tractor and trailer by its driver, it met with an

accident and on account of the injuries suffered in

the said accident, Kareppa Asundi died.

3. The respondents before the learned

Commissioner contested the claim petition.

Respondents No.1 and 3 before the learned

Commissioner admitted the employer and employee

relationship and also the accident resulting in death

of the deceased. Respondents 1 and 3 had denied the

assertion of the claimants that the deceased was

receiving Rs.200 per day by way of wages.

4. During the enquiry before the learned

Commissioner, claimant No.1 examined herself as

PW1 and Exs.P1 and P5 were marked. Respondents

before the learned Commissioner did not examine

any witness and the policy of insurance was marked

as Ex.R1.

5. Upon consideration of the entire materials

produced before him, the learned Commissioner

recorded a finding that the employer and employee

relationship between the parties and the deceased

was proved and further that the accident resulting in

death of the deceased had taken place in the course

of and arising out of the employment. The learned

Commissioner also recorded a finding that the

deceased was aged 35 years at the time of his death

and he was receiving a monthly wages of Rs.4,000/-.

On such findings, applying relevant factor, the

learned Commissioner awarded a total compensation

of Rs.3,94,120/- with interest thereon at 12% per

annum.

6. The learned counsel for the appellant-insurer

vehemently contended before me that as per

complaint-Ex.P2, there was no employee and

employer relationship between the deceased and

respondents 1 and 3 before the learned

Commissioner and further the accident resulting in

death of the deceased did not take place in the

course of and arising out of the employment. In this

behalf, he pointed out that the materials produced

before the learned Commissioner clearly showed that

the deceased had gone for purchasing provision and

at that time, he met with an accident and died.

Therefore, he submitted that finding of the learned

Commissioner is based on no legal evidence and

finding recorded by him being contrary to evidence is

liable to be set-aside.

7. Learned counsel for the claimants in support

of their appeal, per contra, contended before me that

the accident resulting in death of the deceased

having taken place on 17.5.2011, the learned

Commissioner has committed a serious error of law

in taking monthly wages of the deceased at

Rs.4,000/- only and having regard to current living

wages in the year 2011 and also having regard to the

enhancement of maximum wages to Rs.8,000/- under

the Act, the learned Commissioner ought to have

reckoned the monthly wages of the deceased at

Rs.5,000/-. He further contended that the learned

Commissioner has erred in law in awarding interest

at 12% per annum from the date of the award

instead of from thirty days from the date of the

accident, which is contrary to the provisions of the

Act. He therefore submitted that upon these findings,

this Court should modify the same and award higher

compensation in order to do complete justice

between the parties.

8. I have given my anxious consideration to the

submissions made on either side and also perused

the records.

9. Insofar as the contention of the learned

counsel for the insurer is concerned, a perusal of the

records would show that even Ex.P2-complaint as

well as statement of objections filed by respondents

1 and 3, there is clear admission of the fact that the

deceased was working as a loader in the tractor and

trailer and the accident resulting in death of the

deceased had taken place while deceased was so

employed. Under such circumstances, I do not find

any merit in the submission of the learned counsel

for the insurer. Accordingly, I reject the same. In

that view of the matter, the appeal filed by the

insurance company is liable to be dismissed.

10. Insofar as the contention taken up by the

learned counsel for the claimants with regard to

living wages that was being earned by the deceased

is concerned, the learned Commissioner has taken

the same at Rs.4,000/- per month. It has to be

noticed that insofar as wages earned by a coolie in

the countryside is concerned, it is difficult to

establish the exact wages by producing any

document. The respondents-employers have only

denied the assertion of the claimants that the

deceased was receiving daily wages of Rs.200 and

they have not stated with any definiteness as to

what was the wages they were paying to the

deceased. The deceased was aged about 35 years at

the time of his death. By amendment to the Act in

the year 2010, maximum wages fixed by the Act is

Rs.8,000/- per month. Taking a common sense view

of the matter, I hold that the deceased would have

been receiving Rs.5,000/- per month being a loader

of stones to the tractor and trailer in the village.

Accordingly, I hold that the wages fixed by the

learned Commissioner is on the lower side and in the

interest of justice, it is required to be enhanced to

Rs.5,000/- per month. Accordingly, the compensation

awarded is recalculated as follows:

Rs.5,000 x 50/100 x 197.06 = Rs.4,92,650/-

11. The claimants are entitled to a total

compensation of Rs.4,92,650/- as against

Rs.3,94,120/- awarded by the learned Commissioner.

12. Further, as rightly contended by the

learned counsel for the claimants, the claimants are

entitled to receive interest on the award amount at

12% per annum from thirty days from the date of the

accident till date of realization. Hence, the following:

ORDER

a) The appeal filed by the insurance company is dismissed.

b) The appeal filed by the claimants is allowed in part.

c) The claimants are entitled to a total compensation of Rs.4,92,650/- as against Rs.3,94,120/- awarded by the learned Commissioner.

d) Further, the claimants are entitled to receive interest on the award amount at 12% per annum from thirty days from the date of the accident till the date of realization.

e) The amount in deposit before this Court shall be transmitted to the Court of jurisdictional Senior Civil Judge forthwith along with the records.

Sd/-

JUDGE

JTR