Karnataka High Court
The Divisional Manager National ... vs Mahadevi Mallappa @ Mallikarjun ... on 24 June, 2021
Author: P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JUNE 2021
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MFA NO 24268 OF 2012 C/W.
MFA.NO.24977/2012 (WC)
IN MFA NO 24268 OF 2012
BETWEEN
THE DIVISIONAL MANAGER NATIONAL INSURANCE,
COMPANY RAMDEV GALLI,
BELGAUM, REP: BY DEPUTY MANAGER,
NATIONAL INSURANCE CO. LTD.,
ARIHANT PLAZA,
KESHWAPUR, HUBLI-23.
...APPELLANT
(BY SRI. S K KAYAKAMATH, ADV.)
AND
1 . MAHADEVI MALLAPPA @ MALLIKARJUN BIDARI,
AGE: 37 YEARS,
OCC: HOUSEHOLD WORK,
2 . SRI. MAHESH MALLAPPA @ MALLIKARJUN BIDARI
AGE: 27 YEARS, OCC: STUDENT,
3 . KUMARI. MEGHA MALLAPPA @ MALLIKARJUN BIDARI
AGE: 15 YEARS, OCC: STUDENT,
4 . KUMARI. POOJA MALLAPPA @ MALLIKARJUN BIDARI
AGE: 13 YEARS, OCC: STUDENT,
5 . KUMAR ANANDA MALLAPPA @ MALLIKARJUN BIDARI,
2
AGE: 13 YEARS, OCC: STUDENT, RESPONDENT NOS. 3 TO 5 ARE MINORS
R/BY RESPONDENT NO.1 ALL THE R/O: ATHANI, BELAGAVI.
6 . NARASAPPA KEDARI DIWANMAL
AGE: MAJOR, OCC: TRANSPORT BUSINESS,
R/ SHIVAYOGI NAGAR, BEHIND NEW KEB OFFICE,
BIJAPUR ROAD, ATHANI,
ATHANI-591304 (OWNER OF LORRY BEARING NO.MH-10/A-9475).
...RESPONDENTS
(BY SRI.HARISH S MAIGUR, ADV. FOR R1-R5;
NOTICE TO R 6 HELD SUFFICIENT)
THIS MFA FILED U/S.30(1) OF THE W.C.ACT 1923, AGAINST THE
JUDGEMENT AND AWARD DATED:18.05.2012, PASSED IN W.C.S.R
121/2010 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER
FOR WORKMEN COMPENSATION, SUB-DIVISION-I, BELGAUM DISTRICT
BELGAUM, AWARDING THE COMPENSATION OF RS.4,46,225/- WITH
INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF PETITION AND
SHALL BE DEPOSITED WITHIN ONE MONTH FROM THE DATE OF THE
ORDER.
IN MFA NO 24977 OF 2012
BETWEEN
1 . MAHADEVI W/O MALLAPPA @ MALLIKARJUN BIDARI,
AGE: 37 YEARS, OCC: HOUSEHOLD,R/O ATHANI, DIST: BELGAUM.
2 . SRI. MAHESH S/O MALLAPPA @ MALLIKARJUN BIDARI
AGE: 21 YRS, OCC: STUDENT,R/O ATHANI, DIST: BELGAUM.
3 . MEGHA D/O MALLAPPA @ MALLIKARJUN BIDARI
AGE: 15 YRS, OCC: STUDENT,R/O ATHANI, DIST: BELGAUM.
4 . POOJA D/O MALLAPPA @ MALLIKARJUN BIDARI
AGE: 13 YRS, OCC: STUDENT,R/O ATHANI, DIST: BELGAUM.
3
5 . SRI. ANAND
S/O MALLAPPA @ MALLIKARJUN BIDARI
AGE: 13 YRS, OCC: STUDENT,
SINCE APPELLANT NO.3 TO 5 ARE MINORR/BY
GUARDIAN NATURAL MOTHER I.E.
APPELLANT NO.1 SMT. MAHADEVI
W/O [email protected] MALLIKARJUN BIDARI,
R/O ATHANI,DIST: BELGAUM.
...APPELLANTS
(BY SRI.HARISH S MAIGUR, ADV.)
AND
1 . NARASAPPA KEDARI DEVANAMAL
AGE: MAJOR, OCC: TRANSPORT BUSINESS,
R/O SHIVAYOGI NAGAR,
BEHIND NEW KEB OFFICE,
ATHANI-BIJAPUR ROAD,
ATHANI,DIST: BELGAUM,
2 . THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
RAMDEV GALLI, BELGAUM.
...RESPONDENTS
(BY SRI.R1-NOTICE DISPENSED;
SRI. S.K.KAYAKMATH, ADV. FOR R2)
THIS MFA FILED U/SEC.30(1) OF WC ACT 1923, AGAINST THE
JUDGMENT AND AWARD DTD:18.05.2012 PASSED IN W.C.A. S.R.
NO.121/2010 ON THE FILE OF THE LABOUR OFFICER AND
COMMISSIONER FOR WORKMENS COMPENSATION, SUB-DIVISION-I,
BELGAUM DISTRICT BELGAUM, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
1. Award dated 18.05.2012 passed in W.C.A. S.R.
NO.121/2010 by the Labour Officer and Commissioner
for Workmen's Compensation, Sub-Division No.1,
Belagavi is called in question by the claimants as well as
insurer by filing these appeals under Section 30 (1) of
the Employee's Compensation Act, 1923.
2. Brief facts are that one Mallikarjun Siddappa
Bidari was working as a driver in a lorry bearing
registration No.MH-10/A-9475 owned by respondent
No.1/Sri.Narasappa Kedari Divanamala (respondent No.1
before the learned Commissioner) and insured with
appellant insurance company. It is stated that on
26.03.2010, Mallikarjun Siddappa Bidari had attended
his duty as a driver in lorry in question under
respondent No.1 and at about 5.00 p.m maize was being
loaded to lorry. While he was working in the lorry, he
developed severe chest pain and he was immediately
taken to Dr.Gulabi Hospital of Athani and thereafter, as
per the advise of the said doctor he was shifted to
Dr.A.A.Pangi's hospital and while he was being shifted,
he stopped breathing and he died. It is stated that
death of the deceased was on account of work stress.
Before the learned Commissioner, respondent No.1
insured appeared and filed written statement admitting
employer and employee relationship and he further
admitted that on 26.03.2010, the deceased had
attended duty in his lorry as a driver and he died on
account of severe chest pain developed at that time. The
appellant-insurer also filed written statement and
contested the proceedings.
3. During the inquiry, wife of the deceased
examined herself as PW.1 and EXs.P.1 to 9 were
marked. The owner of the vehicle did not examine any
witness but he produced Ex.R.1(1) to Ex.R.1(3).
Appellant-insurer examined one of its official witness as
R.W.1 and EXs.R.2(1) to 2(2) were marked.
4. Upon consideration of the material produced
before him, the learned Commissioner answered the
points for consideration in favour of the claimant and
awarded compensation of Rs.4,46,225/- with interest
thereon.
5. Sri.S.K.Kayakmath, learned counsel for the
insurer, in support of his appeal submitted that there is
absolutely no material to show that Mallikarjun Siddappa
Bidari died due to heart attack on account of his
employment as a driver under respondent No.1 and
therefore, it is not established before the learned
Commissioner that death had taken place in the course
of and arising out of the employment.
6. Sri.Harish S Maigur, learned counsel for the
claimants in support of his appeal submitted that there
is clear materials produced before the learned
Commissioner to show that death of the deceased
occurred due to heart attack on account of employment
stress as he was working as driver in heavy goods
vehicle and admittedly even on the date of his death he
was on duty under respondent No1. He further submits
that at the relevant point of time, there was no
maximum limit fixed on the notional income of a
workman and therefore, the learned Commissioner ought
to have fixed wages of the deceased at Rs.9,000/-. He
further contended that the material produced before the
learned Commissioner especially Ex.P.4 shows that
deceased had died due to heart attack and therefore, it
cannot be stated that the finding of the learned
Commissioner that death of the deceased was due to
employment related stress is based on evidence and it
cannot be said to be perverse. He also contended that
the learned Commissioner has committed serious error
of law in awarding interest on the compensation with
effect not from one month from the date of the death
but only with effect from one month after the award and
the same is liable to be rectified in view of the catena of
decisions rendered by the Hon'ble Supreme Court.
7. I have given my anxious consideration to the
submissions made on both sides and also perused the
records.
8. Respondent No.1 insured has filed detailed
written statement before the learned Commissioner
during the proceedings. The relevant portion of the
written statement filed by the respondent No.1
Sri.Narasappa Kedari Divanamala reads as follows:
"This respondent do admit that at about 5 p.m. on
26.03.2010, when the said deceased Mallappa was on
duty, started to suffer from severe chest pains, when the
maize seeds bags were loading in the truck bearing No.
MH-10/A-9475 belonging to me at A.P.M.C yard, Athani.
This respondent also admits that, when the said
allappa, the driver on my lorry started suffering from
severe chest pains, he was carried to his house at Athani
where Dr.Galabi visited and checked the patient, who
asked to carry the patient immediately to Dr.A.A Pangi's
hospital at Athani. As such the deceased was immediately
carried to Dr.A.A.Pangi's hospital at Athani. Immediately
after admitting in Dr.A.A.Pangi's Hospital, Mallappa the
driver breathed his last due to heart failure. It is also true
to say that I attended the cremation of the deceased on
the next day morning. I tried my level best to save my
driver by immediately carrying him to the hospital and
bearing all the expenses of the hospital, but unfortunately
he died not survive."
9. Further Ex.P.4 issued by the Chief Medical
Officer taluka General Hospital, Athani shows that he
had suspected that the deceased had suffered from
myocardial infarction (HA). PW.1 who is none other than
the wife of the deceased had stated in detail which
clearly shows that Mallikarjun Siddappa Bidari had died
due to heart attack. In view of the clear admission made
by employer/insured in the written statement and also
of overwhelming materials placed on the record it is
impossible to deny that there was causal connection
between cause of death of the deceased and the
employment. Undoubtedly, the deceased was working as
driver in the truck belonging to the insured which is a
heavy goods vehicle and in view of the same, the
deceased would have had employment related stress. In
that view of the matter, the decision of The Hon'ble
Supreme Court reported in (2007) 11 SCC 668
(Shakuntala Chandrakant Shreshti V/s. Prabhakar
Maruti Garvali and Anr.) relied upon by the learned
counsel for the insurance company is not applicable to
the facts of this Case. Accordingly, I do not find any
error or illegality in the finding recorded by the learned
Commissioner and it cannot be said to be based on no
evidence or perverse.
10. Learned counsel for the insurer further
contended that the learned Commissioner had fixed the
monthly wages of the deceased at Rs.5,000/- and since
his death took place on 26.03.2010, the maximum
monthly wages that could have been taken was only
Rs.4,000/- and the learned Commissioner taking the
same at Rs.5,000/- is illegal. In this behalf, he submits
that amendment brought about for enhancing the
maximum notional wages of a workman from Rs.4,000/-
to Rs.8,000/- was brought in to effect by Government
notification dated 31.05.2010. The said notification is
also made available for my perusal.
11. Learned counsel for claimants strongly refuted
the same but in view of the Gazette notification made
available for my perusal, I am constrained to hold that
the learned Commissioner has committed an error of law
in fixing the monthly wages of the deceased at
Rs.5,000/- and therefore it is required to be modified to
Rs.4,000/-. Accordingly, the compensation is required to
be re-calculated as follows:
Rs.4,000/-x50%x178.49=Rs.3,56,980/-
12. In addition to the same, Section 4(4) of the
Employee's Compensation Act, 1923, I award
Rs.5,000/- towards funeral expenses. It is also
necessary to award interest at 12% P.A. on the
compensation awarded from 30 days from the date of
death of the deceased till the date of realization. Hence,
the following:
ORDER
1) The claimants appeal in
MFA.No.24977/2012 is allowed in part.
2) Insurance company appeal bearing
MFA.No.24268/2012 is allowed in part.
3) The claimants are entitled to total
compensation of Rs.3,61,980/- as
against the Rs.4,46,225/- awarded by
the learned Commissioner.
4) The compensation award shall carry
interest at the rate of 12% P.A. with
effect from 30 days from the date of
the death of the deceased till the date
of the realization.
5) The amount in deposit, if any shall be
transmitted to the concerned
jurisdictional Court forthwith.
Sd/-
JUDGE
VB/-
