Vijaya W/O Shankar Gulannavar vs Kallappa Parashuram Patil
2021 Latest Caselaw 2379 Kant

               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.20505/2013 (WC)

BETWEEN:
1.   SHRI. VIJAYA W/O. SHANKAR GULANNAVAR
     @ BULANNAVAR,
     AGE: 30 YEARS, OCC: HOUSEHOLD WORK,

2.   KUMAR RAMESH SHANKAR GULANNAVAR
     @ BULANNAVAR,
     AGE:15 YEARS, OCC: STUDENT,

3.   KUMAR MAHESH SHANKAR GULANNAVAR
     @ BULANNAVAR,
     AGE:12 YEARS, OCC: STUDENT,

4.   KUMARI POOJA SHANKAR GULANNAVAR
     @ BULANNAVAR,
     AGE:08 YEARS, OCC: STUDENT,

     APPELLANTS 2 TO 4 ARE MINORS AND ARE
     R/BY NATURAL GUARDIAN APPELLANT NO.1

5.   SMT. NEELAWWA RAMAPPA GULANNAVAR
     @ BULANNAVAR,
     AGE:58 YEARS, OCC: HOUSEHOLD WORK,

     ALL ARE RESIDENT OF MARUTI NAGAR,
     GANDHI NAGAR, BELGAUM.

                                                    ...APPELLANTS
(BY SRI. GEETHA K. M. ADV.,)
                                  2


AND:
1.     SRI. KALLAPPA PARASHURAM PATIL,
       AGE: MAJOR, OCC: BUSINESS,
       R/O. HANDIGANUR, TAL: BELGAUM,
       (OWNER OF TRUCK NO. KA-22/B-1771)

2.     THE DIVISIONAL MANAGER,
       THE NEW INDIA ASSURANCE CO.LTD.,
       DIVISIONAL OFFICE,
       CLUB ROAD, BELGAUM.
                                                    ...RESPONDENTS
(BY SRI. R. R. MANE, ADV. FOR R2 THROUGH V.C.
R1- NOTICE SERVED)

       THIS APPEAL IS FILED UNDER SECTION 30(1) OF WORKMEN'S
COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD
DATED 28.01.2008 PASSED IN W.C.NO.252/2007 ON THE FILE OF THE
LABOUR     OFFICER     AND    COMMISSIONER       FOR    WORKMEN'S
COMPENSATION, SUB-DIVISION 2, BELGAUM, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.


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


                             JUDGMENT

This appeal at the instance of the claimants is filed calling

in question the correctness of the award dated 28.01.2008 in

W.C.No. 252/2007 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 Shankar Ramappa

Gulannavar @ Bulannavar was working as a Hamali in the truck

bearing registration No.KA-22/B-1771 belonging to one Kallappa

Parashuram Patil (respondent No.1 before the learned

Commissioner) and insured with New India Assurance Company

Limited (respondent No.2 before the learned Commissioner). It

is stated that on 16.10.2007 while the deceased was proceeding

in the said lorry as a Hamali for the purpose of unloading fish at

Belgaum, near Anamod Ghat, NH-4, on account of rash and

negligent driving of the lorry, it dashed to a heap of mud and on

account of the same, deceased fell down from the lorry and the

wheels of the lorry ran over him and he died at the spot itself.

3. In the claim proceedings, respondent No.1-owner of

the lorry appeared before the learned Commissioner but he did

not file any written statement. Respondent No.2-insurance

company appeared before the learned Commissioner and

contested the proceedings by filing written statement.

4. During the enquiry, one of the claimants was

examined as a witness and Ex.P.1 to P.8 were marked.

Insurance Company produced the policy of insurance which was

marked as Ex.R.2(1).

5. Upon consideration of the materials produced before

him, learned Commissioner held that employer-employee

relationship between the insured and the deceased was proved

and he also recorded a finding that the death of the deceased in

the accident was in the course of and arising out of the

employment. He further recorded a finding that the deceased

was aged 32 years at the time of his death and was earning

Rs.3,000/- per month. By applying appropriate relevant factor,

he awarded a compensation of Rs.3,05,775/- with interest

thereon at 12% per annum.

6. The only ground urged before me by the learned

counsel for the claimants-appellants is that the learned

Commissioner has committed a serious error in fixing the

monthly wages of the deceased at Rs.3,000/- only even though

deceased was an able bodied person of 32 years and working as

Hamali. According to the learned counsel, the learned

Commissioner at least should have fixed the same at Rs.4,000/-

per month. According to her, the learned Commissioner has

awarded a much lesser compensation to the claimants on

account of death of their bread winner and the same is liable to

be corrected by this Court.

7. Learned Counsel Sri. R. R. Mane, appearing for the

insurance company, vehemently opposed the said submission

and he contended that no substantial question of law arises for

consideration in this appeal in view of the fact that learned

Commissioner has considered all the points for consideration

arising in the case in their proper perspective by placing reliance

on the evidence. He, therefore, submits that the appeal is liable

to be dismissed.

8. I have given my anxious consideration to the

submissions made on either side and I have perused the

records.

9. There is no dispute about the fact that deceased was

aged 32 years at the time of his death i.e. on 16.10.2007. There

is also no dispute about the fact that there was employer-

employee relationship between the insured and the deceased

and he died on account of accident which took place in the

course of and arising out of the employment. Taking into

consideration the fact that at the relevant time, the maximum

wages that the learned Commissioner could have taken into

consideration is Rs.4,000/- per month, justice requires that the

income of the deceased should be fixed at Rs.3,250/- per month

at the time of his death. Accordingly, compensation is required

to be recalculated as follows:

Rs.3,250 x 50% x 203.85 = 3,31,256/- as

against Rs.3,05,775/- awarded by the learned

Commissioner.

10. It is noticed that the learned Commissioner has erred

in awarding interest on the compensation amount w.e.f. 30 days

of the order instead of awarding the same w.e.f. 30 days from

the date of the accident for which the claimants are entitled to.

Accordingly, the claimants are entitled to interest on the

compensation at 12% per annum w.e.f. 30 days from the date of

the accident.

11. Further, this Court while allowing I.A.No.1/2013 filed

for condonation of delay of 1768 days has allowed the said

application with a condition that the claimants will not be entitled

to claim interest on the delayed period, in case they succeed in

the appeal. Hence, the following:

ORDER

The appeal is allowed in part.

The claimants are entitled to the compensation of Rs.3,31,256/- with interest at the rate of 12% per annum w.e.f. 30 days from the date of the accident. However, they are not entitled to the interest for delayed period of 1768 days in preferring the present appeal for the enhanced amount of compensation. .

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration.

Sd/-

JUDGE

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