Karnataka High Court
Mohd. Mosin Pasha S/O Mohd.Khadir ... vs Abdul Razak S/O Nasir Ali Shah And ... on 25 November, 2021
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.201452/2016 (WC)
BETWEEN
MOHD. MOSIN PASHA S/O MOHD. KHADIR PASHA,
AGE: 24 YEARS, OCC: NIL (PREVIOUSLY
WORKING AS DRIVER), R/O MANNA EKHELLI,
NOW RESIDING AT KHAJA COLONY,
KALABURAGI-585104.
...APPELLANT
(BY SRI. SANTOSH BELAMGI, ADVOCATE)
AND
1. ABDUL RAZAK S/O NASIR ALI BHAH,
AGE: MAJOR, OCC: LORRY TRANSPORT,
R/O H.NO.17A, WING N 217 SINDOL,
DIST. BIDAR-585403
2. THE DIVISIONAL MANAGER,
SRIRAM GENERAL INSURANCE CO. LTD.,
INDUSTRIAL AREA SITAPURA. RAJASTHAN
...RESPONDENTS
(BY SRI. SUBHASH MALLAPUR, ADVOCATE FO R2;
R1-ABDUL RAZAK - SERVED)
THIS MFA IS FILED U/S. 30(1) OF WC, PRAYING TO
ALLOW THE APPEAL, THE JUDGMENT AND AWARD DATED
30.03.2016 PASSED UB E.C.A. NO.98/2014 BY THE II
2
ADDL. SENIOR CIVIL JUDGE AND MACT KALABURAGI, MAY
KINDLY BE MODIFIED BY ENHANCING THE
COMPENSATION AS CLAIMED IN THE CLAIM PETITION, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The present appeal is filed by the claimant under
Section 30(1) of the Workmen's Compensation Act
aggrieved by the judgment and award dated 30.03.2016
passed in ECA No.98/2014 on the file of II Additional
Senior Civil Judge and MACT at Kalaburagi (for short 'the
Commissioner').
2. Brief facts leading up to filing of the present
appeal are that the appellant is working as a spare driver
of a lorry bearing registration No.AP-13/W-8530 belonging
to respondent No.1 and was getting salary of `6,000/- per
month and `100/- per day as daily allowance. On
19.06.2011, while he was on duty and proceeding within
the limits of Vashi police station in the said lorry, another
lorry bearing registration No.HR-74/4028 came from
opposite direction and dashed to the lorry being driven by
the claimant/appellant herein. Due to the accident, the
appellant sustained grievous injuries to his right leg and he
was shifted to Beed Hospital, where, he has undergone
treatment and thereafter he was shifted to Bidar Hospital
and still under treatment. The appellant has suffered
100% disability due to the injuries, which arose during and
in the course of his employment. Due to the accident, the
appellant is unable to carry out his regular work. Hence,
sought for compensation.
3. The notice was served on the respondents and
they have appeared through their respective counsel and
also filed their statement of objections. In the statement
of objections, respondent No.1 did not dispute the fact that
the claimant/appellant was working as a spare driver in his
lorry and has met with an accident during and in the
course of his employment. However, he denied the age of
the appellant as 22 years at the time of the accident and
also denied that the appellant was getting salary of
`6,000/- per month along with `100/- as daily allowance
as claimed by him. He contended that the claimant was
paid `4,500/- per month with `25/- as daily allowance.
Hence, seeks for dismissal of the claim petition.
4. Respondent No.2 in his statement of objections
denied the petition averments and also denied that the
claimant was working as a driver in the lorry belonged to
respondent No.1. It is further denied that the
claimant/appellant had suffered permanent disability and
had spent huge amount for his treatment. It is contended
that though the lorry belong to respondent No.1, no
additional premium has been paid to cover the spare driver
working in the said lorry. Hence, sought for exoneration
from the liability to pay the compensation.
5. The Commissioner after considering the
submissions made by the parties, framed issues and
recorded evidence. The claimant examined himself as
PW.1, one Dr.Vijay Rathod, an Orthopedic Surgeon has
been examined as PW.2 and exhibited 7 documents as
Exs.P1 to P7. One Chandrakant has been examined as
RW.1 and 2 documents have been marked as Exs.R1 and
R2 on behalf of the respondents.
6. The Commissioner based on the evidence held
that the accident in question had occurred during and in
the course of employment and consequently held that the
claimant was entitled for compensation of `68,350/- with
interest at 12% per annum from the date of the accident
i.e., 17.02.2011 till realization. Being aggrieved by the
same, the appellant/claimant is before this Court seeking
enhancement of the compensation.
7. The learned counsel for the appellant/claimant
submitted that the Commissioner has erred in assessing
the monthly income of the claimant at `5,250/- per month.
He submits that that pursuant to the notification dated
31.05.2010, issued with regard to fixing of the minimum
wages, the monthly income of the claimant ought to have
been taken at `8,000/- per month. He further submits that
the disability certificate issued at Ex.P5 by PW.2, the
claimant has suffered 14% disability, while the
Commissioner has taken only at 10%. Hence, he submits
that the claimant is entitled for enhancement of
compensation. He further submits that the liability in the
case was fixed on respondent No.1 - owner of the lorry on
the premise that he did not have valid and effective driving
licence though he was holding LMV licence as per Ex.P4.
He also submits that in view of the law laid down by the
Apex Court in the case Mukund Dewangan vs. Oriental
Insurance Company Limited reported in (2017) 14
SCC 663, the said issue does not require any further
consideration.
8. On the other hand, the learned counsel for the
respondent No.2 - insurance company submits that
assessment of compensation made by the Commissioner is
just and proper and the same does not require any
interference. As regard licence in question, the learned
counsel fairly submits that the said issue is settled in view
of the law laid down by the Apex Court in the case of
Mukund Dewangan (Supra).
9. On hearing the rival submissions, the
substantial questions of law that arise for consideration
are:
1. Whether under the facts and
circumstances of the case, the claimant is
entitled for assessment of monthly income at
`8,000/- per month and consequently
enhancement of compensation assessed?
2. Whether the Commissioner was
justified in fixing the liability on the owner of
the vehicle in view of the law laid down by the
Apex Court in the case of Mukund Dewangan
(Supra)?
10. The accident in question arising out of during
and in the course of employment is not in dispute. Though
the Commissioner has assessed the income of the claimant
at `5,250/- per month, in view of the notification dated
31.05.2010 issued by the Ministry of Labour and
Employment in exercise of the powers conferred by Sub-
Section (1B) of Section 4 of the Employee's Compensation
Act, 1923 fixing the minimum wages at `8,000/- per
month prior to the date of the accident, the same needs to
be adopted in the instant case as well. Considering the
age of the claimant at the time of the accident, the
relevant factor applicable is 216.91. PW.2. The doctor,
who examined the appellant has issued the disability
certificate as per Ex.P5 assessing the disability of the
claimant at 14%, however, the Commissioner has taken at
10%. The same is maintained as just and proper. Thus,
the claimant is entitled for enhanced compensation of
`1,73,528/- (8,000x216.90x10%).
11. In view of the law laid down by the Apex Court
in the case of Mukund Dewangan (Supra), the issue of
claimant holding LMV licence and requiring a separate
endorsement does not arise. Therefore, the order of the
Commissioner to that extent is modified. In the result,
substantial questions of law framed are answered and
following order is passed:
ORDER
a) The appeal filed by the appellant - claimant is
partly allowed.
b) The judgment and award of the Commissioner
in ECA No.98/2014 dated 30.03.2016 is
modified.
c) The appellant/claimant is held entitled for
enhanced compensation of `1,73,528/ instead
of `68,350/- awarded by the Commissioner
together with interest at the rate of 12% p.a.
from the date of one month of the accident.
d) The respondents No.2 is liable to pay the
compensation within a period of two months
from the date of receipt of a certified copy of
this judgment.
Sd/-
JUDGE
Srt
