Karnataka High Court
Smt. Surekha And Ors vs Basavaraj And Anr on 2 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA NO.200310/2018 (ECA)
BETWEEN:
1. Smt. Surekha
W/o Late Ashok @ Ashok Kumar,
Age: 34 years, Occ: Household work,
R/o No.4-20/A, Hasargundagi village,
Tq. Chincholi, Dist. Kalaburagi.
2. Sagar S/o Late Ashok @ Ashok Kumar,
Age: 18 years, Occ: Student,
R/o No.4-20/A, Hasargundagi village,
Tq. Chincholi, Dist. Kalaburagi.
3. Anand S/o Late Ashok @ Ashok Kumar,
Age: 16 yeas, Occ: Student, minor,
R/o No.4-20/A, Hasargundagi village,
Tq. Chincholi, Dist. Kalaburagi.
4. Shivakumar S/o Late Ashok @ Ashok Kumar,
Age: 14 years, Occ: Student, minor.
Appellant No.3 and 4 are minors
U/g of their natural mother:
Appellant No.1 Smt. Surekha,
2
R/o No.4-20/A, Hasargundagi village,
Tq. Chincholi, Dist. Kalaburagi.
... Appellants
(By Sri. Harshavardhan R. Malipatil, Advocate)
AND:
1. Basavaraj S/o Veerappa Yacha,
Age: 40 yeas, Occ: Business and Owner of
TATA Maxi Cab bearing Reg.No.KA-32/3632,
R/o 7-1161, Nehru Gunj,
Gunj Colony, Kalaburagi-585 102.
2. Reliance General Insurance Co. Ltd.,
Through its Branch Office 3rd Floor,
Asian Plaza, Timmapuri Circle,
Main Road, Kalaburagi-585102.
... Respondents
(Sri. C.S. Kalburgi, Advocate for R2;
Notice to R1 is dispensed with)
This Miscellaneous First Appeal is filed under Section
30(1) of the Employees Compensation Act, praying to
allow the appeal and award compensation of
Rs.17,74,520/- (excluding the amount awarded by the
Tribunal) along with interest @ 12% P.A. by setting aside
the judgment and award of Senior Civil Judge and
Commissioner under Employees Compensation Act,
Chincholi dated 19.10.2017 in ECA No.17 of 2015.
This appeal coming on for final hearing this day,
K.S. Hemalekha J., delivered the following:
3
JUDGMENT
The claimants have preferred this appeal under
Section 30(1) of the Employees Compensation Act, seeking
enhancement of compensation by assailing the judgment
and award dated 19.10.2017 passed in ECA No.17/2015 by
the Senior Civil Judge and Commissioner under Employee's
Compensation Act, Chincholi (hereinafter referred to as
'the Commissioner' for short).
2. The claimants filed a claim petition under
Sections 3 and 4 R/w Section 22 of the Employees
Compensation Act (for short 'E.C. Act') before the Tribunal,
claiming compensation on account of death of one Ashok
@ Ashok Kumar, who was working as a driver of TATA 407
Maxi Cab bearing Reg.No.KA-32-3632, contending that
during the course of employment under respondent No.1
as a driver of the vehicle, the deceased was proceeding in
Maxi Cab and when he reached Mahagaon Cross-Chincholi
Road near Harakanchi-Gandori, the vehicle turtle down on
the left side of the road and due to the impact of the
accident, the deceased sustained head injury and
succumbed to the injuries on the way to the hospital. The
claimants are the wife and children of deceased Ashok @
Ashok Kumar. The deceased was aged about 36 years and
was earning more than Rs.12,000/- per month in addition
to Rs.100/- per day as bhatta and he died during the
course of employment. Hence, sought for compensation of
Rs.25,00,000/- with interest at 12% per annum from the
date of accident till realization.
3. On issuance of notice by the Commissioner,
respondent Nos.1 and 2 appeared and filed their
objections.
4. Respondent No.1-the employer of the
deceased stated that the deceased was an employee under
respondent No.1 and was getting a salary of Rs.8,000/-
per month in addition to Rs.100/- per day as bhatta. It is
also stated that the vehicle involved in accident is insured
with respondent No.2 and the conditions of the policy are
not violated.
5. Respondent No.2-insurance company filed its
objections inter alia contending that the deceased - driver
of the maxi cab was not holding valid and effective driving
licence to drive the particular class of vehicle as on the
date of the accident and sought to contend that the driver
of the vehicle has violated the terms and conditions of the
policy and Section 3 of E.C.Act and would contend that the
compensation awarded by the Commissioner is exorbitant
and without any basis.
6. On the basis of the pleadings of the parties,
the Commissioner framed the following:
ISSUES
1. Whether petitioners prove the existence of
jural relationship of employee and
employer between himself and the
respondent No.1 at the relevant point of
time?
2. Whether petitioners prove that the
accident had occurred during the course
and out of the employment with the
respondent No.1 and deceased died in the
said accident?
3. Whether the petitioners are entitled for
compensation? If so, at what rate and from
whom?
4. What Order or Award?
7. In order to substantiate their case, claimant
No.1- Surekha, the wife of the deceased examined herself
as PW.1 and got marked documents as Exs.P1 to P8. On
the other hand, no evidence is adduced on behalf of the
respondents. However, respondent No.2-insruance
company got marked the insurance policy as Ex.R1.
8. On the basis of the pleadings, evidence and
material on record, the Commissioner held that the
accident occurred during the course of employment and
the vehicle was insured with respondent No.2 as per Ex.R1
and has awarded compensation of Rs.7,25,480/- with
interest at 12% per annum from the date of petition till its
realization and fastened the liability on the insurance
company.
9. Being not satisfied with the quantum of
compensation awarded by the Commissioner, the
claimants have preferred the present appeal.
10. Heard the learned counsel for the appellants
and the learned counsel for respondent No.2-insurance
company and perused the material on record.
11. Sri Harshavardhan R. Malipatil, learned counsel
for the appellants would contend that the Commissioner
has assessed the monthly income of the deceased at
Rs.8,000/- per month without considering the oral and
documentary evidence of the claimants that the deceased
was earning Rs.12,000/- per month in addition to Rs.100/-
per day as bhatta and thus, sought to contend that the
quantum of compensation awarded by the Commissioner
needs to be reassessed by taking the income of the
deceased on the higher side and adding Rs.100/- per day
as bhatta.
12. Per contra, Sri. C.S. Kalburgi, learned counsel
for respondent No.2-insurance company would contend
that the compensation awarded by the Commissioner is
just and proper and the manner in which the
Commissioner has assessed the compensation would not
call for any interference. He would further contend that
the employer has stated that the income of the deceased
is Rs.8,000/- per month. Considering these aspects, the
Commissioner has assessed the monthly income at
Rs.8,000/- and insofar as the addition of Rs.100/- per day
as bhatta is concerned, it is contended that there is no
document, nor any evidence has been led in this regard.
13. Having heard the learned counsel for the
parties and in view of the rival contentions, the only point
that arises for consideration in this appeal is,
Whether the judgment and award passed by
the Commissioner requires interference?
14. The fact that deceased Ashok @ Ashok Kumar
was working as a driver of TATA 407 Maxi Cab bearing
No.KA-32-3632 with respondent No.1 and the accident
occurred during the course and out of employment is not
are dispute. The dispute is only with regard to the
quantum of compensation awarded by the Commissioner
by considering the monthly income of the deceased at
Rs.8,000/- and without considering the additional amount
of Rs.100/- earned by the deceased per day as bhatta.
The wife of the deceased has unequivocally stated that the
deceased was earning Rs.100/- per day as bhatta in
addition to the monthly income of Rs.12,000/-.
Respondent No.1-employer though denied that the
deceased was earning Rs.12,000/- per month, but
admitted in his written statement/statement of objections
that the deceased was earning Rs.8,000/- per month and
also Rs.100/- per day as bhatta. Respondent No.1-
employer in the cross-examination to PW.1 has suggested
that the deceased was earning Rs.8000/- per month and
addition of Rs.100/- per day as bhatta. The insurance
company though tried to dispute that the deceased was
not earning Rs.100/- per day as bhatta, no rebuttal
evidence has been adduced by the insurance company.
The un-impeached and uncontroverted evidence of PW.1
and the admission of respondent No.1-employer in his
pleading and evidence goes to show that the deceased was
earning Rs.100/- per day.
15. The Commissioner has assessed the income of
the deceased at Rs.8,000/- per month in terms of the E.C.
without taking into consideration the unequivocal and
uncontroverted evidence of PW.1 and RW.1 to the effect
that the deceased was earning additional sum of Rs.100/-
per day as bhata as a part of the salary. We are of the
considered view that the income assessed by the
Commissioner at Rs.8,000/- per month is just and proper
in view of the admission of RW.1-employer. Thus, in view
of the pleading, evidence and material on record, we are of
the considered view that the claimants have successfully
proved that the deceased was getting Rs.100/- per day as
bhatta in addition to Rs.8,000/- per month. Accordingly,
we answer the point framed for consideration in the
affirmative and the claimants are entitled for additional
compensation as per Section 4 of the E.C. Act. The
monthly income of the deceased is taken at Rs.8,000/- +
Rs.100/- per day (Rs.3,000) = Rs.11,000/- and after
deducting 50%, it comes to Rs.5,500/-; the relevant factor
to be multiplied as per the E.C. Act is 181.37. Thus, the
total compensation works out to Rs.5,500/- x 181.37 =
Rs.9,97,535/-.
16. Thereby, the appellants are entitled for total
compensation of Rs.9,97,535/-. Since the Commissioner
has awarded a compensation of Rs.7,25,480/-, after
deducting the same, the appellants are entitled for
enhanced compensation of Rs.2,72,055/- (9,97,535/- less
Rs.7,25,480/-), which is rounded off to Rs.2,72,000/- with
interest at 12% p.a.
17. In the result, we pass the following
ORDER
i) The appeal is allowed in part.
ii) The impugned judgment and award dated
19.10.2017 passed by the Commissioner in
ECA No.17/2015 is hereby modified.
iii) The appellants/claimants are entitled for
enhanced compensation of Rs.2,72,000/- with
interest at 12% p.a. from the date of petition
till realization.
iv) The apportionment, deposit and release of the
enhanced compensation would be as per the
award of the Commissioner.
v) Respondent No.2-insurance company shall
deposit the compensation amount with
updated interest within a period of eight weeks
from the date of receipt of a certified copy of
this judgment.
vi) Parties to bear their respective costs.
vii) Registry is directed to transmit the Trial Court
records to the Commissioner.
Sd/-
JUDGE
Sd/-
JUDGE
SMP/LG
