Kareppa And Ors vs The Manager, Ndw Construction Co. ...
2022 Latest Caselaw 8432 Kant

                                 1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 09TH DAY OF JUNE 2022

                             BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                 MFA No.200518/2019 (ECA)

BETWEEN:

1.     Kareppa S/o Balappa Pujari,
       Age: 58 years, Occ: Agriculture,

2.     Satamma W/o Kareppa Pujari,
       Age: 53 years, Occ: Agri. & Household,

3.     Channamma D/o Kareppa Pujari,
       Age: 23 years, Occ: Student,

4.     Sharanamma D/o Kareppa Pujari,
       Age: 20 years, Occ: Student,

       All are R/o Srinivaspur Village,
       Tq. Shorapur, Dist. Yadgir.
                                                ... Appellants
(By Sri. Krupa Sagar Patil, Advocate)

AND:

1.     The Manager,
       NDW Construction Co. Ltd.,
       R/o Vajjal, Tq. Shorapur,
       Dist: Yadgir-585 228.

2.     The Branch Manager,
       Reliance General Insurance Co. Ltd.,
       Through its Branch Manager,
                                    2



     Near Timmapuri Circle,
     Asian Plaza Building,
     Beside Kanva Mart, 3rd Floor,
     Kalaburagi-585 102.
                                                     ... Respondents

(Sri. Subhash Mallapur, Advocate for R2;
 V/O dated 14.03.2019 notice to R1 is dispensed with)

      This Miscellaneous First Appeal is filed under Section
30(1) of the Employees Compensation Act, 1923, praying to
modify the judgment and award dated 21.12.2018 passed by
the Senior Civil Judge at Shorapur, in file bearing
E.C.A.No.11/2018 by enhancing the compensation as prayed
for.

      This appeal coming on for hearing on I.A., this day, the
Court delivered the following:-

                            JUDGMENT

This appeal is filed under Section 30(1) of the

Employees Compensation Act, 1923 (for short 'the Act') by the

claimants, challenging the judgment and award dated

21.12.2018 passed in E.C.A.No.11/2018 by the Senior Civil

Judge and Commissioner under Employees Compensation Act

(hereinafter referred to as 'the Commissioner' for short),

seeking enhancement of compensation.

2. For the sake of convenience the parties herein are

referred with the original ranks occupied by them before the

Commissioner.

3. The claimants have filed a claim petition under

Section 22 of the Act, claiming compensation for the death of

Suresh during the course of employment under respondent

No.1. Claimant Nos.1 and 2 are the parents, while claimant

Nos.3 and 4 are the sisters of the deceased Suresh.

Respondent No.1 is the owner of Tipper bearing

No.KA-33-A-3303 and respondent No.2 is the insurer. The

deceased was aged about 20 years and was working as a

cleaner in the offending tipper under respondent No.1. Since

three years he used to be paid salary of Rs.12,000/- per

month and Rs.200/- per day as batta. On 11.12.2016 when

the deceased Suresh was on duty as a cleaner in the offending

tipper and when he went back of the tipper to open the lock,

the driver drove it negligently and suddenly unloaded the sand

and deceased struck beneath the sand and he died at the

spot. Hence, the claim petition came to be filed.

4. On issuance of notice, respondent No.1 remained

absent and placed exparte, while respondent No.2 appeared

through the counsel and filed objections denying the

allegations and assertions made thereunder. Respondent No.2

has denied the age, occupation and income of the deceased

and it is denied that the deceased was working as a cleaner

under respondent No.1 at the time of his death. He has also

taken other statutory defence and sought for dismissal of the

claim petition.

5. The Commissioner, after appreciating the oral and

documentary evidence has awarded total compensation of

Rs.6,97,000/- with interest at the rate of 9% p.a. from the

date of petition till realization by fastening liability on

respondent No.2.

6. Being aggrieved by this judgment and award, the

claimants have filed this appeal on the ground that the

interest was awarded on lower side and the monthly wages

were taken on the lower side.

7. Heard the arguments advanced by the learned

counsel for the appellant and the learned counsel for

respondent No.2-insurer. Perused the records.

8. The learned counsel for the appellants would invite

the attention of the Court to Section 4-A (3)(a) of the Act

regarding interest to be awarded at the rate of 12% p.a. and

further placed reliance on the Notification issued by the

Central Government dated 31.05.2010, wherein the minimum

wages specified under Sub-section(1) of Section 4 was

enhanced from Rs.6,000/- to Rs.8,000/-.

9. In view of the grounds urged, now the following

substantial questions of law would arise for my consideration:

1) Whether the Commissioner was justified in awarding interest at the rate of 9% p.a. instead of awarding 12% as provided under Section 4-A (3)(a) of the Employees Compensation Act, 1923?

2) Whether the Commissioner was justified in taking the income of the deceased at Rs.6,000/- ignoring the Notification of the Central Government enhancing the minimum wages to Rs.8,000/- under the Act?

10. The learned counsel for the appellants would

contend that as per the Notification dated 31.05.2010, the

amendment was brought to Section 4(1) of the Act, where the

minimum wages were enhanced to Rs.8,000/-. He would also

invite the attention of the Court to Section 4-A (3)(a) and

argued that it is mandatory for the Commissioner to award

interest at the rate of 12% p.a., if there is failure on the part

of the insurer to pay the compensation within one month from

the date it fell due.

11. Having heard the arguments and perusing the

records, it is evident that there is no dispute of the fact that

deceased was under the employment of respondent No.1.

Though it is asserted that he was earning Rs.12,000/- per

month, no document has been produced and the

Commissioner has taken the income at the rate of Rs.6,000/-

per month. However, it is to be noted here that an

amendment was brought to Section 4(1) of the Act, wherein

Rs.6,000/- was enhanced to Rs.8,000/-. Hence, the

Commissioner was not justified in taking the income of the

deceased at Rs.6,000/- per month, in view of the subsequent

amendment in the year 2010. Hence, the Commissioner ought

to have taken the income of the deceased at Rs.8,000/- per

month and after having deducted 50% of it, Rs.4,000/- ought

to have been taken by multiplying with the factor 224 in view

of the age of the deceased as 20 years. Hence, the loss of

income would work out to Rs.8,96,000/- (Rs.4,000 x 224).

12. The Commissioner has also awarded Rs.25,000/-

towards funeral expenses and transportation of dead body,

which does not call for any interference.

13. As such, the claimants are entitled for total

compensation of Rs.9,21,000/- as against Rs.6,97,000/-

awarded by the Commissioner.

14. The Commissioner has awarded interest at the

rate of 9% p.a. As per Section 4-A (3)(a) of the Act, the

interest shall be paid at the rate of 12% p.a. as a penal

interest in view of failure on the part of the employer in paying

the compensation within one month from the date it fell due.

No records are forthcoming to show that either respondent

No.1 or respondent No.2 have paid any such compensation.

Under such circumstances, in view of the statutory mandate,

the Commissioner has committed an error in awarding interest

at the rate of 9% p.a. instead of 12% p.a.

15. Looking to these facts and circumstances, both the

substantial questions of law are answered in the negative and

as such, the appeal needs to be allowed in part. Accordingly,

I proceed to pass the following:

ORDER

i. The appeal is allowed in part.

ii. The appellants/claimants are held entitled for total compensation of Rs.9,21,000/- as against Rs.6,97,000/- awarded by the Commissioner with interest at the rate of 12% p.a. from 11.01.2017 i.e., when it fell due.

iii. The disbursement and deposit shall be in terms of the award of the Commissioner.

Sd/-

JUDGE LG