Karnataka High Court
The Manager vs Smt. Jamila on 23 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.6536 OF 2019(ECA)
BETWEEN
THE MANAGER
HDFC ERGO GIC LTD
ONYX, 4TH FLOOR
NORTH MAIN ROAD
NEXT TO WESTIN HOTEL
KAREGAON PARK
PUNE 411001
NOW REPSRESNTED BY
THE MANAGER
HDFC ERGO GIC LTD
#25/1, 2ND FLOOR
SHANKARA NARAYANA BUILDING
M.G. ROAD, BENGALURU 01.
...APPELLANT
(BY SRI.A N KRISHNA SWAMY, ADV.)
AND
1. SMT. JAMILA
W/O MOHAMMED ARIF
ABDUL KHADAR MULLA
2
AGED ABOUT 42 YEARS
R/O KOTEWAA, SHEDGERI
ANKOLA-581314.
2. KUMAR AYAZ
S/O MOHAMMED
ARIF ABDUL KHADAR MULLA
AGED ABOUT 14 YEARS
BEING MINOR
REP. BY HIS NEXT FRIEND
AND MINOR GUARDIAN MOTHER
SMT. JAMILA
W/O MOHAMMED ARIF MULLA
R/O KOTEWADA, SHDGERI
ANKOLA-581314.
3. KUMAR AZLAN
S/O MOHAMMED
ARIF ABDUL KHADAR MULLA
AGED ABOUT 10 YEARS
BEING MINOR REP. BY HIS NEXT FRIEND
AND MINOR GUARDIAN MOTHER
SMT. JAMILA
W/O MOHAMMED ARIF MULLA
AGED ABOUT 42 YEARS
R/O KOTEWADA, SHEDGERI
ANKOLA-581314.
4. IMMERSE PACK SOLUTIONS
GET NO.179/180
ALANDI MARKET ROAD
OPP: POLYBOND INDIA
AT AND POST DHANORI
TALUKA: KHED PUNE
STATE MAHARASHTRA -411001.
...RESPONDENTS
3
(BY SRI. V.P. KULKARNI, ADV. FOR R1 :
R2 AND R3 ARE MINORS REP. R1:
R4 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 30(1) OF
EMPLOYEES COMPENSATION ACT AGAINST THE
JUDGMENT AND AWARD DATED 20.04.2019 PASSED
IN ECA NO.1/2018 ON THE FILE OF THE SENIOR
CIVIL JDUTE, ANKOLA, AWARDING COMPENSATION
OF RS. 6,30,000/- WITH INTEREST AT 12 PERCENT
P.A. ON THE COMPENSATION AMOLUNT FROM AND
AFTER 30 DAYS OF ACCIDENT TILL ITS ENTIRE
REALIZATION.
THIS MFA COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the Insurance Company
under Section 30(1) of Employees Compensation Act,
1923 (hereinafter referred to as 'the Act', for short)
being aggrieved by the judgment dated 20.4.2019
passed by the Senior Civil Judge, Ankola in ECA
No.1/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that the deceased Abdul Khader
Mulla was working as driver under respondent No.1 in
lorry bearing No.MH-12/MV-6015. On 23.10.2017, the
deceased died in the road traffic accident while he was
driving the lorry near Margoa of Malvadi, Pune.
3. The claimants filed petition before the
Commissioner for Employees Compensation seeking
compensation.
4. On service of summons, the respondents
appeared through their counsel and filed written
statements in which the averments made in the
petition were denied.
5. On the basis of the pleadings of the parties,
the Commissioner for Employees Compensation
framed the issues and thereafter recorded the
evidence and by impugned judgment, inter alia, held
that the deceased was working under respondent No.1
as driver and he died during the course of his
employment and further held that he is entitled for
compensation of Rs.6,30,000/- along with interest at
12% p.a. Being aggrieved, this appeal has been filed.
6. The learned counsel for the Insurance
Company has contended that as per Section 4(1B) of
the Employees Compensation Act, the Central
Government has issued notification dated 31.5.2010
stating that the monthly wages has been fixed as
Rs.8,000/-. But the Commissioner has erred in taking
the monthly income of the deceased at Rs.10,000/-.
The same is contrary to the provisions of Section
4(1B) of the Act. Hence, he sought for allowing the
appeal.
7. On the other hand, the learned counsel for
the claimants has contended that deceased was
earning Rs.10,000/- p.m. and he has produced bank
statement at Ex.P-8 and 9. Considering the same, the
Commissioner has rightly assessed the income at
Rs.10,000/- p.m. Considering the age and avocation
of the deceased, the overall compensation awarded by
the Tribunal is just and reasonable. Hence, he sought
for dismissal of the appeal.
8. Heard the learned counsel for the parties
and perused the records.
9. The following substantial question of law
that arises for consideration is:
"Whether the monthly wages assessed by the
Commissioner at Rs.10,000/- p.m. is contrary to
the provisions of Section 4(1B) of the Employees
Compensation Act?"
10. It is not in dispute that the deceased Abdul
Khadar Mulla died in the accident occurred on
23.10.2017 during the course of his employment while
he was working as driver in the lorry under
respondent No.1. Further, there is not dispute
regarding the employer and employee relationship.
11. Even though the claimants claim that the
deceased was earning Rs.10,000/- p.m. and he has
produced bank statement at Ex.P-8 and 9, as per the
notification issued by the Central Government dated
31.5.2010 by exercising power under section 4(1B) of
the Act, the maximum wages fixed is Rs.8,000/- p.m.
But the Commissioner has erred in taking the monthly
income of the deceased at Rs.10,000/-. The same is
contrary to the provisions of Section 4(1B) of the Act.
The Commissioner has rightly taken 50% of the said
income and applied factor of 124.70 to the age of the
deceased, who was 58 years at the time of his death.
Therefore, the compensation is recalculated as under:
= Rs.4,000 (50% of Rs.8000)*124.70
= Rs.498,800/-
12. In the result, the appeal is allowed in
part. The judgment of the Commissioner for
Employees Compensation is modified.
The claimant is entitled to a total compensation
of Rs.498,800/- as against Rs.6,30,000/- awarded
by the Commissioner.
The Insurance Company is directed to deposit
the compensation amount along with interest at 12%
p.a. from 23.10.2017 till the date of realization, within
a period of six weeks from the date of receipt of copy
of this judgment.
The amount, if any, deposited before this Court
is ordered to be transferred to the court below.
The compensation amount determined by this
Court shall be released in favour of the claimants after
due verification.
If there is any excess amount, the Commissioner
is directed to refund the same in favour of the
appellant-Insurance Company after due verification.
Sd/-
JUDGE
DM
