Mahadev S/O Namadev Sagar And Ors vs Ganesh S/O Madhukar Dandage And ...
2022 Latest Caselaw 4088 Kant

                               1




        IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 10TH DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

             MFA No.201842/2016 (WC)
Between:
1.   Mahadev S/o Namadev Sagar,
     Age: 57 Years, Occ: Nil,

2.   Neelabai W/o Mahadev Sagar,
     Age: 54 Years, Occ: Household Work,

3.   Sevantu W/o Datta Sagar,
     Age: 32 Years, Occ: Nil,

4.   Sonali D/o Datta Sagar,
     Age: 12 Years, Occ: Nil,

5.   Abiti D/o Datta Sagar,
     Age: 9 Years, Occ: Nil,

6.   Pooja D/o Datta Sagar,
     Age: 6 Years, Occ: Nil,

     Appellant No.4 to 6 are Minors R/by
     Their natural Mother appellant No.3.

     All are R/o: Lachan Village, Tq: Indi,
     Dist: Vijayapur-586 101.
                                              ... Appellants
(By Sri.Sanganabasava B.Patil, Advocate)
                                2




And:
1.     Ganesh S/o Madhukar Dandage,
       Age: 41 Years, Occ: Business,
       A/P: Kondarki, Tq: Pandharpur,
       Dist: Solapur, Maharastra-431011.

2.   The Branch Manager,
     Reliance General Insurance Co.Ltd.,
     No.28, East Wing, 5 th Floor, Centenary Building,
     M.G.Road, Bangalore-560 001.
     Policy No.1702792343001781
     Valid From 07.10.2009 to 06.10.2010
                                          ... Respondents
(By Rahul R.Asture, Advocate for R2;
Notice to R1 is dispensed with v/o dtd.16.09.2021)

      This Miscellaneous First Appeal is filed under Section
30(1) of the Employees' Compensation Act, 1923 praying
to modify the judgment and award passed by the Court of
Senior Civil Judge & JMFC, Indi, At Indi, in
E.C.A.No.13/2014 dated 31.10.2015 and be pleased to
allow the claim petition by granting the relief as prayed far
by the appellants herein in the interest of justice and
equity.

      This appeal coming on for admission, this day, the
Court delivered the following:-


                       JUDGMENT

This appeal under Section 30(1) of the

Employees Compensation Act, 1923 (hereinafter

referred to as 'the Act', for short) has been filed by

the petitioners being aggrieved by the judgment and

award dated 31.10.2015 passed in ECA No.13/2014

by the Senior Civil Judge & JMFC, Indi (hereinafter

referred to as 'the Tribunal', for short).

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellants are the petitioners and

respondent Nos.1 and 2 are respondent Nos.1 and 2

before the Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are that the deceased Datta S/o:

Mahadev Sagar aged about 27 years was working as a

driver of tractor trailer bearing registration No.MH-

13/AJ-1435 under employment of respondent No.1 on

monthly wages of Rs.4,500/- and bhatta of Rs.50 per

day. On 08.04.2010, when the deceased was on duty

on the said tractor and trailer, after unloading the

sugar cane, the deceased was coming back with

empty trailer and said trailer's front right side tyre

written statement punctured and after reforming the

puncture the deceased while joining the tyre, at that

time suddenly tyre was blasted, by this impact the

deceased sustained serious injuries to his chest, head,

hands and other parts of the body and he died on the

spot. It is contended that respondent No.1 being the

owner of the vehicle and respondent No.2 is the

insurer of the vehicle involved in the accident. The

petitioners filed the claim petition under Section 22 of

the Workmen's Compensation Act, 1923 seeking for

compensation on the account of death of deceased

Datta.

4. Respondent No.1 filed written statement

and filed objections admitting that the deceased was

working under him as a driver and getting wages of

Rs.4,500 per month and bhatta of Rs.50/- per day. It

is contended that the said vehicle was involved with

Reliance General Insurance Company Limited and

valid from 07.10.2009 to 06.10.2010. It is contended

that, if the Court comes to the conclusion that the

petitioners are entitled for compensation and the

same may be recovered from respondent No.2.

Hence, prayed to dismiss the petition against

respondent No1.

5. Respondent No.2 filed objections denying

the age, income, occupation of the deceased and

contended that the petition is not maintainable as per

the requirements of Section 21 and 22 of W.C.Act,

1923, not complied and notice under Section 10 of

Act, has not been served upon the respondent No.2

and admitted about the issuance of policy subject to

the terms and conditions. Hence, sought for dismissal

of the petition.

6. In order to prove their case, petitioner No.1

examined himself as PW-1 and got exhibited

documents namely Ex.P1 to Ex.P9. Respondents have

not adduced any oral evidence. After recording the

evidence and considering the material on record, the

Tribunal has recorded a finding that on 08.04.2010

the deceased Datta S/o: Mahadev was on duty as

driver on Tractor No.MH-13/AJ-1435 and trailer

bearing registration No.MH-13/T-4108 and on that

day near APMC, Indi the trailer's front right side tyre

was punctured and after reforming puncture when the

deceased while joining the tyre suddenly the tyre was

blasted and sustained fatal injuries and died on the

spot and further recorded a finding that petitioners

have proved that the deceased died during the course

of his employment with respondent No.1 and further

held that the petitioners are entitled for compensation

and consequently allowed the claim petition and

awarded a compensation of Rs.3,26,000/- with

interest @ 12% p.a. from the date of incident till

realization of entire amount and further directed

respondent No.2 to deposit the compensation amount

within a period of two months from the date of award.

Being dissatisfied with the compensation awarded by

the Tribunal, the petitioners have filed the present

appeal seeking for enhancement of compensation

amount.

7. Heard the learned counsel for petitioners

and learned counsel for respondent No.2.

8. Learned counsel for the petitioners submits

that the deceased Datta was getting wages of

Rs.4,500/- per month and bhatta of Rs.50/- per day,

but the tribunal has considered the income of the

deceased @ Rs.3,000/- which is on the lower side. He

further submits that as per the Minimum Wages Act,

the tribunal ought to have taken the income of

deceased at Rs.4,000/- on the contrary the tribunal

has taken income of the deceased at Rs.3,000/-, is on

the lower side. Hence, on these grounds he prays to

allow the appeal.

9. Per contra, learned counsel for respondent

No.2, Insurance Company supports the impugned

judgment and award passed by the Tribunal. He

further submits that the compensation awarded by the

Tribunal is just and proper. Hence, sought for

dismissal of the appeal.

10. Heard the learned counsel for the parties

and perused the records.

11. The point that arise for consideration is

with regard to quantum of compensation.

12. It is not in dispute that the deceased Datta

sustained injuries during the course of employment

and died on the spot. Further it is the case of the

petitioners that the deceased was under employment

of respondent No.1 and was working as driver on the

tractor and trailer belongs to respondent No.1 and

respondent No.1 has admitted about the employment

of deceased Datta under him by filing written

statement and respondent No.2 has not seriously

disputed about the relationship as employer and

employee between the deceased Datta and

respondent No.1. The petitioners have not produced

any income proof to show that the deceased was

getting wages of Rs.4,500/- per month and bhatta of

Rs.50/- per day. In the absence of proof of income,

this Court assessed the income at Rs.4,000/- as per

the Minimum Wages Act. The deceased was aged 27

years as on the date of the accident, relevant factor

applies to the age group of deceased is 213.57, out of

Rs.4,000/-, 50% is to be deducted, which comes to

Rs.2,000/- and hence Rs.2,000 x 213.57 = 4,27,140/.

Hence, the petitioners are entitled for compensation of

Rs.4,27,140/- under the head loss of dependency.

Further, the petitioners are entitled for a sum of

Rs.15,000/- under the head funeral expenses.

13. Thus, the petitioners are entitled to a total

compensation of Rs.4,42,140/- as against

Rs.3,26,000/- awarded by the tribunal.

14. In view of the discussions above, the

appeal is allowed in part. Judgment and award dated

31.10.2015 passed in ECA No.13/2014 by the Senior

Civil Judge & JMFC, Indi is modified.

(a) The petitioners are entitled to a total compensation of Rs.4,42,140/- as against Rs.3,26,000/- awarded by the tribunal.

     (b)   The   petitioners    are     entitled   for
           enhanced        compensation            of

Rs.1,16,140/- along with interest at the rate of 12% p.a. one month from the date of accident till the date of realization of amount.

      (c)   Respondent           No.2,      Insurance
            Company is directed to deposit the
            enhanced     compensation         amount

along with interest, within a period of eight weeks from the date of receipt of copy of this order.

Sd/-

JUDGE

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