The Manager Legal Shriram General ... vs Smt. Kalpana W/O Suresh Bhosale
2022 Latest Caselaw 7506 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 26TH DAY OF MAY 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


               MFA No.31343/2013 (WC)
                         C/w
                 MFA No.201979/2014

MFA No.31343/2013

BETWEEN:

1.     SMT. KALPANA W/O SURESH BHOSALE
       AGE: 37 YEARS,
       OCC. HOUSEHOLD WORK

2.     KUMAR YOGESH S/IO SURESH BHOSALE
       AGED: 17 YEARS, OCC. NIL

3.     SMT. MALANA W/O SHIDDU BHOSALE
       AGED: 62 YEARS, OCC. NIL,

4.     SHRI. SHIDDU S/O DATTUBA BHOSALE
       AGED ABOUT: 67 YEARS, OCC. NIL,

       ALL ARE R/O TIKOTA,
        TQ & DIST. BIJAPUR-586101.
                                          ...APPELLANTS

(BY SRI.S.S.MAMADAPUR, ADVOCATE)
                                  2



AND:

1.     SHRI. SANTOSH MAHADEV GIDDE
       AGE: 37 YEARS, OCC. BUSINESS
       R/O SHIVAJI PETH, JATH ,
       TQ. JATH, DIST. SANGLI-416416.

2.     THE BRANCH MANAGER,
       SHRI RAM GENERAL INSURANCE CO.LTD.,
       10003-E-8, RIICO, INDUSTRIAL AREA,
       SITAPUAR, JAIPUR, RAJASTHAN-509401.
                                                  ....RESPONDENTS
(BY SMT.SANGEETA BHADRASHETTY, ADV. FOR R2
NOTICE TO R1 DISPENSED WITH)

     THIS   MFA   FILED   U/S.       30(1)   OF   THE   WORKMEN
COMPENSATION ACT, AGAINST THE JUDGMENT AND ORDER
DATED 13.07.2012 PASSED IN WCA / SR NO. 34/2011 ON THE
FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN S COMPENSATION, SUB-DIVISION-1 AT BIJAPUR,
ALLOWING THE PETITION AND SEEKING FOR ENHANCEMENT
OF COMPENSATION.



MFA No.201979/2014

BETWEEN

THE MANAGER LEGAL,
SHRIRAM GENERAL INSURANCE CO.LTD
10003-E-8 RIICO INDUSTRIAL AREA,
SITAPUR, JAIPUR, RAJASTHAN-302022,
REPRESENTED BY ITS
AUTHORIZED SIGNATORY.
                                          ...APPELLANT
(BY SMT : SANGEETA BHADRASHETTY, ADVOCATE)
                              3



AND:

1.     SMT. KALPANA W/O SURESH BHOSALE,
       AGE: 38 YEARS, OCC:HOUSEHOLD,

2.     KUM. YOGESH S/O SURESH BHOSALE,
       AGE: 19 YEARS, OCC:HOUSEHOLD,

3.     SMT. MALANA W/O SIDDU BHOSALE,
       AGE: 65 YEARS, OCC:NIL.

4.     SRI. SIDDU S/O DHATTUBA BHOSALE,
       AGE: 68 YEARS, OCC:NIL.

       ALL ARE RESPONDENTS
       R/O TIKOTA, TQ & DIST: BIJAPUR-586130.

5.     SRI.SANTOSH S/O MAHADEV GIDDE
       AGE: 38 YEARS, OCC : BUSINESS,
       R/O : SHIVAJI PETH, JATT,
       TQ : JATT, DIST : SANGALI-416404.
                                             ....RESPONDENTS
(BY SRI. S.S.MAMADAPUR, ADVOCATE, FOR R1 TO R4
NOTICE TO R5 SERVED )

     THIS MFA FILED U/S. 30(1) OF WC ACT, AGAINST THE
JUDGMENT    AND   ORDER    DATED-   13.07.2012   PASSED   IN
WC/SR/NO- 34/2011 ON THE FILE OF LABOUR OFFICER AND
COMMISSIONER      FOR   WORKMEN     S    COMPENSATION   SUB-
DIVISION   NO-1 BIJAPUR, PARTLY         ALLOWING THE CLAIM
PETITION AND AWARDING COMPENSATION OF RS 4,46,225/-
WITH INTEREST AT 12 P.A.


       THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                       JUDGMENT

These two appeals are filed against the order

passed by the Commissioner under the Employees

Compensation Act, 1923, wherein the claimants were

awarded a sum of Rs.4,46,225/- from respondents by

way of compensation on account of death of Suresh

Bhosale, while on employment under respondent

No.1.

2. MFA No.31343/2013 is filed by the

claimants seeking enhancement of compensation

while MFA No.201979/2014 is filed by the Insurance

Company challenging the relationship of employer and

employment between deceased and respondent

No.1/owner of the truck.

3. For the sake of convenience, parties are

referred with the ranks occupied by them before the

Commissioner.

4. The factual matrix leading to the case are

that the deceased was working as a driver on the

truck bearing registration No.MH-04/H-2853 belonging

to respondent No.1 on monthly salary of Rs.6,000/-.

That on 09.12.2010, as per the directions of

respondent No.1, the deceased was working as driver

of the lorry and he loaded the sugar cane in the lorry

in Landewadi and unloaded in the sugar factory and

thereafter both the deceased and respondent No.1

had their meals in Shiradon village. It is further

alleged that after completing the meals, when the

deceased was about to drive the vehicle from

Shiradon village, he suffered massive heart attack and

immediately he was shifted to Kavate Mahakal

Hospital by respondent No.1, wherein he was declared

brought dead. Hence, the claimants who are widow,

son and parents of the deceased have filed the claim

before the Commissioner on the ground that the death

of deceased has occurred during the course of

employment.

5. The respondent No.1 has appeared and

filed objection statement admitting that the deceased

was under his employment, but he disputed the fact

that the deceased was being paid a sum of Rs.6,000/-

per month, but claimed that he was being paid

Rs.5,000/- per month with Rs.100/- bhatta per day.

He further contended that the vehicle was insured

with respondent No.2 and as such respondent No.2 is

liable to pay compensation. On the contrary,

respondent No.2 filed objections denying the claim in

toto and sought for dismissal of the claim.

6. After considering the evidence placed on

record, the Commissioner has awarded the

compensation of Rs.4,46,225/- with interest @ 12%

p.a. after passing the award of 30 days.

7. Being aggrieved by the said order the

claimants have filed MFA No.31343/2013 contending

that the compensation awarded was on lower side.

8. Learned counsel for the appellant would

further contend that the interest was awarded 30 days

after the award passed by the Commissioner, but the

interest ought to have been awarded from the date of

accident as it was due as on the date of accident

itself. He would further contended that the income

was taken on lower side. As such he would seek for

enhancement of compensation.

9. Per contra, the Insurance Company has

filed MFA No.201979/2014 disputing the fact that the

deceased was under the employment of respondent

No.1 and further asserted that the compensation

awarded is on the higher side.

10. Heard the arguments advanced by both the

learned counsels at length and perused the records.

11. Though, the learned counsel appearing for

the Insurance Company has disputed the fact that

deceased was under the employment of respondent

No.1, to substantiate the said contention, no material

evidence is placed. On the contrary, the respondent

No.1, who was the owner himself has clearly admitted

that the deceased was under his employment. The

medical records also disclose that the respondent No.1

himself has immediately admitted the deceased to

hospital and he has given statement on the same day.

These documents prima facie establish that the

deceased was under the employment of respondent

No.1 and to disprove this material evidence, no other

evidence is placed on record by the Insurance

Company. As such it is proved that the deceased was

under the employment of respondent No.1.

12. The respondent No.1 has contended that

the deceased was paying salary of Rs.5,000/- per

month with Rs.100/- bhatta per day. On the contrary,

the claimants contend that the deceased was getting

salary of Rs.6,000/- per month. There is no material

evidence placed by either of the parties. However,

since it is a social legislation and considering the

income taken in motor vehicle cases, it is proper to

take the income of deceased @ Rs.6,000/- per month.

As per Section 4 of the Act, 50% is required to be

deducted and considering these aspects, loss of

income would be Rs.5,35,470/- (Rs.6,000/2 x

178.49).

13. The Commissioner has taken the income of

Rs.5,000/- which is on lower side. Hence, the

compensation requires to be enhanced.

14. The Commissioner has awarded interest by

way of penalty @ 12% 30 days after the date of the

award, in case of failure. However, in the case of

Oriental Insurance Company Limited Vs. Siby

George and Others, reported in 2012 (12) SCC

540, the Hon'ble Apex Court has dealt the issue of

interest and basing on the decision of larger bench

reported in 1976 (1) SCC 289 (Pratap Narain

Singh Deo Vs. Srinivas Sabata), wherein it is held

that the interest shall commence from the date of

bodily injury is being caused to the workmen. Hence,

the interest is required to be paid from the date of

accident itself. The Commissioner has erred in

awarding the interest one month after the award

being passed by the Commissioner. Hence, the award

passed by the Commissioner calls for interference by

allowing the appeal in part. The claimants/appellants

are entitled for compensation of Rs.5,35,470/- as

against Rs.4,46,225/- awarded by the Commissioner.

15. Accordingly, I proceed to pass the

following;

ORDER

(a) The appeal filed by the claimants in MFA No.31343/2013 is allowed in part.

(b) The claimants are held entitled for total compensation of Rs.5,35,470/- with interest @ 12% p.a. from 09.01.2011 as against Rs.4,46,225/- awarded by the Commissioner

(c) The appeal filed by the Insurance Company in MFA No.201979/2014 stands dismissed.

(d) The Insurance Company shall deposit the difference enhanced amount with interest within four weeks from the date of this order.

(e) However, the claimants in MFA No.31343/2013 are not entitled for any interest on the delayed period of 280 days in filing the appeal.

Sd/-

JUDGE

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