Karnataka High Court
Mala And Ors vs M/S Master Heavy Lifters And Power And ... on 5 December, 2023
Author: R.Devdas
Bench: R.Devdas
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MFA No. 202403 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO. 202403 OF 2022 (ECA)
BETWEEN:
1. MALA W/O BASAVARAJ WALIKAR,
AGE: 28 YEARS,
OCC: HOUSEHOLD WORK,
R/O: TELAGI,
TQ: BASAVANA BAGEWADI,
DIST: VIJAYAPURA-586216.
2. KASTURI @ KASTHURI
W/O SADASHIVAPPA WALIKAR,
AGE: 50 YEARS,
Digitally signed by OCC: HOUSEHOLD WORK,
SOMANATH
PENTAPPA MITTE R/O: TELAGI,
Location: HIGH TQ: BASAVANA BAGEWADI,
COURT OF
KARNATAKA DIST: VIJAYAPURA-586216.
3. SADASHIVAPPA S/O SANGAPPA WALIKAR
AGE: 60 YEARS, OCC: COOLIE,
R/O: TELAGI,
TQ: BASAVANA BAGEWADI,
DIST: VIJAYAPURA-586216.
...APPELLANTS
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)
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MFA No. 202403 of 2022
AND:
1. M/S MASTER HEAVY LIFTERS AND POWER,
BY ITS PROPRIETOR,
SRI. RAVINDRA S/O SHIVARM MAHEKAR,
AGE: 48 YEARS,
OCC: BUSINESS,
R/O RAYAKAR MANUR, SHOP NO. 18,
NEAR CANARA BANK, KAIGA ROAD,
KARWAR UK, KARWAR-581301.
2. THE MANAGER LEGAL,
THE ICICI LAMBORD GENERAL INSURANCE CO.LTD,
II FLOOR, BELLAD AND COMPANY,
NEAR BANNIGIDA STOP,
GOKUL ROAD, HUBLI-580030.
...RESPONDENTS
(BY SRI. MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S. 30(1) OF THE EMPLOYEES
COMPENSATION ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED: 22.07.2022 PASSED IN ECA NO.5/2018
ON THE FILE OF THE COURT OF THE ADDITIONAL SENIOR
CIVIL JUDGE AND COMMISSIONER FOR EMPLOYEE'S
COMPENSAION BASAVANA BAGEWADI AT BASAVANA
BAGEWADI. AND ALLOW THIS APPEAL AND TO ENHANCED THE
COMPENSATION AMOUNT OF RS.21,38,080/- ONLY AS
CLAIMED BY THE APPELLANTS BEFORE THE COURT BELOW
AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
C.M.JOSHI, J., DELIVERED THE FOLLOWING:
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MFA No. 202403 of 2022
JUDGMENT
We have heard the learned counsel appearing for the
appellant on admission.
2. The appellants are the petitioners before the
learned Commissioner under Employees Compensation
Act, 1923 cum Additional Senior Civil Judge, Basavana
Bagewadi.
3. The appellants approached the learned
Commissioner under Section 22 of the Employees
Compensation Act, 1923 (hereinafter referred to as 'EC
Act, 1923' for short) seeking compensation on account of
death of Basavaraja. They contended that deceased-
Basavaraja was working under respondent No.1 as a
Coolie earning Rs.15,000/- per month and there exist a
relationship of employer and employee. It was alleged that
on 24.11.2017, the employee Basavaraja while working in
NTPC premises at Kudagi near Railway Rack on coal bund,
while sloping the coal, he slipped from the top and the coal
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fell on him causing severe injuries to him and later, he
succumbed to the injuries.
4. The petition was resisted by the respondent
No.2 contending that there were non-compliance of
several requirements of law and the alleged incident was
never reported to it by respondent No.1 and also that
there was no such relationship of employer and employee
between respondent No.1 and deceased, with various
other contentions.
5. The learned Commissioner recorded the
evidence and after hearing the arguments, came to the
conclusion that the petitioners are entitled for the
compensation. In view of the notification under Section
4(1B) of EC Act, 1923 issued by the Central Government,
the monthly wages was considered at Rs.8,000/- and
awarded a compensation of Rs.8,36,920/- by adopting the
procedure laid down under Section 4(1)(a) of EC Act,
1923.
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6. The petitioners have come up in this appeal
contending that the wages of the deceased should have
been considered at Rs.15,000/- per month and the learned
Commissioner erred in adopting the wages at Rs.8,000/-
per month. Reliance is placed on the decision of the
Hon'ble Apex Court in the case of JAYA BISWAL AND
OTHERS VS. BRANCH MANAGER IFFCO TOKIO
GENERAL INSURANCE COMPANY LIMITED AND
ANOTHER1.
7. The learned Commissioner has noted that either
the claimants or the respondant No. 1- employer have not
produced any acceptable material to prove the wages.
There is no scope for considering higher monthly wages,
by applying the principles applicable for the claim under
Motor Vehicles Act 1988. The option is to calculate the
wages either under Section 5 of the EC Act or as per the
notification of the Central Government. The provisions of
Civil Appeal No.869/2016 dated 04.02.2016
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Section 4(1B) of the Employees Compensation Act, 1923
reads as below:
"4(1B) The Central Government may, by
notification in the Official Gazette, specify, for the
purposes of sub-section (1), such monthly wages
in relation to employee as it may consider
necessary."
8. In view of the above provisions, the wages shall
be considered as per the notification issued by the Central
Government under Section 4(1B) of EC Act, 1923, if the
claimants are unable to prove the wages they claimed. The
notification No.S.O.1258(E), dated 31.05.2010 fixes the
monthly wages at Rs.8,000/-.
9. The decision in the case of JAYA BISWAL
(referred supra) was concerning an appeal, whereby, the
learned Commissioner had awarded the compensation
holding the monthly wages to be Rs.10,000/-. In appeal,
the High Court had reduced the amount of compensation
awarded by the learned Commissioner and against it, the
claimants had gone in appeal. The Hon'ble Apex Court
found that such reduction is not justifiable and therefore,
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it restored the order passed by the learned Commissioner.
Thus, it do not laid down the ratio that any wages other
than the one notified under Section 4(1B) of EC Act, 1923
is permissible for consideration. Having regard to the fact
that the provisions of Section 4(1B) and Section 5 of EC
Act, 1923 are mandatory in nature, it is not possible to
accede to the claim of the appellants herein.
10. Therefore, we find no merit in the appeal filed
by the claimants. The learned Commissioner has
considered the notification issued by the Central
Government and has accordingly, calculated the
compensation while passing the impugned award.
11. Hence, the appeal being bereft of merit, the
same is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
NR/-
