Karnataka High Court
Sri Ningappa vs Smt Shamimbanu on 24 February, 2023
Bench: Anil B Katti
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24th DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE ANIL B. KATTI
M.F.A.No.6722/2017 (WC)
BETWEEN:
SRI NINGAPPA
S/O SANNARANGAPPA
AGED ABOUT 61 YEARS
RESIDING AT DURGAVARA
VILLAGE, CHALLAKERE TALUK
CHITRADURGA DISTRICT - 577 522
...APPELLANT
(BY SRI SIDDAPPA B.M, ADVOCATE)
AND:
1. SMT.SHAMIMBANU
W/O SUBAN SAB
AGED ABOUT 51 YEARS
OWNER OF THE LORRY BEARING
REG. NO.CTW-9729,
R/A A.G.ROAD, RAHIMNAGAR
CHALLAKERE TOWN - 577 522
CHITRADURGA DISTRICT
2. THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
MAGANUR COMPLEX
B.D.ROAD, NEAR NANJUNDESHWAR
PETROL BUNK
CHITRADURGA - 577 501
...RESPONDENTS
(BY SRI PRADEEP B, ADVOCATE FOR R2
NOTICE TO R1 IS DISPENSED WITH)
2
THIS MFA IS FILED U/S 30(1) OF WORKMEN'S
COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD
DATED 20.02.2017 PASSED IN ECA NO.5/2016 ON THE FILE OF
THE SENIOR CIVIL JUDGE & JMFC, COMMISSIONER FOR
EMPLOYEES COMPENSATION, CHALLAKERE, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
13.02.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
Appellant is challenging the judgment and award
passed by Senior Civil Judge & JMFC, Challakere in ECA
No.5/2016 dated 20.02.2017.
2. For the sake of convenience, parties are referred
according to their ranks before the Tribunal.
3. The factual matrix leading to the case of
claimant/appellant can be stated in nutshell to the effect
that appellant was Hamali under employment of
respondent No.1 who is owner of Lorry bearing No.CTW
9729 and met with accident on 25.11.2014. Prior to one
year of accident, he was working under the employment of
respondent No.1 and getting salary of Rs.8,000/- and
Rs.200/- towards Batta per day. On 25.11.2014, due to
rash and negligent driving of driver of said lorry, appellant
fell down from the lorry and sustained injuries. The
appellant was treated as indoor patient from 26.11.2014 to
18.12.2014 in Chitradurga Hospital and has undergone
surgery, so also spent Rs.50,000/- towards medical
expenses. Therefore, prayed for grant of compensation.
4. In response to notice, respondent Nos.1 and 2
appeared through their counsel and filed objections.
Respondent No.1 has admitted that deceased was his
employee and on 22.11.2014, during the course of
employment met with accident and sustained injuries. The
appellant was engaged by this respondent on his lorry to
load husk at Huliyaru as a coolie. The vehicle is duly
insured with respondent No.2 and if appellant is found to
be entitled for any compensation, then respondent No.2
has to pay the same. Therefore, seeks to exonerate from
the liability to pay any compensation to appellant.
5. Respondent No.2 contended that there was no
relationship of employer and employee between deceased
and respondent No.1. The age, occupation and income of
deceased has been denied. Respondent No.1 as owner of
lorry has entrusted to an unlicensed person to drive the
vehicle and as such, this respondent is not liable to pay
compensation. The liability to pay compensation is subject
to the terms and conditions of the Policy. Therefore,
prayed for dismissal of petition.
6. The appellant relied on the evidence of PWs.1 and 2
and documents at Exs.P.1 to P.11. Respondent No.2 relief
on the evidence of RW.1and the document at Ex.R.1. The
Trial Court on appreciating the evidence has partly allowed
the petition by awarding compensation of Rs.48,801/- with
interest at 12% p.a. from respondent No.2.
7. Appellant sustained injuries during the course of
employment under respondent No.1 on 25.11.2014 is not
at issue. The grievance of appellant is that the wages
taken is below minimum wages.
8. The substantial questions of law raised by appellant
are;
i) Whether the wages taken of appellant is below
minimum wages?
ii) What order?
9. Heard the arguments of both sides.
10. Indisputably, appellant suffered injuries during the
course of employment under respondent No.1 on
25.11.2014. Therefore, the present case is covered in
terms of Section 4(1)B of Employees' Compensation Act,
1923 (for short 'Act'). The compensation has to be
determined for an amount equal to 60% of the monthly
wages of the injured employee multiplied by the relevant
factor.
11. The wound certificate Ex.P.6 reveals that on
examination petitioner was found tenderness and swelling
in the right wrist, tenderness in the right hip region and
external rotation of the right lower limb. He was admitted
as indoor patient in Government hospital, Chitradurga from
26.11.2014 to 18.12.2014. PW.2 was examined to prove
the disability suffered by the petitioner. The evidence of
PW.2 would go to show that the petitioner has suffered
permanent disability to the extent of 50.19% of upper
lower and right lower limb. The Trial Court has accepted
the permanent disability to the extent of 10%. Looking to
the nature of injuries suffered by the petitioner and the
evidence of PW.2, it would be appropriate to take the
permanent disability suffered by the petitioner as 15%.
12. The Trial Court in the absence of any proof regarding
the income of the petitioner has accepted notional income
at the rate of Rs.6,000/- per month. The grievance of
learned counsel for the appellant is that in view of Gazette
Notification dated 31.05.2010, under SO 1258(E), the
Central Government for the purpose of Sub-Section 1 of
Section 4 of the Act notifies the minimum wages as
Rs.8,000/-. The said amount should have been taken as
the minimum wage by the Trial Court while determining
the compensation in terms of Section 4(1)A of the Act.
13. The date of incident in the present case is
25.11.2014 and the Gazette Notification referred above
was already in force which came into effect on 31.05.2010.
Therefore, in view of the said notification minimum wages
should be accepted at Rs.8,000/-. The age of appellant is
accepted as 55 years on the basis of wound certificate at
Ex.P.6 in the absence of any evidence on record. In view
of Schedule IV factor is applicable and the applicable to the
accepted age of deceased is 135.56. If the same is
calculated in terms of Section 4(1)B of the Act, then it
comes to (Rs.6,000/-x60/100) =Rs.4,800/-. The accepted
permanent disability is 15%. If the same is worked out,
then it comes to (Rs.4,800/-X15/100 )= Rs.720/-, if it is
multiplied with applicable factor, then it comes to
(Rs.720/-x135.56)=Rs.97,603/-, to which amount the
appellant is entitled for compensation for the injuries
suffered by him.
14. The Trial Court dismissed the petition against
respondent No.1 and directed respondent No.2 to deposit
the awarded amount with interest at 12%. The Hon'ble
Apex Court while considering the payment of interest in
terms of Section 4A(3)(a) of the Act in the judgment in
Civil Appeal No.1860/2022, dated 11.03.2022,
Shoba and others vs. The Chairman, Vithalrao
Shindhe Sakare Sahakari Kharkhane Limited and
others has held the liability to pay compensation would
arise on the date on which the deceased died for which he
is entitled to the compensation and therefore, the liability
to pay the interest on the amount of arrears/compensation
shall be from the date of accident and not from the date of
order passed by the Commissioner. The liability to pay
interest is on the owner respondent No.1. Consequently,
point No.1 for consideration is answered in the affirmative.
15. In view of the reasons recorded supra, proceed to
pass the following;
Order
The appeal is hereby partly allowed.
The judgment and award passed by Senior Civil
Judge & JMFC, Challakere in ECA No.5/2016 dated
20.02.2017 is ordered to be modified as under;
The appellant herein is entitled for total
compensation of Rs.97,603/-.
Respondent No.2 is liable to pay the compensation
and respondent No.1 is liable to pay interest at the rate of
12% per annum on the said amount from 25.11.2014 till
realization within three months from the date of this order.
The entire amount of compensation is ordered to be
paid to the appellant.
Registry shall send a copy of the judgment along
with records to the Trial Court.
Sd/-
JUDGE
mv
