Karnataka High Court
K.P. Pavitra vs Basavaraj Pujar on 23 May, 2023
Bench: S G Bysgpj, Vapj
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MFA No. 101816 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF MAY, 2023
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101816 OF 2020 (ECA)
BETWEEN:
K.P. PAVITRA W/O. LATE PARAMESHWARAPPA
KADDIPUDI, AGE: 32 YRS, OCC: HOUSEWIFE,
R/AT: 13TH WARD, SAJJI HOLA, KOPPAL,
NOW R/AT: ANANTHASAYANAGUDI,
7TH WARD, HOSAPETE, DIST: BALLARI-583201.
...APPELLANT
(BY SRI. GOURISHANKAR H MOT, ADVOCATE)
AND:
1. BASAVARAJ PUJAR S/O. SANNA THAMMAPPA
AGE: 64 YRS, R/AT: 64/A, MARUTHI CIRCLE,
3RD CROSS, NEKAR NAGAR, OLD HUBBALLI, HUBBALLI,
DIST: DHARWAD-580024
(OWNER OF LORRY BEARING NO:KA-25-B-9438)
Digitally signed
by K M
SOMASHEKAR 2. M/S. RELIANCE GENERAL INSURANCE CO. LIMITED
Location: REP. BY ITS BRANCH MANAGER,
DHARWAD
Date: 2023.05.27 R/AT: S.L.V. TOWER, PARVATHI NAGAR,
12:03:18 -0700
BALLARI, DIST: BALLARI-583201
...RESPONDENTS
(BY SRI.ANJANYEYA M, ADVOCAT FOR R1)
(SRI. NAGARAJ C KOLLOORI, ADVOCATE FOR R2)
THIS MFA IS FILED U/S.30(1) OF THE EMPLOYEES
COMPENSATION ACT, 1923, AGAINST JUDGMENT & AWARD
DATED.06.07.2019, PASSED IN ECA.NO.17/2016 ON THE FILE OF
ADDITIONAL SENIOR CIVIL JUDGE & JMFC CUM COMMISSIONER FOR
WORKMEN COMPENSATION, HOSAPETE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
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MFA No. 101816 of 2020
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the
consent of both learned counsel, matter is taken up for
final disposal.
2. The claimant is before this Court dissatisfied
with the quantum of compensation awarded under
judgment and award dated 06.07.2019 in ECA No.17/2016
on the file of the learned Addl. Senior Civil Judge and
JMFC-cum-Commissioner for Workmen's Compensation
(for short, 'Trial Court'), praying for enhancement of
compensation.
3. Heard learned counsel Sri.Gourishankar H Mot,
for the appellant and Sri.Nagaraj C Kolloori, learned
counsel for respondent-Insurance Company and perused
the appeal papers.
2. The claimant being wife of the deceased
Parameshwarappa Kaddipudi filed a claim petition under
MFA No. 101816 of 2020
Section 10 of the Employees' Compensation Act, 1923
seeking compensation for the accidental death of her
husband that took place on 05.09.2016 involving Lorry
bearing Registration No.KA-25/B-9428. It is stated that
the deceased was aged about 42 years as on the date of
the accident and he was working as Driver under
respondent No.1/Owner of lorry in question and getting
salary of Rs.10,500/- per month.
appeared through their learned counsel and filed their
separate statement of objections denying the allegations
made in the claim petition. Respondent No.2-Insurane
company inter-alia contended that there is no relationship
of employer and employee between respondent No.1 and
deceased. It was further contended that the driver of the
offending lorry was not having valid and effective driving
license as on the date of the accident and thereby violated
the terms and conditions of policy. Thus, prayed for
dismissal of the claim petition.
MFA No. 101816 of 2020
4. Before the trial Court, claimant-wife of the
deceased examined herself as PW1 and got marked the
documents as Exs.P1 to P12. Respondent No.2/Insurer
examined one witness as RW1 and got marked documents
as Ex.R1 and R2. The Trial Court based on the material
evidence on record awarded total compensation of
Rs.5,64,110/- with interest at 12% per annum.
5. While awarding the above compensation, the
Trial Court assessed the notional income of the deceased
at Rs.6,000/- per month, deducted 50% towards personal
and living expenses of the deceased. The claimant not
being satisfied with the quantum of compensation awarded
by the Trial Court is before this Court praying for
enhancement of compensation.
6. Sri.Gourishankar H Mot, learned counsel for the
appellant-claimant would submit that the notional income
of the deceased assessed by the trial Court at Rs.6,000/-
per month is on the lower side, since the deceased was
working as Driver under respondent No.1 and earning
MFA No. 101816 of 2020
Rs.10,500/- per month. He further submits that the trial
Court has erred in fastening liability on respondent
No.1/owner of offending lorry insofar as payment of
interest on the award amount. Thus, he prays for allowing
the appeal.
7. Sri.Nagaraj C Kolloori, learned counsel
appearing for the respondent-Insurance Company would
contend that in the absence of any documentary and
cogent evidence to establish the income of the deceased,
the trial Court has rightly assessed notional income of the
deceased at Rs.6,000/- per month, which is just and
proper. He further submits that the Tribunal on
appreciation of the material on record has rightly awarded
compensation, which does not call for any interference at
the hands of this Court. Thus, he prays for dismissal of
the appeal.
8. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the only point that
would fall for consideration in this appeal is, whether the
MFA No. 101816 of 2020
claimant would be entitled for enhanced compensation in
the facts and circumstances of the case?
9. Our answer to the above point is in the
affirmative for the following reasons.
10. There is no dispute with regard to the
accidental death of deceased Parameshwarappa Kaddipudi
that occurred on 05.09.2016 involving Lorry bearing
Registration No.KA-25/B-9428. Respondent No.1/owner
of the offending lorry has admitted in his evidence that
deceased was working as driver under him. Therefore,
finding recorded by the Trial Court with regard to
employer and employee relationship between respondent
No.1/Owner of offending lorry and deceased/driver is just
and proper and same is not disturbed.
11. It is the only contention of the appellant-
claimant that the notional income of the deceased
assessed by the Trial Court at Rs.6,000/- per month is on
the lower side. PW1-wife of the deceased in her evidence
MFA No. 101816 of 2020
Deposed that the deceased was working as Driver under
respondent No.1 and thereby earning Rs.10,500/- per
month. To substantiate the said contention, the claimant
has not produced any cogent or acceptable document. In
the absence of any material on record to establish the
avocation and earning of the deceased, this Court and Lok
Adalath while settling the accidental claims of the year
2016, normally would assess notional income of the
deceased at Rs.8,000/- per month, taking note of the
chart prepared by KSLSA based on various factors
including the minimum wage fixed. Moreover, minimum
wage notification also provides minimum wage of
Rs.8,000/-. In the instant case also, in the absence of any
material evidence to establish the income of the deceased,
we are of the considered opinion that it would be just and
appropriate for us to determine the income of the
deceased at Rs.8,000/- p.m. taking note of the income
chart prepared by KSLSA as well as minimum wage fixed
under the statute. There is no dispute with regard to age
of the deceased i.e. 42 years as on the date of the
MFA No. 101816 of 2020
accident. The relevant factor that is applicable to the age
of the deceased is 178.49. Thus, the claimant would be
entitled for compensation of Rs.7,13,960/- (Rs.8,000 x
50% x 178.49).
12. The Tribunal has awarded a sum of Rs.20,000/-
towards funeral expenses, which in our view is just and
proper and same is not disturbed. Thus, the claimant
would be entitled to total compensation of Rs.7,33,960/-
as against Rs.5,64,110/- awarded by the Tribunal.
13. Further, the Trial Court was not justified in
fastening liability on respondent No.1/owner of the
offending lorry insofar as payment of interest on the
awarded amount. When the trial Court has saddled liability
on respondents No.1 and 2, it is for the insurer to
indemnify the entire compensation amount including the
interest. Thus, we find that respondent No.2/Insurance
Company is liable to pay entire compensation amount
along with interest at the rate of 12% per annum with
effect from one month from the date of award.
MFA No. 101816 of 2020
14. In the result, we pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of
the Trial Court is modified to the extent
that the claimant is entitled to total
compensation of Rs.7,33,960/- as
against Rs.5,64,110/- awarded by the
Trial Court with interest at the rate of
12% per annum with effect from one
month from the date of award.
c) The respondent-Insurance Company
shall deposit the entire compensation
amount with accrued interest before
the Trial Court within six weeks from
the date of receipt of certified copy of
this judgment.
d) Apportionment, deposit and
disbursement of the enhanced
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MFA No. 101816 of 2020
compensation shall be made as per the
award of the trial Court.
e) Draw modified award accordingly.
f) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
