Karnataka High Court
Yadamma And Ors vs Khasim Ali Md And Anr on 22 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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MFA No. 202370 of 2018
C/W MFA No. 200566 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO. 202370 OF 2018 (WC-)
C/W
MISCL. FIRST APPEAL NO. 200566 OF 2019(ECA)
IN MFA NO. 202370 OF 2018.
BETWEEN:
1. YADAMMA
W/O NARASIMLU SONTI,
AGE: 39 YEARS, OCC: HOUSEHOLD,
2. SRIKANTH
S/O NARASIMLU SONTI,
AGE: 21 YEARS, OCC: STUDENT,
Digitally signed
by LUCYGRACE 3. LAXMAMMA
W/O MALLAYYA SONTI,
Location: HIGH AGE: 61 YEARS, OCC: NIL,
COURT OF
KARNATAKA
ALL ARE R/O H.NO. 3-17,
YENKATALA VILLAGE,
MOMINPET MANDAL,
RANGAREDDY DIST.,
NOW R/AT SAIDAPUR VILLAGE,
TQ. & DIST. YADGIR.
...APPELLANTS
(BY SRI. VEERANAGOUDA MALIPATIL, ADVOCATE)
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MFA No. 202370 of 2018
C/W MFA No. 200566 of 2019
AND:
1. KHASIM ALI MD
S/O SHAFOUDDIN,
AGE: 41 YEARS, OCC: OWNER OF TRACTOR
BEARING,
REG.NO. AP 15/L-8063 & TROLLY BEARING NO.,
AP-23/T -3788, R/O H.NO.4-4-52,
INDRA COLONY, SANGAREDDY,
DIST. MEDAK-502001,
(TELANGANA STATE).
2. RELIANCE GENERAL INSURANCE CO. LTD.,
NEAR TIMAPURI CIRCLE,
ASIAN PLAZA, KALABUARAGI-585102,
THROUGH ITS MANAGER.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
VIDE ORDER DATED 10.04.2019. NOTICE TO R1 IS
DISPENSED WITH.)
THIS MFA IS FILED UNDER SECTION 30(1)OF EMPLOYEE
COMPENSATION ACT, PRAYING TO, ALLOW THE APPEAL, THE
JUDGMENT AND AWARD DATED 14.08.2018 PASSED IN ECA
NO.55/2015 BY THE COMMISSIONER FOR EMPLOYEE'S
COMPENSATION YADGIR (SENIOR CIVIL JUDGE), MAY KINDLY
BE MODIFIED BY ENHANCING THE COMPENSATION AS
CLAIMED IN THE CLAIM PETITION.
IN MFA NO. 200566 OF 2019.
BETWEEN:
RELIANCE GEN. INS. CO. LTD.,
NEAR TIMMAPURI CIRCLE,
ASIAN PLAZA, KALABURAGI,
NOW REPRESENTED BY,
AUTHORIZED SIGNATORY, HUBLI.
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
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MFA No. 202370 of 2018
C/W MFA No. 200566 of 2019
AND:
1. YADAMMA
W/O NARASIMLU SONTI,
AGE: 40 YEARS, OCC: HOUSEHOLD,
2. SRIKANTH
S/O NARASIMLU SONTI,
AGE: 22 YEARS, OCC: NIL,
3. LAXMAMMA
W/O MALLAYYA SONTI,
AGE: 62 YEARS, OCC: NIL,
ALL R/O H.NO. 3-17,
YENKATALA VILLAGE,
MOMINPET MANDAL, RANGAREDDY DIST.,
NOW RESIDING AT SAIDAPUR VILLAGE,
TQ. & DIST. YADGIR-585201.
4. KHASIM ALI MD
S/O SHAFOUDDIN,
AGE: 42 YEARS, OCC: OWNER OF TRACTOR
BEARING, NO.REG.NO.AP-15-L-8063 AND TROLLEY
BEARING NO.,
AP-23/T-3788,
R/O H.NO. 4-4-52 INDRA COLONY,
SANGAREDDY,
DIST. MEDAK(A.P)
...RESPONDENTS
(BY SRI. VEERANAGOUDA MALIPATIL, ADVOCATE
FOR R1 TO R3;
VIDE ORDER DATED 04.09.2023.
SERVICE OF R4 IS HELD SUFFICIENT )
THIS MFA IS FILED UNDER SECTION 30(1) OF EC ACT,
PRAYING TO, ALLOW THE ABOVE APPEAL BY SETTING ASIDE
THE IMPUGNED JUDGMENT AND AWARD DATED 14.08.2018 IN
ECA NO.55/2015 PASSED BY COMMISSIONER FOR EMPLOYEE'S
COMPENSATION (SENIOR CIVIL JUDGE), YADGIR.
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MFA No. 202370 of 2018
C/W MFA No. 200566 of 2019
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No. 202370/2018 is filed by the claimants
seeking enhancement of compensation of Rs.5,94,000/-
with interest at 6% p.a. awarded by the Commissioner by
its order dated 14.08.2018 passed in ECA No.55/2015
while MFA No. 200566/2019 is filed by the
appellant/Insurance Company disputing the liability.
2. The accident in question resulting in death of
one Sonti Narasimlu, the husband of claimant No.1 and
father of the claimant No.2 and son of claimant No.3, is
not in dispute. The only ground urged by the
appellant/Insurance Company in MFA No. 200566/2019 is
that the policy issued to the owner of the vehicle did not
cover the deceased under the policy terms.
3. Learned counsel for the appellant/Insurance
Company reiterating the grounds urged in the
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memorandum of appeal submits that the tractor bearing
Registration No.AP/015-8063 was having only one seating
capacity of driver and there is no extra seating capacity
provided and the deceased was travelling in the trailer as
unauthorised passenger and thus there is a clear violation
of the terms of Insurance Policy. The other ground urged
by the learned counsel for the appellant/Insurance
Company is that Commissioner has awarded Rs.15,000/-
towards 'funeral ceremony' which is contrary to the
provisions of Section 4(4) of the Employee's Compensation
Act, 1923 and it is only Rs.5,000/- to be awarded and
awarding of Rs.15,000/- is in excess thereof. Learned
counsel for the appellant/Insurance Company also
disputed the relationship of the employer and employee
between the deceased and the respondent No.1. Hence,
sought for allowing of the appeal filed in MFA
No.20566/2019.
4. Sri. Veeranagouda Malipatil, learned counsel
appearing for the respondents/claimants on the other
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hand bringing to the notice of this Court to the terms of
policy submits that additional premium was paid covering
six persons to be taken in the tractor and trolley as per
IMT 39. Thus, he submits the respondent/insured having
paid the extra premium, the risk of the deceased should
also be covered under the policy.
5. Addressing the argument on the claim for
enhancement of compensation, learned counsel for the
respondents/claimants submits that Commissioner has
assessed the income of the deceased at Rs.6,000/- p.m.
whereas, the same ought to have been assessed in terms
of the Notification dated 31.05.2010 issued by the
Central Government in exercise of its power under sub-
Section (1)(b) of Section 4 of the Employee's
Compensation Act, 2023 has notified Rs.8,000/- to be the
monthly wages for the purpose of sub-section (1) of
Section 4. Thus, seeks for enhancement of the
compensation.
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6. Heard learned counsel for the parties and
perused the records.
7. Substantial questions of law would arise for
consideration in these matters are that;
(1) Whether the Commissioner is justified in
fastening the liability on the
appellant/Insurance Company?
(2) Whether the Commissioner is justified in
awarding the compensation taking the
notional income of the deceased at
Rs.6,000/-p.m. even when the Central
Government has issued the notification
fixing the minimum wages at Rs.8,000/-
p.m.?
(3) Whether the Commissioner is justified in
awarding Rs.15,000/- towards 'funeral
ceremony' as against Rs.5,000/- as
provided under Section 4(4) of the
Employees' Compensation Act, 1923 as per
notification issued by the Central
Government also disputed the relationship
of employer and employee between the
deceased and the respondent No.1/owner
of the vehicle?.
8. The Commissioner taking note of the factual
aspect of the matter, namely, the deceased had gone to
the land of respondent No.1 at Mominpet- Tekula Pally bye
pass road for the purpose of loading fire wood and had
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traveled in the trolley bearing Registration No.AP/23-T-
3788 which met with an accident resulting in grievous
injuries to the deceased Sonti Narasimlu, had come to the
conclusion that the deceased had indeed traveled in the
trolley as a laborer under the employment of respondent
No.1. Though several suggestions have been made to the
witnesses by the counsel on behalf of the appellant
/Insurance Company, nothing has been elicited to discredit
the evidence of the claimants with regard to her husband
having gone on duty under the instructions of respondent
No.1. No other evidence has been led on behalf of the
appellant/Insurance Company to impeach the relationship
of the respondent No.1 with deceased.
9. Further, perusal of Ex.R2-Insurance Policy
reveal that at column providing for 'Premium Schedule'
therein refers to "LLP to Paid Driver/Cleaner/Conductor
(IMT-39), number of person 6, Rs.150/-."
10. At this juncture it is necessary to note India
Motor Tariff (IMT) 39, which reads as under;
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"IMT 39. Legal liability to persons employed
in connection with the operation and/ or
maintaining and/or Loading and/or
Unloading of Motor Vehicles.
(For goods vehicle)
In consideration of the payment of an additional
premium of*........it is hereby understood and agreed
that notwithstanding anything contained herein to the
contrary the insurer shall indemnify the insured against
his legal liability under the Workmen's Compensation
Act, 1923 and subsequent amendments of that Act prior
to the date of this Endorsement, the Fatal Accidents Act,
1855 or at Common Law in respect of personal injury to
any paid driver (or cleaner or conductor or person
employed in loading/or unloading but in any case not
exceeding seven in number including driver and cleaner)
whilst engaged in the service of the insured in such
occupation in connection with the..... and not exceeding
seven in number and will in addition be responsible for
all costs and expenses incurred with its written consent.
Provided always that:
(1) this Endorsement does not indemnify the insured in
respect of any liability in cases where the insured holds
or subsequently effects with any insurer or Group of
Underwriters a Policy of Insurance in respect of liability
as herein defined for his general employees.
(2) the insured shall take reasonable precautions to
prevent accidents and shall comply with all statutory
obligations.
(3) the insured shall keep a record of the name of each
driver cleaner conductor or person employed in loading
and/or unloading and the amount of wages salary and
other earnings paid to such employees and shall at
times allow the insurer to inspect such record.
(4) in the event of the Policy being cancelled at the
request of the insured no refund of the premium paid in
respect of this Endorsement will be allowed.
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The premium to be calculated at the rate of Rs.25/-
per driver and/ or cleaner or conductor and/or person
employed in loading and/or unloading but not
exceeding the number permitted by the Motor
Vehicles Act 1988 including driver and cleaner.
Subject otherwise to the terms exceptions conditions
and limitations of this Policy except so far as
necessary to meet the requirements of the Motor
Vehicles Act, 1988".
11. Thus, IMT 39 provides for collection of premium
to cover the risk of the persons referred to therein, which
also includes loaders and unloaders. In that view of the
matter, it is clear that the Insurance Company has been
paid extra premium to cover their risk to the extent of six
persons.
12. In response, learned counsel for the
appellant/Insurance Company refers to IMT 30, which
reads as under;
IMT. 30. TRAILERS.
(Applicable to Private Cars Only)
In consideration of the payment of an additional
premium it is hereby understood and agreed that
the indemnity granted by this policy shall extend to
apply to the Trailer (Registration No.......)"
Provided always that-
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*(a) the IDV of such Trailer shall be deemed not to
exceed.....**
(b) the term "Trailer" shall not include its contents
or anything contained thereon.
(c) such indemnity shall not apply in respect of
death or bodily injury to any person being conveyed
by the said Trailer otherwise than by reason of or in
pursuance of a contract of employment,
Subject otherwise to the terms, conditions
limitations and exceptions of this Policy".
13. Learned counsel for the appellant /Insurance
Company referring to proviso (c) extracted hereinabove
submits that the risk would not be covered if the employee
is being conveyed by the trailer.
14. In the considered view of this Court said
interpretation is incorrect, as a plain language applied in
the provision makes it clear that Indemnity shall not apply
in respect of death or bodily injury to any person being
conveyed by the said trailer, "otherwise than by reason of
or in pursuance of a contract of employment". In other
words, if a person suffers death or bodily injury while
being conveyed pursuant to the contract of the
employment, the risk of the said person is covered. In the
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instant case, the deceased having gone as a loader in the
trailer insured with respondent No.1 in respect of which
additional premium is paid, his risk is definitely covered
under the policy. As such, substantial question of law No.1
raised is answered accordingly in favour of the claimants.
15. Adverting to the claim for enhancement of
compensation is concerned, the Commissioner has
assessed income of the deceased at Rs.6,000/- p.m.,
same ought to have been assessed at Rs.8,000/- p.m.
with reference to the minimum wages fixed by the Central
Government in exercise of its power under sub-Section
(1)(b) of Section 4 of the Employee's Compensation Act,
2023 and considering the age of the deceased 38 at the
time of accident, applicable factor is 189.56.
16. Calculated as above, the claimants would be
entitled for compensation of Rs.7,58,240/-
(Rs.4,000X189.56=Rs.7,58,240/-) towards of 'loss of
dependency'. Hence, the second Substantial question of
law is answered accordingly.
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17. Adverting to the third substantial question of
law is concerned, the proviso to sub-section (4) of Section
4 of the Employee's Compensation Act, 1923 itself
provides for payment of Rs.5,000/- towards 'funeral
expenses', same is reads as under;
"(4) If the injury of the [employee] results in his
death, the employer shall, in addition to the
compensation under sub-section (1), deposit with the
Commissioner a sum of [not less than five thousand
rupees] for payment of the same to the eldest
surviving dependant of the [employee] towards the
expenditure of the funeral of such [employee] or
where the [employee] did not have a dependant or
was not living with his dependant at the time of his
death to the person who actually incurred such
expenditure.]
[Provided that the Central Government may, be
notification in the Official Gazette, from time to time,
enhance the amount in this sub-section.]"
18. There is no cap for payment of additional
amount. The limit is that it shall not be lesser than
Rs.5,000/-. In the instant case, the Commissioner has
awarded Rs.15,000/- towards 'Funeral Ceremony'. It may
be necessary to note here that even in the claim petitions
under the MVC Acts as per judgment of the Apex Court in
the case of Magma General Insurance Company
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Limited vs. Nanu Ram Alias Chuhru Ram and others
reported in (2018) 18 SCC 130, Rs.15,000/- is being
awarded towards funeral expenses. That amount shall be
considered as reasonable amount and cannot be held
excessive. Hence, third substantial question of law is
answered accordingly.
19. However, there is no provision for payment of
any amount under the head 'transportation of dead body'.
The amount of Rs.10,000/- awarded thereunder is
accordingly deducted. Thus, claimants are entitled for total
compensation of Rs.7,73,240/- (Rs.7,58,240+
Rs.15,000). The Commissioner has awarded interest at the
rate of 6% which ought to have been enhanced to 12%,
payable after expiry of one month from the date of
accident.
20. With the above modification to the impugned
award passed by the Commissioner, appeals are allowed in
part. Compensation awarded as above shall carry interest
at the rate of 12% p.a. payable after expiry of one month
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from the date of accident. Amount in deposit if any be
transmitted to the Trial Court.
Sd/-
JUDGE
RU
