Karnataka High Court
Asaraph Bee W/O Mohd Khaja vs Samad S/O Hameed Miya on 28 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
-1-
NC: 2023:KHC-K:8862
MFA No. 200371 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO.200371 OF 2017 (WC)
BETWEEN:
1. ASARAPH BEE
W/O MOHD. KHAJA,
AGE: 67 YEARS, OCC: NIL,
2. NOOR JAN BEE W/O NABISAB,
AGE: 42 YEARS, OCC: HOUSEHOLD,
ALL R/O BASAVKALYAN,
NOW AT KALABURAGI-585 104.
...APPELLANTS
Digitally signed (BY SRI. S. G. PATIL OKALY AND
by LUCYGRACE SRI. SANTOSH R. BELAMGI, ADVOCATES)
Location: HIGH
COURT OF AND:
KARNATAKA
1. SAMAD S/O HAMEED MIYA,
AGE: MAJOR, OCC: LORRY TRANSPORT,
R/O RAJESHWAR, TQ. BASAVKALYAN,
DIST. BIDAR-584 104.
2. THE MANAGER,
SRI RAM GENERAL INSURANCE CO. LTD.,
E-8, EPIP, RICO INDUSTRIAL AREA,
SITAPUR, JAIPUR, RAJASTHAN-303 022.
...RESPONDENTS
-2-
NC: 2023:KHC-K:8862
MFA No. 200371 of 2017
(SRI. SANJEEV PATIL, ADVOCATE FOR R1;
SRI. SUBHASH MALLAPUR, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 30(1) OF
EMPLOYEES COMPENSATION ACT, PRAYING TO ALLOW THE
APPEAL AND MODIFY THE JUDGMENT AND AWARD DATED
06.12.2016 PASSED IN ECA NO.13/2014 BY THE I ADDITIONAL
SENIOR CIVIL JUDGE AND MACT AT KALABURAGI, BY
ENHANCING THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Claimants being the mother and wife respectively of
one deceased Nabisab are before this Court, aggrieved by
the judgment and award dated 06.12.2016 on the file of
I Additional Senior Civil Judge and MACT, Kalabuargi (for
short 'Trial Court'), by which, the Trial Court while partly
allowing the claim petition granted compensation of
Rs.5,08,000/- along with interest at 12% p.a. and has
directed respondent No.1-owner of the vehicle to pay the
compensation.
2. Learned counsel appearing for the appellants,
reiterating the grounds urged in the memorandum of
appeal submits that the accident that occurred on
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17.02.2014 involving lorry bearing Reg. No.HR.38/L.5324
resulting in death of deceased Nabisab is not disputed. He
submits that the said deceased was working as a driver in
a lorry belonging to respondent No.1 and was earning
Rs.6,000/- per month with Rs.50/- per day as bhatta.
That, the Trial Court ought to have taken into
consideration the minimum wages fixed by the Central
Government in terms of Section 4 (1B) of the Employees
Compensation Act (for short 'E.C. Act') and ought to have
award the higher compensation.
3. As regards the liability, it is his case that the
Trial Court has grossly erred in misreading the contents of
the complaint, in which though it is specifically stated that
the deceased was driving the lorry on the said date, the
Trial Court has construed the same as he was passenger in
the lorry and has come to an erroneous conclusion of
violation of terms of the policy, thereby exonerating the
respondent - Insurance Company.
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4. In response, Sri Subhash Mallapur, learned
counsel appearing for respondent No.2 - Insurance
Company justifying the judgment passed by the Trial
Court, submits that the compensation awarded by the Trial
Court is based on the claim made by the claimants
themselves with regard to the income of the deceased and
the same cannot found fault with. As regards the liability,
he submits that though the deceased was driver of the
lorry, since lorry was carrying the passenger, there was
violation of terms of the policy. It is to that extent, the
liability fixed on respondent No.1 - owner cannot be found
fault with.
5. Sri Sanjeev Patil, learned counsel appearing for
respondent No.1-owner submits that the policy is a
package policy and it would cover the risk of driver of the
vehicle. He further submits that since the relationship of
the deceased as an employee of respondent No.1 has
already been established, the Trial Court ought not to have
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gone into the question of violation of terms of the policy
merely because the lorry was carrying the passenger.
6. Heard the learned counsel for the parties and
perused the records.
7. The substantial questions of law that would
arise for consideration in this appeal are:
1) Whether the Trial Court is justified in awarding
compensation ignoring the notification dated
31.05.2010 issued by the Central Government
in terms of Section 4 (1B) of the W.C. Act fixing
the minimum wages at Rs.8,000/- per month?
2) Whether the Trial Court is justified in
exonerating the Insurance Company from
liability of paying the compensation, despite the
admitted fact of deceased being driver working
in lorry belonging to respondent No.1, who was
issued with the policy covering the risk of the
driver?
8. The accident in question resulting in the death
of deceased Nabisab is not in dispute. Deceased Nabisab
was working as driver under respondent No.1 in a lorry is
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also not in dispute. Thus, the elementary requirement of
maintaining the petition under the provisions of E.C. Act is
complied with. As regards the payment of compensation
is concerned, it is settled law that the provisions of E.C.
Act being a social legislation, the endeavor shall be to
ensure that the just compensation is paid, even if the
claim made by the claimants is lesser. In view of the
notification having been issued by the Central Government
on 31.05.2010 fixing the minimum wages at Rs.8,000/-
and the accident in the instant case having occurred on
17.02.2014, claim of the claimants stands covered under
the said notification. As such, the income of the deceased
has to be taken at a minimum of Rs.8,000/- per month.
Applying the relevant factor of 169.44, the appellants
being mother and wife of the deceased are entitled for a
sum of Rs.6,77,760/- (Rs.8,000 x 50% x 169.44).
9. In addition, they are entitled for a sum of
Rs.15,000/- towards funeral expenses.
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10. Thus, the appellants are entitled for a total
compensation of Rs.6,92,760/- instead of Rs.5,08,000/-
awarded by the Trial Court. The said compensation shall
carry interest at the rate of 12% per annum from the date
of accident till realization.
11. As regards the liability is concerned, as rightly
pointed out by the learned counsel for the appellants as
well as respondent No.1, the policy is package policy
covering the risk of the driver. Once the relationship of
employer and employee is established, there was no
necessity for the Trial Court to gone into violation of terms
of the policy, more particularly, when the claim is made
under the provisions of E.C. Act. Hence, respondent No.2 -
Insurance Company is held liable to pay the
compensation. The substantial questions of law raised are
answered accordingly.
12. For the foregoing reasons, the following:
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ORDER
a) The appeal is allowed.
b) The appellants/claimants are held entitled for a
total compensation of Rs.6,92,760/- instead of
Rs.5,08,000/- awarded by the Trial Court with
interest at 12% per annum from the date of
accident till realization.
c) Respondent No.2 - Insurance Company shall
deposit the aforesaid compensation amount
within a period of six weeks from the date of
receipt of certified copy of this judgment.
d) The award of the Trial Court is modified
accordingly.
Sd/-
JUDGE
LG
