Karnataka High Court
The Chairman And Managing Director vs Smt. Kalyani on 8 April, 2024
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MFA No. 164 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO.164 OF 2017(WC-SJ)
BETWEEN:
THE CHAIRMAN AND MANAGING DIRECTOR
M/S PVS BEEDIES PVT LTD.,
PVS SADAN, KODIALBAIL
MANGALORE-575 003
D.K.DISTRICT.
...APPELLANT
(BY SRI HARSHA G., ADVOCATE FOR
SRI SACHIN B.S., ADVOCATE)
AND:
SMT. KALYANI
W/O. VENKAPPA MOOLYA
AGED ABOUT 55 YEARS
MITHAPARARI, MODANKAPU POST
BANTWAL TALUK-574 219
D.K.DISTRICT.
...RESPONDENT
Digitally signed by
MOUNESHWARAPPA
NAGARATHNA (BY SRI ABHISHEK SHETTY., ADVOCATE FOR
Location: HIGH
COURT OF
SRI DHANANJAY KUMAR., ADVOCATE)
KARNATAKA
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD
DATED 24.08.2016 PASSED IN ECA.NO.10/2014 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE AND J.M.F.C., BANTWAL,
D.K, AWARDING COMPENSATION OF RS. 3,73,351.80/- WITH
INTEREST AT 12% P.A. FROM THE DATE OF DEATH TILL
REALIZATION.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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MFA No. 164 of 2017
JUDGMENT
This appeal is filed by the appellant-The Chairman and
Managing Director, M/s. PVS Beedies Pvt. Ltd., Mangaluru,
aggrieved by the judgment and award dated 24.08.2016
passed in ECA.No.10/2014 by MACT-IX and Prl. Senior Civil
Judge & JMFC, Bantwal, Dakshina Kannada.
2. The claim petition was filed before the tribunal under
Rules 8 to 21 of Karnataka Workmen's Compensation Rules,
1966 and Section 22 of Employees Compensation Act,1923 by
the wife of deceased Venkappa Moolya seeking compensation
on account of death of her husband, Venkappa Moolya. The
present appeal is filed under section 30(1) of Workmen
Compensation Act, 1923.
3. Respondent Smt. Kalyani, wife of deceased Venkappa
Moolya filed a petition before MACT, Bantwal, Dakshina
Kannada contending that she is the wife of deceased Venkappa
Moolya and deceased Venkappa Moolya was entrusted with the
work of mixing tobacco for the preparation of beedi and other
allied work. Prior to his death, deceased was hale and healthy.
On 14.11.2010, deceased suffered heart disease and was
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treated in Omega Hospital (P) Ltd., as inpatient till 19.11.2011.
After surgery, he was discharged and was working in the
factory. On 28.02.2011, he tendered resignation and
thereafter, he was again admitted to Kshema Hospital,
Deralakatte on 18.03.2011 as inpatient and he succumbed to
the injuries on 09.04.2011. Hence, the claimant, being the
dependent of deceased Venkappa Moolya filed a petition before
the tribunal. The tribunal considering the material available on
record granted compensation of Rs.3,73,353,80/- to the
claimant with 12 @ p.a. from the date of death till realization.
4. Being aggrieved by the award passed by the tribunal,
the Chairman & Managing Director, M/s. PVS Beedies (P) Ltd.,
filed this appeal contending that the award passed by the
tribunal is contrary to law. The tribunal has considered
irrelevant material and inspite of there being dispute as to
employee and employer relationship, when the claim petition
itself was not maintainable, the tribunal has erred in
entertaining the petition filed by the respondent. Under such
circumstances, the impugned judgment and award passed by
the tribunal is without jurisdiction. The respondent has not
placed any evidence to substantiate that deceased Venkappa
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Moolya was suffering from occupational disease and there is no
connection between his death and employment. The
respondent has not examined the doctor to prove the fact that
Venkappa Moolya was suffering from occupational disease. The
tribunal came to conclusion that the death of Venkappa Moolya
was not an accident that had taken place during the course of
his employment and his death was due to occupational disease.
It is contended that deceased was suffering from lungs
problem. Hence, the claimant is not eligible for any
compensation. However, the tribunal has awarded
compensation which requires interference of this Court.
5. Learned counsel for the respondent/claimant
contended that deceased Venkappa Moolya was entrusted with
mixing of tobacco and other allied work. The deceased died on
09.04.2011 due to inhalation of tobacco dust during his service
to the appellant Factory. Therefore, the tribunal based on oral
and documentary evidence on record has rightly granted
compensation to the claimant. Hence, prayed to dismiss the
appeal.
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6. Heard learned counsel appearing for the claimant and
learned counsel for the respondent and perused the judgment
and award of the tribunal.
7. As there is no dispute regarding the death of deceased
Venkappa Moolya, the only dispute by the appellant-company is
that death of deceased was not due to inhalation of tobacco
dust. Hence, the only point that arises for Court's consideration
in this appeal is:-
1. Whether the claimant proves that there was
employee-employer relationship as on the date
of death of deceased Venkappa Moolya?
2. Whether the appellant proves that the judgment
and award passed by the tribunal requires
interference?
8. After hearing learned counsel appearing for the parties
and perusing the judgment and award by the tribunal, the first
point that arises for consideration is deceased Venkappa Moolya
was working in the factory of the appellant of mixing of tobacco
for the purpose of rolling beedies and this fact has been
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admitted by the appellant in Ex-P9 reply notice given by it. The
contents of para Nos.1 and 4(a) of Ex.P9 is as under:
"1. The averments regarding period of service of
your client in the Company of my client, and
the nature of work performed by him are not
disputed.
4(a). In the company of my client, Mr. Venkappa
Moolya along with other workers were doing
the work of mixing tobacco. He and other
workers were provided with safety guards
while doing their work."
In view of the admission made by appellant/factory in
Ex.P9, it is just and necessary to analyse the term 'employee'.
The term 'employee' has been defined under Section 2(1) (dd)
of Employees' Compensation Act, which reads as under:
2. xxxxxx
2. (dd)"Employee" means a person, who is--
(i)a railway servant as defined in clause (34) of
section 2 of the Railways Act, 1989 (24 of 1989),
not permanently employed in any administrative
district or sub-divisional office of a railway and
not employed in any such capacity as is specified
in Schedule II; or
(ii)(a) a master, seaman or other members of the
crew of a ship,
(b) a captain or other member of the crew of an
aircraft,
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(c) a person recruited as driver, helper, mechanic,
cleaner or in any other capacity in connection
with a motor vehicle,
(d)a person recruited for work abroad by a
company, and who is employed outside India in
any such capacity as is specified in Schedule II
and the ship, aircraft or motor vehicle, or
company, as the case may be, is registered in
India; or
(iii)employed in any such capacity as is specified in
Schedule II, whether the contract of employment
was made before or after the passing of this Act
and whether such contract is expressed or implied,
oral or in writing; but does not include any person
working in the capacity of a member of the Armed
Forces of the Union; and any reference to any
employee who has been injured shall, where the
employee is dead, include a reference to his
dependants or any of them;
Therefore, in view of the admissions made in Ex-P9 and
Section 2(1)(dd) of the Act, it clearly establishes that deceased
Venkappa Moolya was working in the factory of the appellant
for the purpose of mixing of tobacco.
9. From the perusal of the material available on record, it
establishes that before the death of deceased Venkappa
Moolya, he was working in the factory of the appellant for more
than 21 years and the deceased was entrusted with work of
mixing tobacco for the preparation of Beedi and other allied
work and thus, he developed heart disease five months prior to
his death. As per Ex.P3- discharge summary, the deceased
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underwent heart surgery at Omega Hospital (P) Ltd, Mangaluru
and as per Exs.P4 and P5, discharge summaries, the deceased
took treatments at Justice K.S. Hegde Charitable Hospital,
Medical Sciences Complex, Deralakatte. Deceased was
discharged from Omega hospital on 19.11.2010 and he was
admitted to Justice K.S. Hedge Charitable Hospital, Mangaluru
on 18.03.2011 and discharged on 09.04.2011 and he retired
from service w.e.f. 28.02.2011. He died on 09.04.2011.
10. Learned counsel for the respondent-claimant
contended that before superannuation of deceased Venkappa
Moolya, he had already suffered heart disease and underwent
surgery due to tobacco mixing in the appellant's factory,
therefore, the employer is liable to pay the compensation if any
injury has occurred on account of employment under Section 3
of the Employees' Compensation Act and said injury is due to
inhalation of organic dust as per Sl.No.4 of PART C Schedule
III, for which, the employer is liable to pay the compensation.
Further, inhalation of tobacco dust for more than 21 years
leads to occupational disease and death of deceased Venkappa
Moolya has nexus with his earlier employment. From the
perusal of oral evidence at PW.1 and PW.2 and oral evidence of
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RW-1, it clearly establishes that deceased Venkappa Moolya
was employee of appellant's factory. He worked for almost 21
years in the factory. As per the discharge summaries, during
the course of employment, the deceased underwent heart
surgery, which shows that there was nexus with his ill-health
and his work i.e., inhalation of tobacco dust.
11. In view of proviso to Section 3(1) (b) of the Act, if
the disease had direct nexus with other disease after
retirement, it has direct nexus with his employment and the
disease comes within PART C of Schedule III of the Act and the
alleged work of mixing tobacco would lead to inhalation of
organic dust and even after cessation of the said work, there
will be latent effect on the health of the employee. Further, the
deceased has worked for 21 years and he has consumed
organic dust in the factory, under such circumstances certainly,
the deceased becomes passive smoker and would affect his
health. Further, as per Ex-P5, deceased was suffering from
following disease i.e., 1. Septicaemia -b/c bronchopneumonia,
2. Metabolic encephalopathy-hyponatremia and 3. Acute IWM1-
Old IWMI thrombosis and post PTCA and as per Ex-P6-death
report, deceased Venkappa Moolya died due to bilateral
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broncho-Pneumonia-Cepsis respiratory failure, Ischaemic Heart
disease-Acute Inferior wall Myocardial Infarction and Metabolic
encephalopathy and Chronic Obstructive pulmonary disease
and other disease, which occurred after retirement and
ultimately deceased died due to heart attack, which has got
direct nexus with inhalation of dust in the appellant factory.
12. In this case, the Tribunal considering Ex.P1- letter of
appellant and Ex.P2- the application of Smt. Kalyani, the
respondent, has held that, the appellant settled the pension of
respondent on 17.6.2011. As per Exs.P1 and P2, the age of
deceased was 58 years as on the date of his death and his
salary was at Rs.5,989/-. Therefore, the salary of deceased at
Rs.5,989/- can be taken into consideration as on 28.02.2011.
As per Schedule IV, the relevant factor which is applicable is
124.70 and 50% of the salary comes to Rs.2,994.5, which was
monthly wages of deceased workman multiplied by the relevant
factor or an amount of Rs.1,20,000/- whichever is more. This
implies that, his family received Rs.3,73,414.15(124.7 X
2,994.5).
13. Learned counsel for the appellant further contended
that all employees were provided with safety guards while
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doing their work and they were provided with masks for
protection of the face from organic dust. But, from the perusal
of the material available on record, it appears that, no material
is produced by the appellant before the trial court as well
before this Court to prove the said fact.
14. As far as entitlement of compensation is concerned
based on Ex-P1 and P2 and the service tenure of deceased
Venkappa Moolya, relevant factor as shown in Schedule IV of
the Act and multiplier, the tribunal granted compensation of
Rs.3,73,353/- with interest at 12% p.a. from the date of death
till its realization, for which, no interference is called for. As
the appellant has not made out any grounds to set-aside the
judgment and award passed by the tribunal, I proceed to pass
the following:
ORDER
The appeal is dismissed.
No order as to costs.
Sd/-
JUDGE
