Karnataka High Court

Smt. Kasturevva W/O. Shivappa Harijan vs Mahadevappa D Battur on 1 April, 2024

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                                                                NC: 2024:KHC-D:5927
                                                           MFA No. 103716 of 2017




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 1ST DAY OF APRIL, 2024

                                              BEFORE
                          THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
                    MISCELLANEOUS FIRST APPEAL NO. 103716 OF 2017 (ECA)

                   BETWEEN:

                   SMT. KASTUREVVA W/O. SHIVAPPA HARIJAN,
                   AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
                   R/O. BARADWAD, TQ: KUNDAGOL,
                   DIST: DHARWAD-580025.
                                                                       ...APPELLANT
                   (BY SRI. G. R. TURAMARI, ADVOCATE)

                   AND:

                   1.   MAHADEVAPPA D. BATTUR,
                        AGE: MAJOR, OCC: BUSINESS,
                        R/O. NEAR KARIYAMMA TEMPLE,
                        MULGUND, TQ & DIST: GADAG-563215.

                   2.   THE DIVISIONAL MANAGER,
                        UNITED INDIA INSURANCE COMPANY LTD,
                        DIVISION OFFICE, L. E. S COMPLEX,
                        DHARWAD, DIST: DHARWAD-580003.
Digitally signed
by ROHAN                                                            ...RESPONDENTS
HADIMANI T         (BY SRI. N. R. KUPPELUR, ADV. FOR R2;
Location: HIGH        NOTICE TO R1 DISPENSED WITH)
COURT OF
KARNATAKA
                        THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.30(1) OF
                   THE EMPLOYEES COMPENSATION ACT, PRAYING TO ENHANCING THE
                   COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD
                   PASSED BY THE COURT OF PRL. SENIOR CIVIL JUDGE AND CJM,
                   GADAG AND COMMISSIONER FOR WORKMEN'S COMPENSATION
                   GADAG DATED 04-01-2017 IN ECA NO.149/2014 AND AWARD THE
                   COMPENSATION AS PRAYED FOR IN THE CLAIM PETITION, BY
                   ALLOWING THIS APPEAL, IN THE INTEREST OF JUSTICE AND
                   EQUITY.

                         THIS APPEAL COMING ON FOR HEARING ON INTERLOCUTORY
                   APPLICATION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                                          NC: 2024:KHC-D:5927
                                                  MFA No. 103716 of 2017




                                 JUDGMENT

Though this appeal is listed for orders, with the consent

of learned counsel for the parties, the appeal is taken up for

final disposal.

2. This appeal is filed by the claimant seeking

enhancement of compensation, being aggrieved by the

judgment and award dated 4.1.2017 passed in ECA

No.149/2014 on the file of learned Principal Senior Civil Judge

and CJM, Gadag and Commissioner for Workmen's

Compensation, Gadag (for short, 'Commissioner').

3. Heard the learned counsel Sri.G.R.Turamari for the

appellant/claimant and learned counsel Sri.N.R.Kuppelur for

respondent/Insurance Company.

4. Learned counsel Sri.G.R.Turamari for the

appellant/claimant submits that the Commissioner has

committed an error in not adding daily batta of Rs.25/-, which

the deceased used to earn, while calculating compensation. He

seeks to re-assess the same by adding daily batta of Rs.25/-

and award compensation by allowing the appeal.

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5. Per contra, learned counsel Sri.N.R.Kuppelur for the

respondent/Insurance Company with vehemence opposes the

appeal and submits that the accident is of the year 2009 and

Central Government has brought an amendment in the year

2010 to the Employees' Compensation Act, 1923, where the

minimum wages has been enhanced to Rs.8,000/- per month.

Hence, batta cannot be added to the wages and maximum

wages under the Act is Rs.4,000/- per month. Thus, he seeks

dismissal of the appeal.

6. I have heard the learned counsel for the parties and

perused the material available on record.

7. It is not in dispute that the deceased Shivappa

Harijan, who was aged about 35 years, was working as Hamal

under respondent No.1 and during the course of employment,

he sustained grievous injuries and succumbed to the same. His

wife filed claim petition seeking compensation. The

Commissioner considering the evidence available on record

awarded total compensation of Rs.3,24,600/- along with

interest at the rate of 12% per annum. The oral testimony of

PW1 indicates that the deceased was earning Rs.25/- per day

NC: 2024:KHC-D:5927

as batta. Insofar as the contention of the respondent/insurer

that the batta cannot be added in the income is required to be

accepted. However, batta can never be treated as income or

wage, it is an expenditure which is paid by the owner of the

vehicle to the driver and hamal during the course of

employment.

8. It would be useful to refer to the decision of the

Hon'ble Apex Court in the case of JAYA BISWAL AND OTHERS Vs.

BRANCH MANAGER, IFFCO-TOKIO GENERAL INSURANCE CO. LTD.,

AND AOTHER1. The relevant paragraph of the said judgment

reads as under:

"23. Since neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident, to arrive at the amount of wages, the learned Commissioner took into consideration the fact that deceased was a highly skilled workman and would often be required to undertake long journeys outside the State in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit. The wages of the deceased were accepted as Rs. 4,000 per month plus daily bhatta of Rs. 200, i.e., Rs. 6,000 per month, which amounts to a total of Rs. 10,000. The High Court did not give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does not even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on part of the High Court

2016 ACJ 721

NC: 2024:KHC-D:5927

was absolutely uncalled for, especially in light of the fact that appellant Nos. 1 and 2 are old and have lost their elder son and they have become destitutes. Further, under the Payment of Wages Act, 1936, the onus is on the employer to maintain the register and records of wages, section 13-A of which reads as under:

"13-A. Maintenance of registers and records. (1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed.

(2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be pre- served for a period of three years after the date of the last entry made therein."

From a perusal of the aforementioned provision of law, it becomes clear that the onus to maintain the wage roll was on the employer, i.e., respondent No.1. Since in the instant case, the employer has failed in his duty to maintain the proper records of wages of the deceased, the appellant cannot be made to suffer for it.

9. Keeping in mind the enunciation of law laid down in

the case of JAYA BISWAL AND OTHERS (supra) and also taking

note of nature of employment, which the deceased was doing

as Hamal, this Court do not find any justification to deny

addition of Bhatta to the assessed income of the

appellant/injured for the purpose of determination of

compensation. Hence, this Court is of the considered view that

it would be just and appropriate to add Rs.750/- per month as

batta. Taking note of the same, the wages of the deceased

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would be Rs.4,750/- per month. Thus, the appellant/claimant

would be entitled to modified compensation as under: