Karnataka High Court
The Manager Reliance Gen. Ins. Co. Ltd vs Renuka And Anr on 14 February, 2024
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NC: 2024:KHC-K:1536
MFA No. 200830 of 2020
C/W MFA No. 200332 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE LALITHA KANNEGANTI
MISCL. FIRST APPEAL NO. 200830 OF 2020 (ECA)
C/W
MISCL. FIRST APPEAL NO. 200332 OF 2022(ECA)
IN MFA NO.200830/2020:-
BETWEEN:
THE MANAGER
RELIANCE GEN. INS. CO. LTD
SERVICING BRANCH, 3RD FLOOR,
ASIAN PLAZA, THIMMAPURI CIRCLE,
MAIN ROAD,
AT KALABURAGI
(NOW REPRESENTED BY AUTHORIZED SIGNATORY,
Digitally signed DESHPANDE NAGAR HUBLI)
by KHAJAAMEEN
L MALAGHAN ...APPELLANT
Location: High (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
Court of
Karnataka
AND:
1. RENUKA W/O KISHANRAO
SURYAWANSHI, AGE: ABOUT 27 YEARS,
OCC: HOUSEWIFE,
2. BHAKTI D/O KISHANRAO SURYAWANSHI
AGE: ABOUT 9 YEARS,
M/U/G OF HIS MOTHER RESP.NO.1
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MFA No. 200830 of 2020
C/W MFA No. 200332 of 2022
3. GUNVANTHRAO
S/O VITHALRAO SURYAWANSHI
AGE: 72 YEARS, OCC: NIL,
ALL R/O. TAJ COLONY, AT BASAVAKALYAN,
TQ: BASAVAKALYAN, DIST: BIDAR-585401.
4. MAHUMMAD ASHFAQ
S/O MEERANSAB QURESHI
AGE: MAJOR, OCC: BUSINESS & OWNER OF
MH-25/U-0167, H.NO. 4-106/1, NARIGAR GALLI,
AT BASAVAKALYAN, TQ: BASAVAKALYAN,
DIST: BIDAR-585401.
...RESPONDENTS
(BY SRI SACHIN M. MAHAJAN ADV. FOR R1 TO R3
(R2 IS MONOR U/G OF-R1); R4-SERVED)
THIS MFA IS FILED UNDER SECTION 30(1) OF EC ACT,
PRAYING TO CALL FOR THE RECORDS AND ALLOW THE ABOVE
APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT AND
AWARD DATED 10.02.2020 IN ECA NO.11/2018 PASSED BY
THE SENIOR CIVIL JUDGE AND JMFC AND COMMISSIONER FOR
EMPLOYEES COMPENSATION AT BASAVAKALYAN AND TO
REMAND THE MATTER FOR PROPER ADJUDICATION BY GIVING
SUFFICIENT OPPORTUNITY TO THE APPELLANT TO CONTEST
THEIR CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
IN MFA NO.200332/2022:-
BETWEEN:
1. RENUKA W/O KISHANRAO SURYAWANSHI,
AGE: ABOUT 28 YEARS, OCC: HOUSEWIFE,
2. BHAKTI D/O KISHANRAO SURYAWANSHI
AGE: ABOUT 10 YEARS,
MINOR U/G OF HER MOTHER
SMT. RENUKA SURYAWANSHI
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MFA No. 200830 of 2020
C/W MFA No. 200332 of 2022
3. GUNVANTHRAO
S/O VITHALRAO SURYAWANSHI
AGE: 73 YEARS, OCC: NIL,
ALL R/O. TAJ COLONY,
AT BASAVAKALYAN,
TQ: BASAVAKALYAN,
DIST: BIDAR-585327.
...APPELLANTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
AND:
1. MR. MAHUMMAD ASHFAQ
S/O MEERANSAB QURESHI
AGE: MAJOR, OCC: BUSINESS & OWNER OF
MH-25/U-0167, H.NO. 4-106/1, NARIGAR GALLI,
BASAVAKALYAN, DIST: BIDAR-585401.
2. THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
SERVICE BRANCH, 3RD FLOOR,
ASIAN PLAZA, THIMMAPURI CIRCLE,
MAIN ROAD, KALABURAGI-585301.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R2; R1-SERVED)
THIS MFA IS FILED UNDER SECTION 30(1) OF EC ACT,
PRAYING TO CALL FOR THE RECORDS AND MODIFY THE
JUDGMENT AND AWARD DATED 10.02.2020 PASSED BY THE
LEARNED SENIOR CIVIL JUDGE AND COMMISSIONER FOR
EMPLOYEES COMPENSATION AT BASAVAKALYAN, IN ECA
NO.11/2018 AND ALLOW THE CLAIM PETITION BY
GRACIOUSLY AWARDING THE COMPENSATION AS PRAYED FOR
BY ALLOWING THE APPEAL.
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MFA No. 200830 of 2020
C/W MFA No. 200332 of 2022
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the order passed in ECA No.11/2018
dated 10.02.2019 on the file of the Court of the Senior
Civil Judge and Commissioner for Workmen's
Compensation, Basavakalyan, at Basavakalyan, both, the
Insurance Company as well as the claimants are before
this Court. The Insurance Company has filed MFA
No.200830/2020 and the claimants have filed MFA
No.200332/2022.
2. The case of the claimants is that the deceased
was working as a Cleaner in the lorry bearing No.MH-
25/U-0167 belonging to respondent No.1. The lorry was
insured with respondent No.2 - Insurance Company. He
was paid Rs.10,000/- per month as salary, Rs.200/- per
day as Batta and Rs.2,000/- as additional trip salary by
respondent No.1. While he was on duty he died, hence,
they are entitled for the compensation. Written statement
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is filed on behalf of the owner of the lorry, he accepted
employer-employee relationship and stated that the
deceased has been given salary of Rs.6,000/- per month.
However, he remained ex-parte before the Court below.
The Court below has taken the salary at Rs.10,000/- per
month and by applying the relevant factor of 207.98 has
granted compensation of an amount of Rs.10,59,900/- and
an amount of Rs.30,000/- towards funeral and
transportation expenses as per Section IV(4) of the EC
Act.
3. Learned counsel appearing for the Insurance
company submits that there is no evidence on record to
show that there is employer-employee relationship
between 1st respondent and the deceased. Without there
being any evidence the Court below had held that the
deceased was an employee in the lorry owned by the 1st
respondent and he died during the course of employment.
Secondly it is submitted that according to the claimants he
is earning an amount of Rs.10,000/- per month along with
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Rs.200/- per day as batta and Rs.2,000/- as additional trip
salary and the first respondent's case is that he is giving
Rs.6,000/- per month without any basis and without any
evidence. Learned counsel submits that when an
application is filed by them seeking compensation the
burden lies on them to prove what is the salary of the
deceased. Except oral evidence of PW1, there is no other
material placed on record and the Court below ought not
to have taken the income at Rs.10,000/- per month.
4. Learned counsel appearing for the claimants
submits that even as per the employer-owner of the lorry,
the deceased was paid Rs.6,000/- per month and Rs.200/-
per day as batta and even if it is considered it will come to
Rs.12,000/-, but the Court below had taken only
Rs.10,000/- per month as salary. It is submitted that the
Court below ought to have taken Rs.12,000/- and granted
compensation. Relying on the judgment of Hon'ble Apex
Court in the case of FULMATI DHRAMDEV YADAV V.
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NEW INDIA ASSURANCE CO. LTD.,1 he submits that
considering the income at particular amount that itself is
question of fact and an appeal will arise only on the
question of law and the issue raised cannot be considered
as question of law. He submits, on that aspect the appeal
is not maintainable before this Court. It is submitted that
the compensation that was awarded by the Court below is
not reasonable compensation and the same has to be
enhanced.
5. Having heard the learned counsels on either
side, perused the material on record.
6. The Insurance Company has questioned the
relationship of employer and employee. It is stated that
without there being any evidence to show that the
deceased is employee with the 1st respondent the Court
below had granted the compensation. It is the case of the
claimants that the deceased was working with the 1st
respondent. The 1st respondent has also filed his written
AIR 2023 SUPREME COURT 4438
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statement. There is no dispute about the fact while the
deceased was traveling in the lorry, he died. In that
regard, there is evidence to show that, i.e., Exs.P1 and P2,
which clearly show that he died while he was traveling in
the lorry because of the accident. In that view of the
matter, this Court finds that there is no force in the
arguments of the learned counsel for the Insurance
Company that there is no employee-employer relationship
between the deceased and the 1st respondent.
7. Then coming to the issue of compensation,
according to the learned counsel for the claimants the
Court below ought to have taken Rs.12,000/- as monthly
income of the deceased. Except self serving statement of
PW1 there is no evidence on record in this regard. The
Central Government has issued a notification prescribing
minimum wages under the E.C. Act for the year 2010 as
Rs.8,000/- per month when there is no evidence. It has
to be considered as per the notification. Hence, in this
case as there is no proof of income, this Court is taking
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income at an amount of Rs.8,000/- per month. The 50%
of the same would be Rs.4,000/-. The factor applied the
Court below is '207.98', the compensation comes to
Rs.8,31,920/-.
8. Learned counsel for the Insurance Company
submits that as per the Act, the other expenses are only
Rs.5,000/-, but the Court below has granted Rs.20,000/-.
The Court below has granted Rs.20,000/- towards funeral
and transportation of dead body, which the claimants are
not entitled. As per the Act and as rightly contended by
the learned counsel for the Insurance Company they are
entitled only for an amount of Rs.5,000/-. Altogether the
claimants are entitled for an amount of Rs.8,36,920/-.
9. Accordingly, the Appeal of the Insurance
Company in MFA No.200830/2020 is allowed-in-part,
reducing the compensation from Rs.10,59,900/- to
Rs.8,36,920/- along with 12% interest from the date of
accident till the date of realization. The Appeal of the
claimants in MFA No.200332/2022 is dismissed.
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i) Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court forthwith
without any delay.
ii) No costs.
Sd/-
JUDGE
SBS
