Karnataka High Court
Smt. Shahnaz Bi And Ors vs Rajmohammed And Anr on 2 July, 2024
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MFA No. 200438 of 2018
C/W MFA No. 200553 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 200438 OF 2018 (WC-D)
C/W
MISCL. FIRST APPEAL NO. 200553 OF 2018 (WC)
IN MFA.NO.200438/2018:
BETWEEN:
1. SMT. SHAHNAZ BI W/O LATE NASEER AHMED
AGE: 28 YEARS, OCC: HOUSEHOLD,
2. AFREEN BEGUM D/O LATE NASEER AHMED
AGE: 20 YEARS,
Digitally signed by 3. ZAINUDDIN S/O LATE NASEER AHMED
SHIVALEELA AGE: 17 YEARS, (MINOR)
DATTATRAYA UDAGI
Location: HIGH
COURT OF 4. MUSKIN D/O LATE NASEER AHMED
KARNATAKA AGE: 14 YEARS, (MINOR)
5. NEHA BEGUM D/O LATE NASEER AHMED
AGE: 10 YEARS, (MINOR)
6. HAJRA BEGUM D/O LATE NASEER AHMED
AGE: 08 YEARS, (MINOR)
7. MASTANBI W/O MOINUDDIN MOAZAN
AGE: 63 YEARS,
APPELLANTS NO.3 TO 6 ARE MINORS U/G,
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MFA No. 200438 of 2018
C/W MFA No. 200553 of 2018
OF THEIR MOTHER I.E. APPELLANT NO.1,
ALL ARE R/O. MASIMAD, TQ. BHALKI-585328.
...APPELLANTS
(BY SRI BASAVARAJ R. MATH, ADVOCATE)
AND:
1. RAJMOHAMMED S/O QUTUBUDDIN
AGE: MAJOR OCC: BUSINESS,
R/O H.NO.9-5-301, BADRUDDIN COLONY,
CHIDRI ROAD, BIDAR-585401.
2. THE AUTHORISED SIGNATORY
M/S SHRIRAM GENERAL INSURANCE COMPANY LTD,
E-8, RIICO, INDUSTRIAL AREA, SITAPUR JAIPUR,
RAJASTHAN-302022
...RESPONDENTS
(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2;
VIDE ORDER DATED 27.11.2019 NOTICE TO R1 IS,
DISPENSED WITH)
THIS MFA IS FILED U/S 30 (1) OF WC ACT, PRAYING TO,
CALL FOR RECORDS AND MODIFY THE IMPUGNED JUDGMENT
AND AWARD DATED 02.12.2017 PASSED BY THE
COMMISSIONER FOR EMPLOYEES COMPENSATION, BIDAR AND
PRINCIPAL SENIOR CIVIL JUDGE AND CJM, BIDAR IN ECA
NO.03/2015.
IN MFA.NO.200553/2018
BETWEEN:
SHRIRAM GENERAL INSURANCE CO. LTD
E/8,EPIP RIICO, INDUSTRIAL AREA, SITAPUR
JAIPUR, RAJASTHAN-302022,
THROUGH AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI SUBHASH MALLAPUR, ADVOCATE)
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MFA No. 200438 of 2018
C/W MFA No. 200553 of 2018
AND:
1. SMT. SHAHNAZ BI W/O LATE NASEER AHMED
AGE: 28 YEARS, OCC: H. HOLD,
2. AFREEN BEGUM D/O LATE NASEER AHMED
AGE: 20 YEARS,
3. ZAINUDDIN S/O LATE NASEER AHMED
AGE: 17 YEARS, MINOR
4. MUSKAN D/O LATE NASEER AHMED
AGE: 14 YEARS, MINOR
5. NEHA BEGUM D/O LATE NASEER AHMED
AGE: 10 YEARS, MINOR
6. HAJRA BEGUM D/O LATE NASEER AHMED
AGE: 08 YEARS, MINOR
7. MASTANBI W/O MOINUDDIN MOAZAN
AGE: 63 YEARS, OCC: H. HOLD,
(R2 TO R6 BEING MINORS U/G R-1),
ALL R/O. MASIMAD, TQ. BHALKI, BIDAR-584101.
8. RAJ MOHAMMED S/O QUTUBUDDIN
AGE: MAJOR, OCC: BUSINESS,
R/O H.NO. 9-5-301, BADRUDDIN COLONY,
CHIDRI RD. BIDAR-584101.
...RESPONDENTS
(BY SRI BASAVARAJ R. MATH, ADVOCATE FOR R1 AND R7;
R2 AND R8 ARE SERVED;
R3 TO R6 ARE MINORS REPRESENTED BY R1)
THIS MFA IS FILED U/S.30 OF EMPLOYEE
COMPENSATION ACT, PRAYING TO CALL FOR RECORDS IN ECA
NO.3/2015 ON THE FILE OF THE COMMISSIONER FOR
EMPLOYEES COMPENSATION AND PRINCIPAL SENIOR CIVIL
JUDGE AND CJM AT BIDAR, EXAMINE THE SAME AND ON
BEING SATISFIED BE PLEASED TO ALLOW THE APPEAL BY
SETTING ASIDE THE JUDGMENT AND ORDER DATED
02.12.2017 PASSED IN ECA NO.3/2015
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MFA No. 200438 of 2018
C/W MFA No. 200553 of 2018
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals arise out of common judgment and
award passed by the Commissioner for Employees
Compensation and Prl. Senior Civil Judge & CJM, Bidar
(hereinafter for short referred to as 'the Commissioner') in
ECA No.3/2015 dated 02.12.2017.
2. Though these appeals slated for orders, with
the consent of the learned counsels, they are taken up
together for final disposal.
3. The parties will be referred as per their ranks
before the Commissioner for sake of convenience.
4. The deceased-Naseer Ahmed was employed as
cleaner in lorry bearing Reg.No.AP-11/X-8528 belonging to
respondent No.1 and respondent No.1 was paying salary
of Rs.10,000/- per month and also paying Rs.100/- per
day as bhatta to him. On 14.02.2014 deceased went to
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Tandur in the said lorry to bring Shahbad stone to Bidar.
after loading of the stone, deceased were returning in the
said lorry towards Bidar. Around 11:00 p.m., the lorry
reached near Konchavaram cross the driver of the said
lorry instructed the deceased to joint the Shahbad stones
loaded in the lorry. Deceased had done the said work and
while alighting from the said lorry, the driver of the said
lorry negligently drove the vehicle, as a result of which,
the deceased fell down from the lorry and sustained
grievous injury.
5. It is further case of the claimants that deceased
was taken to different hospital and provided treatment,
but still it was not effective and improved. Therefore, he
was discharged from the hospital and brought home for
follow up treatment. While undergoing treatment on
15.03.2014, the deceased succumbed to the injuries
sustained in the accident.
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6. The claimants being the wife and children of
deceased have filed present claim petition to award
compensation under the provisions of Employee's
Compensation Act, 1923 (for short, 'the E.C.Act').
7. The respondent/insurer denied the contentions
of the claim petitioners and contended that the alleged
accident as narrated in the petition is fabricated only to
claim the compensation from respondent No.2. His death
was not at all on the reasons stated in the petition or
involvement of the said vehicle. And prayed to dismiss the
claim petition.
8. Respondent No.1/owner of the lorry admitted
that deceased was serving in the said lorry as a cleaner
and he was paying him salary of Rs.6,000/- per month.
Respondent No.1 denied other averments stated in the
petition and prayed for dismissal of same.
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9. From the rival contentions of the parties, the
Commissioner had framed the necessary issues for its
determination.
10. The claimants have examined PWs.1 and 2 and
got marked Ex.P.1 to 9. Respondent No.2 has examined
RW.1 and got marked Ex.R1.
11. The Commissioner after hearing both the
parties and appreciating the evidence available on record
had awarded the compensation of Rs.5,67,510/- with
interest at the rate of 12% per annum from 17.03.2024 till
its realization.
12. The said judgment is challenged by the insurer
in MFA No.200553/2018 and the claimants in MFA
No.200438/2018.
13. I have heard the arguments of learned counsel
for both the parties.
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14. The learned counsel for the insurer has
vehemently contended that the claimants have been
contending that the deceased was taken to Government
hospital at Chincholi, Government hospital at Gulbarga and
thereafter Government hospital at Bidar and then shifted
to Gandhi hospital at Hyderabad. In none of the hospital it
was reported that the deceased met with vehicle accident
and sustained injuries. No medical records are produced
before the Commissioner to substantiate its contentions.
The date of incident alleged to taken place on 14.02.2014,
however, FIR was registered after the death of said Naseer
Ahmed on 16.03.2014 by PW.2, who is said to be the
eyewitness to the incident. These facts clearly indicates
that deceased had sustained injures in some other incident
and only with an intention to claim the compensation, a
false story was created in collision with friends, relatives,
respondent No.1 and the concerned Police Officer.
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Therefore, the claimants are not entitled for the
compensation. The Commissioner did not consider these
facts. Hence, prayed to set aside the impugned judgment.
15. The learned counsel for the claimants has
submitted that in the midnight of 14.02.2014 after
attending the duties as directed by the driver while
alighting from the lorry, the driver of the said lorry
suddenly and negligently drove the vehicle because of
which deceased fell down from the said lorry and
sustained fatal injuries. PW.2 immediately shifted him to
Government hospital at Chincholi, wherein first aid
treatment was given. Thereafter as per medical advise, he
was shifted to one after another hospital. In the said
process PW.2 could not file any complaint to the police
station regarding the incident. All of them involved in
providing him good treatment to save him. The claimants
are wife, mother and minor children of the deceased, who
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are rustic villagers. They had no complaining to police.
After the death of deceased-Naseer Ahmed, to conduct the
post mortem, it was told to them that FIR should be
registered. In view of the same, PW.2, who saw the
incident had lodged the complaint before the police.
Thereafter the process of investigation was commenced.
16. The learned counsel for the claimants has
further contended that in Ex.P8 it is specifically mentioned
that deceased had sustained injuries and first aid was
given from the said hospital. The claimants were unable
to secure the medical records from the Government
hospital, Gulbarga and Bidar. During the trial of the case,
the insurer did not seriously dispute the fact of accident.
Therefore, the claimants did not try to secure the said
documents. The incident had taken place during the year
2014, when the claimants came in contact with concerned
hospital at Hyderabad, the hospital authorities refused to
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give records on the ground that the said treatment was
given about ten years back and they had no records.
However they gave zerox copy of the discharge summary.
These particulars are submitted to show that it was a
genuine case and due to lack of knowledge, complaint was
not filed. It was properly explained. Considering all these
facts, the Commissioner has rightly awarded relief.
17. The learned counsel for the claimants has
further submitted that the Commissioner had taken
income of the deceased as Rs.6,000/- accepting the
contentions of respondent No.1. On the contrary the
claimants have categorically stated in pleading and
evidence that deceased was earning Rs.10,000/- per
month and in the cross-examination nothing was brought
to disbelieve the same. As per notification issued under
the E.C.Act, a maximum income of an unskilled employee
could be taken as Rs.8,000/- per month. The same could
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be applied to the facts in the present case. Since the
accident of the year 2014, accordingly, prayed to enhance
the amount compensation.
18. This appeal was admitted to consider the
following substantial question of law.
1) Whether the claimants have falsely
implicated the said vehicle only with an
intention to claim compensation though
the deceased-Naseer Ahmed had
sustained injuries in some other
incident?
2) Whether the claimants are entitled for
enhancement of compensation?
19. The Commissioner in the impugned judgment
considered the contentions of respondent/insurer and did
not accept the same. It is not in dispute that FIR was
registered after the death of Naseer Ahmed, on
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16.03.2014. The post mortem report discloses that the
deceased "sustained spinal cardiac injury at cervical region
and fracture of C4 and C5 vertebra". It is also noted in
the post mortem report that partial section of the spinal
cord at C4 & C5 level hemorrhage around it. It also
reveals the fracture of right clavicle and neck of the right
humorous, bleeding from the pelvis because of forced
catheter removed. The cause of death is shown as cardiac
respiratory arrest as a result of respiratory failure and
cardiac arrest (because injury to spinal cord, cerebellum
and pontine region.
20. Even in Ex.P8 the Medical Officer of Taluka
General Hospital, Chincholi endorsed that on 15.02.2014
in the midnight at 12:10 hours the deceased-Naseer
Ahmed was brought to the hospital and first aid was given
to him and thereafter he was sent to higher medical
centre. The very same doctor had conducted post mortem
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after his death on 15.03.2014. These documents
corroborate the case of the claimants.
21. The respondent/insurer could not secure any
other records to show that deceased sustained injuries in
some other incident. What is source of information for
respondent No.2, to contend that deceased sustained
injury in some other incident? It appears on the
assumption and presumption of respondent No.2,
contending that it is a fabricated case.
22. RW.1 is legal officer of Insurance Company, did
not explain regarding source of information of contend
that the deceased sustained injury in some other incident.
It appears, the insurer has been contending that it is a
false case on the ground that FIR was belatedly registered
from the date of incident. In this case there are materials
to show that the deceased had taken to different hospitals
immediately after the incident. Reasons for delay is
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properly explained. The Medical Officer of the PHC, Bidar
and Gulbarga appears to be not intimated the fact of the
incident to the concerned police station or the police failed
to register the case even after receipt of information.
23. Deceased was poor coolie. Poor family members
were taking him one after another hospital to provide him
best treatment to save him. The mental agony and
trauma, in which they might be suffering, even one could
not think of legal formalities. It is evidence on record that
after his death, the Medical Officer informed that post
mortem would be done only if criminal case registered and
thereafter they lodged complaint. The facts and
circumstances reveal that it was a genuine case. Mere
delay in registering the case is not total in all the cases
and merely there is a delay does not have any
presumption that it is a false case.
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24. For the above said reason, the substantial
question No.1 is answered in the Negative.
25. The claimants have contended that the
deceased was an employer under respondent No.1 and
respondent No.1 had been paying Rs.10,000/- per month
and Rs.100/- per day as bhatta. As per the contentions of
respondent No.1 he was paying salary of Rs.6,000/- per
month. The claimants entered the witness box and
deposed the facts which are stated in the claim petition
and given an opportunity to other side to testify their
evidence. However, respondent No.1 did not enter the
witness box and gave an opportunity to the claimants to
cross-examine him and elicit truth regarding wages, he
was paying to the deceased. Therefore, the Commissioner
has erred in holding that the deceased was earning
Rs.6,000/- per month on the basis of contentions of
respondent No.1.
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26. Even though the claimants have been
contending that deceased was earning Rs.10,000/- per
month as wages, however, as per the structured formula,
the Commissioner/Court cannot take the income as
contended by the claimants. As per the notification issued
under the provisions of E.C.Act of the year 2010,
maximum income of victim of an incident could be taken
as Rs.8,000/- per month. Hence, same is considered. It is
not in dispute that applicable factor is 184.17 and 50%
income has to be deducted from the said calculation
claimants are entitled for compensation under the head of
loss of dependency Rs.7,36,680/-. In addition to that the
claimants are also entitled for compensation of
Rs.15,000/- towards conventional heads.
27. In all the claimants are entitled for total
compensation of Rs.7,51,680/- and claimants are entitled
enhancement of compensation of Rs.1,84,170/- with
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interest at the rate of 12% per annum from 17.03.2014 till
the date of realization. Accordingly, the substantial
question of law No.2 is answered in the partly in the
affirmative.
28. For the aforesaid discussions, I pass the
following:
ORDER
i. The appeal in MFA No.200553/2018 filed by
the Insurance Company is dismissed.
ii. The appeal in MFA No.200438/2018 filed by
the claimants is partly allowed.
iii. The impugned judgment and award passed by
the Commissioner for Employee's
Compensation and Prl. Senior civil Judge &
CJM, Bidar in ECA No.3/2015 dated
02.12.2017 is modified.
a) The claimants are entitled for
enhancement of compensation of
Rs.1,84,170/- along with interest at the
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rate of 12% per annum from 17.03.2014
till its realization.
iv. The respondent No.2 - insurance company
shall deposit the said amount with interest
within a period of six weeks from the date of
receipt of copy of this order.
v. The order pertaining to apportionment,
deposit and release, etc., passed by the
Commissioner is not disturbed.
vi. The amount in deposit, if any, in MFA
No.200553/2018 shall be transmitted to the
Court of Commissioner.
vii. The registry is directed to send back the Trial
Court Records along with copy of this
judgment to the Court of the Commissioner.
Sd/-
JUDGE
SDU
LIST NO.: 1 SL NO.:
CT:PK
