Karnataka High Court
The Divisional Manager vs Pampanna S/O Sonappa Lamani on 5 March, 2024
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MFA No. 104046 of 2017
C/W MFA No. 104380 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 104046 OF 2017 (ECA)
C/W
MISCELLANEOUS FIRST APPEAL NO. 104380 OF 2017
IN MFA NO.104046/2017
BETWEEN:
THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO. LTD,
ENKAY COMPLEX, KESHVAPUR, HUBLI,
BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. S. S. KOLIWAD, ADVOCATE)
AND:
1. PAMPANNA S/O. SONAPPA LAMANI,
DECEASED LRS,
1A SMT. AMBAVVA W/O. PAMPANNA LAMANI,
AGE: 33 YEARS, OCC: HOUSE WIFE,
Digitally signed
(DECEASED WIFE)
by JAGADISH T
R
R/O. RATNAPUR, TQ: HANGAL,
Location: HIGH HAVERI-581104.
COURT OF
KARNATAKA
1B. UMESH S/O. PAMPANNA LAMANI,
AGE: 17 YEARS, (DECEASED SON)
OCC: COOLIE, M/G PETITIONER (1A)
SMT. AMBAVVA W/O. PAMPANNA LAMANI,
R/O: RATNAPUR, TQ: HANGAL, HAVERI-581104.
1C. BEBI @ MINAKSHI D/O. PAMPANNA LAMANI,
AGE: 16 YEARS, OCC: STUDENT,
M/G PETITIONER (1A) SMT. AMBAVVA
W/O. PAMPANNA LAMANI,
R/O. RATNAPUR, TQ: HANGAL, HAVERI-581104.
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MFA No. 104046 of 2017
C/W MFA No. 104380 of 2017
1D. SHRIKANT AMBAVVA S/O. PAMPANNA LAMANI,
AGE: 15 YEARS, OCC: STUDENT,
(DECEASED SON)
R/O. RATNAPUR, TQ: HANGAL,
HAVERI-581104.
REP. M/G. RESP.NO. 1(A) MOTHER.
1E. SMT. LAXMAVVA W/O. SONAPPA LAMANI,
AGE: 53 YEARS, OCC: HOUSE HOLD WORK,
(DECEASED MOTHER),
R/O. RATNAPUR, TQ: HANGAL,
HAVERI-581104.
2. SRI. M. DAYANAND SHETTY
S/O. HIRIYANNA SHETTY,
AGE: MAJOR, OCCUPATION: BUSINESS,
R/O. ANKADAKATTE, TQ: KUNDAPUR,
DIST: UDUPI-576201.
...RESPONDENTS
(BY SRI. HARISH. S. MAIGUR, ADV. FOR R1(A TO E),
NOTICE TO RESPONDENT NO.2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.30(1) OF
THE EMPLOYEES COMPENSATION ACT, 1923, PRAYING TO CALL FOR
THE RECORDS IN E.C.A NO.8/2014 ON THE FILE OF THE
COMMISSIONER FOR EMPLOYEES COMPENSATION AND SENIOR
CIVIL JUDGE AND J.M.F.C, AT: HANGAL AND SET ASIDE THE
JUDGMENT AND ORDER DATED 01/08/2017 PASSED IN E.C.A NO.
8/2014 ON THE FILE OF THE COMMISSIONER FOR EMPLOYEES
COMPENSATION AND SENIOR CIVIL JUDGE AND J.M.F.C, AT:
HANGAL AND ETC.
IN MFA NO.104380/2017
BETWEEN:
1. PAMPANNA S/O. SONAPPA LAMANI,
SINCE DECEASED, BY HIS LRS.
1A. SMT. AMBAVVA W/O. PAMPANNA LAMANI,
AGE: 33 YEARS, OCC: HOUSEWIFE.
1B. UMESH S/O. PAMPANNA LAMANI,
AGE: 18 YEARS, OCC: COOLIE.
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MFA No. 104046 of 2017
C/W MFA No. 104380 of 2017
1C. BEBI @ MINAKSHI D/O. PAMPANNA LAMANI,
AGE: 16 YEARS, OCC: STUDENT.
1D. SHRIKANT AMBAVVA S/O. PAMPANNA LAMANI,
AGE: 15 YEARS, OCC: STUDENT.
1E. SMT. LAXMAVVA W/O. SONAPPA LAMANI,
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
SINCE APPELLANTS NO.1(C) AND 1(D)
ARE MINORS, R/BY. M/G. I.E.,
APPELLANT NO.1(A),
ALL ARE R/O. RATNAPUR,
TQ: HANGAL, DIST: HAVERI-581101.
...APPELLANTS
(BY SRI. HARISH S. MAIGUR, ADVOCATE)
AND
1. SRI. M. DAYANANDA SHETTY
S/O. HIRIYANNA SHETTY,
AGE: MAJOR, OCC: BUSINESS,
R/O. ANKADAKATTE-576222,
TQ: KUNDAPUR, DIST: UDUPI.
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD,
ENKAY COMPLEX, KESHWAPUR,
HUBBALLI-580029.
...RESPONDENTS
(BY SRI. S. S. KOLIWAD, ADV. FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.30(1) OF
E.C. ACT, PRAYING TO ENHANCE THE COMPENSATION BY
MODIFYING THE JUDGMENT AND AWARD PASSED BY THE
COMMISSIONER FOR EMPLOYEES COMPENSATION AND SENIOR
CIVIL JUDGE AND J.M.F.C, HANGAL, AT: HANGAL, IN E.C.A
NO.8/2014 DATED 01.08.2017 BY ALLOWING THIS APPEAL WITH
COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
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MFA No. 104046 of 2017
C/W MFA No. 104380 of 2017
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA.No.104046/2017 is filed by the Insurance
Company challenging the liability as well as the quantum
of compensation and MFA.No.104380/2017 is filed by the
legal heirs of the deceased seeking enhancement of
compensation. Both the appeal are filed against the
judgment & award dated 01.08.2017 passed in
ECA.No.8/2014 by the Commissioner for Employees
Compensation and Senior Civil Judge & J.M.F.C., Hangal
(for short, 'Commissioner').
2. The parties are henceforth be referred as they
were arrayed before the Tribunal, for the sake of
convenience.
3. Brief facts leading to filing of these appeals are
that one Sri. Pampanna Lamani was working as Hamal
under respondent No.1/owner of the goods vehicle bearing
registration No.KA-30/3260. It is averred that the
deceased went to load the jelly stones in the lorry, while
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returning back, the driver of the lorry drove the same in a
rash and negligent manner without following the traffic
rules, due to which the lorry was toppled down and caused
the accident. Resultantly, the deceased Pampanna
sustained grievous injuries on his head, back and other
parts of the body. He was shifted to the Government
Hospital, Shikaripur for treatment, later on he was
referred to Nanjappa Hospital, Shimogga for higher
treatment, he succumbed to the injuries on 29.12.2010.
Hence, the legal heirs of the deceased Pampanna have
filed claim petition for seeking compensation.
4. Respondent No.1/employer of the deceased
Pampanna entered appearance before the Commissioner
and filed objections. It is averred that the accident has
happened due to rash and negligent driving of the vehicle
by its driver on 25.04.2010. He has admitted that he is
the owner of the lorry and the deceased Pampanna was
working as Hamal in his lorry and he used to pay him
wages of Rs.200/- per day and Rs.50/- per day as bhatta.
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5. The respondent No.2/Insurance Company
entered appearance and filed objections. It is averred that
the deceased Pampanna was not working as Hamal in the
lorry of respondent No.1. They have denied the wages and
bhatta received by the deceased from respondent No.1. It
is further averred that there is no jural relationship
between the deceased and respondent No.1 and denied
the liability fastened on the Insurance Company.
6. During the course of trial, petitioner
No.1(a)/wife of the deceased examined herself as PW1
and got marked documents as Exs.P1 to P7. The
respondents have not led any evidence. The Commissioner
after analyzing the evidence available on record, has
awarded total compensation of Rs.4,42,500/- along with
interest at the rate of 12% per annum from 24.05.2010 till
deposit of the amount. Being aggrieved by the impugned
judgment & award, the respondent No.2/Insurance
Company as well as the claimants are in appeal.
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7. Sri. S.S.Koliwad, learned counsel appearing for
the Insurance Company submits that the Commissioner
has committed grave error in fastening the liability on the
Insurance Company without taking note that there is no
nexus with the injuries suffered by the deceased and his
death. It is submitted that the accident in question has
taken place on 25.04.2010, however, the death has taken
place on 29.12.2010. There is gap of 8 months from the
date of accident to the date of death. Hence, there is no
nexus between the injuries sustained by the deceased in
the accident and the death. It is averred that the
Commissioner ought to have rejected the claim petition on
the ground that the earlier claim petition filed by the
deceased himself for the injuries suffered by him was
rejected on 12.04.2012 for non-prosecution. Without
taking note of the said dismissal, the present claim
petition is allowed by awarding the compensation. It is
also argued that the Commissioner committed grave error
in awarding the interest at the rate of 12% per annum
from 24.05.2010 i.e., one month after the accident, as the
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claim petition is filed more than 4 years after the accident.
It is further argued that the Commissioner has committed
an error in assessing the wages of the deceased at
Rs.4,600/- which is contrary to provision of law and the
notification issued by the Central Government. He also
submits that the Commissioner has committed further
error in awarding Rs.25,000/- under the head of 'funeral
expenses'. As per statute, the claimants are entitled to
Rs.5,000/- only, which is required to be modified. Hence,
he prays for allowing the appeal filed by the Insurance
Company by dismissing the appeal filed by the claimants.
8. Per contra, Sri. Harish S.Maigur, learned
counsel appearing for the claimants submits that the
Commissioner has committed an error in assessing the
wages of the deceased at Rs.4,600/- per month. He
submits that Explanation - II to Section 4 of the
Employees Compensation Act, 1923 has been omitted with
effect from 18.01.2010, where the wages of the workmen
is restricted to Rs.4,000/- per month for the purpose of
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determination of compensation. He argues that the
accident taken place on 25.04.2010. Hence, there was no
restriction insofar as wages are concerned. Hence, it would
be just and appropriate to assess the wage of the
deceased at Rs.7,500/- as the owner of the lorry in his
counter statement has stated that, he used to pay
Rs.200/- per day as wages and Rs.50/- per day as bhatta
to the deceased. It is further submitted that no doubt
there is a delay in death of the deceased, however, the
evidence on record clearly indicate that the deceased
Pampanna has died due to the injuries sustained by him in
road accident which occurred on 25.04.2010. He seeks to
allow the appeal filed by the claimants.
9. Having heard the submissions made by the
learned counsel for the Insurance Company and the
learned counsel for the claimants, the following substantial
questions of law would arise for consideration in these
appeals:
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1) Whether the Commissioner is justified in holding
that there is nexus between the injuries and the
death?
2) Whether the Commissioner was justified in
assessing the compensation of the claimants?
10. The answer to the above questions are in the
'affirmative' and are answered in favour of the claimants
for the following reasons:
11. It is a specific case of the claimants that the
deceased Pampanna was working as Hamal under the
respondent No.1/owner and sustained grievous injuries in
road accident dated 25.04.2010. The contention of the
learned counsel for the Insurance Company is that, there
is no nexus between the injuries sustained by the said
Pampanna and his death, as the death has occurred 8
months after the accident. The said contention is taken
note only for the purpose of rejection for the reason that
the Post Mortem Report (for short, 'PM Report') on record
at Ex.P6 clearly indicates that the Doctor has given the
opinion for the cause of death reads as "SEPTICEMIA DUE
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TO OLD INJURIES SUSTAINED". The PM Report clearly
indicates that the deceased Pampanna suffered injuries
and there exist old injuries. The cause of death in the PM
Report at Ex.P6 clearly indicates that death is due to
Septicemia means, it is due to the prolonged injuries
caused to the deceased and has resulted in septic and
result of septicemia. It is admitted fact that the
respondent No.2/Insurance Company has neither adduced
any evidence before the Commissioner nor placed any
contrary records to come to different conclusion than what
has been arrayed by the Commissioner for compensation
with regard to the nexus between the injuries and the
death of the said Sri.Pampanna. Hence, this Court answers
the above substantial question No.1 in favour of the
claimants and holds that the deceased Pampanna died due
to the road accident dated 25.04.2010.
12. Insofar as the award of compensation by the
Commissioner is concerned, the respondent No.1/owner of
the lorry has entered appearance before the Commissioner
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and filed statement of objections. He has clearly admitted
that the deceased Pampanna was working as Hamal in his
lorry and he used to pay wages of Rs.200/- per day and
Rs.50/- per day as bhatta. Hence, there exist a jural
relationship between the employer and the employee and
there is no dispute that the accident has occurred during
the course of the employment.
13. Insofar as the assessment of the wages of the
deceased is concerned, the Commissioner has assessed
the wages of the deceased at Rs.4,600/- per month.
Section 4 of the Employees Compensation Act, 1923
provides a mechanism to determine the amount of
compensation. Explanation - II to the sub-Section 1(a)
and 1(b) of Section 4 of the Employees Compensation Act,
1923 was omitted by Act No.45 of 2009 where the
monthly wage of a workman considered as Rs.4,000/- for
the purpose of Clause-a and Clause-b. The Central
Government in exercise of power under sub-Section 1(b)
of Section 4 of the Employees Compensation Act, 1923
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specifies for the purpose of sub-Section 1 of the said Act,
amount of monthly wages as Rs.8,000/- with effect from
31.05.2010. In effect, there was no stipulation of wages
from 18.01.2010 to 31.05.2010 under the said Act,
however, merely there was no stipulation of was is not a
ground to assess the wages of the deceased exorbitantly
contrary to evidence on record. This Court taking note of
the evidence available on record is of the considered view
that the Commissioner is justified in assessing the wages
of the deceased at Rs.4,600/- per month which does not
call for any modification.
14. The Commissioner has committed grave error in
awarding Rs.25,000/- under the head of 'funeral expenses'
which is contrary to the settled principle of law. Hence, the
claimants are entitled to Rs.5,000/- under the head of
'Funeral Expenses' as against Rs.25,000/- awarded by the
Commissioner. Accordingly, the above substantial question
of law No.2 is answered in favour of respondent
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No.2/Insurance Company. Taking note of the same, this
Court reassesses the compensation as under:
Rs.4,600 X 50% X 181.37 = Rs.4,17,151 + Rs.5,000 [funeral
expenses] = Rs.4,22,151/-
15. Insofar as contention of the Insurance Company
that the claimants are entitled to interest at the rate of
12% per annum from 24.05.2010 is required to be
rejected for the reason that the deceased Pampanna has
filed the claim petition before the Workmen's
Compensation Court in WC.No.204/2010 for the injuries
sustained by him, the said claim petition was not
adjudicated on merits and after the death of the said
Pampanna, the legal heirs have filed the claim petition
which is numbered as ECA.No.8/2014, the present claim
petition is filed within a period of 2 years from the date of
death of the said Pampanna. Hence, the claimants are
entitled for the compensation along with interest at the
rate of 12 % per annum from 24.05.2010 as held by the
Commissioner.
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16. For the aforementioned reasons, I proceed to
pass the following:
ORDER
(i) Both the appeals are allowed in part.
(ii) The impugned judgment and award is modified to
an extent that the claimants shall be entitled to
total compensation of Rs.4,22,151/- as against
Rs.4,42,500/- with interest at 12% p.a. from
24.05.2010 till deposit of the amount.
(iii) The apportionment, deposit and disbursement of
enhanced compensation shall be made as per
award of the Commissioner.
(iv) Draw modified award accordingly.
(v) Amount in deposit, if any, in MFA.No.104046/2017
shall be transmitted back to the trial court forthwith
along with original records.
Sd/-
JUDGE
RH
