MAHABOOBI v. ABDUL RASHID — 1998 DIGILAW 208 (KAR)

ULLAL, J. ( 1 ) THESE two appeals are interconnected. M. F. A. No. 1371 of 1994 is filed by the claimants before the Commissioner for Workmen's Compensation and labour Welfare Officer, Bijapur, for enhancement of the compensation whereas connected M. F. A. No. 1336 of 1998 is filed by the respondent No. 1 to absolve the liability under the impugned award. In both the appeals the common award dated 30. 9. 1993 in Case No. WCA:sr: 105 of 1992 is under challenge. ( 2 ) FOR the purpose of convenience, the parties hereto are referred to as they occurred in the first appeal, i. e. , M. F. A. No. 1371 of 1994. ( 3 ) IN the first appeal the appellants are represented by the learned counsel, Mr. Ramesh B. Anneppannavar whereas the respondents are represented by the learned counsel, Mr. Umesh R. Malimath. The second appeal filed by the respondent No. 1 since in the initial stage of issuance of notice to the respondents, Mr. Ramesh B. Anneppannavar is directed to take notice for the respondents-claimants. Mr. Umesh b. Malimath represented the appellant in the second appeal. The respondent Nos. 8 to 10 in the second appeal are given up by the learned counsel for the respondent for the reason that they are not the necessary parties. I heard the learned counsel for the respective parties. ( 4 ) THE facts relevant for our purpose are as hereunder: that one Saleem, the son of appellant no. 1 and husband of the appellant No. 2 and further the father of the appellant Nos. 3 to 7, died during the course of employment under the respondent No. 1. He died due to electrocution. The appellants herein had filed a claim petition before the Commissioner for Workmen's Compensation and Labour Welfare Officer, Bijapur (henceforth in brief as 'the Commissioner') in Case No. WCA:sr: 105 of 1992, claiming a compensation of Rs. 5,00,000 on the basis that at the time of death of saleem he was drawing a sum of Rs. 3,000 p. m. under the respondent No. 1 and that at the time of death he was 30 years old. Both sides adduced respective side of the evidence and based on the evidence on record, the Commissioner had awarded a compensation of Rs. 3,000 p. m. under the respondent No. 1 and that at the time of death he was 30 years old. Both sides adduced respective side of the evidence and based on the evidence on record, the Commissioner had awarded a compensation of Rs. 38,892 together with interest at 6 per cent per annum from the date of the accident and further imposed a fine of Rs. 500 for filing of the claim petition. ( 5 ) THE first appeal is filed by the appellants-claimants for enhancement of the compensation on the ground that the commissioner had taken the daily wage of the deceased at Rs. 18 and thus awarded compensation to the tune of Rs. 38,892, whereas the second appeal is filed by the respondent No. 1 for avoidance of the liability on the ground that the deceased was not at all an employee under him and the oil mill in question was burnt down much earlier to the date of incident of the electrocution, ( 6 ) THE learned counsel for appellantsclaimants, Mr. B. Chidananda appearing along with Mr. Ramesh B. Anneppannavar, argued that even if the appell antsclaimants could not produce evidence to show that the deceased was drawing a sum of Rs. 3,000 p. m. , in the absence of any evidence produced by the other side, the commissioner would have fallen back upon the Minimum Wages Act to hold that the deceased was earning at the rate of rs. 26. 80 and thus earning at that rate for 26 days to work out at Rs. 696. 80 p. m. and further worked out at 40 per cent thereof or Rs. 278. 72 and by employing the factor: 207. 98 (the age of the deceased being 30) with reference to the Schedule IV of the Workmen's Compensation Act and accordingly arrived at Rs. 57,968. 18 as the compensation awardable to the appellants. Therefore, he prayed that the impugned award passed by the Commissioner be suitably modified in allowing the appeal. ( 7 ) WHILE adverting to the appeal preferred by the employer, respondent No. 1, mr. Chidananda argued that when the very appeal filed by the respondent No. 1 was not accompanied with the deposit certificate evidencing the deposit of the sum awarded under the impugned award, the question of entertaining the appeal by this court did not arise at all. Chidananda argued that when the very appeal filed by the respondent No. 1 was not accompanied with the deposit certificate evidencing the deposit of the sum awarded under the impugned award, the question of entertaining the appeal by this court did not arise at all. According to him, the appeal is liable to be dismissed on that short ground alone without going into the merits. ( 8 ) LEARNED counsel for the employer, respondent No. 1, Mr. Umesh R. Malimath, on the other hand, counter argued that the finding of the Commissioner as to the daily wage of the deceased being finding of fact cannot be agitated before this court in the instant appeal and as such the question of entertaining the first appeal filed by the claimants by this court does not arise at all. Hence his argument is that the appeal of the claimants has to be rejected on the ground of maintainability. ( 9 ) NOW the points that arise for my consideration in these two appeals are as follows: (I) Whether the finding as to the wage of the deceased is a substantial question of law or not? (II) Whether there was justification on the part of the Commissioner to compute the compensation at Rs. 38,892 and whether the same is liable to be enhanced and if so to what extent? (III) Whether the appeal in M. F. A. No. 1336 of 1998 filed by the employer, respondent No. 1, is liable to be rejected for want of certificate of deposit of compensation awarded in the impugned award or not? ( 10 ) THE point Nos. (i) and (ii) are interconnected. Hence, I find it appropriate to take both of them together. ( 11 ) IT is not in dispute that both the appellants-claimants on the one side and the employer, respondent No. 1, on the other, did not produce any material evidence in support of respective contentions as to the daily wage of the deceased, saleem. When the appellants-claimants had adduced only oral evidence, in support of such a contention, the employer, respondent No. 1, did not produce any evidence except the oral evidence to say that the deceased was paid below Rs. 20. When the appellants-claimants had adduced only oral evidence, in support of such a contention, the employer, respondent No. 1, did not produce any evidence except the oral evidence to say that the deceased was paid below Rs. 20. It is to be pointed out here that the proof as to the daily wage of the deceased was in the hands of the employer, respondent No. 1, because he had admitted that the deceased was working as a 'mistry' under him. When both the parties before the Commissioner did not adduce any evidence as to the daily wage that was being earned by the deceased, necessarily the Commissioner would have fallen back upon the minimum Wages Act. The learned counsel for the appellants-claimants, Mr. Chidananda had produced before me a gazette notification dated 28. 10. 1991 issued by the State of Karnataka bearing No. SWL 77 LMW 87, Bangalore, issued under the minimum Wages Act, wherein for Range1 (xx) the minimum wage in respect of the workers working in the oil mill is shown as Rs. 26. 80 and the same is referable to the establishments situated in Bangalore agglomeration area and the District headquarters. Admittedly, in the instant case in hand, the place of employment is in bijapur District headquarters and as such obviously the minimum wage applicable to the case of the deceased is Rs. 26. 80 particularly when the said notification came into effect from 1. 11. 1991, whereas the incident in question had occurred on 9. 6. 1992. Therefore, his argument is that the compensation awarded by the Commissioner should be Rs. 57,968. 18 and not Rs. 38,892 as it had been worked out as above by the Commissioner. I have carefully considered that said part of the argument advanced and also worked out myself as to the sum of compensation awardable. That I did in this manner as the Commissioner had worked out, i. e. , rs. 26. 80 x 26 days x rel. factor: 207. 98. Hence, I am also of the view that the Commissioner would have awarded the said sum of Rs. 57,968. 18 as compensation to the appellants. That I did in this manner as the Commissioner had worked out, i. e. , rs. 26. 80 x 26 days x rel. factor: 207. 98. Hence, I am also of the view that the Commissioner would have awarded the said sum of Rs. 57,968. 18 as compensation to the appellants. In the given circumstances, when the Commissioner would have fallen back upon the Minimum Wages Act, for the purpose of deciding the rate of earning at the point of time of accident when the accidental injuries were suffered by the deceased, I do find that there involved substantial question of law in the instant appeal before this court. Therefore, I have got no hesitation to reject the argument of the learned counsel for the respondent No. 1 that there is no substantial question of law involved in the instant appeal. Therefore, when I answer the point No. (i) in the positive and in favour of the appellantsclaimants, I answer the first part of the second question in the negative, I also answer the second part of the second question in the positive, both in favour of the appellants-claimants holding that the appellants are entitled to Rs. 58,968. 18 by way of compensation from the respondent no. 1. ( 12 ) NOW I turn to the point No. (iii) as above, i. e. , merit of the appeal filed by the employer, respondent No. 1, in M. F. A. No. 1336 of 1998. I have to point out at the outset that the said appeal has not been filed along with the certificate of deposit of the sum awarded under the impugned award. It has been held by this court in a reported decision in ILR 1993 Kar 1991 that when the appeal is not accompanied with the certificate of deposit, the appeal is not maintainable. By following the said decision, I am of the view that the instant appeal filed by the employer, respondent no. 1, is not maintainable and that on that short ground alone, the same is liable to be dismissed. In the result, I pass the following order: (I) The finding of the Commissioner that the owner, respondent No. 1, was liable to pay the compensation under section 10 of the Workmen's Compensation Act is upheld, however, the award of compensation of Rs. 38,892 is modified to Rs. 57,968. 18 or Rs. In the result, I pass the following order: (I) The finding of the Commissioner that the owner, respondent No. 1, was liable to pay the compensation under section 10 of the Workmen's Compensation Act is upheld, however, the award of compensation of Rs. 38,892 is modified to Rs. 57,968. 18 or Rs. 57,968 together with interest at 6 per cent thereof payable from the date of accident, i. e. , 9. 6. 1992. (II) The award of fine of Rs. 500 awarded by the Commissioner in passing the impugned award is also upheld. (III) The first appeal of the appellantsclaimants stands allowed in part whereas the second appeal of the employer, respondent No. 1, stands dismissed. No costs. (IV) The employer, respondent No. 1, is directed to deposit the above sum together with interest at 6 per cent per annum before the Commissioner within a period of 8 weeks from this day. Orders accordingly. --- *** --- .