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2010 DIGILAW 902 (KAR)

Jayalakshmi M. Shetty v. Ramesh

2010-08-18

B.MANOHAR, K.L.MANJUNATH

body2010
JUDGMENT K.L. Manjunath, J.— The Appellants are the legal representatives of one Mohan Das Shetty who was working as a driver under Respondent No. 1 and died on 6-3-2002 during the course of his employment. He was aged about 33 years on the date of his death. 2. A claim petition was lodged before the Commissioner for Workmen's Compensation, Mangalore in Case No. WCA/SR-2/2003(F) on the ground that the deceased Mohan Das Shetty was working continuously as driver under Respondent No. 1. On 3-3-2002 while discharging his duties as a driver, he was proceeding from Mangalore to Mysore along with the passengers. Before he could reach the Mysore, he suddenly fell ill and stopped his vehicle. The passengers shifted him to HOLD'S WORTH MEMORIAL HOSPITAL, Mysore and the deceased had suffered brain hemorrhage. He was advised to shift to a better hospital. Therefore, the claimants had decided to shift him to KMC Hospital, Manipal on 5-3-2002. While shifting him from Mysore to Manipal on the way near Uppinangady, he breathed his last on 6-3-2002. On the ground that Mohan Das Shetty died during the course of employment, a claim petition was lodged. The owner of the vehicle admitted the claim of the claimant. 3. The Insurance Company filed its statement of objections stating that it had not issued Policy in favour of the owner of the vehicle and the insurer did not admit the relationship of master and servant between the deceased Mohan Das Shetty and Respondent No. 1. It was also contended that he did not die during the course of employment and he requested the Court to dismiss the petition. 4. In order to prove their contentions, the first claimant Jaylakshmi got herself examined as P.W. 1. She produced the records to show that while discharging duty, the deceased Mohan Das Shetty developed giddiness and immediately, he was shifted to Hold's Worth Memmorial Hospital, Mysore and there he suffered cerebra vascular accident. She was also cross-examined by the Insurance Company. Later the case was reserved for judgment. The Commissioner dismissed the claim petition on the ground that in the medical records of the deceased the Doctors have noted the history of consumption of alcohol and smoking. This order is called in question, in this appeal. 5. We have heard the learned Counsel for the parties. 6. Later the case was reserved for judgment. The Commissioner dismissed the claim petition on the ground that in the medical records of the deceased the Doctors have noted the history of consumption of alcohol and smoking. This order is called in question, in this appeal. 5. We have heard the learned Counsel for the parties. 6. The main contention of the Appellants' Counsel before us is that when the owner of the vehicle did not dispute the relationship of master and servant, the age of the deceased and the wages payable to the deceased and when the Insurance Company had not taken any stand that the deceased died on account of consumption of alcohol and smoking, the Commissioner could not have dismissed the claim petition. According to him, the Commissioner has exceeded his jurisdiction in dismissing the claim petition by depending upon one sentence from the Medical records that "consumption of alcohol and smoke present". Taking us through the medical records, learned Counsel for the Appellants contended that the Doctors have not opined that the death has occurred solely on account of consumption of alcohol and smoking. According to him, on account of pressure of work, he died while discharging his duty as a driver of the vehicle in question. As there was no time schedule for the deceased to drive (lie vehicle as he was a driver of a tourist vehicle and, he developed giddiness and headache while discharging his duties. He was shifted from the place of driving to the hospital and if he had died on account of brain hemorrhage, the Commissioner could not have dismissed the claim petition. Therefore, he requested the Court to set aside the order passed by the Commissioner and allow the claim petition. 7. Per contra, learned Counsel appearing for the Insurance Company contends that in view of the finding of the Commissioner that consumption of alcohol and smoking present, death can be directly attributable to the aforesaid causes and therefore, the claim petition has been rightly rejected by the Commissioner for Workmen's Compensation. In the circumstances, he requested the Court to dismiss the appeal. 8. Having heard the Counsel for the parties. We have to consider the following two issues in this appeal: (1) Whether the Commissioner is justified in dismissing the claim petition? In the circumstances, he requested the Court to dismiss the appeal. 8. Having heard the Counsel for the parties. We have to consider the following two issues in this appeal: (1) Whether the Commissioner is justified in dismissing the claim petition? and (2) If point No. 1 is answered in favour of the Appellants, what is the compensation payable to the claimants/Appellants? 9. So far as first point is concerned, we have clearly narrated the pleadings of both parties. The owner has supported the case of the claimants. Insurance Company has not taken a stand that the deceased died on account of consumption of alcohol and smoking. 10. Learned Counsel appearing for the Appellants contended that if a person was rarely consuming alcohol and smoking, it cannot be a ground to dismiss the claim petition, when the Doctors have not opined that the death of Mohan Das Shetty was only on account of consumption of alcohol and smoking. According to him, the Doctors in one sentence have noted in the history that the deceased was in the habit of consuming alcohol and smoking. But it is not the case of the Insurance Company that the deceased died on account of consumption of alcohol and smoking. Admittedly, the deceased died while discharging his duties as a driver and he was aged about 33 years. If he was addicted to consumption of alcohol, he would have developed with the liver cirrhosis. The said finding is not there in the medical records, while taking the history, it has been stated by the Doctors that the deceased was consuming alcohol and he was also in the habit of smoking. Merely because the history of the deceased states that he was consuming alcohol and smoking, it cannot be a ground for the Commissioner to dismiss the claim petition when such a ground was not taken by the Insurance Company that too in the absence of an issue which was required to be considered by the Trial Court. Moreover there is no medical evidence to show that death was due to consumption of alcohol and smoking. Therefore, we have to set aside the order passed by the Commissioner for Workmen's Compensation holding that the dismissal of the claim petition on the above ground is not justified. Accordingly, we hold point No. I in favour of the Appellants. 11. Moreover there is no medical evidence to show that death was due to consumption of alcohol and smoking. Therefore, we have to set aside the order passed by the Commissioner for Workmen's Compensation holding that the dismissal of the claim petition on the above ground is not justified. Accordingly, we hold point No. I in favour of the Appellants. 11. In view of our finding on Point No. 1, the next point for consideration is that what would be the compensation payable to the claimants? 12. Admittedly, the deceased was earning a sum of Rs. 3,000/- p.m. and he was aged about 33 years. In terms of the Schedule-IV, we have to apply the relevant factor 201.66 and multiply the same with 50% of the salary i.e., Rs. 1,500/-. If that is so, the compensation payable to the claimants has to be arrived at Rs. 3,02,490/-. Accordingly, we hold that the Appellants are entitled to compensation of Rs. 3,02,490/-. 13. In view of our finding with regard to the quantum of compensation payable to the claimants, the next question would be at what rate the interest could be awarded on the aforesaid amount. In terms of the judgment of the Hon'ble Supreme Court reported in AIR 2009 SCW 3717 in the case of The Oriental Insurance Co. Limited v. Mohd. Nasir and Ors. AIR2009 SCW 3717, the Appellants-claimants are entitled to interest at 7.5% p.a. from the date of claim petition till the date of award and at the rate of 12% p.a. from the date of award till the date of deposit. 14. In view of the dismissal of the claim petition by the Trial Court, the question to be considered in this appeal is from what date 12% interest has to be calculated? When the Hon'ble Supreme Court has ruled that the claimants are entitled to claim interest at the rate of 12% p.a. from the date of judgment, the judgment rendered by the Commissioner has to be taken into consideration for the purpose of calculation of interest at 12%. It is contended by the Insurance Company that in view of the, dismissal of the claim petition and setting aside the order by this Court in this appeal, now the interest at 12% p.a. has to be calculated from today. We are unable ' to accept the arguments addressed by the learned Counsel for the Insurance Company. It is contended by the Insurance Company that in view of the, dismissal of the claim petition and setting aside the order by this Court in this appeal, now the interest at 12% p.a. has to be calculated from today. We are unable ' to accept the arguments addressed by the learned Counsel for the Insurance Company. According to us, date of the judgment means the date on which, the Commissioner delivered the judgment. Since, the Commissioner has committed an error in dismissing the claim petition. We are setting aside the order and awarding compensation, for the purpose of calculation of interest, it has to be reckoned from the date of order of the Commissioner. 15. In the result, the appeal is allowed. The order passed by the Commissioner for Workmen's Compensation, Mangalore dated 28-7-2005 in WCA: SR2/2003 is set aside. We hereby allow the claim petition lodged by the claimants holding that they are entitled for compensation of Rs. 3.02,490/- with interest at the rate of 7.5% p.a. from the date of claim petition till 28-7-2005 and at the rate of 12% from 28-7-2005 till the date of deposit. 16. Out of the total compensation awarded with interest accrued thereon, 30% of the amount is apportioned to the Widow Jayalakshmi: 25% to the second claimant Manisha minor daughter. 25% to Sharnya another minor daughter of the deceased and the remaining 20% to the 4th claimant Smt. Kalyani, mother of the deceased. Out of the apportioned amount, the amount awarded to minor daughters Manisha and Sharnya shall be deposited in any Nationalised Bank till they attain the age of majority and the first claimant Smt. Jayalakshmi is entitled to draw the periodical interest. Out of 30% compensation awarded to the first claimant, 20% shall be deposited with accrued interest in the name of the first claimant for a period of 5 years and she is entitled to draw periodical interest. The amount of compensation apportioned to the mother of the deceased shall be released in favour of her considering her age.