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2013 DIGILAW 1238 (KAR)

C. R. Bhanumathi v. K. T. Shrishyala

2013-10-29

ARAVIND KUMAR

body2013
Judgment : 1. Learned advocates appearing for the parties would fairly submit that though matter has been admitted on 01.03.2010 after hearing the learned advocates, substantial question of law as required under section 30 of Workmen's Compensation Act, 1923 has not been formulated and as such they request this court to formulate the same and adjudicate it on the basis of the material evidence available on record and contention raised by them. 2. It is the contention of Sri.M.V.Hiremath, learned counsel for the appellants that Commissioner for Workmen Compensation was not justified in construing the income of the deceased at Rs.3,000/- though it was specifically contended that deceased was getting a salary of Rs.4,000/- per month and Rs.50/-as batta per day in all it would be Rs.5,500/- and as such he seeks for construing the income of the deceased at Rs.5,500/- and awarding of compensation accordingly by formulating the substantial question of law as formulated in the appeal memorandum. 3. Per contra, Sri.Abhinandan, learned counsel appearing for Sri.A.N.Krishnaswamy for respondent No.2 would support the order and award passed by the Commissioner for Workmen Compensation and contends that the very fact that cause of death of the workman was itself in dispute and as such cross objection had been filed and as such question of enhancing compensation in the absence of any material evidence is not called for. Hence, he prays for answering the substantial question of law in favour of the insurer and prays for dismissal of the appeal. 4. Having heard the learned advocates appearing for the parties and on perusal of the Judgment and award in question as also records secured from the Commissioner, Workmen Compensation, Chitradurga, following substantial question of law arises for my consideration: "Whether the Commissioner for Workmen's Compensation, Chitradurga was justified in construing the income of deceased at Rs.3,000/- per month or it should have been considered at Rs.5,500/- per month?" 5. Perusal of the records secured from the Commissioner, Workmen Compensation would indicate that deceased Sri.D.N.Lakshmana was working as a Conductor in the bus belonging to first respondent. On account of rash and negligent driving of driver of the bus he fell down inside the moving bus and due to shock he expired. As such his wife, son and mother filed a claim petition seeking compensation. 6. On account of rash and negligent driving of driver of the bus he fell down inside the moving bus and due to shock he expired. As such his wife, son and mother filed a claim petition seeking compensation. 6. Since the insurer challenged the cause of death not attributable to the accident, Commissioner, Workmen Compensation formulated issue No.2 and held that the deceased was a workman under first respondent herein and the death was in the course of employment and it arose out of such employment. As such it held issue No.2 in favour of appellants. 7. It is not in dispute that cross objection filed by insurer on 05.03.2010 in cross objection No.29/2010 came to be dismissed on 26.07.2013. Till date no steps have been taken. This would clearly indicate that insurer is not interested in prosecuting the said cross objection and the order of dismissal having reached finality question of examining the plea of insurer in this appeal regarding cause of death would not arise. Hence, substantial question of law formulated herein above is being adjudicated by this court. 8. Though applicants namely wife, son and mother of the deceased contended before Commissioner, Workmen Compensation that deceased was earning Rs.4,000/-per month and Rs.50/- as batta per day, no evidence was placed in this regard. First respondent owner and employer of deceased appeared before the Commissioner for Workmen Compensation and filed her statement of objections whereunder she has not denied that deceased was not her employee. However, it is contended that since policy had been obtained in respect of offending vehicle, the liability if any should be indemnified by the insurer. PW-1 has not been cross examined by the employer. Neither the applicants nor the insurer examined the employer. In the absence of any positive evidence being placed by applicants to establish the actual income or salary drawn by deceased Sri.D.N.Lakshmana as on the date of his demise Commissioner has held income of the deceased is to be construed at Rs.3,000/-per month and has proceeded to make guess work. 9. It is not in dispute that deceased was a conductor in the vehicle belonging to first respondent herein and records would indicate that it was a Rs.stage carrier'. In the normal circumstances employer would be paying batta to the driver and conductor in respect of such stage carrier vehicles. 9. It is not in dispute that deceased was a conductor in the vehicle belonging to first respondent herein and records would indicate that it was a Rs.stage carrier'. In the normal circumstances employer would be paying batta to the driver and conductor in respect of such stage carrier vehicles. As such I am of the considered view that even if Rs.500/- is taken as batta per month in the year 2004 income of the deceased construed by Commissioner at Rs.3,000/-per month requires to be modified and as such it is held that income of the deceased is to be construed at Rs.3,500/- P.M and accordingly compensation requires to be recomputed as noted herein below: Rs.3,500/2 (50%) 1,750x169.44 = Rs.2,96,520/- accordingly same is hereby awarded. 10. Insofar as interest is concerned same also requires to be modified in view of law laid down by Hon'ble Apex Court in the case of Oriental Insurance Co., Ltd., Vs Siby George and others reported in 2012 ACJ 2126 whereunder it has been held that interest payable would be from one month after the date of accident and not one month from the date of award. To that extent also appellants succeed. Hence, following order is passed: ORDER 1. Appeal is hereby allowed in part. 2. Order and award passed by Commissioner, Workmen Compensation, Chitradurga in WCA/F/CR-22/2007 dated 24.04.2008 is hereby modified and in substitution to the same a compensation of Rs.2,96,520/-is hereby awarded which shall carry interest @ 12% p.a. payable from one month after the date of accident till date of payment or deposit. 3. Insurer to deposit the compensation with interest before the Commissioner for Workmen Compensation, Chitradurga within four weeks from the date of receipt of certified copy of this order. 4. Registry to transmit the records to jurisdictional Commissioner forthwith.