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2019 DIGILAW 1077 (KAR)

United India Insurance Co Ltd v. Rukmini

2019-06-03

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. 1. Both the Insurer-United India Insurance Co. Ltd. and the claimants being dissatisfied with the judgment and award dated 30.06.2015 passed in E.C.A. No.19/2015 by the Senior Civil Judge cum Member VIMACT at Kudligi have filed these appeals. 2. It is the case of the claimants before the Tribunal that the claimant No.1 is the legally wedded wife, claimant Nos.2 to 4 are the children and claimants No.5 and 6 are the parents of the deceased-Shanmukhappa @ Shanmukha. He died in an accident which took place on 11.08.2009 at about 1.30 p.m. at Kamathur Iron Ore, Kamathur Deogiri belonging to the 1st respondent while the deceased was working as a senior driller under the employment of the 1st respondent and that he was getting wages of Rs.4082/- per month from respondent No.1. On 11.08.2009, when the deceased as usual attended his work as senior driller under the employment of the 1st respondent as per his instructions, he died during and in the course of employment and out of employment under respondent No.1. The Chief Medical Officer, SMIORE, Deogiri has issued death certificate. Prior to the accident, the deceased was hail and healthy, aged about 45 years and working as a senior driller drawing salary of Rs.4082/- per month. The claimants lost their earning member. Claimant No.1 lost her lovely partner. Since the deceased was workman and the accident in question arose in the course of and out of employment under respondent No.1, the claimants being the legal representatives of the deceased claimed compensation. 3. In pursuance of the notice, respondents appeared before the Tribunal and filed separate written statement. 4. Respondent No.1 admitted the relationship with deceased and the claimants No.1 to 6. He also further admitted that the deceased was working as a senior driller under his employment. He denied that the deceased was drawing monthly salary of Rs.4082/-. According to him, the deceased was getting salary of Rs.3204.50 per month. Respondent No.2 is liable to pay compensation to the claimants. 5. Respondent No.2 denied the petition averments in toto. He also denied relationship between the claimants and the deceased and the age, occupation and income of the deceased. Respondent No.1 has not informed them of any accident. In case, the Court comes to the conclusion that the respondent No.1 is liable to pay compensation, he is not liable to pay any interest thereon. He also denied relationship between the claimants and the deceased and the age, occupation and income of the deceased. Respondent No.1 has not informed them of any accident. In case, the Court comes to the conclusion that the respondent No.1 is liable to pay compensation, he is not liable to pay any interest thereon. 6. On the basis of the pleadings, the Tribunal framed issues. In support of their claim petition, claimant No.1 was examined as PW1 and got marked 16 documents at Ex.P1 to P16. The respondents have not adduced any oral or documentary evidence. 7. Learned member of the Tribunal after hearing both the parties, passed the impugned judgment awarding compensation of Rs.4,06,656/- with interest at 6% from the date of award till its realization. 8. The Insurer being dissatisfied with the impugned judgment and award has filed MFA No.102739/2015 on the ground that the deceased died due to natural cause of Myocardial infarction. The said heart attack was neither an accident nor it had occurred due to drilling work that he was doing at the time of accident. It is also contended that the Tribunal has wrongly calculated the compensation amount at Rs.4,06,656/- instead of Rs.3,38,880/-. 9. The claimants being dissatisfied with the impugned judgment and award have filed MFA No.102461/2015 on the ground that the Tribunal erred in awarding interest at 6% p.a. instead of 12% p.a. from one month after the accident and that the Tribunal has erred in taking income of deceased at Rs.4000/- p.m. much below the minimum wages. 10. Heard the learned counsel for the parties. 11. Since both the appeals arise out of the same judgment and award, they are disposed of by this common judgment. 12. Learned counsel for the insurer submitted that death of the deceased is not in the course of employment and that it is a natural death due to heart attack. Therefore, the claimants are not entitled for compensation. 13. The learned counsel further submitted that the insurer is not liable to pay interest on the compensation awarded and that it is the liability of employer to pay the interest. 14. Per contra learned counsel for the claimants submitted that the death occurred in the course of his employment while he was working as senior driller. 15. 13. The learned counsel further submitted that the insurer is not liable to pay interest on the compensation awarded and that it is the liability of employer to pay the interest. 14. Per contra learned counsel for the claimants submitted that the death occurred in the course of his employment while he was working as senior driller. 15. Learned counsel further submitted that as per the provisions of the Employee's Compensation Act, 1923, the claimants are entitled for interest at 12% p.a. from one month after the date of accident. 16. After hearing both the counsels, a short question which arise for consideration is whether the insurer has made out any grounds to exonerate it from the liability fastened against him and whether the claimants have made out grounds for awarding interest at 12% p.a. from one month after the accident. 17. The contention of the insurer that the death of the deceased was not during the course of employment or in the course of employment cannot be accepted. 18. Respondent No.1-employer of the deceased has filed a written statement before the Tribunal admitting that the deceased was working under his employment as senior driller and that he was getting salary of Rs.3,204.50 p.m. When the employer himself has admitted the employment of the deceased, the insurer cannot be permitted to deny the same. So far as the contention that the death of the deceased was not due to the accident or during the course of employment, the learned counsel for the insurer has relied on the decision in the case of Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali & Anr., (2007) 1 KCCR(SN) 33. The Hon'ble Supreme Court in the said case has held as follows: "Indisputably, there has to be an proximate nexus between cause of death and employment. A stray statement made by Appellant that the deceased had died while working in the vehicle and stress and strain of the work did not appear to have any foundation." 19. In that case, the Hon'ble Supreme Court has further observed that there was no evidence to show when exactly the death took place and under what circumstances the death took place is also not known. There is no pleading on that behalf. However, in the present case, the employer has admitted that the deceased died while working as senior driller under his employment. There is no pleading on that behalf. However, in the present case, the employer has admitted that the deceased died while working as senior driller under his employment. Therefore, the insurer will not get any assistance from the said judgment. Admittedly, the insurer has not adduced any evidence in support of his contention before the Tribunal. 20. Based on the material on record, the Tribunal has come to proper conclusion that the deceased died while working as senior driller under the employment of respondent No.1 and it is in the course of employment. The insurer has not made out any grounds to reverse the said findings and exonerate him from the liability. 21. The Tribunal in the present case has awarded interest at 6% p.a. from the date of award till its realization. Further there is clerical and typographical error in calculating the compensation. The Tribunal has taken the income of the deceased at Rs.,2000/- per month and the relevant multiplier 12 and the applied factor at 169.44, resultant would be Rs.3,38,880/-. However, the Tribunal has shown the said amount as Rs.4,06,656/-, it requires to be corrected. Further as per the provisions of E.C.Act, the claimants are entitled for interest at 12% p.a. from one month after the accident and therefore, the claimants have made out that they are entitled interest at 12%p.a. on the compensation amount from one month after the accident. 22. Accordingly, this Court answer the point for consideration in the negative, so far as the insurer is concerned and in the affirmative, so far as the claimants are concerned. In the result, this Court proceed to pass the following: ORDER MFA No.102739/2015 and MFA No.102461/2015 are partly allowed. The claimants are awarded compensation of Rs.3,38,880/- with interest at 12% p.a. from 11.09.2009 till deposit. The amount of compensation deposited by the insurer shall be transmitted to the concerned Tribunal forthwith.