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2019 DIGILAW 1193 (KAR)

Radha Bai v. Jeevandas Adyantaya

2019-06-11

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. 1. The unfortunate wife and children are before this Court against the judgment and award dated 17.03.2015 made in ECA No. 25/2014 on the file of the Senior Civil Judge at Kundapura, allowing the petition in part by awarding a total compensation of Rs. 4,75,150/- with interest at the rate of 12% p.a. from the date of accident till the date of realization. 2. Facts of the case: The claimants filed the claim petition under the provisions of Section 10 of Workmen's Compensation Act before the Commissioner of Workmen's Compensation and Labour Officer, Udupi, claiming compensation of Rs. 10,00,000/- on account of the death of the deceased Damodara Naik. It is the case of the claimants that on 30.05.2011 at about 4.00 a.m., in the morning, the deceased Damodara Naik was driving Vishal Bus bearing Reg. No. KA-01-C-1654, as an employee under the respondent No. 1 and was proceeding from Bengaluru to Mangaluru and when he reached the place called Budalagola, near Goolihonnenahalli, NH-48, Chennarayapattana Taluk, at that time, a lorry bearing Reg. No. KA-21-A-1079 was parked in the middle of the road without any indication. At the same time, an Indica Car was also proceeding in front of the Bus in the same direction and suddenly stopped in the middle of the road, due to which the driver of the bus also applied the brake, but bus got skidded while another lorry bearing Reg. No. KA-13-B-3888 coming from opposite direction from Chennarayapattana towards Hassan dashed to the said bus. Due to the said impact the deceased Damodara Naik sustained grievous injuries. Immediately, he was shifted to Government Hospital, Chennarayapattana and thereafter he was shifted to Justice K.S. Hegde Memorial Hospital, Deralakatte, Mangaluru and was given treatment in Intensive care unit from 30.05.2011 to 03.06.2011. Ultimately he succumbed to the injuries in the said hospital. 3. It is further case of the claimants that the deceased was a driver in Vishal Bus under an employment of respondent No. 1 and was getting monthly wages of Rs. 1,500/- per trip and earning Rs. 22,500/- per month, with Rs. 700/- per day for carrying the parcels and also he was earning Rs. 10,000/- per month as other allowances. It was also contended that the claimants have spent more than Rs. 1,00,000/- towards the medical expenses of the deceased. 1,500/- per trip and earning Rs. 22,500/- per month, with Rs. 700/- per day for carrying the parcels and also he was earning Rs. 10,000/- per month as other allowances. It was also contended that the claimants have spent more than Rs. 1,00,000/- towards the medical expenses of the deceased. Therefore, they have filed the claim petition for the relief sought for. 4. In response to the notice issued, the first respondent did not filed his written statement and was placed ex-parte. Respondent No. 2 filed objections, denied the averments made in the claim petition and also denied the relationship between the parties, disputed the date of the accident, age and also contended that the claim petition filed claiming compensation is not maintainable, since, there is no employer-employee relationship between the petitioner and respondent No. 1. It is further contended that the deceased died out of and in the course of the employment under respondent No. 1. The respondent No. 2 has denied the other allegations and sought for the dismissal of the claim petition. 5. Based on the pleadings of the parties, Tribunal framed the following issues:- 1. Whether the petitioners prove that deceased Damodara Naik was an employee under Workmen's Compensation Act? 2. Whether the petitioners prove that deceased sustained injuries and died during the course of employment under 1st respondent as a driver of Bus bearing Reg. No. KA-01-C1654 in the alleged accident, which was taken place near Budalagola, near Goolihonnenahalli, NH- 48, Chennarayapattana Taluk? 3. Whether the petitioner proves that deceased was getting salary of Rs. 22,500/- per month on the date of the accident and age of the deceased? 4. Whether the petitioners prove that they are the dependent of the deceased under the Act? 5. Whether the petitioners are entitled for compensation as prayed? 6. What Order or Award? 6. In order to prove the case of the claimants, claimant No. 3 examined as PW-1 and witness PW-2 and marked the documents as Ex.P1 to P18. The respondent No. 2 has neither adduced evidence nor produced any documents. 7. The Tribunal, considering the entire material on record, has recorded the findings that the claimants have proved that the deceased Damodara Naik died arising out of and in the course of his employment and also proved in part that the deceased was earning Rs. 22,500/- per month and was getting extra Rs. 7. The Tribunal, considering the entire material on record, has recorded the findings that the claimants have proved that the deceased Damodara Naik died arising out of and in the course of his employment and also proved in part that the deceased was earning Rs. 22,500/- per month and was getting extra Rs. 700/- per day for carrying the parcels from Bengaluru to Mangaluru. Accordingly, the Tribunal by the impugned judgment and order has awarded Rs. 4,75,150/- with interest at the rate of 12% p.a. Hence, the present Miscellaneous First Appeal is filed by the claimants for enhancement of the compensation. The Insurance Company has not filed any appeal against the judgment and order passed by the Tribunal. 8. I have heard the learned counsel for the parties to the lis. 9. Sri. Pavan Chandra Shetty H, learned counsel for the appellants mainly contended that the Tribunal has erred in taking the monthly wages of the deceased at Rs. 6,500/- instead of Rs. 8,000/- as contemplated under the provisions of Section 4(1) Explanation II of the Employee's Compensation Act, 1923 (‘Act’ for short). He would further contended that the Tribunal has not awarded any compensation towards funeral expenses. Therefore, he sought to allow the appeal. 10. Per contra, Sri Ravi S. Samprathi, learned counsel for respondent No. 2-Insurance Company sought to justify the impugned order and contended that the appellants have not produced any material documents to prove that the deceased was earning Rs. 8,000/- per month, but he is unable to dispute the provisions of Section 4 of the Act which deals with the minimum wages fixed in view of Act 45 of 2009 w.e.f. 18.01.2010. 11. This appeal is admitted to consider the substantial questions of law as under:- (a) Whether the Tribunal is justified in taking the monthly wages of the deceased as Rs. 6,500/- in view of the provisions of Section 4(1) Explanation-II of the Employee's Compensation Act, 1923 (‘Act’ for short) (substituted by Act 45 of 2009 (w.e.f. 18.01.2010)? (b) Whether the Tribunal is justified in not awarding the funeral expenses as contemplated under Section 4(4) of the Act? 12. Having heard the learned counsel for the parties, it is not in dispute that the deceased Damodara Naik was working under respondent No. 1 owner of Vishal Bus bearing Reg. (b) Whether the Tribunal is justified in not awarding the funeral expenses as contemplated under Section 4(4) of the Act? 12. Having heard the learned counsel for the parties, it is not in dispute that the deceased Damodara Naik was working under respondent No. 1 owner of Vishal Bus bearing Reg. No. KA-01-C-1654 as an employee and died arising out of and in the course of his employment and it is also not in dispute that at the time of death, the deceased was aged about 52 years and relevant factor would be applicable as 146.20 as per schedule IV of the Act and the claimants are entitled for compensation in terms of the amended provisions of Section 4 of the Act, admittedly the accident occurred on 30.05.2011 subsequent to the amendment. 13. In view of the amended provisions of Section 4(1) of the Act by Act No. 45 of 2009 w.e.f. 18.01.2010, the Tribunal ought to have taken the monthly wages of the deceased at Rs. 8,000/- instead of Rs. 6,500/-. The Tribunal has not awarded any compensation towards funeral as contemplated under sub-section (4) of Section 4 of the Act. Therefore, the impugned judgment and order passed by the Tribunal has to be modified. 14. For the reasons stated above, the substantial questions of law framed in the present case has to be answered in the negative holding that the Tribunal is not justified taking the monthly wages at Rs. 6,500/- and in not awarding funeral expenses as contemplated. The claimants are entitled for the enhanced compensation. 15. If the monthly wages of the deceased is taken at Rs. 8,000/- in view of the provisions of Section 4(1)(a) of the Act, 50% has to be deducted. Then [8000 x 50% = 4000] Rs. 4,000/- p.m. x 146.20 = Rs. 5,84,800/-. 16. After re-assessing the entire material on record, the claimants are entitled for just compensation as under:- S. No. Compensation under different heads Amount 1. Towards loss of dependency 5,84,800 2. Towards funeral expenses 5,000 Total 5,89,800 Compensation awarded by the Tribunal 4,75,150 Enhanced compensation by this Court 1,14,650 17. In view of the above, the Miscellaneous First Appeal filed by the claimants is allowed in part; the impugned judgment and order passed by the Tribunal dated 17.03.2015 is modified. The claimants are entitled for enhanced compensation of Rs. Towards funeral expenses 5,000 Total 5,89,800 Compensation awarded by the Tribunal 4,75,150 Enhanced compensation by this Court 1,14,650 17. In view of the above, the Miscellaneous First Appeal filed by the claimants is allowed in part; the impugned judgment and order passed by the Tribunal dated 17.03.2015 is modified. The claimants are entitled for enhanced compensation of Rs. 1,14,650/- (Rupees one lakh fourteen thousand six hundred and fifty only) with interest @ 12% p.a. from one month after the date of accident till the date of realization. Ordered accordingly.