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2019 DIGILAW 1219 (KAR)

Subbamma v. H. N. Krishnegowda

2019-06-12

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. 1. By consent of learned counsel appearing for the parties, the matter is taken up for final hearing. 2. The present appeal is filed by the mother and wife of the deceased Keshava @ Ravi against the Judgment and Order dated 13.04.2016 passed in E.C.A. No. 70/2014 on the file of I Additional Senior Civil Judge and JMFC Chikkamagaluru, awarding the compensation of Rs. 6,42,068/- to the claimants No. 1 and 3 directing the respondent No. 2-Insurance Company to pay the compensation of Rs. 6,42,068/- and the first respondent-owner to pay the interest at the rate of 12% per annum on Rs. 6,42,068/- after the expiry of 30 days from the date of accident, till the date of payment. 3. It is the case of the claimants that the deceased Keshava @ Ravi was working under the first respondent. On 02.05.2013 at about 8-45 a.m. during the course of employment, when he was cutting the firewood, a tree was fallen on him. Due to the said impact, he sustained grievous injuries and succumbed to the same. He was aged about 34 years and drawing daily wages of Rs. 350/- per day. Second respondent is the Insurer and first respondent is the owner; both are liable to pay the compensation. 4. The first respondent filed objections denying the petition averments, but admitted that he was provided treatment and paid Rs. 50,000/- to the claimants. The first respondent also claimed that he did Insurance Policy with second respondent, second respondent is liable to pay the compensation. The second respondent Insurance Company filed the objections and admitted that the Insurance policy was in force and governed by the terms and conditions of the policy. 5. Based on the aforesaid pleadings, the Tribunal framed the following issues: 1. Whether the petitioners prove that deceased Keshava @ Ravi died on 2.5.2013 as a result of injuries suffered by him while cutting a tree in the estate of the 1st respondent and thereby the death of the deceased occurred during and in the course of his employment under respondent No. 1? 2. Whether the petitioners prove that as on the date of accident, deceased Keshava @ Ravi was 34 years old and he was getting Rs. 350/- per day? 3. Whether the petitioners are entitle for compensation with interest and penalty? 4. What order or award? 6. 2. Whether the petitioners prove that as on the date of accident, deceased Keshava @ Ravi was 34 years old and he was getting Rs. 350/- per day? 3. Whether the petitioners are entitle for compensation with interest and penalty? 4. What order or award? 6. In order to prove the case of the claimants, claimant No. 1-mother of the deceased examined as PW-1 and got marked the documents as Exs.P1 to P7. On behalf of the respondents, first respondent and second respondent examined as RW-1 and RW-2, respectively and got marked two documents as Exs.R1 and R2. 7. The Tribunal after considering the entire material on record, recorded a finding that the claimants proved the fact that the deceased Keshava @ Ravi died on 2.5.2013 during the course of employment under the first respondent, also proved the age of deceased was 34 years and he was getting wages of Rs. 350/- per day. Accordingly, the Tribunal by the impugned Judgment and Order dated 13.04.2016, awarded total compensation of Rs. 6,42,068/- with 12% interest per annum after the expiry of 30 days from the date of accident, till the date of payment. Hence, the present appeal is filed for enhancement by the claimants. 8. The Insurance Company respondent No. 2 as well as the owner respondent No. 1 have not filed any appeal against the Judgment and Order passed by the Tribunal. 9. I have heard the learned counsel appearing for the parties to the lis. 10. Sri Ravikumar, learned counsel for the appellants contended that the impugned Judgment and Order passed by the Tribunal taking the monthly wages of the deceased as Rs. 6,440/- is without any basis, cannot be sustained. He would further contended that Ex.R1-Check roll issued by RW-1 clearly depicts the deceased was getting Rs. 280/- per day. The check roll pertains only 28 days. If 30 days is considered, it comes to Rs. 8,400/- as monthly income. He would further contended that the Tribunal has not awarded any compensation towards funeral expenses as contemplated under the provisions of Section 4(4) of the Employees' Compensation Act, 1923 (Act for short). Therefore, he sought to allow the appeal. 11. The check roll pertains only 28 days. If 30 days is considered, it comes to Rs. 8,400/- as monthly income. He would further contended that the Tribunal has not awarded any compensation towards funeral expenses as contemplated under the provisions of Section 4(4) of the Employees' Compensation Act, 1923 (Act for short). Therefore, he sought to allow the appeal. 11. Per contra, Sri S.K. Shivashankar, learned counsel for respondent No. 1 and Sri S. Krishna Kishore, learned counsel for respondent No. 2, sought to justify the impugned order and contended that in the absence of any material document produced by the claimants, the Tribunal justified in taking the monthly wages of the deceased at Rs. 6,440/- per month. Therefore, the claimants are not entitled for Rs. 8,400/- as alleged in view of the provisions of Section 4, Explanation II of the Act, in view of the substitution of the provision w.e.f. 18-1-2010 by Act No. 45 of 2009. Utmost, the monthly wages has to be taken reasonably as Rs. 8,000/-. Therefore, they sought to dismiss the appeal. 12. This Court admitted the appeal to consider the following substantial questions of law: (1) Whether the Tribunal is justified in taking the monthly wages of the deceased as Rs. 6,440/- in view of Ex.P1 in the facts and circumstances of the case? (2) Whether the Tribunal is justified in taking the monthly wages of the deceased as Rs. 6440/- ignoring the amended provisions of Section 4(1) Explanation II of the Employees' Compensation Act, 1923 (Act for short) [Substituted for the words "eighty thousand rupees" by Act No. 45 of 2009, w.e.f. 18-1-2010] when the accident occurred on 2-5-2013, which is subsequent to the amendment in the facts and circumstances of the case? (3) Whether the Tribunal is justified in awarding the compensation without granting funeral expenses as contemplated under Section 4(4) of the Act? 13. Having heard the learned counsel for the parties, it is not in dispute that the deceased Keshava @ Ravi, who is the son of the first claimant, brother of the second claimant and husband of the third claimant, died in the accident occurred on 2.5.2013 during the course of employment under the first respondent. According to the claimants, the deceased was earning Rs. 8,400/- per month. In support of their contention, they have produced Ex.R1 and examined the employer RW-1. According to the claimants, the deceased was earning Rs. 8,400/- per month. In support of their contention, they have produced Ex.R1 and examined the employer RW-1. By careful perusal of the evidence of RW-1, who has not disputed the relationship of the parties as master and servant, who stated on oath that he was paying Rs. 280/- per day and Ex.R1-Check roll clearly depicts Rs. 280/- per day. If we consider Rs. 280/- x 30 days, it would be Rs. 8,400/-. The Tribunal ignoring the material evidence of PW-1, RW-1 and Ex.R1 proceeded to take the monthly wages of the deceased as Rs. 6,440/- is erroneous and contrary to the material on record. 14. It is also not in dispute that the deceased was aged about 34 years and died during the course of employment. The claimants are entitled for funeral expenses of Rs. 5,000/- as per the provisions of Section 4(4) of the Act, the same has not been considered. Therefore, the appellants have made out a case for further enhancement. 15. For the reasons stated above, the substantial questions of law framed in this appeal have to be answered in the negative holding that the Tribunal is not justified in taking the monthly wages of Rs. 6,440/- per month, which is contrary to the material on record. Therefore, the claimants are entitled for enhanced compensation towards loss of dependency and funeral expenses. 16. After taking the monthly wages of the deceased at the rate of Rs. 8,000/- as per the provisions of Section 4, Explanation II of the Act in view of the substitution of the provision w.e.f. 18-1-2010 by Act No. 45 of 2009, 50% has to be deducted under the provisions of Section 4(1)(a) of the Act and relevant factor would be 199.40. The total compensation towards 'Loss of dependency' would be Rs. 7,97,600/- [50% of 8000 = 4000 x 199.40]. 17. After re-assessing the entire material on record, the claimants are entitled for compensation as under:- S. No. Particulars Amount 1. Loss of dependency Rs. 7,97,600/- 2. Funeral Expenses Rs. 5,000/- Total Rs. 8,02,600/- Less: Compensation awarded by the Tribunal Rs. 6,42,068/- Enhanced compensation Rs. 1,60,532/- 18. Thus, the claimants are entitled for the enhanced compensation of Rs. 1,60,532/- with interest at the rate of 12% per annum after the expiry of 30 days from the date of accident, till the date of payment. 7,97,600/- 2. Funeral Expenses Rs. 5,000/- Total Rs. 8,02,600/- Less: Compensation awarded by the Tribunal Rs. 6,42,068/- Enhanced compensation Rs. 1,60,532/- 18. Thus, the claimants are entitled for the enhanced compensation of Rs. 1,60,532/- with interest at the rate of 12% per annum after the expiry of 30 days from the date of accident, till the date of payment. Accordingly, I pass the following: ORDER: (i) Appeal is allowed in part. (ii) The second respondent-Insurance Company is directed to deposit the compensation amount, if not already deposited and the enhanced compensation before the Tribunal within four weeks from the date of receipt of a copy of this Judgment. (iii) The first respondent owner shall pay interest at 12% per annum on the enhanced compensation amount after the expiry of 30 days from the date of the accident, till the date of payment. (iv) Appellant Nos. 1 and 2 are entitled for the compensation at the ratio of 25:75 respectively and the Tribunal is directed to release the enhanced compensation amount in favour of appellant Nos. 1 and 2. (v) The amount in deposit, if any, before this Court is directed to be transferred to the concerned Tribunal, forthwith.