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2019 DIGILAW 1348 (KAR)

Divisional Manager, National Insurance Co Ltd v. Sarojamma

2019-06-19

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. Though these appeals are listed for orders, with the consent of learned counsel appearing for the parties, taken up for final disposal. 2. MFA No.1259/2016 C/w MFA No.2160 are filed by the Insurance Company and MFA No.2166/2016 and MFA No.2167/2016 are filed by the claimants against the judgment and order dated 07.11.2015 made in ECA No.57/2014 and ECA No.58/2014 on the file of the I Additional Senior Civil Judge and MACT-V, Davanagere. 3. The parties herein are referred to as per their ranking before the Tribunal. 4. ECA No.57/2014 is filed by wife, daughter and mother of deceased K.S.Murugendrappa. It is the case of the claimants that the deceased K.S.Murugendrappa was working as a driver on the tractor and trailor bearing No.KA-17/TA-462-463 under respondent No.1 since one year and respondent No.1 was paying monthly wages of Rs.4,000/- and Rs.100/- per day as bata. ECA No.58/2014 is filed by wife and three minor children of the deceased K.T.Basavarajappa. It is the case of the claimants that deceased K.T.Basavarajappa was working as a coolie under respondent No.1 since one year and respondent No.1 was paying monthly wages of Rs.3,000/- and Rs.100/-per day as bata. 5. The brief facts of the case are that on 05.02.2010, at about 9.30 p.m. the deceased K.S.Murgendrappa had gone to attend the agricultural work of respondent No.1 and at that time, due to unavoidable circumstances, the said tractor and trailer driven by the deceased K.S.Murugendrappa fell into the canal near H.Kalapanhahally village. Due to which, said K.S.Murugendrappa along with another occupant K.T.Basavarappa, died on the spot. The claimants' contention before the Commissioner/Tribunal is that the deceased K.S.Murugendrappa and K.T.Basavarajappa were both working under respondent No.1 as driver and coolie and they died during the course of the employment. Hence, claimants of the deceased K.S.Murugendrappa sought for allowing the petition awarding compensation of Rs.8,00,000/- at 12% p.a. from the date of accident till realisation and the claimants of deceased K.T.Basavarajappa sought for the compensation of Rs.5,00,000/- at 12% p.a. from the date of accident till realisation. 6. Inspite of service of notice, respondent No.1- owner of the tractor and trailer has not appeared and therefore, he was placed exparte. 7. 6. Inspite of service of notice, respondent No.1- owner of the tractor and trailer has not appeared and therefore, he was placed exparte. 7. Respondent No.2-Insurance Company appeared before the Commissioner/Tribunal and filed objections in both the petitions denying the averments made in the claim petitions and contended that deceased K.S.Murugendrappa had purchased the alleged tractor and trailor from his registered owner earlier to the date of accident. On the date of accident, the deceased had used the said tractor and trailer along with another occupant-K.T.Basvarajappa for transportation of stones to Vaddinahalli village for road repair as owner and not as a paid driver. Therefore, there was no employer and employee relationship between respondent No.1 and deceased K.S.Murugendrappa. He had further contended that the deceased K.S.Murugendrappa had no valid and effective driving licence to drive the tractor and trailer and therefore he has violated the terms and conditions of the policy and also the provisions of Section 134(c) of the M.V.Act and provisions of Section 158(6) of 1988. His further contention before the Tribunal was that the said tractor and trailer should be used only for agricultural operations and not for other purposes such as accompanying coolies or passengers, hamalies, loader and unloader. It is contended that the deceased K.S.Murugendrappa had travelled unauthorisedly and the injuries sustained by him are not during the course of his employment and he was never employed by respondent No.1 at any point of time. Therefore, the insurance company is not liable to pay any compensation with interest to the claimants and sought for dismissal of the petitions. 8. On the basis of the pleadings, the Tribunal framed following issues in both the petitions: ECA No.57/2014 (1) Whether the petitioners prove that the deceased K.S.Murugendrappa was succumbed to the accident while working as driver under the employment of respondent No.1 in tractor-trailer bearing No.KA-17/TA-462-463 on 05/02/2010 at about 9.30 p.m., near H.Kalapanahalli? (2) Whether the petitioners prove that they are the dependants of the deceased? (3) Whether the petitioners prove the age and monthly income of the deceased? (4) Whether the petitioners are entitled for compensation? If so, from whom and what is the quantum? (5) What order or award? (2) Whether the petitioners prove that they are the dependants of the deceased? (3) Whether the petitioners prove the age and monthly income of the deceased? (4) Whether the petitioners are entitled for compensation? If so, from whom and what is the quantum? (5) What order or award? ECA No.58/2014 (1) Whether the petitioners prove that the deceased K.T.Basavarajappa was succumbed to the accident while working as coolie under the employment of respondent No.1 in tractor-trailer bearing No.KA-17/TA-462-463 on 05/02/2010 at about 9.30 p.m., near H.Kalapanahalli? (2) Whether the petitioners prove that they are the dependants of the deceased? (3) Whether the petitioners prove the age and monthly income of the deceased? (4) Whether the petitioners are entitled for compensation? If so, from whom and what is the quantum? (5) What order of award? 9. In order to establish the case of the claimants, claimant No.1 in ECA No.57/2014 was examined as PW1 and got marked the documents Exs.P1 to P9 and claimant No.1 in ECA No.58/2014 was examined as PW2. The owner of the vehicle-respondent No.1 has not been examined and he was placed exparte. The Administrative Officer of respondent No.2-Insurance company was examined as RW-1 and got marked the documents Exs.R1 to R4. 10. The Commissioner/Tribunal, considering the material on record, recorded the finding in both the claim petitions that the claimants have proved that the deceased persons namely K.S.Murugendrappa and K.T.Basavarajappa were succumbed to the injuries sustained in the accident while working as driver and coolie under respondent No.1 arising out of and during the course of the employment while proceeding in tractor and trailer bearing No.KA-17/TA-462-463 on 05.02.2010 at 9.30 p.m. and the claimants have also proved the age and monthly wages of the said deceased persons. On the basis of the evidence available on record, the Tribunal proceeded to pass the impunged judgment and order awarding compensation of Rs.1,20,000/- each in both the claim petitions. Hence, the present appeals are filed by the Insurance company for reduction of compensation questioning the liability and the claimants for enhancement of compensation. 11. I have heard the learned counsel for the parties to the lis. 12. Hence, the present appeals are filed by the Insurance company for reduction of compensation questioning the liability and the claimants for enhancement of compensation. 11. I have heard the learned counsel for the parties to the lis. 12. Sri A.N.Krishnaswamy, learned counsel appearing for the Insurance Company in MFA Nos.1259/2016 C/w MFA 1260/2016 contended that the Commissioner/Tribunal erred in awarding compensation of Rs.1,20,000/- each in both the petitions to the claimants by ignoring the provisions of Section 4(1)(a) of the Employees' Compensation Act, 1923 (for short 'Act'). Section 4(1)(a) depicts that in case of a death results from the injury, an amount equal to 50% of the monthly wages of the deceased (employee) multiplied by the relevant factor or an amount of Rs.1,20,000/-, whichever is more. He would further contend that inspite of the specific averments made in para-2 of the statement of objections filed by the Insurance company before the Commissioner/Tribunal that the deceased driver- K.S.Murugendrappa was not holding valid licence as on the date of the accident and the insurance company is not liable to pay any compensation, the Tribunal has not framed any issues in that regard. 13. He would further contend that when the insurance company has specifically denied the relationship between the parties, it is the duty of the claimants to prove the relationship. However, the Commissioner/Tribunal proceeded to hold that the relationship is proved without considering oral and documentary evidence on record. He, would further contend that the Commissioner/Tribunal erred in awarding compensation of Rs.1,20,000/- each in both the petitions to the claimants without any basis. Therefore, he sought to allow the appeals by setting aside the judgment and order of the Commissioner/Tribunal. 14. Per contra, Ms. Prema V., learned counsel appearing on behalf of Sri Rajashekar K., for the claimants vehemently contended that the Commissioner/Tribunal was not justified in taking the monthly wages of the deceased persons K.S.Murugendrappa and K.T.Basavarajappa at Rs.4,000/- p.m. and Rs.3,000/- p.m., which is contrary to the provisions of Section 4 Explanation II which came to be amended by Act No.49 of 2019 dated 18.01.2010. She would further contend that though the claimants in the claim petitions specifically claimed the interest, unfortunately, the Commissioner/Tribunal has not awarded any interest on the compensation amount as contemplated under the provisions of Section 4A(3) of the Act. She would further contend that though the claimants in the claim petitions specifically claimed the interest, unfortunately, the Commissioner/Tribunal has not awarded any interest on the compensation amount as contemplated under the provisions of Section 4A(3) of the Act. She would further contend that while the provisions of said Section contemplates that in case of a death results from the injury, an amount equal to 50% of the monthly wages of the deceased (employee) multiplied by the relevant factor or an amount of Rs.1,20,000/-, whichever is more, the learned judge ought not to have granted meager compensation of Rs.1,20,000/- to the claimants in each of the claim petitions. Taking into consideration the age of the deceased persons, the compensation will have to be assessed more. Admittedly, the learned judge has not considered the same. Therefore, she submits that the impugned orders passed by the Commissioner/Tribunal awarding compensation of Rs.1,20,000/- cannot be sustained and the matters require reconsideration. She further contended that as on the date of the accident, both the deceased persons K.S.Murugendrappa and K.T.Basavarajappa were working as driver and coolie under respondent No.1 and the tractor and trailer was insured and the insurance policy was in force as on the date of the accident. Therefore, she sought for allowing the appeals filed by the claimants by dismissing he appeals filed by the insurance company. 15. This Court, on 12.06.2019, admitted the appeals to consider the following substantial questions of law: (1) Whether the Senior Civil Judge/Commissioner is justified in awarding Rs. 1,20,000/- to the claimants in view of the provisions of Section 4(1)(a) of the Employees' Compensation Act, 1923, which clearly depicts that in the case of death, an amount equal to 50% of the monthly wages of the deceased multiplied by the relevant factor; or an amount of Rs. 1,20,000/- whichever is more? (2) Whether the Senior Civil Judge/Commissioner is justified in disposing of the claim petitions without there being an issue with regard to liability, when the Insurance Company has specifically pleaded in paragraph 2 of the Statement of objections? (3) Whether the Senior Civil Judge/Commissioner is justified in passing the impugned Judgment and Order without considering the relationship of master and servant in the absence of any evidence? (4) Whether the Senior Civil Judge/Commissioner is justified in passing the impugned Judgment and Order in the facts and circumstances of the case? 16. (3) Whether the Senior Civil Judge/Commissioner is justified in passing the impugned Judgment and Order without considering the relationship of master and servant in the absence of any evidence? (4) Whether the Senior Civil Judge/Commissioner is justified in passing the impugned Judgment and Order in the facts and circumstances of the case? 16. In view of the rival contentions urged by the learned counsel for the parties, it is clear that it is a specific case of the claimants in both the petitions that the deceased persons K.S.Murugendrappa and K.T.Basavarajappa died arising out of and during the course of the employment as driver and coolie under respondent No.1 on the tractor and trailor bearing No.KA-17/TA-462-463 and respondent No.1 was paying monthly wages to the deceased persons at Rs.4,000/- and 3,000/- with bata respectively. It is contended that the accident occurred during the course of employment and the same is evidenced by the material documents Exs.P1 to P5. It is the specific case of the appellant-Insurance Company that deceased K.S.Murugendrappa was not holding valid driving licence as on the date of the accident. Therefore, the insurance company was not liable to pay compensation as claimed by the claimants. This aspect was specifically contended in para-2 of the statement of objections filed before the Commissioner/Tribunal. 17. The Tribunal, while framing issues, ought to have framed all the issues with regard to allegations and defence made by the parties when a specific defence was made that it is the duty and obligation of the Tribunal to frame issue with regard to liability. Admittedly, in the present case, no such issue is framed with regard to liability while determining the compensation. It is the specific contention of the claimants that the accident occurred on 05.02.2010 i.e., subsequent to the amended provisions of Section 4(1) Explanation II substituted for the words "eighty thousand rupees" by Act No.45 of 2009 w.e.f. 18.01.2010. The Tribunal ought to have applied the provisions of Section 4(1)(a) of the Act, which reads as under: "4. Amount of compensation- (1) subject to the provisions of this Act, the amount of compensation shall be as follows, namely- T(a) Where death results from injury an amount the injury [fifty percent] of the monthly wages of the deceased [employee] multiplied by the relevant factor; or an amount of [one lakh and twenty thousand rupees], whichever is more." 18. Amount of compensation- (1) subject to the provisions of this Act, the amount of compensation shall be as follows, namely- T(a) Where death results from injury an amount the injury [fifty percent] of the monthly wages of the deceased [employee] multiplied by the relevant factor; or an amount of [one lakh and twenty thousand rupees], whichever is more." 18. A careful perusal of Section 4(1)(a) of the Act, makes it clear that in case of a death results from the injury, an amount equal to 50% of the monthly wages of the deceased (employee) multiplied by the relevant factor or an amount of Rs.1,20,000/-, whichever is more. Unfortunately, in the present case, the Commissioner/Tribunal without taking into consideration the provisions of Section 4(1)(a) of the Act, has proceeded to award total compensation of Rs.1,20,000/-, which is unsustainable. 19. The impugned judgment and order of the Tribunal depicts that the Tribunal has not awarded any interest as contemplated under the provisions of Section 4A(3) of the Act. The impugned judgment and order passed by the Tribunal is based on the assumption and presumption without following relevant provisions of the Act as stated supra. Hence, the matters require for reconsideration. 20. For the reasons stated above, the impugned judgment and order dated 07.11.2015 passed in ECA No.57/2014 and ECA No.58/2014 on the file of the I Additional Senior Civil Judge and MACT-V, Davanagere is hereby set aside and the appeals are remanded to the I Additional Senior Civil Judge and MACT-V, Davanagere, for reconsideration afresh after giving sufficient opportunity to both parties and to frame proper issues as contemplated under the provisions of the Act and shall decide the claim petitions within a period of six months subject to co-operation of the parties to the lis. Parties are directed to appear before the Commissioner/Tribunal on 15.07.2019. The amount in deposit before the Commissioner/Tribunal shall enure to the benefit of the parties who ultimately succeed before the Commissioner/Tribunal. All contentions raised by both the parties to the lis are kept open to urge before the Commissioner/Tribunal. Ordered accordingly.