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2020 DIGILAW 1107 (KAR)

Gangappa v. Shambhashivarao

2020-06-17

HANCHATE SANJEEVKUMAR

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JUDGMENT Hanchate Sanjeevkumar, J. - Even though the case is at the stage of admission but at the consent of the learned counsels for both the parties this appeal is taken up for consideration for hearing and disposal finally. 2. The present appeal is preferred under Section 30(1) of the Employees Compensation Act, 1923 challenging the judgment and award passed in ECA No.138/2014 dated 07.03.2015 by the Senior Civil Judge (Commissioner for Workmen Compensation), Yadgiri. 3. The brief facts of the case are as follows ;- The deceased Bannamma was employee under respondents No.1 and 2 as a coolie, was working under the construction site of the respondents No.1 and 2 and on 17.12.2012 at 9.00 a.m., when the deceased was water curing the walls at 5th floor of the building construction which was being carried out by respondents No.1 and 2 situated at Talacavuary Layout, Basava Nagar, Bengaluru, the deceased fell down from the floor and sustained fatal injuries and died on the spot. 4. The legal heirs of the deceased preferred the petition before the Court of Senior Civil Judge (Commissioner for Workmen Compensation), Yadgiri. 5. The husband of the deceased is examined as PW.1 and got marked documents as Exs.P1 to P7. The respondents have not lead any evidence either oral or documentary before the Trial Court. 6. The Court of Senior Civil Judge has considered the case and after appreciating the evidences on record, taking into consideration the age of the deceased was 35 years at the time of incident and accordingly the relevant factor is 197.06 and taken into consideration the monthly income of the deceased at Rs.5,000/- per month and accordingly awarded compensation of Rs.4,92,650/- towards loss of dependency and granted compensation of Rs.5,000/- towards funeral expenses. Thus, totally awarded compensation of Rs.4,97,650/- with interest at the rate of 6% per annum from the date of incident till realization of amount by fastening the liability on respondent No.2 as he is employer of the deceased. 7. Thus, totally awarded compensation of Rs.4,97,650/- with interest at the rate of 6% per annum from the date of incident till realization of amount by fastening the liability on respondent No.2 as he is employer of the deceased. 7. Being aggrieved by the said judgment and award the legal heirs of the deceased preferred the present appeal for seeking enhancement of compensation on the ground that the Trial Court had taken the income at Rs.5,000/- per month which is meager but ought to have taken the income of Rs.7,800/- per month as Rs.260/- per day, but has considered the income on lower side above stated and also the interest awarded at the rate of 6% per annum but interest ought to have been awarded at the rate of 12% per annum. Therefore, on these grounds raised, the present appeal is preferred. 8. Upon considering the appeal the following substantial question of law would arise for my consideration is "Whether the Court of Senior Civil Judge has erred in not taking the income at the rate of Rs.260/- per day as it was prevailing rate as on the date of the incident for making livelihood considering the cost of living in Bengaluru city; thus committed error in not noticing judicial notice of fact and evidence of cost of living ?" 9. In the present case the factum of the relationship of the deceased and respondent No.2 being employee and employer is not disputed. The age of the deceased as on the date of incident as 35 years is also not disputed fact. 10. The learned counsel for the appellant argued that the Trial Court has taken into consideration the monthly income of Rs.5,000/- as notional income which is on meager side and therefore the monthly income of the deceased if considered at the rate of Rs.260/- per day that would be justified in the present case and interest to be awarded is at the rate of 12% as per Section 4A(3)(a) of Employee's Compensation Act, 1923. 11. On the other hand the learned counsel for respondents argued and fairly submitted that if income of Rs.6,500/- per month is considered that would be a fair amount. Therefore, requested to consider the monthly income of Rs.6,500/- per month. 12. 11. On the other hand the learned counsel for respondents argued and fairly submitted that if income of Rs.6,500/- per month is considered that would be a fair amount. Therefore, requested to consider the monthly income of Rs.6,500/- per month. 12. Admittedly the deceased was working in Bengaluru City on the building construction site as a coolie and while under the employment of the respondents of being water curing work on the walls of the 5th floor the deceased fell down and died. Therefore the place of incident is at Bengaluru is not disputed and the date of incident is 17.12.2012. A judicial notice of facts is to be taken into consideration, in the year 2012 for making livelihood in Bengaluru city, monthly income of Rs.5,000/- is on too lower side and cannot live with such meager monthly income. It is bounden duty of every employer to pay wage to its employee not less than the rate prescribed under the provisions of Minimum Wages Act, 1948. Therefore this Court is of the opinion that what is the income adopted by the Trial Court at Rs.5,000/- per month is on lower side. Also a judicial notice of facts is taken into consideration, as on the date of incident in Bengaluru City, the coolie per day would not be less than Rs.260/-. Therefore, I find force in the submission made by the counsel for the appellants. Even considering Rs.6,500/- per month is on too lower side. Therefore, this Court has taken into consideration the income of coolie work workman working on the construction site at Rs.260/- per day as on the date of incident. Therefore, the Trial Court has lost sight of practical aspect and erred in not taking the income at the rate of Rs.260/- per day. Accordingly the substantial question of law is answered by holding the daily wage of Rs.260/- per day considering the nature of job what was the deceased was doing in Bengaluru City and cost of living to make livelihood in Bengaluru city. 13. It is undisputed fact that the deceased was 35 years old as on the date of incident and relevant factor is 197.06 and accordingly by applying Section 4(1) of the Workmen's Compensation Act, if 50% of monthly income is deducted then it would be 260x1/2 x30x197.06=7,68,534/-. Therefore, the appellants are entitled compensation as per the determination made above. 13. It is undisputed fact that the deceased was 35 years old as on the date of incident and relevant factor is 197.06 and accordingly by applying Section 4(1) of the Workmen's Compensation Act, if 50% of monthly income is deducted then it would be 260x1/2 x30x197.06=7,68,534/-. Therefore, the appellants are entitled compensation as per the determination made above. The respondents shall pay the above said amount by deducting the amount already paid if any, by the respondents to the appellants. The award amount, on other heads are kept intact as ordered by the learned Senior Civil Judge. Therefore, the appellants are entitled the compensation as above stated with 12% interest from the date of due till the realization of the amount. As per Section 4A(3)(a) of Employee's Compensation Act, 1923, from the date of due means from the date of the accident/incident. The Hon'ble Supreme Court in the case of Pratap Narain Singh Deo v. Srinivas Sabata and another, (1996) 1 SCC 289 and in Saberabibi Yakubbhai Shaikh and others v. National Insurance Company Limited and others, (2014) 2 SCC 298 , wherein it is held that the employer is liable to pay compensation from the date of the accident/incident. Therefore, the appellant is entitled for compensation from the date of accident/incident. In case of default of payment of compensation then respondent No.2 is liable for payment of penalty as per provisions of the Act. Hence, for the foregoing discussions and the reasons the appeal is allowed and disposed of. In terms of the above, I.A.No.1/2016 for producing additional documents has become infructuous. Accordingly, I.A.No.1/2016 is disposed of as having become infructuous.