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2020 DIGILAW 1124 (KAR)

Gangamalamma v. Divisional Controller Nekrtc Divisional Office Raichur

2020-06-18

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, these appeals are taken up for final hearing and for disposal. MFA No.200725/2016 is preferred by the appellant/claimant and MFA No.200731/2016 is preferred by the KSRTC-Corporation calling in question the judgment and award dated 05.10.2015 passed in E.C.A.No.68/2014 by the Senior Civil Judge & JMFC, Lingasugur (for short 'trial court'). MFA No.200725/2016 is preferred only on the short ground that the trial court has awarded compensation with interest @ 12% p.a. from 30th day of the judgment till realization but ought to have been awarded interest from the date of the accident. MFA No.200731/2016 is preferred on the ground that the monthly income adopted by the trial court at Rs.11,010/- is on the higher side. 2. For the sake of convenience, the rank of the parties are stated as mentioned before the Court below. 3. The deceased was the bus driver/employee under the respondent-Corporation. On 21.01.2011 the deceased was entrusted for driving bus bearing Reg.No.KA-38/F-382 from Belagavi to Raichur and when he was driving bus from Belagavi to Raichur, he reached Salahalli on Belagavi-Bagalkote road at 11:30 p.m. another vehicle-truck proceed ahead to the said NEKRTC bus and when the deceased over took the above said truck, at the same time another goods vehicle bearing Reg.No.KA-48/470 loaded with onion came from opposite direction with great speed, rash and negligent manner and dashed against the said NEKRTC bus which was being driven by the deceased and at the same time truck bearing Reg.No.MH-15/G-8549 also hit the back side of the bus. Due to this accident NEKRTC Bus turtled down on the road side ditch and the deceased-driver of the said bus died on the spot and injuries and fatalities to other inmates of the bus. 4. The appellant/claimant being the wife of the deceased preferred petition before the trial court for award of compensation on account of death of the deceased. 5. The petitioner had given evidence as PW.1 and got marked Exs.P.1 to P.8. On behalf of respondent/corporation an official was examined as RW.1 and produced documents as Exs.R1 to R5. 4. The appellant/claimant being the wife of the deceased preferred petition before the trial court for award of compensation on account of death of the deceased. 5. The petitioner had given evidence as PW.1 and got marked Exs.P.1 to P.8. On behalf of respondent/corporation an official was examined as RW.1 and produced documents as Exs.R1 to R5. The trial court by taking into consideration income at Rs.11,010/- per month as per Ex.R3/salary slip had awarded compensation at Rs.8,47,000/- along with interest @ 12% from the 30th day of its judgment till realization. 6. Being aggrieved by the judgment and award, the appellant/claimant preferred MFA No.200725/2016 on the ground that the interest awarded on the compensation amount from 30th day of its judgment but not from the date of accident. 7. Mfa No.200731/2016 is preferred by the respondent/corporation on the ground that the monthly income adopted by the Commissioner is on the higher side and ought to have taken at Rs.10,000/- per month as per notification issued by the Central Government. Therefore, for reducing the compensation amount the respondent/corporation is in appeal. 8. Substantial questions of law in these appeals arise for consideration as below: 1) Whether the approach of the trial court in awarding compensation amount from 30th day of its judgment but not from the date of accident is contrary to law? 2) Whether the learned trial court approach in holding the monthly income of the deceased is on higher side contrary to the evidence on record thus appreciating evidence requires any interference? 9. The trial Court has relied on the documentary evidence salary slip at Ex.R.3 produced by the respondent/corporation and accordingly taken into consideration monthly income of the deceased at Rs.11,010/- and accordingly quantified the compensation and has granted compensation of Rs.8,47,000/- with interest @ 12% p.a. from the 30th day of its judgment till its realization. 10. The learned counsel for the appellant in MFA No.200731/2016 contends that the learned trial court ought to have taken monthly income at Rs.10,000/- as per notification issued by the Central Government. But learned trial Court had taken the same on higher side. Therefore, submitted that it requires interference. Section 4 of the Act, enunciates amount of compensation how can it be computed in case of death and in case of occurring permanent total disability. 11. But learned trial Court had taken the same on higher side. Therefore, submitted that it requires interference. Section 4 of the Act, enunciates amount of compensation how can it be computed in case of death and in case of occurring permanent total disability. 11. As per Section 4 of the Act, the amount of compensation quantified in case of death is an amount equal to 50% of the monthly wages of the deceasedemployee multiplied by the relevant factor. Therefore, the provisions of law is very clear wherever compensation is to be determined or quantified under this Act, the monthly income is to be taken into consideration 50% of the monthly wages. In the present case as rightly contended by the counsel for the appellant/claimant in MFA No.200725/2016 the learned trial Court has considered monthly income at Rs.11,010/- based on Ex.R-3/salary slip which is produced by the respondent-Corporation itself. 12. Upon considering and perusing Ex.R3/salary slip it was the wage given to the deceased for 22 days sum of Rs.9,700/- in a month. This documentary evidence Ex.R3/salary slip is produced by the respondent/Corporation itself. Based on this Ex.R-3 only the learned Commissioner has taken in to consideration monthly income. Therefore, if considering Ex.R3, is calculated for 30 days (whole month) it would be more than Rs.13,000/- per month. But however, upon considering the cross-examination of RW.1 coupled with Ex.R3 it was held that monthly income at Rs.11,010/- and accordingly awarded compensation. Therefore, in this regard I do not find any merit in the submission made by the learned counsel for the respondent-corporation. Learned trial Court has rightly held monthly income of the deceased at Rs.11,010/- which does not require any interference by this court. Therefore, the determination of the compensation amount made by the learned trial Court is just and proper. The respondent-Corporation has not canvassed any other ground to cause interfere with the award. Therefore, MFA No.200731/2016 is liable to be dismissed. 13. Learned counsel for the appellant/claimant in MFA No.200725/2016 would contend that learned trial Court ought to have awarded compensation from the date of accident but wrongly awarded compensation and interest from the 30th day of judgment. Therefore, the learned counsel for the appellant/claimant submitted the award of compensation and interest thereon can be made from the date of accident. 13. Learned counsel for the appellant/claimant in MFA No.200725/2016 would contend that learned trial Court ought to have awarded compensation from the date of accident but wrongly awarded compensation and interest from the 30th day of judgment. Therefore, the learned counsel for the appellant/claimant submitted the award of compensation and interest thereon can be made from the date of accident. In this regard he relied on the judgment of Hon'ble Apex Court in the case of Pratap Narain Singh Deo vs. Srinivas Sabata and Another, (1976) 1 SCC 289 and Saberabibi Yakubbhai Shaikh and Others vs. National Insurance Company Limited and Others, (2014) 2 SCC 298 . 14. Interpreting Section 4A(3) of the Employee's Compensation Act (for short 'the Act'), 1923, the Hon'ble Apex Court in the case of Pratap Narain Singh (supra) at para-7 observed as under: "7. Section 3 of the Act deals with the employer's liability for compensation. Subsection (1) of that section provides that the employer shall be liable to pay compensation if "personal injury is caused to a workman by accident arising out of and in the course of his employment." It was not the case of the employer that the right to compensation was taken away under sub-section (5) of section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due until after the Commissioner's order dated May 6, 1969 under section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of a agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employer's liability to pay compensation under section 3, in respect of the injury, was suspended until after the settlement contemplated by section 19. There is therefore nothing to justify the argument that the employer's liability to pay compensation under section 3, in respect of the injury, was suspended until after the settlement contemplated by section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary." (Emphasis supplied by me) 15. Following the above stated ratio laid down by the Hon'ble Apex Court in the case of Saberabibi Yakubbhai Shaikh (supra) has also reiterated the same legal position that the compensation is to be awarded from the date of the accident and at para-8 observed as follows: "8. We have perused the aforesaid judgment. We are of the considered opinion that the aforesaid judgment relied upon by the learned counsel for the appellants is fully applicable to the facts and circumstances of this case. This Court considered the earlier judgment relied upon by the High Court and observed that the judgments in the case of National Insurance Co. Ltd. v. Mubasir Ahmed, (2007) 2 SCC 349 and Oriental Insurance Co. Ltd. v. Mohd. Nasir, (2009) 6 SCC 280 were per incuriam having been rendered without considering the earlier decision in Pratap Narain Singh Deo v. Srinivas Sabata, (1976) 1 SCC 289 . In the aforesaid judgment, upon consideration of the entire matter, a four-Judge Bench of this Court had held that the compensation has to be paid from the date of the accident." (Emphasis is furnished by me) 16. Therefore, it is dictum of the Hon'ble Apex Court that, as soon as personal injury/death is caused to the employee, therefore, the liability arises on part of the employer to pay compensation from the date of the injury or from the date of death is caused. 17. Therefore, there is no more res integra regarding the date on which the employer is liable to pay compensation as per dictum of the Hon'ble Apex Court as above stated thus the employer is liable to pay compensation soon after personal injury is happened to the employee or death is occurred. Therefore, in the present case, the deceased died in the accident on 21.01.2011. Therefore, the respondent-Corporation is liable to pay compensation with interest from the date of accident on which day the deceased died. 18. Therefore, in the present case, the deceased died in the accident on 21.01.2011. Therefore, the respondent-Corporation is liable to pay compensation with interest from the date of accident on which day the deceased died. 18. Therefore, in this regard granting compensation from 30th day of the judgment is not correct. Therefore, in this regard upon short point the judgment and award dated 05.10.2015 passed in ECA No.68/2014 by the Senior Civil Judge & JMFC, Lingasugur, requires interference and it is modified and the judgment of the learned trial court insofar as entitlement of compensation amount with interest from the date of accident but not from 30th day of the judgment. 19. Thus, the substantial questions of law are answered accordingly. 20. It is made clear that as per above stated reasons, the appellant/claimant is entitled interest at the rate of 12% per annum from the date of accident. 21. In the result, MFA No.200731/2016 filed by the respondent/Corporation is hereby dismissed. 22. Mfa No.200725/2016 filed by the appellant/claimant is hereby allowed and appellant/claimant is entitled compensation with interest @ 12% p.a. from the date of the accident.