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2020 DIGILAW 1240 (KAR)

Kashibai v. Channabasu @ Channabasappa

2020-06-25

HANCHATE SANJEEVKUMAR

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JUDGMENT Hanchate Sanjeevkumar, J. - Though this matter is listed for admission, with the consent of both the learned counsels, is taken up for final disposal. 2. The case of the appellants/claimants is that, the deceased was working as a driver in Bolero Jeep bearing Reg. No.KA-48/M-5343 under the employment of respondent No.1 on monthly wages of Rs.5,000/- and bhatta of Rs.100/- per day and the said vehicle was insured with respondent No.2/Insurance Company. It is contended that on 27.08.2013 at about 6:20 a.m. near Bekkod cross on Mundagod Sirsi road, the deceased was on duty on the said Bolero Jeep as a driver and was going towards Dharmasthala side from Savalagi and when the vehicle reached place called near Bekkod cross, the deceased lost control over the vehicle and dashed a road side tree and vehicle was turtled and fell into a road side ditch and due to the said accident, the deceased died. 3. The appellants/claimants have filed petition before the learned MACT-XII/Commissioner for Workmen's Compensation, Vijayapur claiming compensation under various heads. The wife of the deceased adduced evidence as PW.1 and got marked documents at Exs.P1 to P8. Respondent No.2/Insurance Company had filed documentary evidence at Ex.R.1/Insurance Policy. 4. After appreciating the evidence on record, the learned MACT-XII/Commissioner for Workmen's Compensation, has passed award of Rs.4,90,350/- with interest at the rate of 12% p.a. from the date of petition till the date of deposit holding monthly wages at Rs.5,000/- per month including an amount of Rs.10,000/- towards transportation and funeral expenses. Thus, the learned MACT-XII/Commissioner for Workmen's Compensation granted total compensation of Rs.4,90,350/- with interest @ 12% p.a. from the date of petition till its deposit. 5. The appellants/claimants have preferred the present appeal for enhancement of compensation on the ground that the monthly salary as held by the learned MACT-XII/Commissioner for Workmen's Compensation, is on the meager side, but considering the nature of job of the deceased, it would have been more. Therefore, contended a sum of Rs.8,000/- per month is to be taken into consideration as monthly wage of the deceased and prayed for enhancement of compensation accordingly. 6. On the other hand, learned counsel for respondent No.2/Insurance Company submitted that the appellants/claimants themselves before the learned MACT-XII/Commissioner for Workmen's Compensation, have contended the monthly wage of the deceased as Rs.5,000/- and accordingly the same was considered by the learned MACT-XII/Commissioner for Workmen's Compensation. 6. On the other hand, learned counsel for respondent No.2/Insurance Company submitted that the appellants/claimants themselves before the learned MACT-XII/Commissioner for Workmen's Compensation, have contended the monthly wage of the deceased as Rs.5,000/- and accordingly the same was considered by the learned MACT-XII/Commissioner for Workmen's Compensation. Therefore, now the appellants/claimants are estopped from contending the same and submitted the amount of compensation awarded is correct, legal and justifiable one. Hence, prayed to dismiss the appeal. 7. Upon considering the entire material and argument canvassed by the learned counsels appearing for both sides, the substantial question of law arises for consideration in the present appeal is : "1.Whether the determination of monthly wage of the deceased at Rs.5,000/- by the learned MACT-XII/Commissioner for Workmen's Compensation and accordingly grant of compensation based on this amount of wage is correct by considering the nature of job of the deceased and prevailing monthly wage as on the date of the accident, thus requires interference?" 8. In the present case before the learned MACTXII/ Commissioner for Workmen's Compensation the appellants/claimants themselves have contended that the monthly wage of the deceased was Rs.5,000/- and bhatta of Rs.100/- per day. Accordingly, the learned MACT-XII/Commissioner for Workmen's Compensation accepted the said contentions of monthly wage of Rs.5,000/- and accordingly granted compensation. But appellants/claimants before the learned MACTXII/ Commissioner for Workmen's Compensation have also contended that respondent No.1/employer was also paying bhatta of Rs.100/- per day to the deceased and this is not considered by the learned MACTXII/ Commissioner for Workmen's Compensation, while computing the income of the deceased. 9. The learned counsel for the respondents submitted that for payment of bhatta there is no evidence to claim the same. Therefore, considering monthly wage at Rs.5,000/-, learned MACTXII/ Commissioner for Workmen's Compensation has correctly assessed and computed the compensation. Accordingly, submitted there is no need to interfere with the amount of compensation awarded by the learned MACT-XII/Commissioner for Workmen's Compensation. 10. Admittedly, in the present case the deceased was driver of the Bolero Jeep. The appellant/claimants have contended that the monthly wage of the deceased at Rs.5,000/- and respondent No.1 being the employer was paying Rs.100/- per day as bhatta. But the learned MACT-XII/Commissioner for Workmen's Compensation, has not included bhatta of Rs.100/- per day as income of the deceased. It is common that the drivers would always get bhatta from the employer. The appellant/claimants have contended that the monthly wage of the deceased at Rs.5,000/- and respondent No.1 being the employer was paying Rs.100/- per day as bhatta. But the learned MACT-XII/Commissioner for Workmen's Compensation, has not included bhatta of Rs.100/- per day as income of the deceased. It is common that the drivers would always get bhatta from the employer. The quantum of bhatta would be different from employer to employer but employer would always pay bhatta according to the profit being earned from the vehicle and it may changes according to nature of vehicle. 11. In the present case the request of the appellants/claimants to consider bhatta of Rs.100/- per day being given by respondent No.1/employer is also to be taken into consideration under the criteria of income, sounds more probable. Further, the Central Government in the Notification No.S.O.1258 (E), dated 31.05.2010, as per Section 4(1-B) of the Employee's Compensation Act, 1923 had quantified the monthly wages of the workman at Rs.8,000/- per month. Therefore, judicial notice of fact to be taken that the drivers also would be paid bhatta by their employer and also bhatta is to be taken as income of the deceased as the workman normally would contribute bhatta amount to family as income. In the present case the accident was occurred on 27.08.2013, therefore, on the date of accident considering monthly wage of Rs.5,000/- was too meager one to sustain in the life having wife and children. Therefore, to compensate them the employer always pays bhatta to drivers and this bhatta was also taken into consideration towards income of the deceased/workman and in the present case as income of the deceased. Therefore, considering this factor and for the reasons discussed above, monthly wage of the deceased is to be taken into consideration at Rs.7,000/- for the reason that for all 30 days the deceased might not have been driving the Jeep and considering at least he would do work for 20 to 25 days in a month. Therefore, considering all these factors, I am of the opinion that monthly wage of the deceased is taken at Rs.7,000/- is appropriate. Therefore, in this regard, in my opinion the monthly wage taken by the learned MACT-XII/Commissioner for Workmen's Compensation, at Rs.5,000/- is on the lower side. Therefore, the appellants/claimants are entitled compensation considering the monthly wage at Rs.7,000/-. Therefore, considering all these factors, I am of the opinion that monthly wage of the deceased is taken at Rs.7,000/- is appropriate. Therefore, in this regard, in my opinion the monthly wage taken by the learned MACT-XII/Commissioner for Workmen's Compensation, at Rs.5,000/- is on the lower side. Therefore, the appellants/claimants are entitled compensation considering the monthly wage at Rs.7,000/-. It is not disputed that age of the deceased was 37 years and accordingly relevant factor would be 192.14 as taken by the learned MACT-XII/Commissioner for Workmen's Compensation, Vijayapur. Accordingly, enhanced compensation is computed and quantified as follows: Rs.7,000/- x 50% x 192.14 = Rs.6,72,490/- 12. Therefore, the appellants/claimants are entitled to compensation of Rs.6,72,490/- with interest @ 12% p.a. from the date of accident as per 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 . 13. Accordingly, the appeal is allowed in part. The substantial question of law answered accordingly. 14. Respondent No.2/Insurance Company is directed to pay the above stated enhancement amount by deducting amount which is already paid to the appellants/claimants. Other benefits given by the learned MACT-XII/Commissioner for Workmen's Compensation, is kept intact.