Partly allowed

Sri. Rangaswamy M R v. Sri. Ningaraju

Karnataka HC16 Jul 2021MFA/6310/2016

Case brief

AI extract

What is this about?

The High Court held that death occurring during commute home is in the course of employment. It clarified that compensation must use the statutory minimum wage ceiling under Section 4(1-B) rather than actual salary, reducing awards accordingly, and enhanced interest rates to 12%.

What did the court decide?

Compensation quantum reduced to Rs.7,97,600/- based on statutory minimum wage; interest enhanced to 12% per annum.

Sri. Rangaswamy M R Vs Sri. Ningaraju — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JULY, 2021

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PRESENT

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THE HON’BLE MRS. JUSTICE S. SUJATHA

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AND

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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MISCELLANEOUS FIRST APPEAL NO.8577 OF 2017 (WC)

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c/w

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MISCELLANEOUS FIRST APPEAL NO. 3269 OF 2016 & MISCELLANEOUS FIRST APPEAL NO.6310 OF 2016

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In MFA 8577/2017

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BETWEEN Mangalore Electricity Supply Company Limited Represented by its The Executive Engineer (Ele) O & M Division Bhadravathi-577 301 Shivamogga District.

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...Appellant

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(By Shri H V Devaraju, Advocate) AND

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Smt. Bellamma W/o late Chinnappa Gowda Aged about 60 years R/at Harige Village Nidige Hobli Shivamogga Taluk-577 301.

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...Respondent

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(by Shri Sateesh Chandra, Advocate for Shri K B Gopal, Advocate)

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This Miscellaneous First Appeal is filed under Section 30(1) of Workmen’s Compensation Act, against the judgment and award dated 12.07.2017 passed in ECA No.17 of 2015 on the file of the II Additional Senior Civil Judge and Employees Compensation Commissioner at Shivamogga, partly allowing the claim petition for compensation.

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IN MFA No.6310/2016

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BETWEEN

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Sri Rangaswamy M R S/o Rangegowda Aged about 42 years R/at No.101, 6^th ‘B’ Cross Maheshwarinagara T Dasarahalli Bangalore-560 057.

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Also R/at Mallapura Village Kenkere Post, Gandasi Hobli Arsikere Taluk Hassan District.

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….Appellant

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(By Shri Ravishankar, Advocate)

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AND

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Sri Ningaraju S/o Haruve Gowda Aged 56 years No.B-10, Prakash Transport Duttl Industrial Sob (Devara Urs Truck terminal)

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Yashwanthapur Bengaluru-560 022.

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Bharti Axa General Insurance Co. Ltd., Prime Quadra No.30, II Floor Hebbal Road Bengaluru-560 024.

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…Respondents.

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(By Shri B Pradeep, Advocate for R2; R1 served)

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This Miscellaneous First Appeal is filed under Section 30(1) of Workmen’s Compensation Act, against the judgment and award dated 31.05.2016 passed in ECA No.05 of 2014 on the file of the XXVI ACMM and Employees Compensation Commissioner Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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In MFA 3269/2016

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BETWEEN

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K H Kanthareddy S/o late Hanumanthappa @ Hanumanthareddy Aged about 61 years

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Lakshmidevi W/o K H Kanthareddy Aged about 51 years

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Both are R/o Karikere Now R/o bank colony Chitradurga Town-577 501.

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…. Appellants

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(By Smt. Vijayalakshmi for Sri Shankar Goud G., Advocate)

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AND

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T Hanumanthappa S/o K Thippaiah Major Owner of Tanker Lorry Bearing Registration NO.KA-02/AA4228 R/o Sanikere, Challakere Taluk Chitradurga-577 501.

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M N Nagaraja Major Policy Holder of Tanker Lorry Bearing Registration No. KA-02/AA-4228 R/o No.276, 3^rd Block II Stage, Basaveshwaranagar Bengaluru-560 079.

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3.The Divisional Manager United India Insurance Co. Ltd. Divisional Office MMK Complex, PJ Extension Davanagere-577 001.

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…Respondents

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(By Shri S V Hegde Mulkhand, Advocate for R3; R1 and R2 are served)

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This Miscellaneous First Appeal is filed under Section 30(1) of Workmen’s Compensation Act, against the judgment and award dated 28.01.2016 passed in ECA No.78 of 2015 on the file of the II Additional Senior Civil Judge and Additional CFEC-III, Chitradurga, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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In these Miscellaneous First Appeals arguments being heard, judgment reserved, coming on for pronouncement of orders, this day, INDIRESH J., delivered the following:

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J U D G M E N T

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Since in all these appeals, common issue of assessing the monthly wages of victims is involved, the same are clubbed and are being disposed of by this common judgment.

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In MFA 8577 of 2017

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This appeal is filed by the Mangalore Electricity Supply Company Limited (for short hereinafter referred to as “MESCOM”), challenging the judgment and award dated 12^th July, 2017 passed by the II Additional Senior Civil Judge and Employees Compensation Commissioner, Shivamogga in ECA No.17 of 2015 (for short, hereinafter referred to as 'the Tribunal’), allowing the Claim Petition in part.

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For the sake of convenience, the parties in this appeal are referred to as per their rank and status before the trial Court.

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It is the case of the claimant that, her son deceased- C. Suresh, was working with MESCOM as a Lineman at Holehonnur Sub-Division, Anaveri Sector. It is further averred that on, 04^th

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July, 2014, after completion of his work at Anaveri and at about 8.00 p.m. while he was returning home on his motorcycle bearing registration No.KA-14/EE-6384, he met with an accident and succumbed to injuries. In view of untimely death of her son, the claimant preferred ECA No.17 of 2015 on the file of the trial Court seeking compensation under Section 22 of the Employee’s Compensation Act, 1923 (for short, hereinafter referred as the ‘Act’). It is further averred that the vehicle which caused accident was not traced and further averred that death of the son of the claimant was during and in the course of the employment with respondent-MESCOM, and therefore, sought for compensation under the Act.

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After service of summons, the respondent-MESCOM entered appearance, denied the entire averments made in the claim petition. The respondent-MESCOM took up the contention that the alleged accident occurred on 04^th July, 2014 at 8.00 pm i.e. beyond office hours, and therefore, respondent-MESCOM is not liable to pay the compensation. In other words, the respondent-MESCOM contended that the death of the son of

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claimant was not during and in the course of the employment and therefore, the claimant is not entitled for compensation under the Act. The Tribunal, after considering the pleadings on record, framed issues for its consideration. Claimant was examined as PW1 and got marked documents as per Exhibits P1 to P10. Respondent-MESCOM got examined its official as RW1 and got marked documents as Exhibits R1 to R5. The Tribunal, after considering the material on record, by its judgment and award dated 12^th July, 2017 allowed the claim in part and awarded compensation of Rs.20,27,987/- along with interest at the rate of 12% per annum from 04^th August, 2017. Being aggrieved by the award made by the trial Court, the respondentMESCOM has preferred this appeal.

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We have heard Shri H.V. Devaraj, learned counsel appearing for MESCOM (appellant herein) and Shri Satishchandra K.V., learned counsel appearing for Shri K.P. Gopal, learned counsel for the claimant.

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It is the contention of the learned counsel appearing for the appellant-MESCOM that the finding recorded by the trial

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Court that the deceased died during and in the course of the employment is improper and without any evidence on record. Amplifying his arguments, he argued that the deceased died after the working hours and therefore, the finding recorded by the trial Court requires to be interfered with in this appeal. He also submitted that the award of compensation made by the trial Court is required to be modified, as the trial Court had taken the Gross Salary of the deceased at Rs.21,043/- per month without considering the relevant Notification issued by the Central Government to assess the compensation under the Act.

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Per contra, learned counsel appearing for the claimant argued that the award made by the trial Court is just and proper and do not call for interference in this appeal. He further submitted that the trial Court properly assessed the pay-slip as per Exhibit P10 of the deceased as Rs.21,043/- for the month of May, 2014 and applied the relevant factor as per the Act and has rightly quantified the compensation. He also filed a memo dated 02^nd June 2021 enclosing the Order dated 04^th March, 2014 issued by the Government of India, Ministry of Labour and

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Employment, whereunder the Government revised the minimum wages of employees, and submitted that fixing the wages of the deceased as per Section 4(1-B) of the Act cannot be accepted in the case on hand. In this regard, he places reliance on the law declared by the Hon'ble Supreme Court in the cases of JAYA BISWAL AND OTHERS v. BRANCH MANAGER, IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. AND ANOTHER reported in AIR 2016 SC 956 and in the case of K. SIVARAMAN AND OTHERS v. P. SATHISH KUMAR AND ANOTHER reported in (2020)4 SCC 594 and argued that the actual wage of the deceased is to be taken into consideration while computing the compensation under the Act. He also places reliance on the judgment of the learned Single Judge of this Court rendered in Miscellaneous First Appeal No.200725 of 2016 and connected appeal disposed of on 18^th June, 2020 and the judgment of the High Court of Sikkim passed in Appeal (C) No.1 of 2019 disposed of on 04^th October, 2019 and argued that the trial Court, rightly taken the actual wage of the deceased at the time of calculating the compensation and therefore, vehemently contended that there is

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no scope for interference in the impugned judgment and award passed by the trial Court.

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In view of the submission made by the learned counsel appearing for the parties, we have formulated the following substantial questions of law which are to be answered in this Appeal:

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Whether the finding recorded by the trial Court that the death of the son of the claimant was during and in the course of the employment?

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Whether the actual salary of the claimant has to be taken or the wages provided under Section 4(1-B) of the Act has to be considered, while computing compensation?

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Whether the compensation awarded by the trial Court is just and proper?

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We have carefully considered the finding recorded by the trial Court and perused the records. It is not in dispute that the son of the claimant died in a road traffic accident on 04^th July, 2014 around 8.00 pm near Chikkodi village, Holehonnur. It

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is also not in dispute that the son of the claimant was working as Lineman with MESCOM and as per the records, the deceased was drawing Gross salary of Rs.21,043/- per month as on the date of his death and he was aged about 34 years. Perusal of the evidence of PW1 and RW1, indicate that on the unfortunate date of accident, deceased attended his regular work and was returning to his village on his motorcycle. Though learned counsel appearing for MESCOM had taken a contention that death of the son of the claimant was not occurred during and in the course of employment, however, RW1 in his crossexamination, admitted that the working hours of the deceased was from 7.30 a.m. to 7.30 p.m. and necessarily, the deceased had to return home after the completion of his work at 7.30 p.m. It is also not in dispute that the accident occurred at 8.00 pm at Chikkodi village, nearer to his native village. Perusal of the record substantiate that consequent to accident, the police authorities also have conducted investigation. This would clearly substantiate the fact that the death of son of the claimant was on account of the accident and the same is during and in the course of employment and therefore, the respondent-MESCOM is

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liable to pay compensation to the claimant. It is settled principle of law that in order to succeed in an application for getting compensation under the Act, the following points are required to be established:

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i) The accident must arise out of and in the course of workman’s employment;

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ii) There must be nexus between injury/death and the accident and the work done in the course of employment;

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iii) Claimant has to prove that while doing a part of his duty or incidental thereto, resulted in the accident.

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Having applied the aforementioned factors to the case on hand, the deceased met with an accident at 8.00 pm on 04^th July, 2014 i.e. while returning from duty and the said aspect of the matter was admitted by the RW1 and therefore, the contention raised by the learned counsel appearing for MESCOM cannot be accepted and accordingly, the first substantial question of law framed above, is answered in favour of the claimant.

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It is the contention of Shri Satischandra learned counsel appearing of the claimant that the actual wage of the deceased to be taken into consideration, in terms of the law declared by the Hon'ble Supreme Court in the case of JAYA BISWAL and in the case of K. SIVARAMAN (supra). In the light of the said submission made by the learned counsel appearing for the claimant, we have carefully examined the provisions contained in the Act. Section 3(1) and Section 4 of the Act provide as follows:

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“ 3. Employer’s liability for compensation.- (1) If personal injury is caused to an employee by accident arising out of and in the course of his employment, his employee shall be liable to pay compensation in accordance with the provisions of this Chapter:

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Provided that the employer shall not be so liable,-

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(a) in respect of any injury which does not result in the total or partial disablement of the employee for a period exceeding three days;

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(b) in respect of any injury, not resulting in death, or permanent total disablement caused by an accident which is directly attributable to—

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(i) the employee having been at the time thereof under the influence of drink or drugs, or

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(ii) the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees, or

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(iii) the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employee.

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[4. Amount of compensation.-- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:--

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(a) where death results	an amount equal to fifty per
from the injury	cent 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;

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(b) where	permanent	an amount equal to sixty per
total	disablement	cent of the monthly wages of
results injury	from the	the injured employee multiplied by the relevant
		factor; or an amount of one
		lakh and forty thousand
		rupees, whichever is more:

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Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation mentioned in clauses (a) and (b);

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Explanation I.--For the purposes of clause (a) and clause (b), "relevant factor", in relation to a¹ [employee]

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means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the¹ [employee] on his last birthday immediately preceding the date on which the compensation fell due.

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(c) where	perma	nent
partial	disable	ment
results injury.	from	the	(i) in the case of an injury
			specified in Part II of
			Schedule I, such percentage
			of the compensation which
			would have been payable in
			the case of permanent total
			disablement as is specified
			therein as being the
			percentage of the loss of
			earning capacity caused by
			that injury, and
			(ii) in the case of an
			injury not specified in
			Schedule I, such percentage
			of the compensation payable
			in the case of permanent
			total disablement as is
			proportionate to the loss of
			earning capacity (as
			assessed by the qualified
			medical practitioner)
			permanently caused by the
			injury;

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Explanation I.--Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.

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Explanation II.--In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;

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(d) where temporary	a half monthly paymen	t of
disablement, whether	the sum equivalent	to
total or partial results	twenty-five per cent	of
from the injury	monthly wages of	the
	employee, to be paid	in
	accordance with	the
	provisions of sub-section	(2).

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(1A) Notwithstanding anything contained in subsection (1), while fixing the amount of compensation payable to a employee in respect of an accident occurred outside India, the Commissioner shall take into account the amount of compensation, if any, awarded to such employee in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by him by the amount of compensation awarded to the employee in accordance with the law of that country. (1B) The Central Government may, by notification in the Official Gazette, specify, for the purposes of subsection (I), such monthly wages in relation to an employee as it may consider necessary;

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(2) The half-monthly payment referred to in clause (d) of sub-section (1) shall be payable on the sixteenth day--

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(i) from the date of disablement where such disablement lasts for a period of twenty-eight days or more, or

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(ii) after the expiry of a waiting period of three days from the date of disablement where such disablement lasts for a period of less than twentyeight days; and thereafter half-monthly during the disablement or during a period of five years, whichever period is shorter:

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Provided that--

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(a) there shall deducted from any lump sum or halfmonthly payments to which the employee is entitled the amount of any payment or allowance which the employee has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first halfmonthly payment, as the case may be; and

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(b) no half-monthly payment shall in any case exceed the amount, if any, by which half the amount of the monthly wages of the employee before the accident exceeds half the amount of such wages which he is earning after the accident.

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Explanation.--Any payment or allowance which the employee has received from the employer towards his medical treatment shall not be deemed to be a payment or allowance received by him by way of compensation within the meaning of clause (a) of the proviso. (2A) The employee shall be reimbursed the actual medical expenditure incurred by him for treatment of injuries caused during the course of employment. (3) On the ceasing of the disablement before the date on which any half-monthly payment falls due there shall be payable in respect of that half-month a sum proportionate to the duration of the disablement in that half-month.

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(4) If the injury of the employee results his death, the employer shall, in addition to the compensation under sub-section (1), deposit with the Commissioner a sum of two thousand and five hundred rupees for payment of the same to the eldest surviving dependant of the employee towards the expenditure of the funeral of such employee or where the employee did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure.

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Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount specified in this sub-section. ”

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We have carefully gone through the amendment made to Section 4(1-B) of the Act. The Parliament, amended the said provision and thereby the minimum wages of Rs.8,000/- was fixed by the Central Government with effect from 18^th October, 2010. It is needless to say that, the Notification issued by the Central Government stems from Section 4(1-B) of the Act, which delegates power to issue notification regarding fixing of monthly wage while computing the compensation. Section 4(1-B) of the Act is to be followed for all practical purposes to determine the compensation to the claimants, unless same is

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modified/amended by the Parliament or struck down by the competent Court as unconstitutional. It is relevant to extract the Notification dated 31^st May, 2010 issued by the Central Government in terms of Section 4(1-B) of Act. The same reads as under:

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“ S.O.1258(E) – In exercise of the powers conferred by sub-section (1B) of Section 4 of the Employees Compensation Act, 1923, (g of 1923), the Central Government hereby specified, for the purpose of Sub-Section (1) of the said section, the following amount as monthly wages, with effect from the date of publication of this notification in the official gazette, namely – Eight thousand rupees. ”

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The method of calculation is also contemplated under Section 5 of the Act, and therefore, the principle of awarding just compensation is to be scrupulously followed by the Courts, while calculating the compensation with reference to the Act. In this regard, conjoint reading of Sections 4 and 5 of the Act makes it clear as to how the method of calculating the wages is contemplated. In this backdrop of the legislative intent, we have gone through the judgment of Hon'ble Supreme Court in the case of JAYA BISWAL (supra). Apparently, no discussion was

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made in the said judgment with regard to determining the wages of the claimants as per Section 4(1-B) of the Act. No doubt the Apex Court had taken the monthly wage of the deceased as Rs.10,000/- in the aforesaid case, however, specific provision contemplated under the Act, i.e. Section 4(1-B), was not brought to the notice of the Apex Court in the said Judgment and therefore, we do not find any good ground to accept the submission of the learned counsel appearing of the claimant.

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Further, we have also carefully considered the law declared by the Hon'ble Supreme Court in the case of K SIVARAMAN (supra). Appellants in the said case are the claimants in claim petition before the Deputy Commissioner for Employees Compensation, Madurai and on account of death of one Dinesh Kumar, who died during and in the course of the employment on 31^st January, 2008, claimants presented petition, seeking compensation under the Act. Learned Commissioner passed award, granting compensation of Rs.4,33,060/- and being not satisfied with the quantum of compensation, claimants preferred appeal before the Madras

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High Court for enhancement of compensation. The High Court, by its judgment dated 23^rd November, 2015, remanded the proceedings to the Deputy Commissioner for determination afresh. The High Court considered the fact that the claimants had filed Salary Certificate at Exhibit P5 to establish the monthly income of the deceased therein and as such, directed the Deputy Commissioner to reconsider the same while awarding just compensation. On remand, Commissioner for Workmen’s Compensation, Madurai by order dated 04^th March, 2016, proceeded on the basis of the Notification issued under Section 4(1-B) of the Act and calculated the monthly wage of the deceased, subject to the ceiling at Rs.4,000/- per month while computing the monthly wages and thereby, applied the relevant factor in terms of Schedule IV to the Act and awarded compensation in a sum of Rs.4,33,060/-. Again an appeal was preferred to the High Court of Madras regarding quantification of compensation. The High Court, considering the fact that the accident had taken place on 31^st January, 2008 and the petition seeking compensation was filed on 28^th January, 2011 and same was decided by the learned Workmen’s Compensation

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Commissioner on 04^th March, 2016 and considering the income of the deceased at Rs.8,000/- per month, as per the Notification dated 31^st May, 2010 awarded Rs.8,86,120/- to the claimants. Being not satisfied with the compensation awarded, Claimants have preferred Special Leave Petition before the Hon'ble Supreme Court and the same was registered as Civil Appeal No.9046 of 2019. Hon'ble Supreme Court, by its judgment dated 13^th February, 2020, considering the entire gamut of law on the issue, inter alia relevant provisions contemplated under the Act, particularly, Section 4 of the Act and the notification issued by the Central Government under Section 4(1-B) of the Act, disposed of the Appeal, by exercising its inherent jurisdiction provided under Article 142 of the Constitution of India and confirmed the judgment of the High Court of Madras. However, at paragraph 33 of the judgment, observed as follows:

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“ In the present case, the accident occurred on 31^st January, 2008, i.e. prior to coming into force of Act 45 of 2009. Consequently, the High Court erred in extending the benefit of Act 45 of 2009 which deleted Explanation II to Section 4 to the present case. The High Court was required to determine the compensation payable on the

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date of the accident on which date, the deemed cap of Rs.4,000/- as monthly wages was applicable. ”

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It is pertinent to mention here that Apex Court has

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held that the relevant date for determination of compensation payable would be the date of accident, and the benefit of Amendment Act 45 of 2009 does not apply to accidents that took place prior to its coming into force. The Hon'ble Supreme Court held that the relevant date for application of the notification under Section 4(1-B) of the Act would be the date on which accident took place. In the light of the observation made by the Hon'ble Supreme Court at paragraphs 33 and 34 of the judgment, undisputably, interference was made by the Hon'ble Supreme Court under Article 142 of the Constitution of India. It is settled principle of law by the Apex Court in the case of LEILA DAVID V. STATE OF MAHARASHTRA reported in AIR 2009 SC 3272 and in the case of NIDHI KAIM V. STATE OF MADHYA PRADESH reported in AIR 2017 SC 986, wherein it was held that power under Article 142 of the Constitution is to be exercised by the Hon'ble Supreme Court alone to do complete justice and same is not available to High Court and further held that the said

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power under Article 142 of the Constitution is not meant to circumvent clear statutory requirements. It is also useful to refer to the law declared by the Hon'ble Supreme Court in the case of A.B. BHASKARA RAO V. INSPECTOR OF POLICE, CBI, VISHAKAPATNAM reported in AIR 2011 SC 3845. In the said case, it was held that, acting under Article 142 of the Constitution, the Supreme court cannot pass an order or grant relief which is totally inconsistent, or goes against the substantive or statutory enactments pertaining to the case. At this juncture, we are also following the law declared by the Hon'ble Supreme Court in the case of STATE OF PUNJAB V. RAFIQ MASIH reported in AIR 2015 SC 696, wherein it was held that the direction issued under Article 142 of the Constitution of India do not constitute a binding precedent unlike Article 141 of the Constitution of India. It is further held that, such a direction issued under Article 142 of the Constitution of India to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. In the case of UNION OF INDIA V. ARULMOZHI INIARASU reported in AIR 2011 SC 2731, the

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Hon'ble Supreme Court has held that the observation made by Supreme Court exercising powers under Article 142 of the Constitution of India, do not constitute binding precedent.

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On evaluation of the aforementioned decisions of the Hon'ble Supreme Court and taking into consideration the Notification dated 31^st May, 2010 issued by the Central Government under Section 4(1-B) of the Act, we are of the considered view that the appropriate monthly wage of the victim of the accident, as on the date of the accident, in terms of the Notification under Section 4(1-B) of the Act, would be Rs.8,000/per month. Hence, we do not find any merit in the arguments advanced by the learned counsel appearing for the claimants to accept the actual wage of the deceased for computing compensation in terms of Section 4 of the Act. For the foregoing reasons, we are of the considered view that the law declared by the learned Single Judge of this Court in Miscellaneous First Appeal No.200725 of 2016 connected with MFA No.200731 of 2016, is no longer a good law. Hence, we are of the view that the judgment of the High Court of Sikkim referred to by the

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learned counsel for the claimant cannot be accepted and accordingly, second substantial question of law is answered, to follow the legislative intent under Section 4(1-B) of the Act.

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In the light of the discussion made above, insofar as quantum of compensation is concerned, in this case, as per the Notification issued by the Central Government with effect from 31^st May, 2010, the maximum monthly wages to be taken is Rs.8,000/- per month and since the date of accident is 04^th July, 2014, 50% of the income has to be deducted towards personal expenses of the deceased. The deceased was aged 34 at the time of accident and the appropriate multiplicand is 199.40 as per Schedule IV of the Act and therefore, the quantum of compensation to be awarded in this Appeal would come to Rs.7,97,600/- (Rs.8,000/- less 50% x 199.40). In the result, the third substantial question of law framed above is answered in favour of the appellant-MESCOM. Accordingly, the claimant is entitled for compensation of Rs.7,97,600/as against Rs.20,97,987/- awarded by the trial Court and in the result, the impugned judgment and award of the trial Court is modified.

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MFA 3269 of 2016

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This appeal is preferred by the claimant against the judgment and award dated 28^th January, 2016 passed in ECA No.78 of 2015 on the file of the II Additional Senior Civil Judge and Additional CFEC-III, Chitradurga, seeking enhancement of compensation.

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It is the case of the claimants, that claimants are the parents of the deceased-K.Jagannatha, who died in a road traffic accident on 12^th January, 2015. Deceased was working as a driver of Tanker lorry bearing registration No.KA-02/AA-4228 under the employment of respondent No.1. It is further averred in the claim petition that the deceased was earning Rs.10,000/per month along with batta of Rs.200/- per day under the employment of respondent No.1 and due to untimely death of the deceased, claimants suffered mental shock and agony and as such, filed ECA No.78 of 2015 on the file of the trial Court, seeking compensation. On service of notice, respondents 1 and 3 entered appearance and contested the claim petition by filing written statement. Respondent No.2 remained absent and

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hence, placed ex-parte. Based on the pleadings on record, the trial Court framed issues for its consideration. Claimant No.2 was examined as PW1 and produced nine documents as per Exhibits P1 to P9 and there was no evidence on the other part. The trial Court, after considering the material on record, allowed the claim petition in part and held that the claimants are entitled for compensation of Rs.7,88,200/- with interest at the rate of 9% per annum from the date of claim petition till the date of deposit. Being aggrieved by the award made by the trial Court, the claimants preferred appeal seeking enhancement of compensation.

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We have heard Smt. Vijayalakshmi learned counsel appearing for Shri Shankar Goud for appellants and Shri S.V. Hegde Mulkhund, learned counsel appearing for the respondentInsurance Company. Learned counsel appearing for the appellants argued that the quantum of compensation arrived at by the trial Court is on the lower side and further submitted that the trial Court ought to have awarded interest at the rate of 12% per annum instead of awarding at 9% per annum.

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Per contra, learned counsel appearing for of the respondent sought to justify the impugned judgment and award passed by the trial Court.

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In the light of the rival contentions raised by the learned counsel appearing for the parties, following substantial questions arise for consideration in this appeal:

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1. Whether the finding recorded by the trial Court that the death of the son of the claimants was during and in the course of the employment?

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2. Whether the compensation awarded by the trial Court is just and proper?

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3. Whether the Trial Court was justified in awarding interest at the rate of 9% per annum instead of 12% per annum?

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Perusal of the record would clearly indicate that the deceased K. Jagannatha died in a road traffic accident on 12^th January, 2015. We have also borne out from the records that the deceased was working as driver of Tanker lorry belonging to the respondent No.1 and therefore, the first substantial question of law is answered in favour of claimants. The Trial Court, taking

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into consideration the evidence on record and the age of the deceased at 35 years as on the date of the accident, calculated the loss of earning. The trial Court had taken the notional income of the deceased at Rs.8,000/- per month and giving deduction of 50% as per Schedule-I of the Act, so also, applying the appropriate multiplicand of 197.06 as per Schedule-IV to the Act, awarded compensation of Rs.7,88,240/-(Rs.8,000/- x 50% x 197.06). After re-evaluation of the evidence on record, we are of the considered view that the claimant has proved that the accident occurred during and in the course of employment. Hence, the first substantial question of law favours of the claimant. As regards the quantum of compensation determined by the trial Court is concerned, the same is just and proper and does not require any interference in this appeal and as such, the second substantial question favours the Insurance Company. However, the trial Court ought to have awarded interest at the rate of 12% per annum as per Section 4-A of the Act and therefore, we find force in the submission made by the learned counsel appearing for the claimants insofar as awarding interest at the rate of 12% per annum in lieu of 9% as awarded by the trial Court. Hence the third substantial question of law framed above is answered in favour of the claimants. Hence, the appeal is disposed of as stated above.

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MFA No.6310 of 2016

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This appeal is preferred by the claimant against the judgment and award dated 31^st May, 2016 passed in ECA No.5 of 2014 on the file of the Court of Small Causes and XXVI ACMM and Employees Compensation Commissioner at Bangalore, seeking enhancement of compensation.

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It is the case of the claimant that he was driving the lorry bearing registration No.KA-02/AA-5337, on P.B. Road, on 23^rd December, 2011 and at that time, when the lorry reached near Alalagere Cross, Motebennur, he dashed against the stationary lorry bearing registration No.KA-22/A-3333 and as a result of the said accident, claimant sustained grievous injuries and thereafter he was shifted to Government Hospital, Hubli for first aid and consequently, he was taken to Saptagiri Hospital, Bengaluru for further treatment. It is the case of the claimant that he spent considerable amount towards medical expenses. He was drawing a monthly salary of Rs.14,000/- with Rs.200/per day as batta and on account of the injuries sustained by him in the accident, he is disabled from continuing his occupation.

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Hence, he filed ECA No.5 of 2014 before the trial Court seeking compensation. Respondent No.1-Insured served and placed exparte. The respondent No.2-Insurance Company entered appearance and filed detailed written statement denying the averments made in the claim petition. The trial Court, on the basis of the above pleadings formulated issues for its consideration. Claimant was examined as PW1 and examined Doctor as PW2 and produced 26 documents and same were marked as Exhibits P1 to P26. No evidence on the part of the respondents. The trial Court, after considering the material on record by its judgment and award dated 31^st May, 2016 allowed the claim petition in part and awarded compensation of Rs.2,84,237/- with interest at the rate of 12% per annum from the date of accident till its realisation. Being not satisfied with the quantum of compensation awarded by the trial Court, the claimant has preferred this appeal, seeking enhancement of compensation.

¶164

We have heard Shri Vivek, learned counsel for Shri Ravishankar for the claimant, and Shri B. Pradeep, learned counsel appearing for the insurance company.

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Learned counsel appearing for the claimant argued that the quantum of compensation awarded by the trial Court is meager and same is required to be enhanced in this appeal.

¶167

Per contra, the learned counsel appearing for the insurance company justified the impugned judgment award and submitted that the compensation awarded by the trial Court is just and proper and calls for no interference in this appeal.

¶168

In the light of the contentions raised by the learned counsel appearing for the parties, the following substantial questions of law would arise for our consideration in this appeal:

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1. Whether the compensation awarded by the trial Court is just and proper?

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2. What order?

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We have carefully examined the impugned judgment

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and award passed by the trial Court and considered the submissions made by the learned counsel appearing for the parties. On re-assessing the impugned judgment and award passed by the trial Court, it is not in dispute that the claimant sustained injuries on account of the accident occurred on 23^rd

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December, 2011. Perusal of the record would indicate that the claimant was an employee of respondent No.1. Issuance of Policy in favour of respondent No.1 is not disputed by the Insurance Company. In order to prove the accident and to determine the quantum of compensation, claimant was examined as PW1 and examined the Doctor to substantiate the disability on account of the accident. Perusal of police record would indicate that the claimant was driving lorry belonging to the first respondent herein, as on the date of the accident and as such, the claimant sustained injury during and in the course of the employment of the respondent and therefore, the claimant is entitled for compensation under the Act. Perusal of the testimony of PW2 and medical records substantiate the fact that the claimant suffered disability in an extent of 13% to the whole body. Having taken into consideration the income of the claimant at Rs.8,000/- per month as per Section 4(1-B) of the Act and on application of the relevant factor, the compensation determined by the trial Court is just and proper and accordingly, we do not find any merit in the submission made by the learned

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counsel for the appellant to enhance the compensation in this appeal.

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Hence, we pass the following:

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ORDER

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i) MFA No.8577 of 2017 and MFA No.3269 of 2016 are partly allowed;

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ii) MFA No.6310 of 2016 is dismissed;

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iii) The total compensation awarded by the trial Court in MFA No.8577 of 2017 is modified and reduced to Rs.7,97,600/- (Rupees Seven Lakh Ninety Seven Thousand Six Hundred only) as against Rs.20,97,987/-, which shall carry interest at the rate of 12% per annum after one month from the date of accident till its realisation.

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iv) In MFA No.3269 of 2016, the claimants are entitled for total compensation of Rs.7,88,240/- with interest at the rate of 12%

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per annum after one month from the date of accident as against 9% awarded by the trial Court;

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v) Excess amount, if any, in deposit in MFA No.8577 of 2017, shall be refunded to the appellant-MESCOM.

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vi) The modified compensation amount shall be apportioned and disbursed in terms of the order of the trial Court;

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vii) Draw modified award accordingly.

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