M/S United India Insurance Company Limited v. Smt. Jaya Bai @ Jayamma

Karnataka HC20 Jan 2023MFA/1009/2016

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal challenges a compensation award under the Employees' Compensation Act regarding a fatal tractor accident. The High Court affirmed the employer-employee relationship but modified the quantum of compensation by reducing the monthly wages considered from Rs.6,000 to Rs.4,000.

What did the court decide?

Compensation reduced from Rs.6,16,550 to Rs.4,12,700 with interest; impugned judgment modified.

M/S United India Insurance Company Limited… — Pension and Retirement Benefits | Karnataka HC (2023)

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MFA No. 1009 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.1009 OF 2016 (WC)

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BETWEEN:

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M/S UNITED INDIA INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, 2^ND FLOOR, RUB BUILDING, A.A.CIRCLE, B.H.ROAD, SHIVAMOGGA, REP. BY ITS DIVISIONAL MANAGER

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…APPELLANT

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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(BY SRI LAKSHMI NARASAPPA, ADVOCATE FOR SRI A.M.VENKATESH, ADVOCATE APPEARING THROUGH VIDEO CONFERENCE)

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AND:

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SMT. JAYA BAI @ JAYAMMA W/O LATE GANESH NAIKA @ H.K.GANESH, AGED ABOUT 26 YEARS,

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MASTER ARUNA S/O LATE GANESH NAIKA @ H.K.GANESH AGED ABOUT 8 YEARS, MINOR

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KUM.SUDHA D/O LATE GANESH NAIKA @ H.K.GANESH AGED ABOUT 5 YEARS, MINOR

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MFA No. 1009 of 2016

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SINCE RESPONDENT NOS.2 AND 3 ARE MINORS REP. BY THEIR NATURAL GUARDIAN-MOTHER SMT. JAYA BAI @ JAYAMMA, RESPONDENT NO.1 HEREIN

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SMT.CHAVALI BAI W/O KITTA NAIKA, AGED ABOUT 67 YEARS, ALL ARE R/O HOSAHALLI, LAKSHMIPURA VILLAGE, SHIVAMOGGA TALUK.

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SMT.PRABHAVATHI W/O SIDDAPPA, AGED ABOUT 46 YEARS, R/AT GADIKOPPA, SHIVAMOGGA (OWNER OF TRACTOR-TRAILER BEARING NO.KA-14/TA-0357-0358)

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…RESPONDENTS

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(BY SRI. V.B. RAVISHANKAR, ADVOCATE FOR R1 & R4; R2 & R3 ARE MINORS REP. BY R1; SRI. P.N. HARISH, ADVOCATE FOR R5)

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THIS MFA FILED U/S 30(1) OF THE EMPLOYEES' COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED:20.11.2015 PASSED ON E.C.A.NO.16/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND COMMISSIONER OF EMPLOYEES COMPENSATION, AT SHIVAMOGGA, AWARDING COMPENSATION OF RS.6,16,550/WITH INTEREST @ 12% P.A FROM THE DATE OF ACCIDENT TILL ITS REALIZATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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MFA No. 1009 of 2016

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JUDGMENT

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The present appeal is filed by the appellantInsurance Company challenging the judgment and award dated 20.11.2015 in ECA.No.16/2014 passed by the Prl. Senior Civil Judge & Commissioner of Employee Compensation, Shivamogga, questioning the liability as well as quantum of compensation.

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Brief facts of the case are that, on 21.04.2009

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at about 5.30 a.m., the deceased Ganesh Naika @ H.K.Ganesh on the advise of respondent No.1 was driving

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the tractor and trailer bearing Reg.No.KA-14-TA-0357 & KA-14-TA-0358 and when he was proceeding near Nanjappa Layout, 1^st cross, by-pass road, a bus dashed the tractor and trailer from back side. Due to which, the deceased fell down and sustained severe injuries and succumbed to the injuries.

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MFA No. 1009 of 2016

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Heard the arguments from both sides and

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perused the records.

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Learned counsel for the appellant-Insurance Company submitted that the deceased was not a driver under the employment of respondent No.5/owner of tractor and trailer and the relationship of employer and employee is not proved. Therefore, the claim petition is not maintainable. Further submitted that the learned Commissioner/Tribunal has wrongly taken the wage as Rs.6,000/- p.m., but ought to have taken at Rs.4,000/p.m. Hence, prays to reduce the compensation by taking the monthly wage at Rs.4,000/- pm. Therefore, prays to allow the appeal.

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On the other hand, learned counsel for the respondents submitted that there are sufficient evidence to prove the employer and employee relationship between respondent No.5/owner and deceased and it is correctly

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MFA No. 1009 of 2016

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held by the learned Commissioner/Tribunal. Further submitted that the quantum of compensation awarded is correct and justified and therefore, prays to dismiss the appeal.

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6. Upon considering the rival submissions and

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perusing the records, the following substantial questions of law arise for consideration:

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“i. Whether, under the facts and circumstances involved in the case, the relationship between respondent No.5 and deceased as employer and employee is not proved?

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ii. Whether, the learned Commissioner/Tribunal justified in taking income at Rs.6,000/- pm., and is contrary to Section 4 of EC Act?”

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Regarding Substantial Question of Law No.1:

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In the present case, the accident and death of

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the deceased is not disputed. The only disputed fact is that

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MFA No. 1009 of 2016

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the deceased was not under the employment of respondent No.5/owner. The accident was caused on 21.04.2009 in the morning at 5.30 a.m., when the deceased was driving the tractor and trailer bearing Reg.No.KA-14-TA-0357 & KA-14-TA-0358 for loading mud, at that time, near Nanjappa Layout, 1^st cross, by-pass road, the bus came from back side and dashed against the tractor and trailer from behind and due to that, the deceased jumped out of tractor and trailer and sustained grievous injuries and in the hospital, the deceased succumbed to the injuries.

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P.W.1 is the wife of the deceased and she has

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stated that her husband/deceased-Ganesh Naika @ H.K.Ganesh was working under respondent No.5/owner as a driver in the above said tractor and trailer. She has deposed that on the previous night, the deceased went for work for loading and unloading mud in Gadikoppa village. Respondent No.5 is also residing in Gadikoppa village. In

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MFA No. 1009 of 2016

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the cross-examination, it is suggested that one Neelakanta was driving the tractor and P.W.1 has admitted the same, but this admission has become stray admission and it is not affecting to the core of the case for proving or disproving that the deceased was driving the tractor. PW.1 is not eye witness to the incident, but P.W.2 who is the driver of another tractor No.KA-14-T-9177 was driving his tractor ahead of the tractor of the deceased. P.W.2 - Suresh is the eye witness to the incident and immediately after the accident, he rushed to the spot and noticed that the deceased had succumbed to the injuries as the bus had hit the tractor of the deceased from behind. This P.W.2-Suresh was driving the tractor No.KA-14-T-9177 ahead of the tractor of the deceased. Therefore, because of such stray admission made by P.W.1, it does not affect

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the core of the case regarding proving or disproving the relationship of employer and employee, but from the evidences of P.W.1 and P.W.2, it is proved that the deceased was working as a driver in the above said tractor

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MFA No. 1009 of 2016

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under the employment of respondent No.5. Further more, P.W.3 who is the brother of respondent No.5/owner has stated that the tractor is in the name of his elder sister who is respondent No.5. P.W.1 has stated that the deceased was working as a driver in the tractor and therefore, he has instructed to load the mud on the tractor and trailer and after loading the mud was coming to the village, at that time, the accident was caused. Further more, Ex.P.2 is the complaint given by the deceased himself while he was alive in the hospital. In the said complaint, it is stated that the deceased was driving the tractor under the employment of respondent No.5 for

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loading and unloading the mud while he was driving the tractor and trailer. Therefore, all these evidences prove that the deceased was working as a driver in the tractor and trailer bearing Reg.No.KA-14-TA-0357 & KA-14-TA0358 under the employment of respondent No.5. P.W.3 is none other than the brother of respondent No.5. Therefore, even though, P.W.3 has instructed the

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MFA No. 1009 of 2016

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deceased to load the mud, but it is amounting to constructive command by respondent No.5 instructing the deceased to do the work as a driver for the purpose of loading mud. Therefore, the relationship of employer and employee is proved in the present case. Hence, the substantial question of law No.1 is answered holding that the relationship between the employer and employee is proved between respondent No.5/owner and deceased.

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Regarding Substantial Question of Law No.2:

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In the case on hand, P.W.3 had stated that he was paying wage of Rs.4,000/- p.m., with bata of Rs.50/per day, but the Tribunal has taken the wage of the deceased at Rs.6,000/- pm., which is on the higher side and it is contrary to Section 4 of the Employee’s Compensation Act. The accident was caused on 21.04.2009. Therefore, the wage of Rs.4,000/- per month is to be taken into consideration as deposed by P.W.3. The deceased was aged 33 years as on the date of the

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MFA No. 1009 of 2016

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accident, therefore, the relevant factor is 203.85. Therefore, the compensation under the head loss of dependency is re-assessed and quantified as follows:

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Rs.4,000/- x 50% x 203.85=Rs.4,07,700/-

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Accordingly, compensation of Rs.4,07,700/- is

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awarded under the head loss of dependency.

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Further compensation of Rs.5,000/- awarded

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under the head funeral expenses is found to be correct. Hence, it is kept in tact.

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Thus, in all, the appellants/claimants are

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entitled to total compensation as follows:

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Loss of dependency Rs. 4,07,700/2. Funeral expenses Rs. 5,000/- kept in tact TOTAL Rs. 4,12,700/-

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Hence, the appellants/claimants are entitled to total compensation of Rs.4,12,700/- along with interest

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at the rate of 12% per annum from expiry of one month

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MFA No. 1009 of 2016

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from the date of accident till the date of realization, as against Rs.6,16,550/awarded by the Tribunal. Therefore, only with regard to quantum of compensation is concerned, the appeal filed by the Insurance Company is liable to be allowed-in-part. Accordingly, I proceed to pass the following:

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ORDER

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i. Appeal is allowed-in-part .

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ii. The impugned judgment and award dated 20.11.2015 in ECA.No.16/2014 passed by Prl. Senior Civil Judge & Commissioner of Employee Compensation, Shivamogga, is modified to the extent that the appellants/claimants are entitled to total compensation of Rs.4,12,700/- along with interest at the rate of 12% per annum from expiry of one month from the date of accident till the date of realization.

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MFA No. 1009 of 2016

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iii. No order as to costs.

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iv. The excess amount, if any, in deposit made by the appellant-Insurance Company shall be refunded to the Insurance Company.

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v. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith.

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Sd/JUDGE

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PB List No.: 1 Sl No.: 46

M/S United India Insurance Company Limited v. Smt. Jaya Bai @ Jayamma

Case brief

What is this about?

What did the court decide?

M/S United India Insurance Company Limited v. Smt. Jaya Bai @ Jayamma

Case brief

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