Partly allowed

Superintendent Engineer v. Smt. D. L. Kavitha

Karnataka HC18 Jul 2023MFA/1247/2016

Case brief

AI extract

What is this about?

This appeal challenged compensation awarded for a lineman's death due to electric shock. The court rejected the argument that wages must be capped at the notified rate under Section 4(1B), relying on Supreme Court precedent to allow actual wages. The appeal succeeded only to deduct the solatium already paid, reducing the final award.

What did the court decide?

The appeal was allowed to reduce compensation by Rs.2,15,000/- (solatium paid), resulting in a final payable amount of Rs.16,84,839/-, with compensatory costs of Rs.5,000/- awarded.

Superintendent Engineer Vs Smt. D. L. Kavitha — Property and Title | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF JULY, 2023

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 1247/2016 (WC)

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BETWEEN:

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SUPERINTENDENT ENGINEER GULBARGA ELECTRICITY SUPPLY COMPANY LTD., BELLARY-583 101.

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EXECUTIVE ENGINEER, O & M DIVISION GULBARGA ELECTRICITY SUPPLY COMPANY LTD., BELLARY-583 101.

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ASSISTANT EXECUTIVE ENGINEER 3^RD SUB-DIVISION, GULBARGA ELECTRICITY SUPPLY COMPANY LTD., BELLARY-583 101.

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SECTION OFFICER, RURAL SUB-DIVISION GULBARGA ELECTRICITY SUPPLY COMPANY LTD., BELLARY-583 101.

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…APPELLANTS

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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(BY SRI. ARIHANT R. SUNGAY, ADVOCATE FOR SMT. SUMANA NAGANAND., ADVOCATE)

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AND:

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SMT. D. L. KAVITHA W/O. LATE SRI. B.K. RAVIKUMAR AGED ABOUT 31 YEARS RESIDING AT N. DEVARAHALLI NAYAKANAHATTI HOBLI, CHALLAKERE TALUK NOW RESIDING NEAR BASAVANADEVARAGUDI BESIDE RANGAIAHNABAGILU DODDAPETE, CHITRADURGA TOWN.

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KUM. BHUVAN D/O. LATE SRI. B.K. RAVIKUMAR, AGED ABOUT 6 YEARS

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REPRESENTED BY THE MOTHER 1^ST RESPONDENT

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RESIDING AT N. DEVARAHALLI NAYAKANAHATTI HOBLI, CHALLAKERE TALUK, NOW RESIDING NEAR BASAVANADEVARAGUDI BESIDE RANGAIAHNABAGILU, DODDAPETE CHITRADURGA TOWN.

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KUM. SANJANA D/O. LATE SRI. B.K. RAVIKUMAR AGED ABOUT 2 AND HALF YEARS REPRESENTED BY THE MOTHER 1^ST RESPONDENT RESIDING AT N. DEVARAHALLI NAYAKANAHATTI HOBLI, CHALLAKERE TLAUK NOW RESIDING NEAR BASAVANADEVARAGUDI BESIDE RANGAIAHNABAGILU, DODDAPETE CHITRADURGA TOWN.

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KARIBASAPPA S/O LATE BASAPPA AGED ABOUT 73 YEARS

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THIPPEERAMMA W/O KARIBASAPPA AGED ABOUT 68 YEARS

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BOTH ARE AGRICULTURISTS & R/O: MALLANAHALLI VILLAGE TALUKU HOBLI CHALLAKERE TALUK CHITRADURGA DISTRICT

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…RESPONDENTS

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(BY SRI. S.B HALLI, ADVOCATE FOR R.1 TO R3; R2 & 3 ARE MINORS REPRESENTED BY R1; SRI S.C VIJAYA KUMAR, ADVOCATE FOR R4 & 5)

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THIS MISCELLANEOUS FIRST APPEAL FILED U/S 30(1) OF EMPLOYEES COMPENSATION ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 07.12.2015 PASSED IN ECA NO.71/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, CJM & COMMISSIONER FOR EMPLOYEES COMPENSATION, CHITRADURGA, AWARDING A COMPENSATION OF RS.18,99,839/WITH INTEREST @ 12% P.A, AFTER LAPSE OF ONE MONTH FROM THE DATE OF INCIDENT, TILL THE DATE OF DEPOSIT.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL HEARING THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the award in ECA No.71/2014, respondent Nos.1 to 4 in the said case have preferred this appeal.

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Appellants were respondent Nos.1 to 4. Respondent Nos.1 to 3 were the petitioners in ECA No.71/2014. Respondent Nos.4 and 5 are the father and mother of the deceased B.K.Ravikumar and they were not impleaded in ECA No.71/2014. However, under the impugned award the Tribunal granted compensation to the present respondent No.5 as she is the mother of the deceased. Therefore, subsequently they were impleaded as respondent Nos.4 and 5.

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Respondent No.1 is the wife, respondent Nos.2 and 3 are the minor children and respondent Nos.4 and 5 are the parents of the deceased B.K.Ravikumar. B.K.Ravikumar was working as the Lineman in Gulburga Electricity Supply Company Limited (GESCOM) in Bellary office. On 27.02.2014 at night hours during the course of his employment and in discharge of his duty, when he was repairing electrical line near Sri.Shiv Sai Cotton Mill along with other employees, he came in contact with a live wire and died. In that regard, case in Crime No.11/2014 was registered.

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Respondent Nos.1 to 3 filed ECA No.71/2014 under Section 22 of the Workmen’s Compensation Act, 1923 seeking compensation from the appellants on the ground that B.K.Ravikumar died during the course of employment and while discharging his duty and they were all his dependents. Therefore, the appellants are liable to pay the compensation.

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Appellants 1 and 2 alone contested the petition before the Commissioner. The appellants admitted that B.K.Ravikumar was their employee, he met with accidental death during the course of his employment. But they contended that respondent No.1 i.e. widow has taken a job in GESCOM on compassionate ground, is drawing salary and the Company has released death benefits to them, therefore, petitioners are not entitled to compensation.

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The Commissioner on recording the evidence of the parties and on hearing them held that, Ravikumar died during the course of his employment and the death is the outcome of the employment. The Commissioner, relying on Ex.P4 the pay slip issued by the appellant themselves, considered his gross monthly salary at Rs.21,080/-, deducted Rs.200/- from the

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same towards Professional Tax and Rs.555/- under other heads thus, computed his wages at Rs.20,330/- deducted 50% of the same in compliance with Sec.4(1)(a) of the Act, applied relevant factor of 186.90 and awarded compensation of Rs.18,99,839/-.

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The appellants challenge the same in the above appeal on the ground that the wages computed by the Commissioner is contrary to Sec.4(1)(a) and 4(1B) of the Employee's Compensation Act, 1923 (in short `the Act'). It is contended that there is a cap on the income to be computed based on the notification issued by the Central Government under Sec.4(1B) of the Act. It is further contended that as per the Notification dated 31.05.2010 issued by the Central Government, the wages for the purpose of Sec.4(1) is Rs.8,000/- per month and the Commissioner should have considered the wages only at Rs.4000/-.

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Same is opposed by the respondents on the ground that Sec.4(1B) of the Act applies only when the wage of the deceased is not established, where the wage admitted or established is higher than the notified wage, such wage has to be taken into consideration.

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In support of his submission, learned counsel for

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the appellants relied on the following judgments:

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1. Kaptan Singh and Another v. Raj Narayan and Another, reported in 2020 SCC Online All 1043.

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2. CMA 1582/2013-United India Insurance Company v. Seethamal and Others, Judgment dated 23.12.2014, Madras High Court.

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3. Kumar v. MP Selvaraj, reported in 2020 SCC OnLine Mad 4621.

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4. Union of India and another v. Hansoli Devi and others, reported in (2002) 7 SCC 273.

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5. CMA 3436/2019 - Shahitha Parvin and another v. M.Prabhakaran and another, Judgment dated 02.01.2020, Madras High Court.

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6. Panjavarnam and another v. K.Nirmal Kumar and another reported in 2020 SCC OnLine Mad 6551.

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7.CMA 2714/2017 - Raghunathan v. K.Kalyanana Sundaram & anr., Judgment dated 11.02.2022, Madras High Court.

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8. CMA 1727/2017 – Saraswathi and ors. v. Pacifica Chennai Project Infrastructure company Private Ltd. and ors., Judgment dated 02.11.2018, Madras High Court.

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9. SLP (C)Diary No.12476/2019 - ICICI Lombard General Insurance Co.Ltd., v. Saraswathi & ors. Order dated 26.04.2019 passed by the Hon'ble Supreme court.

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10. CMA 897/2018 - P. Ramesh v. Ravi and Another, Judgment dated 27.01.2021, Madras High Court.

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11. CMA 2319/2018 - P.Marimuthu v. Hot Chips Restaurants (P) Ltd., and another, Judgment dated 25.02.2021, Madras High Court.

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12. State of Maharashtra and another vs. Madhuri Maruti Vidhate (Since after marriage Smt.Madhuri Santosh Koli), 2022 SCC OnLine SC 1327.

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As against that, learned counsel for the respondent

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in support of his submissions, for actual wage has to be considered relied on the following judgments:

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1) United India Insurance Co.Ltd., vs. Julekha Begaum 2023 Gauhati (4) CK 0045

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2) K.Sivaraman & others vs. P. Sathishkumar and another (2020) 4 SCC 594.

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This Court on hearing both side, on 5.3.2022

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admitted the appeal to consider the following substantial question of law:

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"Whether the learned Trial Judge was justified to compute the compensation basing its calculations on the monthly wage of Rs.21,080/and not Rs.8,000/as determined by Central Government vide notification dated 31.05.2010?

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ANALYSIS

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As already noticed, the relationship of the

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respondents with the deceased, his employment, his death during the course of employment and arising out of his

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employment are not in dispute. Ex.P4 is the salary slip issued by the appellants themselves. That was not disputed. Only the question is, whether in computing compensation, the notification issued under Sec.4(1B) shall be taken into account or 50% of actual wages of the employee?

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The relevant provisions are Sec.4(1)(a) and

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Explanation I read as under:

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"4. Amount of Compensation-

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(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 from the injury: an amount equal to fifty percent of the monthly wages of the deceased employee multiplied by the relevant factor

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an amount of one lakh and twenty thousand rupees whichever is more;

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Explanation-I: For the purposes of clause(a) and clause(b), "relevant factor", in relation to an employee 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 the employee on his last birthday immediately preceding the date on which the compensation fell due.

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Sec.4(1B): The Central Government, may by notification in the official Gazette, specify, for the purposes of sub-section (1), such monthly wages in relation to an employee as it may consider necessary.

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(Emphasis supplied)

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Reading of Sec.4(1)(a) shows that in computing income 50% of the monthly wages of the deceased employee has to be taken into consideration. Sec.4(1B) says that for the

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purpose of sub-section (1) the Central Government may by Notification in the Official Gazette specify monthly wages.

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Sec.4(1) prior to 2010 contained two explanations. Explanation (II) was to the following effect:

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Explanation (II) - Where the monthly wages of a

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workman exceed Rs.4,000/- , his monthly wages for the purposes of clause (a) and (b) shall be deemed to Rs.4,000/-

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only .

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Referring to Judgments of Madras High Court, Madurai Bench, the learned counsel for the appellant submits that same Court has taken divergent view on the same point. The Hon'ble Supreme Court in para 26 of the judgment in K.Sivaraman & others vs. P. Sathishkumar and another¹ while

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interpreting Sec.4(1)(a) and Sec.4(1B) held as follows:

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"Prior to Act 45 of 2009, by virtue of the deeming provision in Explanation II to Section 4, the monthly wages of an employee were capped at Rs.4,000/- even where an employee was able to prove the payment of a monthly wage in excess of Rs.4,000/-. The legislature, in its wisdom and keeping in mind the purpose of the 1923

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1 (2020) 4 SCC 594

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Act as a social welfare legislation did not enhance the quantum in the deeming provision, but deleted it altogether. The amendment is in furtherance of the salient purpose which underlies the 1923 Act of providing to all employees compensation for accidents which occur in the course of and arising out of employment. The objective of the amendment is to remove a deeming cap on the monthly income of an employee and extend to them compensation on the basis of the actual monthly wages drawn by them . However, there is nothing to indicate that the legislature intended for the benefit to extend to accidents that took place prior to the coming into force of the amendment."

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(Emphasis supplied)

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The Hon'ble Supreme Court in the aforesaid paragraph has clearly held, earlier to amendment the monthly wages of an employee were capped at Rs.4,000/- even where an employee was able to prove that the payment of a monthly wage was above Rs.4,000/-. The legislature, in its wisdom and keeping in mind the purpose of the 1923 Act as a social welfare legislation, did not enhance the quantum in the deeming provision, but deleted it altogether.

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Thus, it becomes clear that prior to 2010 even if the monthly wage of a workman was more than Rs.4,000/-, a ceiling limit of Rs.4,000/- was fixed in computing the wages of the deceased employee for the purpose of payment of compensation. By amending Act 45 of 2009 with effect from 18.01.2010, the said cap is undone by deleting Explanation

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(II). Thus, there is no scope for considering any limit on the income of the deceased, if it is established that the wage paid to the employee was more than Rs.8,000/-.

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Needless to say that the Act is welfare legislation for the benefit of Workmen/Employees, therefore, the said provisions have to be interpreted to serve the welfare of the employees. Sec.4(1)(a) of the Act does not state that an amount equal to fifty percent of monthly wages, as prescribed in the notification under Sec.4(1B) of the Act, must be awarded. Further, the word ` Wages' is not defined to say that wages as notified by the Central Government under Section 4(1B). Therefore, there is no merit in the contention that the wages shall be restricted only to the amount notified under the notification.

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In view of Para.26 of the Judgment of Hon’ble Supreme Court in Shivaraman's case referred to supra, wherever the actual wage is established that has to be taken into consideration. That is the ratio of the judgment. The contention that para.26 of the Judgment is only an observation and no law is laid down in it, deserves no merit. In view of the clear ratio of the said judgment, the other judgments relied on

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both side need no further discussion. Therefore, quantum of compensation arrived at by the Commissioner by no stretch of imagination can be considered to be contrary to Sections 4(1)(a) or 4(1B) of the Act.

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The only issue that needs to be considered is, admittedly appellants had paid Rs.2,15,000/- to respondent Nos. 1 to 3 as solatium i.e. part of the compensation payable to the dependents of the deceased. So far as payment of Rs.2,10,500/- under Family Benefit Scheme and Rs.10,500/towards Life Cover Scheme, Ex.P4 shows that the appellants had recovered the contributions of the employee by way of deductions in his salary. Therefore, that cannot be adjusted towards compensation payable. Only solatium already received by the respondents has to be deducted out of the total compensation.

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Learned counsel for the appellants’ submits that after deduction of Rs.755/- from the gross salary of the deceased, his income under Sec.4(1)(a) comes to Rs.20,325/but, the Commissioner has erroneously considered the same at Rs.20,330/-. There is marginal error by Rs.5/-. i.e. not the substantial question of law formulated nor that can be so

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considered. Therefore, we are not inclined to accept the said argument.

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Learned counsel for the appellant vehemently argued that since respondent no.1 has taken appointment on compassionate ground, they were not entitled to any compensation. First of all, that is not the substantial question of law formulated in this case. The said substantial question of law was formulated on hearing both side. This matter is pending since 2016. The aforesaid substantial question of law was formulated on 05.03.2022. For more than one year therefrom, no efforts were made to seek additional substantial question of law in that regard. Therefore, the said contention has no merit. Apart from that, the Hon'ble Supreme Court in the judgment in

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Sebastiani Lakra vs. National Insurance Company Ltd. and Anr .² while dealing with claim petition under Sec.166 of the MV Act, when the similar contention was raised, held that deduction cannot be allowed from the amount of compensation either on account of Insurance or on account of pensionary benefits or gratuity benefit on account of employment to a kin of the deceased. On that ground also, the aforesaid contention

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deserves no merit.

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2 (2019) 17 SCC 465

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For the aforesaid reasons, the appeal deserves to be allowed only to the extent of reducing the compensation by Rs.2,15,000/-. The records show that the dependents of the deceased are prosecuting this litigation since 2014. This appeal is pending since 2016. Though the law on the point was settled as long back as in 2020 by the judgment of K.Shivaraman's case, this matter is being agitated by the appellants again on the untenable ground that wages shall be computed only according to the notification of the Central Government issued under Sec.4(1B) of the Act. Therefore, the appellants are liable to pay compensatory costs. After deducting Rs.2,15,000/- from out of Rs.18,99,839/-, the compensation payable to respondent nos. 1 to 5 is quantified at Rs.16,84,839/-. Hence the following:

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ORDER

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(i) The appeal is allowed in-part on the term

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that the appellants shall pay compensatory cost of Rs.5,000/- to the respondents.

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(ii) The compensation payable to respondent Nos.1 to 5 is reduced to Rs.16,84,839/- .

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