Zakira Begum and Ors. Vs T. Mahalaxmi Telukunta and Anr.

ZAKIRA BEGUM W/O ABDUL MAJID, AGE: 37 YEARS, OCC: HOUSHEHOLD, R/O 16-300 ROAD, MUSTARI NAGAR HAJI ALI, MASJID GUJUARAM ROAD, QUTUBULLAPUR, RANGAREDDY-585 101.

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ANEES FATIMA D/O LATE MOHAMMED ABDUL MAJID, AGE: 18 YEARS, OCC: NIL,

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AFSHAN FATIMA D/O LATE ABDUL MAJID, AGE: 15 YEARS MINOR,

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Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA

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FIRODOS FATIMA D/O LATE MOHAMMED ABDUL MAJID, AGE: 12 YEARS MINOR,

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APPELLANT NO. 3 AND 4 ARE MINORS, U/G OF THEIR MOTHER SMT. ZAKIRA BEGUM APPELLANT NO.1, R/O 16-300 ROAD, MUSTARI NAGAR HAJI ALI, MASJID GUJUARAM ROAD, QUTUBULLAPUR, RANGAREDDY-585 101.

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…APPELLANTS

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(BY SRI. BABU H. METAGUDDA, ADVOCATE)

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AND:

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T. MAHALAXMI TELUKUNTA W/O JAGANMOHAN RAO TELUKANTA, R/O H.NO.7-1-906, 907, MARKET STREET, NEAR OLD JAIL STREET, BURGUCHETTY BAZAR, SECUNDRABAD (TELANGANA)-500 003.

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THE BRANCH MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., 3^RD FLOOR, ASIAN PLAZA, TIMMAPURI CIRCLE, MAIN ROAD, KALABURAGI-585 101.

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…RESPONDENTS

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(BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R2; V/O DTD. 01.09.2022, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 30(1) OF THE

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EMPLOYEE’S COMPENSATION ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 09.03.2020 PASSED IN ECA NO.4/2017 BY THE SENIOR CIVIL JUDGE AND COMMISSIONER UNDER EMPLOYEE’S COMPENSATION ACT AT HUMNABAD. AND ENHANCING THE COMPENSATION FROM RS.6,52,300/- WITH 12% INTEREST TO RS.20,00,000/- WITH 12% INTEREST.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE C M JOSHI

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE C M JOSHI)

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Heard the learned counsel appearing for the appellants

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and learned counsel appearing for the respondents.

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Being aggrieved by the judgment and award in E.C.A. No.4/2017 by learned Senior Civil Judge and Commissioner under the Employees Compensation Act, Humnabad, the petitioners have approached this Court in appeal.

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The factual matrix of the case that is relevant for

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this case is as below:

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Petitioners are the wife and children of the deceased Abdul Majid, who was the driver of Car bearing No.AP10/AS-0524, owned by respondent No.1. The respondent No.2 is the insurer of the said car. The petitioners contended that on 13.03.2017, the deceased Abdul Majid was driving the car of the respondent No.1 from Hyderabad

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to Mannaekhelli. At about 11.00 a.m., another Car bearing No.AP-23/AJ-666 came from opposite side in rash and negligent manner and to avoid the collision, the deceased took his car to the extreme left and even then there was a collision between the two cars and the said Abdul Majid sustained grievous injuries and died at the spot. Mannaekhelli police registered a case in Crime No.38/2017. It appears that the police after investigation filed the chargesheet against the deceased Abdul Majid. The petitioners have contended that the deceased was aged about 46 years, working as a driver, earning Rs.25,000/- per month and Rs.300/- per day as bhatta. Contending that the petitioners are entitled for the compensation, a claim petition came to be filed before the learned Commissioner.

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On issuance of notice, the respondent No.1 and 2 appeared before the learned Commissioner and they filed their written statements. The respondent No.1, the owner of the car, admitted that she is the owner of the car, which was driven by the deceased, but disputed the quantum of the wages paid to the deceased. She contended that the

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deceased was being paid a sum of Rs.12,500/- and bhata of Rs.250/- for each working day. It was contended that the vehicle was insured by the respondent No.2 and therefore, any liability may be fastened upon it.

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The respondent No.2 contended that, there is no evidence to show that there is a relationship of employer and employee between the deceased and the respondent No.1. It denied the claim, contending that there were violation of the terms and conditions of the policy and the income of the deceased Abdul Majid. The written statement of the respondent No.2 denies every aspect of the claim petition, including the relationship of the deceased with the respondent No.1.

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On the basis of the above contentions, the

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Tribunal framed the following issues.

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ISSUES

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Whether the petitioners prove that, deceased Abdul Majid was working under the respondent No.1 and there exists the relationship of Employer and Employee as on

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the date of accident?

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Whether the petitioner further proves that the said accident has arisen during the course of Employment?

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Whether the petitioners are entitled for compensation as prayed for?

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What order or Award?

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The petitioner No.1 was examined as PW1 and Ex.P1 to 9 were marked. The respondent No.1 and 2 have not led any evidence on their behalf. After hearing the arguments by both the sides, the Tribunal held that the petitioners are entitled for compensation and by relying on the notification issued by the Government of India under Section 4(1-B) of the E.C. Act, determined the same at Rs.6,52,300/- and awarded the same to the petitioners.

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Being aggrieved by the same, the petitioners are before this Court contending that when there is a positive evidence before the learned Commissioner that the deceased was earning Rs.12,500/- per month as admitted by the respondent No.1 in the pleadings and the salary certificate

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issued at Ex.P8, the Tribunal could not have reduced the monthly wages of the deceased at Rs.8,000/- per month.

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In the light of the contentions, the following substantial question of law was framed by this Court.

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“Whether the learned Commissioner is justified in taking the month income of the deceased at Rs.8,000/- per month. In the light of the employer stating the wages to be Rs.12,500/per month and a daily batta of Rs.250/-?

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The arguments by learned counsel appearing for the appellants and the learned counsel for the respondent No.2 were heard.

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The learned counsel appearing for the appellants would submit that the notification issued by the Government of India under Section 4(1-B) of the E.C.Act would be applicable either when the income is not proved or when the income claimed is lesser than Rs.8,000/- per month. In other

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words, he contends that the notification under Section 4(1-B) can only determine the threshold for which a compensation has to be calculated, but it cannot be a cap regarding the income. In this regard, he relies on the judgment of this Court in the case of The Managing Director V/s Smt. Nirupama J. and another.¹ In this judgment in para 33, 34 and 35, it is held as below.

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However, the learned counsel for the appellant in order to get over the language employed in Section 4(1)(a) of the Act relied upon Section 4(1B) of the Act, which states that the Central Government may, by a notification in the Official Gazette specify for the purpose of Sub-section (1), such monthly wages in relation to an employee as it may consider necessary. He submitted that the Central Government had issued a notification under Section 4(1B) of the Act stating that the monthly wages of an employee was Rs.8,000/- and in view of the said notification, the Trial Court was bound to consider the monthly wages of the deceased employee as Rs.8,000/- notwithstanding the fact that his monthly wages was Rs.11,589/-.

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The answer to this contention of the learned counsel has been answered by the Apex Court in its recent pronouncement rendered in the case of K.Sivaraman & Others Vs. P.Sathishkumar & Another [Civil Appeal No.9046 of 2019 (arising out of SLP (C) No.18110/2019) disposed of on 13.02.2020] - (2020) 4 SCC 594. The Apex Court, while dealing with a case relating to a claim arising under the Act, has held as follows at paragraph 26:

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"Prior to Act 45 of 2009, by virtue of the deeming provision in Explanation II to Section 4,

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1 [2021 KANT MAC 182 (Kant)]

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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 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 an 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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(underlining by us) 35. The Apex Court has thus clearly held that the objective of the Amending Act 45 of 2009 was 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.

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It is also pertinent to note that in the case of

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Jaya Biswal and others V/s Branch Manager, IFFCO, Tokio General Insurance Company Limited, and another,² the Apex Court had an occasion to consider the notification issued under Section 4(1-B) of the Act. Though the notification prescribed a sum of Rs.8,000/- per month,

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2 [ 2016, KANT M.A.C. 383, (SC)]

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the Apex Court held that the monthly wages are to be taken at Rs.10,000/- per month in the facts and circumstances that was brought before it in the said case. In other words, the Apex Court did not accept the wages at Rs.8,000/- per month since the batta to a driver was not included in the wages, which was claimed by the claimant therein. Obviously, the claimant had claimed the wages to be Rs.10,000/- per month.

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In view of the above categorical findings by a Division Bench of this Court as well as by the Apex Court, it is evident that the income prescribed under Section 4(1-B) of the Act by way of notification by the Central Government cannot Act as a cap. If there is a claim of the wages of more than Rs.8,000/-, if evidence is available on record, the same has to be appreciated and accepted by the Courts.

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The substantial question of law is answered accordingly.

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The outcome of the above finding would be that if there is evidence to show that if the wages are more than

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Rs.8,000/- per month, then such evidence if acceptable have to be adopted and the compensation has to be calculated accordingly.

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Coming to the case on hand, the respondent No.1 in her written statement did not accept the contention of the petitioners that the deceased was earning Rs.25,000/- per month, but contended that a sum of Rs.12,500/- was paid to the deceased. Inconsonance to it, the petitioners have produced the salary certificate at Ex.P8. In ExP8, it is mentioned that the deceased was paid Rs.12,500/- per month and bhatta of Rs.2,500/- per day. Therefore, it is evident that the pleadings of the respondent No.1 coupled with Ex.P8 produced by the petitioners demonstrate that the deceased was being paid Rs.12,500/- per month.

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Learned counsel appearing for the respondent No.2 submits that the Ex.P8 has not been proved. It is worth to note that the respondent No.1 has stated in her pleadings that she was paying Rs.12,500/- per month to the deceased. Even the PW.1 in her testimony has relied upon the Ex.P8.

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Except the denial in the cross-examination of the PW.1 that the Ex.P8 is a bogus one, no other evidence is placed on record, which would rebut the Ex.P8.

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It is pertinent to note that in view of the objection raised by the learned counsel for the respondent No.2 that the author of Ex.P8 is not examined, this Court ventured into comparing the signatures of the respondent No.1 as may be found in the written statement, the affidavit filed in support of the written statement and Ex.P8. This Court do not find any discrepancy in the same. Therefore, when the respondent No.1 categorically admit in her pleadings that the deceased was paid Rs.12,500/- per month and she having issued such certificate as per Ex.P8, such certificate being produced before the Court by the petitioners, it was incumbent upon the respondent No.2 to rebut such material available on record.

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The rule of preponderance of probability, which is applicable to these proceedings require that the evidence need to be weighed. It is not the strict rules of evidence,

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which have to be made applicable to summary proceedings. When the respondent No.1 has categorically taken up the contention in her written statement that the deceased was being paid Rs.12,500/- per month and when the petitioners also produced such documentary evidence by way of Ex.P8, it would not be proper to accept the contention of the respondent No.2 that the respondent No.1 having not entered the witness box to corroborate the Ex.P8, has to be rejected.

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It is relevant to note that the respondent No.2 was under notice that the respondent No.1 is paying a sum of Rs.12,500/- to the deceased-employee and even then the respondent No.2 has not bothered to enter the witness box to deny the same. In that view of the matter, the testimony of the PW.1 coupled with the Ex.P8 and admission of the PW.1 and there being no evidence on behalf of respondent No.2 would definitely result in the Ex.P8 to be accepted.

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The learned Commissioner in para-25 and 28 observes that, there is evidence by the petitioners and the

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respondent No.1 that the wages was Rs.12,500/- per month. Even then, without assigning any reason, the Commissioner relies on the notification issued by the Central Government under Section 4(1)(b) of the Act, and holds that the wages are to be taken at Rs.8,000 per month. Obviously, the reasoning of the learned Commissioner is flawed and he could not have discarded the Ex.P8 without assigning any reasons.

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In that view of the matter, the appeal succeeds. The compensation is calculated as Rs.12,500/- x 50% x 163.07 = Rs.10,19,187/-, by accepting the age of the deceased at 47 years, which is not in dispute.

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In addition to it, a sum of Rs.5,000/- has to be awarded towards the funeral expenses. Hence, the following:

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Rs.6,52,300/awarded by the Commissioner along with interest at 12% per annum from 30^th day of the date of the accident.

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(iii) The Registry to send back the trial court records to the concerned Court.

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Sd/(C M JOSHI) JUDGE

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SMP,SDU List No.: 1 Sl No.: 62 CT: AK

Zakira Begum and Ors. v. T. Mahalaxmi Telukunta and Anr.

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Zakira Begum and Ors. v. T. Mahalaxmi Telukunta and Anr.

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