United India Insurance Co. Ltd. Vs Orange Tours and Travels and Ors.

ORANGE TOURS & TRAVELS SISTER CONCERN OF THIRUMALA CABS, HEAD OFFICE AT PLOT NO.132, GREEN PARK AVENUE, SUCHITRA BUS STOP, JEEDIMETLA HYDERABAD – 500 055. TELANGANA STATE REPRESENTED BY ITS ASST. GENERAL MANGER (ADMIN).

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SMT. SUREKHA W/O MALLAPPA NATIKAR, AGE: 32 YEARS, OCC: HOUSEHOLD,

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TANUJA D/O MALLAPPA NATIKAR, AGE: 13 YEARS, OCC: STUDENT (MINOR),

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HC-KAR

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ARCHANA D/O MALLAPPA NATIKAR, AGE: 11 YEARS, OCC: STUDENT (MINOR)

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SWETHA D/O MALLAPPA NATIKAR, AGE: 6 YEARS, OCC: NIL (MINOR)

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HARISH S/O MALLAPPA NATIKAR, AGE: 5 YEARS, OCC: NIL. (MINOR),

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RESPONDENT NO.3-6 ARE MINORS THROUGH THEIR NEXT FRIEND I.E. NATURAL MOTHER RESP.NO.2 SMT. SUREKHA W/O MALLAPPA NATIKAR, ALL RESPONDENT NO. 2 TO 6, R/O: VILLAGE MARAGUTTI, TQ: & DIST: KALABURAGI – 585 313.

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SAREPPA S/O BANDEPPA NATIKAR, AGE: 67 YEARS, OCC: AGRICULTURE, R/O: VILLAGE MARAGUTTI, TQ: & DIST: KALABURAGI – 585 313.

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…RESPONDENTS

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(BY SRI SANTOSH BIRADAR, ADVOCATE FOR R2 AND R7; R1 SERVED; R3 TO R6 ARE MINORS REPRESENTED BY R2)

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THIS MFA IS FILED UNDER SECTION 30(1) OF EC ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 02.08.2018, PASSED BY THE HON’BLE COURT OF THE II ADDL. SENIOR CIVIL JUDGE AND COMMISSIONER OF EMPLOYEE’S COMPENSATION AT KALABURAGI IN ECA NO.16/2016, IN THE INTEREST OF JUSTICE AND EQUITY.

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NC: 2025:KHC-K:3632 MFA No. 202165 of 2018

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HC-KAR

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THIS MFA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and award dated 02.08.2018 passed by II Addl. Senior Civil Judge and Commissioner for Employees' Compensation, Kalaburagi (for short, 'Commissioner') in ECA no.16/2016, this appeal is filed.

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Sri S.S.Aspalli, learned counsel appearing for Smt.Anuradha M.Desai, advocate submitted that appeal was by insurer assailing award on limited ground namely consideration of monthly income of employee at Rs.10,000/- per month would be contrary to Section 4(1B) of Employee’s Compensation Act, 1923 (for short ‘E.C.Act’) as it stood on date of incident i.e., 28.12.2015. It was submitted that Central Government vide notification no.S.O.1258 dated 31.05.2010 had notified Rs.8,000/- as income for purposes of Section 4 (1B) of E.C.Act. Learned counsel therefore submitted that appeal may be allowed to said extent by modifying award.

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Sri Santosh Biradar, learned counsel appearing for claimants opposed appeal. It was submitted that as per

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HC-KAR

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decision of Hon’ble Supreme Court in case of Jaya Biswal and Others v. Branch Manager, Iffco Tokio¹ has considered Rs.10,000/- per month as income of a driver of vehicle and awarded compensation. Therefore, Commissioner had not committed any error in passing impugned award. It was submitted that since Commissioner had not awarded any amount towards funeral expenses as required under Section 4(1)(4) of E.C.Act, same had to be accounted for. Therefore, sought for dismissal of appeal.

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Heard learned counsel, perused impugned

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judgment and award.

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This appeal by insurer is only on income of deceased employee. Therefore, substantial question of law that would arise for consideration is:

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“Whether assessment of monthly income by Commissioner was contrary to Section 4 (1B) of E.C.Act and calls for interference?”

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In view of above, relationship of deceased Mallappa

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Natikar with respondent no.1 herein as employee and

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1 AIR 2016 SC 956

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HC-KAR

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employer, occurrence of accident i.e., on 28.12.2015 while he was in course of employment i.e., driving Bus no.KA-01/AB6184 and though incident arose out of employment are not in dispute. Relationship of claimants with deceased is also not in dispute. Commissioner assessed compensation by determining age of deceased as 37 years and applying factor of 192.14. Only dispute is about monthly income of deceased.

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Though learned counsel for claimant has relied on Jaya Biswal’s case (supra), said decision involved a highly skilled workman driving a vehicle on national route permit, wherein Commissioner had accepted Rs.10,000/- as monthly wage while High Court reduced same. It was held onus would be on employer to maintain register of wages and records and burden cannot be placed on claimants/workman to establish income.

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Admittedly, accident occurred on 28.12.2015 i.e., after coming into force of Amendment Act no.45 of 2009, amending E.C.Act by inserting Section 4(1B) therein. By virtue of same, Central Government was authorized to notify income for purposes of Section 4(1) of E.C.Act. In terms of said

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HC-KAR

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authorization, Central Government had issued notification no.S.O.1258 (E), notifying Rs.8,000/- as monthly income for purposes of sub-section (1) of Section 4 of E.C.Act. While passing impugned order, ignoring said notification, Commissioner determined monthly income at Rs.10,000/-, which would be contrary to law. Consequently, substantial question of law is answered partly in affirmative by holding that monthly income of deceased has to be considered at Rs.8,000/.

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In view of above finding, compensation awardable

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would be Rs.7,68,560/- (Rs.8,000/- x 50% x 192.14).

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As per Section 4(1)(4) of E.C.Act, claimants would be entitled for funeral expenses quantified at Rs.15,000/-. Thus total award would be Rs.7,83,560/-. Consequently, following :

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ORDER

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(a) Appeal is allowed in part. Judgment and award dated 02.08.2018 passed by II Addl. Senior Civil Judge and Commissioner for Employees' Compensation, Kalaburagi in ECA no.16/2016, is modified.

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(b) Claimants are held entitled for re-assessed compensation of Rs.7,83,560/as against Rs.9,60,700/- awarded by Commissioner with

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NC: 2025:KHC-K:3632 MFA No. 202165 of 2018

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HC-KAR

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interest @ 12% p.a. from date of accident i.e., 28.12.2015 till deposit.

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(c) Amount in deposit, if any, before this Court is ordered to be transmitted to Commissioner for payment with direction to refund excess amount if any to appellant insurer.

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Sd/(RAVI V HOSMANI) JUDGE

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MSR

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List No.: 1 Sl No.: 41

United India Insurance Co. Ltd. v. Orange Tours and Travels and Ors.

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United India Insurance Co. Ltd. v. Orange Tours and Travels and Ors.

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