Smt. Jayalakshmi Vs Sri. Kiran Chetty

THIS MFA IS FILED UNDER SECTION 30(1) OF W.C.ACT AGAINST THE JUDGMENT DATED:29.1.2013 PASSED IN WCA/NFC/CR.NO.75/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, KARMIKA BHAVAN, BANNERGHATTA ROAD, SUB DIVISION-1, BANGALORE, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING FURTHER ENHANCEMENT OF COMPENSATION.

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HC-KAR

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IN MFA NO. 9363/2013

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BETWEEN:

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SRI. NITHIN & ALSO CALLED AS NITHIN BHAGAMANE, S/O LATE BAJEGOWDA, AGED ABOUT 50 YEARS, PROPRIETOR OF GRANITE PVT. LTD., & ALPHA STONE PVT. LTD., NO.26-B, ATTIBELE INDUSTRIAL AREA, HOSUR ROAD, BANGALORE-560 100.

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REP: BY HIS GPA HOLDER, MR.VASUDEV. T.D., S/O DEVAPPA GOWDA, AGED ABOUT 49 YEARS, R/AT RAJARAJESHWARINAGAR, BANGALORE-560 098.

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…APPELLANT

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(BY SRI. H.P. LEELADHAR, ADVOCATE)

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AND:

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1 . SMT. JAYALAKSHMI W/O LATE RAVI @ RAVIKUMAR, AGED ABOUT 31 YEARS,

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KUMARI SANDHYA D/O LATE RAVI @ RAVIKUMAR, AGED ABOUT 15 YEARS,

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MASTER GANESH S/O LATE RAVI @ RAVIKUMAR, AGED ABOUT 10 YEARS,

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RESPONDENTS NO.2 AND 3 REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN, SMT.JAYALAKSHMI THE RESPONDENT NO.1.

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ALL ARE RESIDING AT: EECHAPAADI VILLAGE, ERIYUR POST, PENNAGARAM TALUK, DHARMAPURI DISTRICT, TAMIL NADU STATE- 636 701.

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SRI.KIRAN CHETTY, FIRST OWNER, M/S. KESEL MARBLE N GRANITE LTD., K.NO.77, 100% EOU (SLABS), BHAVIKERE VILLAGE, NELAMANGALA TALUK, BANGALORE-562 123.

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SRI.NIRANJAN SECOND OWNER, M/S. KESEL MARBLE N GRANITE LTD., K.NO.77, 100% EOU (SLABS), BHAVIKERE VILLAGE, NELAMANGALA TALUK, BANGALORE-562 123.

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...RESPONDENTS

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(BY SRI. SURESH M.LATUR, ADVOCATE FOR R1 TO R3, R2 AND R3 ARE MINORS REPRESENTED BY R1, VIDE ORDER DATED 06.06.2019, SERVICE OF NOTICE TO R4 AND R5 IS HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 30(1) OF W.C.ACT AGAINST THE JUDGMENT DATED:29.1.2013 PASSED IN NO.ECA/FC/CR/75/2007 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN COMPENSATION, SUB DIVISION-1, BANGALORE,

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AWARDING A COMPENSATION OF RS.2,78,485/- WITH INTEREST @ 12% P.A AFTER ONE MONTH FROM THE DATE OF ACCIDENT TILL THE DATE OF DEPOSIT.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04.06.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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CAV COMMON JUDGMENT

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These appeals arise out of order passed by the Labour Officer and Commissioner under the Workmen's Compensation Act, Sub-Division-1, Bengaluru, (for short, `Labour Commissioner'), in case No.WCA Bengaluru1/ECA/FC/CR-75/2007, dated 29.01.2013.

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MFA.No.4614/2013 is filed by the claimants seeking enhancement of compensation and MFA.No.9363/2013 is filed by respondent No.3 (employer), challenging his liability to pay the

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compensation awarded.

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HC-KAR

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Both these appeals arise out of common award passed by the Labour Commissioner and hence, they are taken up together for disposal.

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The brief facts of the case were that :

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One Ravi @ Ravikumar, was the husband of claimant

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No.1 and father of claimant Nos.2 and 3. He was aged about 30 years at the time of his death and was working as a 'black granite stone marker' under respondent No.3 M/s.Alpha Granite Private Limited, and earning a salary of Rs.6,000/- per month. There exists employer and employee relationship between respondent No.3 and deceased Ravikumar.

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It is further contended that, few days prior to 16.09.2006, as per the directions and instructions of respondent No.3-employer, the said Ravi had been to Jyotigowdanapura village of Chamarajanagar District, to mark the black granite stones. He worked day-in and day-out as per the directions of respondent No.3. Due to said stress and strain, on 16.09.2006, when Ravi reached

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near the quarry, wherein he had to mark the granite stones, he suffered severe chest pain. Immediately, he was taken to a hospital, it was declared that he was brought dead. The matter was reported to Chamarajanagara East Police, wherein UDR Case

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No.24/2006 was registered under Section 174 of Cr.PC.

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The claimants further contended that the deceased was hale and healthy prior to his death. Whenever Respondent No.3 received more orders of granite stones, he was insisting deceased Ravi to mark stones day-in and day-out to meet heavy orders. In view of the said stress and strain, he died due to heart attack, and there was no other reason for the same. Therefore, claimants prayed

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to award compensation under the Workmen's Compensation Act.

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Initially, the claim petition was filed against respondent Nos.1 and 2, thereafter, respondent No.3 was impleaded.

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Respondent No.3 in his written statement

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denied the contents of the claim petition. He specifically denied that the deceased was employed under him on a monthly salary of Rs.6,000/- and he had directed the deceased to work day and night, which allegedly resulted in a heart attack and the death of Ravi. He also denied his liability to pay compensation. Hence, prayed to dismiss the claim petition.

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The Labour Commissioner considering the

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contentions of the both parties, framed necessary issues.

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The claimants to prove their case, examined two witnesses as PW-1 and PW-2 and marked 11 documents as per Exs.P-1 to P-11. Even after giving sufficient opportunities, respondent No.3 did not lead any oral or documentary evidence.

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The Labour Commissioner, after hearing the parties, held that the deceased was an employee working under Respondent No.3, and that an employer-employee

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relationship was existed between the deceased and Respondent No.3. The claimants were unable to prove that the deceased was earning Rs. 6,000/- per month, The Labour Commissioner assessed the wages of the deceased at Rs.2,678/- per month on the basis of Notification issued

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by Government of Karnataka in respect of skilled labour and applied the factor as 207.98, deducted 50% of the income of the deceased as per Section 4 of the Workmen's Compensation Act, 1923 (for short, `the Act') and assessed the compensation of Rs.2,78,485/-.

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Both the claimants, as well as respondent No.3 being dissatisfied by the above said award, challenged the same in the present appeals.

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I have heard the arguments.

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These appeals were admitted to consider the following substantial question of law.

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In MFA.No.4614/2013 :

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" Whether the claimants have made out a case for enhancement of compensation in the facts and circumstances of the case?"

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In MFA.No.9363/2013 :

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" Whether the Commissioner for Workmen's Compensation is justified in holding that the claimants have proved that there existed employer and employee relationship between the deceased Ravikumar and respondents No.3?"

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During the pendency of the appeal in MFA.No.9363/2013, the appellant filed an application - IA.No.3/2013, under Order LXI Rule 27 read with Section

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151 of CPC, seeking permission to lead additional evidence. The said application was heard along with the main appeals.

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Both the substantial questions of law are interconnected, therefore, I have taken them together for discussion.

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The contention of the employer is that, under Section 10 of the Act, the issuance of notice is mandatory, and since no such notice was issued, the claim petition filed by the claimants is not maintainable. However, the Commissioner failed to address this issue in the impugned order. Therefore, the said order is bad in the eyes of law.

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The learned counsel for the

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respondents/claimants contended that as per Section 10 of the Act, notice is not mandatory, and only on that count, the claim petition cannot be rejected. He further contended that, no such defence was taken by the employer before the Commissioner, and for the first time, such a contention is raised by the employer in this appeal, and the same cannot be considered in the appellate stage for the first time.

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The submission of learned counsel for the

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claimants that this point was raised for the first time before this Court is true. No such objection was raised

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before the Labour Commissioner, and the Labour Commissioner had not raised any such issue, and no answers were given. Since it is a question of law, only on that count, said contention cannot be rejected. This Court needs to consider the same.

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To consider point of issuance of prior notice under Section 10 of the Act, it is necessary to refer to the provisions of Section 10 of the Act., which reads as under:

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" 10. Notice and claim.- (1) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within [two years] of the occurrence of the accident or in case of death within [two years] from the date of death:

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Provided that where the accident is the contracting of a disease in respect of which the provisions of sub-section (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the

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[employee] was continuously absent from work in consequence of the disablement caused by the disease:

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Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the [employee] to absent himself from work, the period of two years shall be counted from the day the [employee] gives notice of the disablement to his employer:

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Provided further that if [an employee] who, having been employed in an employment for a continuous period, specified under sub-section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease, peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected:

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Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the [entertainment of a claim]—

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(a) if the claim is [preferred] in respect of the death of [an employee] resulting from an accident which occurred on the premises of the employer, or at any place where the [employee] at the time of the accident was working under the control of the

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employer or of any person employed by him, and the [employee] died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or

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(b) if the employer [or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured [employee] was employed] had knowledge of the accident from any other source at or about the time when it occurred:]

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Provided further that the Commissioner may [entertain] and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been [preferred], in due time as provided in this subsection, if he is satisfied that the failure so to give the notice or [prefer] the claim, as the case may be, was due to sufficient cause.

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(2) Every such notice shall give the name and address of the person injured and shall state in ordinary language the cause of the injury and the date on which the accident happened, and shall be served on the employer or upon any [one of] several employers, or upon any person responsible to the employer for the management of any branch of the

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trade or business in which the injured *[workman] was employed.

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(3) The State Government may require that any prescribed class of employers shall maintain at their premises at which [employees] are employed a notice book, in the prescribed form, which shall be readily accessible at all reasonable times to any injured [employee] employed on the premises and to any person acting bona fide on his behalf.

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(4) A notice under this section may be served by delivering it at, or sending it by registered post addressed to, the residence or any office or place of business of the person on whom it is to be served, or, where a notice-book is maintained, by entry in the notice-book."

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(Emphasis supplied)

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On examining the records of the Commissioner,

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the inquest mahazar revealed that the incident occurred near the quarry, wherein the deceased, Ravi, was intending to go, to mark the black stone. It appears that, when he collapsed near the quarry, complaining of severe chest pain, one Santhosh took him to the hospital. In his report to the police, Santhosh stated that Ravi was

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immediately shifted from the spot to the hospital in a tipper lorry of quarry, wherein both Santhosh and the deceased Ravi were employed. Therefore, the incident was within the knowledge of the employer.

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As per the proviso stated in Section 10 of the Act, if the incident took place near or within the workplace, and fact of death was known to the employer, then issuance of notice under Section 10 of the act is not mandatory. The said proviso is applicable to the facts of the present case. Hence, non-issuance of prior notice in this case is not fatal.

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As per the provisions of Section 4(A) of the Act, the employer is also liable to pay penalty and interest, if he fails to deposit the compensation amount within a period of 30 days from the date of accident. Unless the employer is aware that such an incident had occurred; he will be unable to deposit the amount. To avoid these complications, the legislature must have enacted above

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provision of Section 10 of the Act, imposing a condition that notice shall be issued prior to filing of the claim petition before the competent authority. However, Section 10 of the Act itself indicates that the issuance of notice is not mandatory in certain circumstances.

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The main attack on the impugned award by the employer is that, there was no employer-employee relationship, and that the deceased never worked under Respondent No.3 as an employee. This question of fact was dealt with in detail by the Labour Commissioner in the impugned award.

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In the claim petition filed before the Labour Commissioner, claimants stated that deceased was working under respondent No.3 as a 'black stone marker' and earning Rs.6,000/- per month. In the evidence of PW-1, she has reiterated the same facts on oath.

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In her cross-examination, she has fairly stated that there were no documents to prove that he was

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working under respondent No.3 and drawing salary of

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Rs.6,000/- per month.

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Learned counsel for the employer has much argued on this point, and stated that since there were no materials available on the record with the claimants, they were unable to prove the said fact. The said contention is not acceptable. It is not the case of employer that at the time of appointing labourers, respondent No.3 had issued appointment orders. No records were produced by Respondent No.3 before the Labour Commissioner regarding payment of salary. When no such procedures were followed and no records were produced, then how could claimants produce the documents to prove that the deceased was working under respondent No.3. There were no reasons to the claimants to lie before the Labour Commissioner, in this regard.

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It is pertinent to note that to rebut the said evidence of PWs.1 and 2, respondents have not led any

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evidence or produced any document before the Labour Commissioner. The Labour Commissioner in the impugned award has stated that, inspite of giving sufficient opportunities, the, respondent No.3 did not enter the witness box or produce any document to show that the deceased was not working under him.

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Respondent No.3, in its counter, at one breath denies the existence of an employer-employee relationship with the deceased and stated that he was unknown person; And on another breath, contended that the deceased was addicted to alcohol and he was a heavy drunkard and died due to said reason. If he was unaware of the deceased, then how he got information that deceased was addicted to alcohol and that lead to his death? Even in the cross-examination of PW-1 and PW-2, the said defence was raised and both of them have denied that deceased was addicted to alcohol. Even the doctor, who has conducted the post mortem, has not noted in the

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post mortem report that the deceased died due to excess consumption of liquor.

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The claimants have produced certain documents

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before the Labour Commissioner with a list dated 26.05.2010. Ex.P-1 is a UDR FIR No.24/06 registered under Section 174 of Cr.P.C. and a complaint was lodged by one Santosh, s/o Raman, who was not related to the deceased, but resident of the same village, wherein deceased was residing. On 16.09.2000, immediately after the death of Ravi, said Santosh has stated before the concerned police that deceased was working in 'Alpha Granite Pvt. Ltd.,' as a 'black stone marker,' and for a month prior to the incident, he had been working in the quarries to mark the stones as per the directions of Alpha Granite, who deputed him to do the said marking work. He also stated that, as per directions of M/s.Alpha Granite Pvt. Ltd., deceased was marking the black stones in different quarries situated in Jyotigowdanapura as well as Chamarajanagara.

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The police conducted the inquest on the dead body as per Ex.P-3, and at that time, police recorded the statements of one Chalapathy bin Nagaraju, who was cousin of the deceased and one Chandrashekara, son of Marimadaiah, who was a co-worker, and working in the company of respondent No.3, along with deceased.

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Both of them have stated before police that the deceased was working as a black stone marker with respondent No.3 at Bengaluru and one month prior to the incident, the said company deputed him to mark the stones in the quarries situated near Jyothigowdanapura and Chamarajanagara, who agreed to sell the stones to respondent No.3. It was also stated by both of them that on the day of incident, deceased Ravi came nearby a quarry to mark the black stone; at that time, he complained of severe chest pain, and within few seconds he fell down, and thereafter he was shifted to Christian Hospital, wherein they were advised to take Ravi to

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Government hospital. Accordingly, he was shifted to Government hospital, wherein it was declared that he was brought dead.

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These documents came into picture at an undisputed point of time. There was no reason for both Chalapathy, as well as Chandrashekar to give a false statement before the concerned police that the deceased was working under respondent No.3. The claim petition was filed before Labour Commissioner about six to seven months after the said incident. These factors clearly indicate that the deceased went to Jyotigowdanapura or nearby areas in Chamarajanagara District at the instructions and direction of Respondent No.3, to mark black stones in the quarry located in or around those places, who have agreed to sell the granite stones to respondent No.3.

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In Ex.P-3, at Columns 11 and 17, the police, based on the materials collected during their investigation,

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opined that the deceased was working under Respondent No.3. Ex P-4 is post mortem report. These facts were not challenged during the cross-examination of PW-1 or PW-2. Furthermore, Respondent No.3 failed to examine the concerned Investigating Officer to disprove the contents of the said document. Therefore, the oral evidence of PW-1 and PW-2, corroborated by Exs.P-1 to P-3, clearly establishes the existence of an employer-employee relationship between the deceased and Respondent No.3.

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Respondent No.3 employer has filed IA.No.3/2013 under Order LXI Rule 27 of CPC, seeking permission to lead additional evidence. This is an appeal under Section 30 of Workmen's Compensation Act, and a summary trial proceedings. Only substantial question of law has to be considered. Undisputedly, respondent No.3 appeared before the Commissioner during the year of 2008 and filed its counter statement, stating that there were no records to show that the deceased was working with respondent No.3. In para-5 of the objections

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statement filed by respondent No.3, it was stated that in the Muster Roll and payment register, name of deceased Ravi was not at all found.

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The documents produced under IA.No.3/2023 (Xerox copies) appears to be a Muster Roll and salary payment register for the month of August 2006 to September 2006. In the said register, name of Ravi appears in two places, one is D.Ravi' and another as Ravi T.'. There are no sufficient reasons for nonproduction of the said documents before Labour Commissioner, although the matter was pending for about 4 to 5 years after appearance of respondent No.3 in the said proceedings. The reasons assigned in the affidavit for non-production of these documents before Labour Commissioner is not satisfactory or justifiable, to permit respondent no.3 to produce the said documents. After lapse of about 20 years, if the application is allowed and matter is remanded to Labour Commissioner, it will seriously prejudice the case of the claimants.

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These records were said to be in the custody of respondent No.3 and they are private records. The apprehension of learned counsel for claimants that these records are created just to avoid payment of compensation. If the case is remanded, then claimants may not be able to rebut these records by examining any of the co-workers, who were working with deceased during his lifetime. Due to lapse of time such witnesses may not be available. These contentions of the claimants cannot be ruled out.

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In addition to that, had these documents been placed on record before the Labour Commissioner, the claimants would have had an opportunity to examine the employees working in the said quarries or with respondent No.3 and prove that the deceased was working with the said persons under respondent No.3. Much water is flown under the bridge. The matter is of the year 2006 and during the year 2013, employer filed these documents before the Appellate Court, seeking production of the said

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documents to deny the case of the claimants. The reasons assigned in the affidavit filed in support of IA.No.3/2013 are also not just and sufficient to permit the employer to lead additional evidence. If Respondent No.3 is allowed to produce, then claimants' right will be seriously prejudiced. On both count, application deserves to be rejected.

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This is a benevolent legislation enacted to give an immediate relief to a suffered workman or members of family of a workman who dies in the course of employment and a summary trial proceedings. Therefore, there is no reason to allow the application, and even if the documents are considered, they do not help the Labour Commissioner or this Court to decide the disputed question. It will cause further delay in getting compensation by the claimants.

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The claimants contended that the amount of compensation awarded is inadequate. According to their

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contention, the Labour Commissioner ought to have taken the income of the deceased as Rs.6,000/- per month, as contended by them. Admittedly, no records were produced before the Labour Commissioner to prove that deceased was earning Rs.6,000/- per month. Merely stating some figures before the Labour Commissioner regarding the income, cannot be a ground to take up the said income.

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In addition to that, the Labour Commissioner considered the contentions of the claimants. When there was no reliable evidence to prove the income of the deceased, the Labour Commissioner followed the Notification issued by the Government of Karnataka in ascertaining notional income of the deceased and calculated the composition. I do not find any reason to say that the said finding is perverse or arbitrary.

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The learned counsel for the claimant relied on a judgment in the case New India Assurance Company Limited -vs- Maruti and others, reported in 2018 ACJ 268.

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The fact of both cases are different. In that case, the owner remained ex parte , and the Commissioner under Workmen's Compensation Act, followed the Minimum Wages Act, and assessed the income of a coolie as Rs.3,500/per month. Looking at the facts and circumstances of that case, the income of the deceased was taken as Rs.3,500/- per month. It will not help the claimants to support their case.

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The claimant relied upon a judgment in the case of Debabai and others -vs- Rajkumar and others, reported in 2018 ACJ 2791. In that case, the Hon'ble Apex Court, considering the facts of that case, held that there was no reason for the claimant to file a false case.

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Learned counsel for respondent No.3 relied on the following judgments :

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(i) Manager, Royal Sundaram Aliance Insurance Co. Ltd., -vs- Bharati Rajaram Mouli and others, reported in 2019 ACT 3086,

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(ii) Praveenbhai s. Khambhayata -vs- United

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India Insurance Co. Ltd., and others, reported in

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2015 ACJ 936,

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(iii) Ramachandrappa -vs- Manager, Royal Sundaram

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Alliance Insurance Co. Ltd., reported in 2011 ACJ 2436.

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The respondent Nos.3 has produced the following

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judgments:

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(i) Commissioner for the Port of Calcutta -vsMst.Kaniz Fatem, reported in 1961 CALCUTTA 310,

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(ii) Jyothi Ademma -vsPlant Engineer, Nellore and another, reported in (2006) 5 SCC 513, (iii) Judgment passed by the High Court of Judicature at Bombay in M/s.Tata Steel Ltd., -vsMaharashtra Shramjivi General Kamgar Union and another, Writ Petition No.9664/2021, decided on22.10.2024.

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I have gone through the above said decisions. However, the facts and circumstances of the present case are distinct from those in the cited judgments. The decisions referred to were rendered based on the specific context of those cases. Therefore, the legal principles laid

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down therein do not support the contentions of Respondent No. 3, who has not led any rebuttal evidence.

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For above discussions, I do not find that the findings of the Labour Commissioner are perverse, arbitrary or capricious or without any basis. Therefore, there is no need to interfere in the findings of the Labour Commissioner.

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Accordingly, I answer the substantial questions of law framed in MFA.No.4614/2013 against the claimants and MFA.No.9363/2013 against the employer/respondent No.3 and proceed to pass the following :

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ORDER

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i) MFA.No.4614/2013 and

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MFA.No.9363/2013 are dismissed.

¶218

IA.No.3/2013 filed under Order LXI Rule 27 of CPC in MFA.No.9363/2013, stands rejected.

¶219

ii) The impugned order dated 29.01.2013, passed by the Labour Officer and

¶220

31 - NC: 2025:KHC:30769 MFA No. 4614 of 2013 C/W MFA No. 9363 of 2013

¶221

HC-KAR

¶222

Commissioner under the Workmen's Compensation Act, Sub-Division-1, Bengaluru, in case No.WCA Bengaluru-1/ECA/FC/CR75/2007, is confirmed.

¶223

iii) Whatever amount deposited by the employer/respondent No.3 shall be transmitted to the concerned Court/Labour Commissioner for disbursement to the claimants in accordance with law.

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All the pending applications, if any, stands disposed of.

¶225

Registry is directed to send back the records along with a copy of this judgment to the concerned Court/ Labour Commissioner.

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Sd/-

¶227

(UMESH M ADIGA) JUDGE

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bk/ List No.: 2 Sl No.: 1

Smt. Jayalakshmi v. Sri. Kiran Chetty

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Smt. Jayalakshmi v. Sri. Kiran Chetty

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