Bangalore District Court
Smt.Shakila Banu vs Safco Concrete Products on 7 January, 2022
KABC020048162019
BEFORE THE COURT OF SMALL CAUSES AND XXVI ACMM
AND EMPLOYEES COMPENSATION COMMISSIONER, AT
BANGALORE (SCCH-09)
Present: Sri.H.K.UMESH B.A.,LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru.
Dated this the 07th day of January, 2022
E.C.A. No.19/2019
PETITIONERS: 1.Smt.Shakila Banu,
W/o.Late Suhail Khan,
Aged about 38 years.
2. Salman Khan.S,
S/o Late Suhail Khan,
Aged about 20 years,
3. Mubarak Khan.S
S/o Late Suhail Khan,
Aged about 18 years,
All the above petitioners are R/at
No.667, 1st Cross, R.K.Hegde Nagar,
Dr.Shivaram Karanth Nagar,
Bangalore North,
Bangalore - 560077.
(By pleader - Sri. Mohamed
Khan.A)
V/S -
SCCH 9 2 ECA. 19/2019
RESPONDENTS: 1. Safco Concrete Products,
B.K.Halli, Bagalur Road,
Jalahobli, Bangalore North Taluk.
Bangalore - 562149.
2. Laiqur Rahaman Khan,
Prop.Safco Concrete Products,
S/o. Late Mustafa Khan,
Aged about 38 years,
R/at No.10, S.P.Road Cross,
Bangalore - 560045.
3. Sri.Faisal Ahmed,
S/o.V.I Ali @ Imtiyaz Ahmed,
Aged about 26 years,
R/at No.28, Flat No.2,
1st Floor, 2nd Main Road,
Kalasipalyam, Division No.47,
Bangalore - 560002.
4. Sri.Ali V.I @ Imtiyaz Ahmed,
S/o.Late Yakoob Sab,
Aged about 50 years,
R/at No.28, Flat No.2,
1st Floor, 2nd Main Road,
Kalasipalyam, Division No.47,
Bangalore - 560002.
(R1 to 4 By pleader - Sri.D.S.Vijayendra
Reddy)
5. The Assistant Executive Engineer,
Bangalore Electricity Supply Company,
(BESCOM), Devanahalli Sub-Division,
Near Devanahalli New Bus Stand,
Devanahalli - 562110.
(Exparte )
SCCH 9 3 ECA. 19/2019
JUDGMENT
Petitioners have filed this petition U/S.22 of Employees Compensation Act 1923 for claiming compensation of Rs.35,00,000/- for the death of deceased Suhail Khan during the course of employment.
2. It is averred in the petition that, respondent no.1 is a firm represented by its proprietor respondent no.2, respondent no.3 and 4 are lease holders and they have taken respondent no.1 firm from respondent no.2 on lease to run the firm. Respondent no.5 is the BESCOM authority under whose jurisdiction the firm was operating and deceased Suhail Khan was working under respondent no.3 and 4 as an electrician. The main activities of the firm is to manufacture concrete electric poles. It is further stated in the petition that Suhail Khan during the course of employment died on 04.03.2017. and on the date of incident as per the instructions of respondent no.3 and 4 he was fixing a problem in one of the motor installed on top of a crane at a height of 20 feet which SCCH 9 4 ECA. 19/2019 was used to lift heavy concrete poles and while fixing problem the above said Suhail Khan came in contact with an un insulated high tension live wire passing over his head and he was electrocuted and thrown away with severe electric burn injuries, the co-workers, who witnessed the incident shifted injured to East Point Hospital Bidarahalli, Bangalore and thereafter for further treatment injured was shifted to Victoria Hospital, Bangalore and on 06.03.2017 at 3.15 a.m., he succumbed to death of due to electric burn injuries sustained. The Bagalur Police have registered the case in Cr.No.41/2017 for the offences punishable under section 304-A of IPC. It is further stated in the petition that Suhail Khan was drawing a salary of Rs.18,000/- p.m., since from the day of his joining the service under respondent no.3 and 4. The respondent no.3 & 4 being employers of deceased Suhail Khan are jointly and severally liable to pay compensation to the petitioners.
3. After service of summons Respondent No.1 to 4 appeared through their counsel. But, respondent no.4 filed SCCH 9 5 ECA. 19/2019 written statement. Respondent No.5 remained absent and was placed exparte.
4. The respondent no.4 in his written statement denying the averments of petition. He contended that the petition is neither maintainable in law or on facts and the same is liable to be dismissed in limine. It is further contended that the respondent no.1 firm and the alleged place of incident is situated within the jurisdiction of Devanahalli and it doesnot come within the jurisdiction of this court. The petitioners have also not pleaded clear right to sue. Hence, petition is liable to be rejected by exercising powers confirmed U/O 7 Rule 11 of CPC and U/O 7 Rule 11 (a) of CPC. It is contended that the documents produced by the petitioners are all concocted, fabricated, forged, spurious and created documents, which are inadmissible in the eye of law.
5. Further, submitted that the respondents are using the overhead crane to lift the poles and the same is mechanical one and on 04.03.2017 a unknown person who entered the SCCH 9 6 ECA. 19/2019 premises using the phone and he is simply roaming in the premises and while seeing the products he used to talk over phone. Since it is a business place, none of them have stopped him, as the respondents and their agents are in the impression that he is the prospective buyer and entered the premises to purchase the blocks and poles, hence agents and respondents have not given much importance on him. However, the respondents were busy with their works, without permission of the respondent and at his outsight the said person who had climbed the crane and standing on the top of the crane and continued talking even then, since current line was 11000 wats high-tension wires are passed on the crane, it causes shock for 5 feet towards ground and generally no one will climb top of the crane. Since, in view of his complete negligence and carelessness he suffered a shock. It is pertinent to mention that, the said crane is mechanical one, if any repair happened in the motor the competent person from the company will come and repair the issues in the motor. Electrician does not SCCH 9 7 ECA. 19/2019 have any role in repairing the motors, this fact clearly demonstrates that the said Suhail Khan is totally stranger and he died due to his negligence. The petitioners have colluded with police authorities and have filed false case against the respondent based on fabricated documents and witness. Further contended that the high tension wires are installed by the BESCOM authority and they were not used the super conductors or pipes on the wires. The said Suhail Khan has never worked under respondents. Further respondent no.4 specifically denied other averments of petition and specifically contended that deceased Suhail Khan is a stranger and he is not a employee. With these facts, the respondent no.4 prays to dismiss the petition.
6. From the above facts, the following issues have been framed:
1. Whether claimants prove that the Suhail Khan who was working under Respondent no.1 Safco Concrete Products as an Electrician and as per the instruction of respondent no.3 and 4 deceased was fixing problem of motor installed on top of crane at height of 20 feet and while fixing/discharging of his duty he SCCH 9 8 ECA. 19/2019 came into the in contact with high tension live wire passing over his head and electrocuted and sustained burn injuries on 06.03.2017 at about 3.15 a.m., he succumbed to the burn injuries as alleged?
2. Whether applicants prove that deceased Suhail Khan died during the course of employment or injuries related to the employment?
3. Whether applicant is entitled for compensation? If so, how much and from whom?
4. What order or award?
7. In order to substantiate the case of the petitioners, the Petitioner No.1 herself examined as PW1 and got marked Exs P.1 to 12 and closed their side. The Respondent no.1 to 4 have not adduced any evidence nor cross-examined PW1 though sufficient opportunity was afforded to them.
8. Heard the arguments of learned counsel for petitioner. Again though sufficient opportunity was afforded to the learned counsel for respondent no.1 to 4, he has not addressed the arguments. Hence, arguments of respondent no.1 to 4 is taken as heard.
SCCH 9 9 ECA. 19/2019
9. My findings on the above issues are as under:
Issue Nos.1 &2 In the Affirmative;
Issue No.3 Negative Partly in the Affirmative;
respondent no.3 & 4 are liable to pay compensation.
Issue No.4 As per final order for the
following
-:REASONS:-
ISSUE No.1 & 2 :
10. These issues are interlinked with each other in order to avoid repetition of facts and materials on record, these issues are discussed together.
11. It is the case of the petitioners that on 04.03.2017, who was working under respondent no.1 firm, by name Safco Concrete Products as an electrician and on the date of incident as per the instructions of respondent no.3 and 4 he was fixing a problem in one of the motor installed on top of a crane at a height of 20 feet which was used to lift heavy concrete poles and while fixing problem the above said Suhail Khan came in contact with an uninsulated high tension live wire passing over SCCH 9 10 ECA. 19/2019 his head and he was electrocuted and thrown away with severe electric burn injuries, the co-workers, who witnessed the incident shifted injured to East Point Hospital Bidarahalli, Bangalore and thereafter for further treatment injured was shifted to Victoria Hospital, Bangalore and on 06.03.2017 at 3.15 a.m., he succumbed to death due to electric burn injuries sustained. During the course of employment the incident was occurred.
12. Petitioners in order to prove the said averments made in the petition. Petitioner no.1 is examined as PW1. PW1 filed her chief examination affidavit as provided U/O XVIII R 4 of CPC and during the course of her chief examination she has reiterated the petition averments in detail on oath. She stated that her husband Suhail Khan was working as electrician under respondent no.3 and 4 and on 04.03.2017 when he was attending electrical work on crane in the premises of respondent no.1 firm he came in contact with live wire and he was electrocuted and sustained injuries. Thereafter, he was SCCH 9 11 ECA. 19/2019 shifted to near by hospital and for higher treatment, he was shifted to Victoria Hospital, wherein he succumbed to injury on died on 06.03.2017 at about 3.15 a.m. She further deposed she has lodged the complaint before Bagalur Police in Cr.No.41/2017 on 06.03.2017 Police have registered the case against respondent no.1 to 4 for the offence punishable under Section 304-A of IPC. She further deposed hospital authorities have handed over the dead body after conducting postmortem and they have performed funeral and obsequies ceremonies as per their customs and spent more than Rs.50,000/-. She further deposed her husband was getting salary of Rs.18,000/- p.m., from the respondent no.3 & 4. She further deposed the respondent no.1 to 4 without giving any safety equipments/measures and without taking any precautions have directed the deceased to work. She further deposed due to the negligence of respondents, her husband came in contact of high tension wire and sustained burn injuries and SCCH 9 12 ECA. 19/2019 died. She further deposed respondents have not paid any compensation to them. Hence, they filed this petition.
13. In support of her oral evidence, she also placed Ex.P1 to 12 documents. Ex.P1 is the FIR, which discloses a case was registered against respondent no.3 & 4 for the offence punishable U/Sec. 304 A of IPC. Ex.P2 is the certified copy of the acknowledgment for having received the dead body of deceased by petitioner No.1. Ex.P3 is the death report submitted to the concerned department by Police. Ex.P4 is the postmortem report, which discloses that the death of Suhail Khan was due to the toxemia as a result of burn injury sustained. Ex.P5 to 10 are the copies of Aadhaar card of petitioners and deceased Suhail Khan. Ex.P11 is the charge sheet and Ex.P12 is the order sheet maintained in Cr.No.41/2014 (C.C.No.3767/19) on the file of PCJ & JMFC, Devanahalli).
SCCH 9 13 ECA. 19/2019
14. Admittedly, oral and documentary evidence placed by petitioner are remained unchallenged and in tact. There is no contrary evidence is placed by respondent no.1 to 4 to disbelieve the version of petitioners. In fact, this court has given sufficient opportunity to cross-examine the PW1 and also to adduce respondent evidence and submit arguments. Inspite of it, respondent has not utilised the opportunity given and adduce the evidence. Except filing written statement respondent no.1 to 4 have not chosen to adduce any evidence. Mere filing of written statement is not enough.
15. At this stage, I would like to quote the decision of Hon'ble Apex Court reported in - (1999) 3 SCC 573 Vidyadhar V/s Manik Rao & another, wherein the Hon'ble Apex Court has held - Evidence Act 1872 - Sec. 114 III (g) - Presumption - if a party abstains from entering the witness box, an adverse inference would arise against him. Where a party to the suit does not appear in the witness box and states his own case on SCCH 9 14 ECA. 19/2019 oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. So, in view of above decision and as per Sec.114 (g) of Evidence Act, this court can take adverse inference that the case set up by respondent no.4 is not correct.
16. Even otherwise, Ex.P11 discloses charge sheet was filed against respondent no.3 & 4 and it is clearly establishes that the incident was taken place in the premises of respondent no.1 firm and due to the negligent act of respondent no.3 & 4 the said incident was occurred. Admittedly, respondent no.3 & 4 have not challenged the charge sheet filed against them and they have not placed any contrary evidence to show that the deceased Suhail Khan was not employed under them. So, under such circumstances, this Court has to accept the evidence placed by the petitioners.
17. Further, in the written statement, respondents have taken contention that this court have no jurisdiction to try the SCCH 9 15 ECA. 19/2019 petition on the ground that the alleged accident had taken place within limits of Devanahalli jurisdiction. As such this Court has no jurisdiction to try the matter.
18. In the light of above contention, I have perused the provisions of Sec.21 of Employees Compensation Act 1923, wherein it is stated the petition may be presented by the defendants claiming the compensation where they ordinarily resides. As per the cause title of petition and the documents at Ex.P5 to 10 the residence of petitioners is at R.K.Hegde Nagar, Bangalore North. So, definitely, the petition is maintainable and this court has got jurisdiction in view of Sec. 21 (b) of the Act. Even otherwise, as stated above, except filing written statement respondents have not chosen to adduce any evidence and contest the petition. Thus, the contention of respondents is not acceptable one.
19. So, looking to the oral evidence of PW1 and the documents placed before the court, it appears that the petitioners are the wife and children of deceased Suhail Khan SCCH 9 16 ECA. 19/2019 and they are dependants of deceased, who succumbed to accidental injuries occurred on 04.03.2017. The respondent No.3 & 4 have disputed the relationship of the deceased with petitioners. But, they have not placed any contrary evidence as stated above. Hence, I am of the opinion that the petitioners are the LRs of the deceased Suhail Khan and dependents, who was working as a Electrician under the respondent No.3 & 4 and the incident occurred during the course of employment. Thus for the above reasons, I answer issue Nos. 1 and 2 in affirmative.
Issue No.3:
20. PW1 has stated in her evidence that prior to the incident, the deceased was working under the respondent No.3 & 4 as Electrician and getting salary of Rs.18,000/- per month and he was contributing the entire income to the family maintenance. Due to the untimely death of deceased Suhail Khan petitioners were put into deep mental shock and agony and they lost the earning member of the family. The SCCH 9 17 ECA. 19/2019 petitioners have not produced any documents to show that the deceased was getting salary of Rs.18,000/- per month. In the absence of such evidence, as far as the income of the deceased is concerned taking into consideration the age of deceased mentioned in PM report/Ex.P4 as 45 years. It is just and proper to consider the monthly notional income of the deceased as Rs.8,000/- which meets the ends of justice.
21. At this juncture, this court drawn its attention on the notification of Ministry of Labour and Employment dated 31.5.2010 which reads like thus;
S.O. 1258(E): In exercise of the powers conferred by sub-section (1B) of Section 4 of the Employee's Compensation Act, 1923 (8 of 1923), the Central Government hereby specifies, for the purposes of Sub-section (1) of the said Section, the following amount as monthly wages, with effect from the date of publication of this Notification in the Official Gazette, viz., "Eight thousand rupees".
SCCH 9 18 ECA. 19/2019
22. The above Central Gazette notification dated 31.0s5.2010 clearly reflects that monthly wages of the workers has been fixed at Rs.8,000/- per month with effect from the date of publication i.e., 31.05.2010. The accident was occurred on 04.03.2017. So, considering the same, his notional monthly income is taken into consideration of Rs.8,000/- per month. So monthly income of the deceased is taken as Rs.8,000/- .
23. As per Ex.P5/Aadhaar card the date of birth of the deceased was mentioned as 1970. The accident occurred on 04.03.2017. So, as the date of accident the deceased was aged about 47 years. So, by virtue of Section 4 of the Employees Compensation Act, 1923 clearly reflects that the factor 163.07 is applicable and virtue of this provision of law an amount equal to 50% of the monthly wages of the deceased multiplied by the relevant factor to be considered. So, schedule IV of the Employees Compensation Act, 1923, so, 50% of the deceased monthly wages comes to Rs.4,000/-. So, the loss of dependency would be as mentioned below; SCCH 9 19 ECA. 19/2019
Rs.4,000X163.07=Rs.6,52,280/-.
So, the petitioners are entitled for compensation of Rs.6,52,280/- towards loss of dependency.
24. As per Section 4(4) of the Employees Compensation Act, 1923 is also clear that if the injury of the employee is death, the employer shall in addition to the compensation under sub Sec. (1) deposit with the commissioner a sum of Rs.5,000/- of the Act, the court can grant sum of Rs.5,000/- towards expenditure of the funeral to the eldest surviving Dependant. So, Rs.5,000/- is granted under the head of funeral expenses. Therefore, the petitioners are entitled for compensation of Rs.6,57,280/-.
Liability:
25. As per the averments of petition, respondent no.2 is the proprietor of respondent no.1 firm and respondent no.3 & 4 have taken the firm on lease to run the firm and they were running the firm and they were operating the same as if owners. Further, as per the averments made in the petition, SCCH 9 20 ECA. 19/2019 under the guise of respondent no.3 & 4 on fateful day the deceased was attending the problem on the top of the crane and came into contact with high tension live wire and electrocuted. So, the respondent no.3 & 4 are jointly and severely liable to compensation amount with interest at the rate of 12%p.a. from date of incident i.e., from 04.03.2017 till its realization.
26. Further, the petitioners have made the respondent no.1, 2 & 5 as parties to the petition. But, they have not placed any documents to show the Employer and Employees relationship between deceased Suhial Khan and respondent no. 1, 2 & 5. So, the petition against them is liable to be dismissed. Hence, the respondent No.3 & 4 are liable to pay compensation to the petitioners. After deposit of award amount by the respondent No.3 & 4, this tribunal is apportioned the compensation amount in the ratio of 60% to the petitioner No.1 and 20% each to the Petitioner No.2 & 3 SCCH 9 21 ECA. 19/2019 respectively would meet the ends of justice and equity. Accordingly I answer issue No.3 Partly in the Affirmative. ISSUE No.4 :
27. For the reasons discussed above, I proceed to pass the following :
ORDER The petition filed by the petitioners U/s 22 of Employees Compensation Act, 1923 is partly allowed with costs.
The petition filed by the petitioners against respondent no.1, 2 & 5 is hereby dismissed.
The petitioners are entitled for compensation of Rs.6,57,280/- (Six Lakhs Fifty Seven Thousand Two Hundred and Eighty Only) together with interest at the rate of 12% p.a. from the date of incident i.e., 04.03.2017 till realization.
The respondents No. 3 & 4 are hereby jointly and severally liable to pay the compensation amount to the petitioners.
Respondent No.3 & 4 are directed to deposit the award amount with interest at 12% p.a. from the date of accident i.e., dated 04.03.2017 till its realization within a period of two months from the date of award.SCCH 9 22 ECA. 19/2019
Out of the share amount of petitioner No.1, 50% of the amount shall be disbursed in favour of petitioner No.1 directly through E- Payment by obtaining the bank account details and the remaining 50% shall be deposited in her name in any nationalized or scheduled bank of her choice for a period of three years. However, petitioner No.1 is at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.
The entire share amount apportioned in favor of petitioner No.2 & 3 shall be disbursed in favor of petitioner No.2 & 3, through E-payment by obtaining the bank details.
Advocate fee is fixed at Rs.1,000/-.
Draw award accordingly.
(Typed to my dictation by the stenographer, corrected and then pronounced in the open court on this the 07th day of January,2022) (Umesha H.K.) MEMBER; MACT & ACMM, BENGALURU.
ANNEXURE List of witness examined for the petitioner:
PW.1 Kumara SCCH 9 23 ECA. 19/2019 List of Documents exhibited for the petitioner:
Ex.P1 FIR & complaint
Ex.P2 Acknowledgment
Ex.P3 Inquest report
Ex.P4 P.M report
Ex.P5 & 6 Notarized copy of Aadhar card and Voter
Identity card of deceased
Ex.P7-9 Notarized copy of Aadhar card of petitioner
no.1 to 3
Ex.P10 Notarized copy of Aadhar card of petitioner
no.1
Ex.P11 Charge sheet
Ex.P12 Copy of order sheet
List of witness examined for the respondents:
NIL List of Documents exhibited for the respondents: NIL (Umesha H.K.) Judge, Court of Small Causes, & ACMM, Bengaluru.