Karnataka High Court
Bibi Khuteja @ Khutza Banu W/O vs Dawood Husain S/O Husenoddin Inamdar, on 27 January, 2017
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R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27th DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
M.F.A. No.22681/2012 C/W
M.F.A.No.22060/2012 (WC)
IN MFA.NO.22681 OF 2012
BETWEEN :
1. BIBI KHUTEJA @ KHUTZA BANU
W/O. MUKHTIYAR AHMED INAMDAR,
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O: J.P. NAGAR, GOKUL ROAD, HUBLI,
DIST: DHARWAD.
2. MAKSOOD AHMED
S/O MUKHTIYAR AHMED INAMDAR,
AGE: 9 YEARS, OCC: STUDENT,
R/O: J.P. NAGAR, GOKUL ROAD, HUBLI,
DIST: DHARWAD
REP. BY HIS MINOR GUARDIAN NATURAL
MOTHER SMT. BIBI KHUTEJA @ KHUTZA BANU
W/O. MUKHTIYAR AHMED INAMDAR
(APPELLANT NO.1).
..... APPELLANTS
(BY SRI DINESH M KULKARNI, ADV.)
AND :
1. DAWOOD HUSAIN
S/O HUSENODDIN INAMDAR,
AGE: MAJOR, OCC: VEHICLE OWNER,
R/O: KANCHAGAR GALLI, HANGAL,
TQ & DIST: HAVERI.
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2. THE BRANCH MANAGER,
RELIANCE GENERAL INSURANCE CO. LTD.,
DESHPANDE NAGAR, HUBLI.
..... RESPONDENTS
(BY SRI PRUTHVI K S, ADV. FOR R1
SRI G.N. RAICHUR, ADV. FOR R-2)
THIS MFA IS FILED U/S.30(1) OF THE W.C.ACT,
AGAINST THE JUDGEMENT AND AWARD DATED
31.03.2012, PASSED IN W.C.A.F:12/2010 ON THE FILE OF
THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN COMPENSATION, SUB-DIVISION-2, HUBLI,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA.NO.22060 OF 2012
BETWEEN :
THE GENERAL MANAGER,
RELIANCE GENERAL INSURANCE CO.LTD.,
CTS# 472-274, V A KALBURGI SQUARE,
DESAI CROSS, DESHPANDE NAGAR, HUBLI,
REP. BY ITS DEPUTY MANAGER,
LEGAL DEPARTMENT, CTS# 472-274,
V A KALBURGI SQUARE, DESAI CROSS,
DESHPANDE NAGAR, HUBLI.
..... APPELLANT
(BY SRI G N RAICHUR, ADV.)
AND :
1. BIBI KUTIZA @ KUTZA BANU
W/O MUKTIYAR AHMED INAMDAR,
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O J.P.NAGAR, GOKUL ROAD, HUBLI,
DIST: DHARWAD.
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2. MAKSOOD AHMED
S/O MUKTIYAR AHMED INAMDAR,
AGE: 9 YEARS, OCC: STUDENT,
R/O J.P.NAGAR, GOKUL ROAD, HUBLI,
DIST: DHARWAD
(SINCE RESPONDENT NO.2 IS MINOR
REP. BY HIS NATURAL GUARDIAN MOTHER
RESPONDENT NO.1)
3. DAWOOD HUSSAIN
S/O HUSSAINUDDIN INAMDAR,
AGE: MAJOR, OCC: OWNER OF TRUCK BEARING
NO.KA-31/1523,
R/O KANCHGAR GALLI, HANGAL,
DIST: HAVERI.
..... RESPONDENTS
(BY SRI DINESH M KULKARNI, ADV. FOR R1,
R-2 IS MINOR REP. BY R-1,
SRI PRUTHVI K.S. ADV. FOR R-3)
THIS MFA IS FILED U/S. 30 (1) OF THE W.C.ACT
1923, AGAINST THE JUDGEMENT AND AWARD DATED
31.03.2012, PASSED IN WCA/F NO.12/2010 ON THE FILE
OF THE LABOUR OFFICER AND COMMISSIONER FOR
WORKMEN COMPENSATION, SUB-DIVISION-2, HUBLI,
AWARDING THE COMPENSATION OF RS.2,78,463/- WITH
INTEREST AT THE RATE OF 12% P.A. FROM THE DATE OF
PETITION AND SHALL BE DEPOSITED WITHIN ONE
MONTH FROM THE DATE OF THE ORDER.
THESE MFAs HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.11.2016, AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED
THE FOLLOWING : -
JUDGMENT
This common judgment disposes of two appeals MFA.22060/2012 and MFA.22681/2012 which have been :4: preferred challenging the judgment dated 31.03.2012 of the Labour Officer and Commissioner for Workmen's Compensation, Sub-Division-2, Hubli in KA-Ahu- 2/WCA/F/12/2010. Appeal No. MFA.22060/2012 has been preferred by Insurance Company, and Appeal No. 22681/2012 has been preferred by the claimants.
2. According to Section 30 of Workmen's Compensation Act (Now Employees Compensation Act), an appeal to the High Court lies only on a substantial question of law. Before adverting to the substantial questions of law that arise in both the appeals, it is necessary to briefly mention the background which culminated into the claim petition being lodged before the Commissioner for Workmen's Compensation, (hereafter referred to as Commissioner) and then appeals to this Court.
3. The parties are referred to with respect to their positions before the Commissioner. The 1st claimant is the wife, and the 2nd claimant is the son of one Muktiyar Ahmed Inamdar (referred to as deceased) who was working as a cleaner in a lorry belonging to the 1st respondent. The 2nd respondent is the Insurance Company. On 15.12.2009, the :5: 1st respondent sent his lorry, bearing Reg. No. KA31/1523, to the land of one Shankarappa situated at Koppa Village for transporting Eucalyptus trees. The deceased was a cleaner in that lorry. After loading the eucalyptus, when the lorry was returning towards Hangal, the lorry driver took a left turn. Since the driver was driving the lorry speedily, rashly and negligently, the lorry fell into a roadside ditch. As a result of this accident, the deceased breathed his last at the spot of accident. The claimants thereafter claimed compensation before the Commissioner as the death of the deceased took place due to accident arising out of and in the course of employment with the 1st respondent.
4. The 1st respondent appeared before the Commissioner, and filed statement of objections admitting that the deceased was his employee and was being paid monthly salary of Rs. 4,500/- in addition to daily batta of Rs. 25/-. But the 1st respondent denied his liability to pay compensation to the claimants because the lorry was insured with the 2nd respondent and therefore the 2nd respondent should pay compensation to the claimants. :6:
5. The 2nd respondent appeared before the Commissioner, denied the accident, employment of the deceased with the 1st respondent, and its liability to indemnify the 1st respondent. It took up a very specific plea that the driver of the lorry did not possess licence to drive heavy goods vehicle. The lorry, bearing Reg. No. KA31/1523, is a heavy goods vehicle, the driver possessed a licence for driving light motor vehicle. And because of violation of the policy conditions, the liability to pay compensation cannot be saddled on it.
6. The Commissioner held an enquiry. The 1st claimant adduced evidence as PW-1, and produced documents as per Ex.P.1 to Ex.P.9. The 1st respondent did not adduce evidence, but the 2nd respondent examined two witnesses R.W.1 and 2, and produced four documents as per Exs. R.1 to R.4. On the basis of the evidence, the Commissioner came to the conclusion that the driver did possess valid driving licence, and that there was no violation of policy conditions. The Commissioner also held that income of the deceased could only be considered as Rs. 2,938.90 according to the notification with regard to the :7: minimum wages prescribed for the transport industry in view of the fact that the claimants failed to prove that the deceased was getting salary of Rs. 5,000/- per month, in addition to daily batta of Rs. 50/-, and further that owner of the lorry having failed to produce documents to show that he was paying salary of Rs. 4,500/- per month and daily batta of Rs. 25/- to the deceased. Thus the Commissioner awarded an amount of Rs. 2,78,463/- with interest at the rate of 12% as the compensation payable to the claimants.
7. Assailing these findings of the Commissioner, the counsel for the Insurance Company has mainly attacked the award on the point of driver of the lorry having not possessed valid driving licence to drive a heavy goods vehicle. His argument is that licence to drive a light motor vehicle was issued on 30.10.1995 and that licence was valid up to 31.02.2014 as per Ex.P.8. On 21.03.1997, an endorsement was made on the licence to the effect that driver could drive a transport vehicle also. An amendment brought to Sec. 10 of Motor Vehicle Act by Act No.54/1994 was given into effect from 14.11.1994. But consequent amendment to From No.4, driving licence form was amended :8: with effect from 28.03.2001 (hereinafter referred to as 'the Act'). Till this consequential amendment to Form No.4, the vehicles were classified as under:
(a) Motor cycle without gear
(b) Motor cycle with gear
(c) Invalid carriage
(d) Light Motor Vehicle
(e) Medium Goods Vehicle
(f) Medium passenger motor vehicle
(g) Heavy goods vehicle
(h) Heavy passenger motor vehicle
(i) Road roller
(j) Motor vehicle of a specified description After the amendment the classification of the vehicles were made as under:
(a) Motor cycle without gear
(b) Motor cycle with gear
(c) Invalid carriage
(d) Light motor vehicle
(e) Transport vehicle
(i) road roller
(j) motor vehicle of specified description :9: Therefore the endorsement that was made on 21.03.1997 cannot be construed as an authorization given to the driver to drive a heavy goods vehicle, which category of vehicle was removed from the list after the amendment. In other words, the endorsement authorized driver to drive a transport vehicle, other than heavy goods vehicle; therefore, there was no valid licence for driving heavy goods vehicle. He also refers to the evidence given by RW-1, a Motor Vehicle Inspector, to substantiate his argument that the driver did not have licence to drive heavy goods vehicle. Thus, there was violation of policy conditions. Hence, the liability could not have been saddled upon the insurance company as has been done by the Commissioner. To gather support for his argument, he has placed reliance on the judgments of the Hon'ble Supreme Court in the case of Mukund Dewangan And Oriental Insurance Company Ltd., (2016 (4) scc 298), National Insurance Company Vs. Meena Agrawal (2010 Kar.
MSC 108 (SC)) and in the case of Appaiah Chari Vs K. Vadival and another (ILR 2014 KAR 2358), the Divisional Manager, New India Assurance Company Ltd., Davanagere Vs Manjamma and other (ILR 2013 Kar. 2559) and National : 10 : Insurance Company Vs. Gangadhar in (MFA No.21080/2009 and other connected appeals decided on 5.1.2015).
8. Per contra, the counsel for the claimant has argued that the driver did possess valid licence. The effect of amendment was to have only one type of vehicle i.e., transport vehicle instead of four classifications viz., medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle. The insurance company does not dispute that initially the driver was issued with licence to drive light motor vehicle (LMV). But he was authorized to drive transport vehicle on 21.03.1997 and this licence came to be renewed from time to time even after the amendment. Because, after the amendment, there is only one type of transport vehicle, the authorization made on 21.03.1997 and subsequent renewals enure to the benefit of the driver. The accident took place on 15.12.2009. Because, after the amendment, Heavy Goods Vehicle (HGV) was removed from the list, the licence that the driver possessed authorized him to drive any type of transport vehicle. For this reason the insurance company cannot contend that there is violation of policy condition, and : 11 : therefore it cannot indemnify the liability of the owner of the vehicle. The policy was in force on the date of the accident, and it covered the risk of the cleaner also. The learned counsel has raised a point that while deciding a case under Workmen's Compensation Act, the provisions of Motor Vehicles Act concerning validity of license cannot be looked into. There is no dispute with regard to employer and employee relationship. The accident arose out of and in the course of employment. The owner of the vehicle is liable to pay compensation; because there was insurance coverage, the insurance company has to indemnify the owner's liability.
9. With regard to the quantum of compensation, it is the argument of the learned counsel for the claimants that the owner himself clearly stated in the statement of objections that he was paying salary of Rs. 4,500/- p.m. to the deceased in addition to daily batta of Rs. 25/-. The statement so made by the owner has remained uncontroverted. The claimants could not produce any document to show that the deceased was getting salary of Rs. 5,000/- and daily batta of Rs. 50/-. But nothing : 12 : prevented the Commissioner from considering the salary as Rs. 4,500/- and daily batta of Rs. 25/-. Having regard to the date of accident, it is possible to presume that the monthly salary could be Rs. 4,500/-. The minimum wages can be applied only in cases where proof cannot be produced. Here in this case, the owner himself has clearly stated about the salary he was paying to the deceased. This being the position, the Commissioner erred in calculating the compensation by taking minimum wages into consideration. Therefore he argued for enhancing the compensation.
10. In reply, the learned counsel for the Insurance Company, repelled the argument of the counsel for the claimants by referring to Section 143 of the Act. His argument is that according to Section 143, the provisions of the Act pertaining to applicability of the policy can be urged even in a case arising under the Workmen's Compensation Act.
11. I have gone through the entire records and given anxious consideration to the points of arguments canvassed by learned counsel for the parties. Although in the memorandum of appeals,the counsel have raised substantial : 13 : questions of law, but in the light of the arguments, the following substantial questions of law can be formulated:-
i. Whether even after amendment to Section 10 (2) of the Motor Vehicles Act 1988, the endorsement on the driving licence, Ex.P8, authorizing the driver to drive transport vehicle can be construed as authorization to drive a transport vehicle other than heavy goods vehicle?
ii. Whether the Commissioner for Workmen Compensation is justified in law in taking the prescribed minimum wages with respect to cleaner, when the owner of the lorry himself has stated that he was paying salary of Rs.4,500/- per month besides daily batta of Rs.25/-?
Point No.1:
12. One argument of the learned counsel for the claimants has to be answered in the beginning itself. His argument is that since this is a matter pertaining to Workmen's Compensation Act, the provisions of Motor : 14 : Vehicles Act cannot be looked into. But this argument cannot be accepted. As in the Motor Vehicles Act the Insurance Company can take a defence that its liability gets absolved because of violation of policy conditions, even in matters arising under Workmen's Compensation Act or Employees Compensation Act, the same defence can be taken by the insurance Company. If there is gross violation of policy conditions, it is not under an obligation to indemnify the liability of the insured. Section 143 of Motor Vehicles Act states so.
13. In the case on hand, the driver of the lorry did possess licence; initially it was issued for driving a light motor vehicle, and subsequently an endorsement was made authorizing him to drive a transport vehicle. This endorsement was prior to amendment to Section 10 of the Act. This is the crux of the matter and what is to be examined now is whether the principles laid down in the rulings cited by the learned counsel for the insurance company are applicable to the facts of this case.
14. In the case of APPAIAH CHARI VS K. VADIVAL AND ANOTHER (ILR 2014 KAR 2358), it is held that the : 15 : liability of the insurer is absolved if the driver of the offending vehicle does not posses valid driving licence to drive a transport vehicle. The facts discussed in this case clearly show that there was a coverage of insurance policy for a goods carriage vehicle. The driver of the offending vehicle did not possess effective licence to drive light goods vehicle and the licence that he had was to drive light motor vehicle non-transport. This being the position, the principle laid down in this judgment is not applicable to the facts of this case.
15. In the case of MUKUND DEWANGAN AND ORIENTAL INSURANCE COMPANY LTD., (2016 (4) SCC
298), the Hon'ble Supreme Court had an occasion to examine the question whether the drivers having licence to drive light motor vehicles have to obtain endorsement to drive transport vehicle also. In view of conflicting decisions of various High Courts, certain questions were formulated for being referred to larger Bench. Therefore this judgment is of no avail to the insurance company.
16. In the case of NATIONAL INSURANCE COMPANY VS. MEENA AGRAWAL (2010) KAR. MAC 108 (SC), a : 16 : personal vehicle was used for transport purpose, and the driver did not have valid licence. The Hon'ble Supreme Court had to examine the liability of the Insurance Company from this angle. Therefore this ruling is also not applicable to the question before this Court.
17. This court in the case of THE DIVISIONAL MANAGER, THE NEW INSURANCE COMPANY LTD., DAVANAGERE VS. MANJAMAMA AND OTHERS (ILR 2013 KAR 2559) has ruled that saddling liability on the Insurance Company is erroneous for the reason that the driver had not possessed valid driving licence at all and that the driver was charge sheeted for the offence under Section 3 of the M.V. Act also. This is not the position in this case. Therefore this judgment is also not applicable.
18. This Court in the case of NATIONAL INSURANCE COMPANY VS GANGADHAR AND OTHER CONNECTED MISCELLANEOUS FIRST APPEALS [MFA 21080/2009 C/W OTHER MFAS), held that the liability of the insurance Company would get absolved if driver having licence to drive a light motor vehicle (non-transport) caused accident while driving a light goods vehicle or a medium or heavy goods : 17 : vehicle. The question involved in these Appeals is on a different pedestal and, therefore, the principles laid down by this Court in the case of Gangadhar and others (supra) is not applicable.
19. In the case before this Court, the driver was initially issued with a licence to drive a light motor vehicle. Ex.P8 is the licence. Perusal of the same discloses that the licence was first issued to the driver to drive light motor vehicle on 30.10.1995, and it was valid up to 31.5.2014. Subsequently, on 21.3.1997 there was an endorsement made on the licence authorizing him to drive transport vehicle also. This licence for transport was valid from 21.3.1997 till 20.3.2000 and it came to be renewed periodically. An amendment was brought to Section 10 of The Motor Vehicles Act with effect from 14.11.1994. Before amendment, the vehicles in respect of which licences were issued were of the following categories :-
(a) Motor cycle without gear
(b) Motor cycle with gear
(c) Invalid carriage
(d) Light Motor vehicle : 18 :
(e) Medium goods vehicle
(f) Medium passenger motor vehicle
(g) Heavy goods vehicle
(h) Heavy passenger motor vehicle
20. The effect of amendment is to have only the following categories of vehicles for issuance of licence.
(a) Motor cycle without gear
(b) Motor cycle with gear
(c) Invalid carriage
(d) Light Motor vehicle
(e) Transport vehicle
(i) Road roller
(j) Motor vehicle of a specified description
21. The amendment makes it very clear that for the categories of vehicles earlier coming under (e) to (h), now there is only one description of vehicle, i.e., transport vehicle. Therefore, the question now further confines to the point whether the endorsement made on Ex.P8 on 21.3.1997, authorizing the driver to drive transport vehicle, can be interpreted as authorizing him to drive a transport vehicle not coming under the category of Heavy Goods : 19 : Vehicle as has been deposed by the Senior Motor Vehicles Inspector-RW1. His clear answers in the cross-examination are that authorization given to the driver on 21.3.1997 to drive transport vehicle was only for driving light motor vehicle (transport) and has denied the suggestion that transport vehicles include all types of transport vehicles, i.e., light transport vehicle and heavy transport vehicle. The whole argument of the counsel for the Insurance Company rests on the evidence of RW1 which cannot be accepted at all for the following reasons :-
The Hon'ble Supreme Court in the case of MUKUND DEWANGAN vs ORIENTAL INSURANCE CO. LTD. [2016 (4) SCC 298] has referred to the statement of objects and reasons for bringing amendment to Act of 1988 in relation to Section 10 of the Motor Vehicles Act. The said reasons are as follows :-
"12..... It is also apparent from the Statement of Objects and Reasons of the Amendment Act No.54 of 1994 that the transport operators and members of public faced inconvenience because of operation of some of the provisions of the Act of 1988. It was intended for : 20 : simplification of procedures and policy liberalization and it became necessary due to introduction of newer type of vehicles and faced increasing numbers of both personal and commercial vehicles in the country. Hence, it was intended to modify and amplify certain definitions of new types of vehicles for simplification of procedure for grant of driving licences as provided in para 4(a) and (b) of the Statement of Objects and Reasons....."
22. The above reasons make it amply clear that simplification of procedures was required with regard to issuance of licence. To make to clear, it is necessary to have extracted the definitions of 'transport vehicle', 'goods carriage', 'heavy goods vehicle', 'medium goods vehicle' and 'light motor vehicle'.
Section 2(47) of the Act defines "transport vehicle". It means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
According to Section 2(14) of the Act, "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle : 21 : not so constructed or adapted when used for the carriage of goods.
According to Section 2(16), "heavy goods vehicle"
means any goods carriage the gross vehicle weight or which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms.
According to Section 2 (21), "light motor vehicle"
means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms.
Section 2 (23) defines "medium goods vehicle" as any goods carriage other than a light motor vehicle or a heavy goods vehicle.
23. Therefore, having a look at these definitions what becomes further clear is that a transport vehicle includes a goods carriage. Heavy goods vehicle and medium goods vehicles are also goods carriages, the only difference between the two being in their unladen weight. There is no category called 'light goods vehicle' and only in the definition of : 22 : 'medium goods vehicle', it is stated that a goods carriage other than a light motor vehicle or a heavy goods vehicle.
24. Though amendment was brought to Section 10 w.e.f. 14.11.1994 by Act 54/1994, but the corresponding amendment to Form No.4 prescribed for issuing licence was brought by Central Motor Vehicles (Amendment) Rules, 2001 and it was given into effect from 28.3.2001. That means after bringing amendment to Section 10, till 28.3.2001, there was no change in the driving licence form; it contained different types of transport vehicles. Perhaps for this reason, RW1 says that authorization endorsed on Ex.P8 relates to authorization given to the driver to drive transport vehicle other than heavy goods vehicle.
25. The intention of bringing amendment to Section 14 and the driving licence form is writ large. That is, to have only one type of transport vehicle. After amendment there is only one type of transport vehicle, licence issued to a driver with respect to transport vehicle authorizes him to drive any type of transport vehicle.
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26. In the instant case, the date of accident is 15.12.2009. If strict interpretation has to be given to the endorsement made on Ex.P8 authorizing the driver to drive transport vehicle, it can only be said that he was authorized to drive light motor vehicle (transport) till 28.3.2001. Endorsement made thereafter including the period that covers the accident date permitted the driver to drive heavy goods vehicle. Therefore, the argument of the learned counsel for the insurance company that the driver did not have licence to drive heavy goods vehicle on the date of accident cannot be accepted. It has to be held that he did possess a valid driving licence to drive a heavy goods vehicle and there was no violation of policy conditions. From this discussion, point No.1 is answered negatively.
Point No. 2:-
27. The Commissioner has disbelieved the evidence of PW1 that her husband was getting salary of Rs.5,000/- per month and daily batta of Rs.50/- for the reason that PW1 answered in the cross-examination that she did not have any document to show that her husband was getting that much salary. Even the Commissioner has disbelieved what the : 24 : owner of the lorry has stated in his objection statement that he was paying salary of Rs.4,500/- per month and daily batta of Rs.25/- to the deceased as no document in that regard was produced. In the absence of the documents, the Commissioner has followed the endorsement issued by the Government in the year 1998 fixing the minimum wages to a cleaner as Rs.2,938.90. The age of the deceased on the date of the accident was 38 and therefore the Commissioner has held that the claimants are entitled to a compensation of Rs.2,78,463/-.
28. As regards this finding of the Commissioner, what is to be observed is that it is highly impossible to expect claimants to produce documents in proof of the salary of the deceased. Therefore, PW1-the wife has honestly stated that she has no document. The employment of the deceased with the owner of the lorry is not in dispute. When the owner filed his statement of objections admitting that the deceased was his employee, and further stated that he was paying salary of Rs.4,500/- per month besides a daily batta of Rs.25/-, the question is whether his statement should be disbelieved. He might not have appeared before the : 25 : Commissioner to give evidence. But, being the employer, if it is his statement which has remained uncontroverted, his statement cannot be brushed aside. There cannot be a golden scale for the standard of proof to be produced with regard to income of the deceased. Here is a case where the wife and children of the deceased want compensation for the death of the breadwinner of their family due to the accident which arose out of and in course of the employment with the owner of the lorry. When the owner of the lorry himself states that he was paying Rs.4,500/- + Rs.25/- daily batta, it can be believed and taken as the basis for calculating the compensation. Ignoring this statement of the owner, if the Commissioner resorted to follow the notification of the Government, it can only be said that the Commissioner has not applied his mind. What is to be mentioned here is that any amount prescribed under the notification is the minimum wage to be paid to a workman; it does not mean that the employer should not pay more than that amount.
Therefore, the Commissioner should have considered that the salary of the deceased was Rs.4,500/- per month. : 26 :
29. Further, a Division Bench of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED AND ANOTHER Vs SUBHAS [2004 (5) KAR.L.J] has held that daily batta also comes within the scope of wages. Therefore, Rs.25/- per day should also be considered for calculating the compensation. Therefore, the total income of the deceased is Rs.4500 + (25 x 30) = Rs.5,250/-. Thus, this point is answered in negative. The actual compensation that the claimants are entitled to is calculated as below:-
Age of the deceased on the date of accident was 38 years. Compensation has to be calculated according to Section 4 of Employees Compensation Act. In case of death, an amount equal to fifty percent of the monthly wages is to be considered and multiplied by relevant factor given in Schedule IV. Applying this formula, the compensation payable to claimants is 5250/2 x 189.56 = Rs. 4,97,595/-.
Therefore from the above discussion, I proceed to pass the following order.
(i) MFA.No.22060/2012 filed by Reliance General Insurance Company is dismissed.: 27 :
(ii) MFA.No.22681/2012 filed by claimants is allowed.
The judgment of Commissioner for Workmen's Compensation, Sub-Division-2, Hubli in KA-Ahu- 2/WCA/F/12/2010 dt: 31.03.2012 is modified.
(iii) The compensation payable to the claimants is enhanced to Rs. 4,97,595/-.
(iv) The enhanced compensation carries simple interest of 12% per annum to be calculated after expiry of 30 days from the day compensation is payable i.e., from the date of accident till date of payment.
Sd/-
JUDGE sd/ckl : 28 : SHKJ: MFA No.22681/2012 06.06.2017 c/w MFA No. 22060/2012 REVIEWED JUDGMENT
1. Since the Review Petition filed by the Insurance Company, which is respondent No.2 in MFA No.22681/2012 and appellant in MFA No.22060/2012 was allowed on 31.05.2017, the common judgment of this court in both these appeals needs to be reviewed on point No.2 only. Now after review, the findings on point No.2 are as follows:-
The commissioner has disbelieved the evidence of PW1 that her husband was getting salary of Rs.5,000/- per month and daily batta of Rs.50/- for the reason that PW1 answered in the cross-examination that she did not have any document to show that her husband was getting that much salary. Even the Commissioner has disbelieved what the owner of the lorry has stated in his objection statement that he was paying salary of Rs.4,500/- per month and daily batta of Rs.25/- to the deceased as no document in that regard was produced. In the absence of the documents, the Commissioner has followed the endorsement issued by the Government in the year 1998 fixing the minimum wages to a cleaner as Rs.2,938.90. The age of the deceased on the date : 29 : of the accident was 38 and therefore the Commissioner has held that the claimants are entitled to a compensation of Rs.2,78,463/-
2. The commissioner expected the document to be produced by the claimants in proof of the salary of the deceased. PW1 is the wife of the deceased. Her husband was just working as a cleaner of a lorry and it is highly impossible to expect a poor woman to produce a document in proof of actual salary being paid to her husband. The Commissioner has lost sight of the fact that the owner of the lorry himself has very clearly stated in objection statement that he was paying salary of RS.4,500/- per month to the deceased besides paying him daily batta of Rs.25/-. This statement of the lorry owner has remained uncontraverted and therefore, going by the statement of the lorry owner himself, the actual income of the deceased could be considered as Rs.4,500/- per month besides daily batta of Rs.25/- and the total wages he was getting comes to Rs.
5,250/-.
3. Even though the actual monthly income of the deceased was Rs.5,250/- but for the purpose of calculating the compensation, this entire amount of Rs.5,250/- cannot : 30 : be considered as monthly wages. In view of the Explanation
(ii) to Section 4 of the Employees Compensation Act, 1923. The said explanation is as below:-
"Explanation II: Where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be four thousand rupees only;"
4. This explanation was in force on the day accident took place. Only with effect from, 18.01.2010 the said explanation was omitted by Act 45/2009. So, this explanation makes it very clear that there was upper cap of Rs.4,000/- for the purpose of calculating compensation. Any compensation payable to the claimants should be in accordance with law and therefore, the actual compensation payable to the claimants can be worked as below:-
Rs. 4000/2 X 189.56, comes to Rs. 3,79,120/-. This is the amount that can be awarded to the claimants. So from the above discussions, I proceed to pass the following:
ORDER
(i) MFA No. 22060/2012 filed by Reliance General Insurance Company is dismissed.: 31 :
(ii) MFA No. 22681/2012 filed by claimants is allowed. The judgment of the Commissioner for Workmen's Compensation, Sub-Division-2, Hubli in KA-Ahu-
2/WCA/F/12/2010 dt:31.03.2012 is modified.
(iii) Compensation payable to the claimants is enhanced to Rs.3,79,120/- from Rs. 2,78,463/-.
(iv) The enhanced compensation carries simple interest of 12% per annum to be calculated after expiry of 30 days from the day compensation is payable (from the date of accident) till date of payment.
Sd/-
JUDGE yan