Karnataka High Court
Smt Shridevi W/O Basavaraj Mulugundmat vs Smt S Sarojini on 22 October, 2009
Equivalent citations: 2010 (2) AIR KAR R 656
Bench: K.Sreedhar Rao, Ravi Malimath
IN THE HIGH COURT OF KARNATAKA, BANCALORE DATED THIS THE 22" DAY OF OCTOBER 2 2009 PRESEN THE HON'BLE MR. JUSTICE K. SREEDRAR RAC. ae : THE HON'BLE MR. JUSTICE RAVI MALIMATH M.F.A.NO.3725/2094 (uvC} BETWEEN: 7 1 SMT SHRIDEVI™ W/O BASAVARAI MULUGUNDMAT AGE. 22 YEARS 2 KUM. KTRAN S/O. BASAVABRAJ MUCUGUNDMAT 'AGE.5 YEARS, MINOR REP. BY THEER..NATURAL GUARDIAN Mow THER, SHRIDEVI . RAVI we me ce, Bo S/O. BASAVARAJ MULUGUNDMAT "ACE. 4 YEARS, MINOR E REP. BY THEIR WATURAL GUARDIAN | MOTHER SHRIDEVT are R/O:C/O.PRABHUSWAMY SALIMATH A Yr BANGARSHETTARA COMPOUND, PLRB.RGAD fo S APPELLANTS (By Sri M VINAY KEERTHY & SRI V.M.SHEELVANT ADVS.,) AND 1 SMT S SAROJINE W/O.K.SAMINATHAN, MAJOR" OCC. BUSINESS, OWNER OF VEHICLE NO.TN-27-V-9798 . R/O.NO.156, MOKRKASTLLTKADU KARUMANDISELLIPALAYAM,. PERUNDURAI TALUK-638052™ ERODE DIST., TAMILNADU STATE. BHAVANI NATIONAL ~ "RRANCH: NO, INSURANCE. LTD CO 403--By. METTUR MAIN . ROAD BHAVANL- 638302 - ae ENAnU STATE ERODE. DIST, TAMI BY ITS MANEGER™. | eS, RESPONDENTS (By Sri'B.c _ SERTHARAMA RAO, ADV., FOR R2, RL SERVED). pa EruBD U/S 173(1) OF MV ACT AGAINST THE JUDGMENT ANS AWARD DATED: 12.1.04 PASSED IN MVC NO.124/02 ON THE FILE OF THE CIVIL JUDGE (sR, DN.) 7 AMACT, HARIHAR, DISMISSING THE CLAIM Parrrion FOR COMPENSATION. THIS MFA COMING ON FOR ORDERS THIS DAY SREEDHAR RAO J., DELIVERED THE FOLLOWING ve) JUDGMENT
One Basavara% (deceased), (driver of a truck proceeding from Hubli ' £6 Bangalore. on the Harihar by-pass road, stopped thé truck® near the check _post and went" to. attend nature's call. The cleanet of the vehicle went to check post for stamping the dscuments. The deceased while. ot. return. to. the vehicle was hit and killed by. the jorry, insured with respondent. No.2. The: wife and two minor children cf the deceased have filed the petition 'before the Tribunal seeking compensation, The petition came to be dismissed. on the ground that the deceased is an émployee covered under the ESI Act and that "ne should seek compensation under the EST Act and not under the Motor Vehicles Act in view of the provisions contained in Section 53 of the EST Ack,
2. The deceased was aged about.e-28° years according to the post mortem report. | The, petitioners have stated that the deceased was getting salary of Rs.2,100/= pam, and bata of-
Rs.90/~- per day. The employer of the deceased is also examined "to "substantiate che above version. The monthly income of the deceased would be Rs. 2600/-., 3, Section. 53 of the EST Act is extracted hereunder for convenient reference :-
6 5S, Bar against receiving or recovery of compensation or damages under any other law -
ATE insured person or his dependants shall not be entitled to réceive Or recover, whether from the employer of the insured persen or . From any other Person, any
-compensation Or damages under the Workmen's Compensation Act, 1923 (8 Of 1925) or any other Jaw for the fime being in force or otherwise, in respect of an employment injury Sustained by the insured person as an employee under the Act, The above provision ff person or his dependants ' from. claiming, compensation from the employer under. the + Workmen's Compensation Act .or. any~other. law"
and that the compensation. should be .claimed onty under the ESI Act *.in "respect of an employment injury. ° 4, Thee temployment-inijury' is defined in Section 2¢83 oF the EST Act in the following mannero.t-
(8)>.femployment injury' means a anal "injury to an employee _ Caused by accident or an "occupational disease arising out of nG.insthe course of his employment, € oan insurabie employment, € the accident occurs or the occupational disease is contracted Within or outside the territorial £ India.
5S. No doubt, the accident has occurred in the course and cut of employment. The petitioners have not made any claim against 6 hewelain is against the offending lorry and the insurer o£, the lorry. The insurer of the lorry has issued policy under the terns ofthe Motor"
Vehicles Act. The deceased would' be a "third party as against the insurer. of che offending vehicle, the prohibition uades' Section 53 of the ESI Act Would come into play only when the compensacicn',is claimed against the employer of the deceased,
6. In the instant case, the petitioners "have 'Diled che claim petition against the "insurer. of 'the offending vehicle on the ground thet cathe" deceased LS a third party. "Therefore, Ene provisions of Section 53 of the HSL Act woulda not come in the way to drant compensation Lo the deceased. The income of the deceased is assessed at Rs.3600/- per month. Qne third to be deducted towards nis mA RS.2400/- would enure te the benefit of of dependency (Rs.2400 x 12 x 17 multiplier): The. wife of the deceased is entitied ty 'compensation of"
Rs.25,000/- towards 'loss. of consortium'. Tne petitioners together 'would be entitled te Rs.25, 000/- towards 'less of expectancy' and Rs.10,000/= towards' "funeral cxpenses'. In all, the petitioners ate' entitled for a total compensation of | 85, 49,600/- with interest at 6% p.a. from the "date of the petition till payment.
" Reecordingly, appeal is allowed.
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JUDGE Sd/-
JUDGE