Karnataka High Court
Smt K R Parvathamma vs The Chairman on 30 June, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC:22709
MFA No. 5003 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 5003 OF 2012 (WC)
BETWEEN:
1. SMT. K R PARVATHAMMA,
WIFE OF LATE H.L. PRAKASH,
AGED ABOUT 42 YEARS,
2. MASTER NIKHILL,
S/O H.L. PRAKASH,
AGED ABOUT 17 YEARS,
MINOR REPRESENTED BY HIS
NATURAL GUARDIAN/MOTHER
SMT. K.R. PARVATHAMMA.
...APPELLANTS
(BY SRI. D P MAHESH, ADVOCATE)
AND:
Digitally signed by
VIJAYALAKSHMI 1. THE CHAIRMAN,
BN
Location: HIGH
BESCOM, KAVERI BHAVAN,
COURT OF
KARNATAKA BANGALORE.
2. THE EXECUTIVE ENGINEER,
BESCOM,HADADI ROAD,
DAVANAGERE DIVISION,
DAVANAGERE.
3. THE ASSISTANT EXECUTIVE ENGINEER,
BESCOM, JAGALUR.
...RESPONDENTS
(BY SRI. H V DEVARAJU, ADVOCATE)
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NC: 2023:KHC:22709
MFA No. 5003 of 2012
THIS MFA IS FILED U/S 30(1) OF W.C. ACT AGAINST THE
JUDGMENT DATED: 22.02.2012 PASSED IN
KAD/KNP/CR.NO.68/2007 ON THE FILE OF THE LABOUR
OFFICER AND COMMISSIONER FOR WORKMEN
COMPENSATION, DAVANGERE DISTRICT, DAVANAGERE,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is filed by the appellants/claimants challenging the judgment and award dated 22.02.2012 passed in KAD/KNP/CR.No.68/2007 by the learned Labour Commissioner for workmen, Davangere whereby dismissing the claim petition.
2. Brief facts of the case are that:
The husband of appellant No.1 and father of appellant No.2 by name H.L.Prakash was working as a lineman under the employment of respondent No.3- BESCOM. On 12.04.2005 the said H.L.Prakash while carrying out the repair work within the jurisdiction of respondent No.3- Corporation died due to electrocution during the course of employment. The appellant Nos.1 -3- NC: 2023:KHC:22709 MFA No. 5003 of 2012 and 2 being the wife and son of the deceased H.L.Prakash had filed claim petition for the death since the accident arose out of and during the course of employment.
3. It is stated in the claim petition that deceased H.L.Prakash is appellant No.1 and father of appellant No.2 working as lineman on contract basis under respondent No.3 - BESCOM and on 12.04.2005, the deceased died due to electrocution/electric burning while he was working under the employment of respondent No.3. Therefore, the death of deceased H L Prakash is arose 'out of employment' and 'in the course of employment'. Thus, the claimants filed a claim petition claiming compensation. But the Tribunal has dismissed the claim petition on the ground that there is no relationship of employee and employer between the deceased H L Prakash and respondent No.3 - BESCOM. The death was not arose 'out of employment' and 'in the course of employment'. Being aggrieved by dismissal of claim petition, the present appeal is filed. -4-
NC: 2023:KHC:22709 MFA No. 5003 of 2012
4. Heard the arguments of learned counsel for the appellant and the learned counsel for the respondents and perused the records.
5. Learned counsel for the appellants/claimants submitted that the deceased H L Prakash was working as lineman on contract basis and on 12.04.2005, the deceased H L Prakash was taken by one Obaiah for attending the fault detected on the electric line and during the course of repair of fault which was detected in the electric line, due to electrocution, the deceased H L Prakash died.
6. Further, it is submitted that even though it is the case depicted by the respondent that the deceased was murdered by the said Obaiah due to electric burning is not proved. But the fact remains that the death of deceased H L Prakash is due to electro burning. Therefore, when the murder is not proved, the death is caused on 12.04.2005 while he was executing his duty as lineman. As such, the death of deceased is 'out of and in -5- NC: 2023:KHC:22709 MFA No. 5003 of 2012 the course of employment', this fact is not correctly appreciated by the Tribunal on the basis of evidence on record resulting in passing erroneous order by dismissing the claim petition. Therefore, he prays to set aside the judgment and award passed by the Tribunal.
7. On the other hand, learned counsel for respondent No.3 - BESCOM submitted that the deceased H L Prakash was murdered and therefore, it cannot be said that the death of deceased is arisen 'out of and in the course of employment.' Further, it is submitted that the attendance register shows that the deceased was absent on 13.04.2005 since the deceased has not attended the work and he was not specifically assigned the job of repairing the fault in the electric line. As such, the death of deceased H L Prakash is not out of or in the course of employment and it is correctly assessed by the learned Commissioner and accordingly dismissed the claim petition.
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NC: 2023:KHC:22709 MFA No. 5003 of 2012
8. Upon hearing the arguments of learned counsel on both sides, the following substantial question of law arises for my consideration:
Whether, under the facts and circumstances of the case, the death of deceased is a murder and the claim petition filed for claiming compensation itself is not maintainable since the deceased H L Prakash was murdered and the said death is not out of and in the course of employment?"
My answer to the above substantial question of law is in 'negative' for the discussion and reasons narrated herein.
9. In the present case, the deceased was working as line man under respondent No.3-BESCOM and on 12.04.2005, the deceased did not return to the house and when the deceased was traced out, his dead body was found near 11 KV lane of Devipura forest area and the death of deceased is due to electrocution. As such, the claimants have filed claim petition seeking compensation by declaring the death of deceased which is due to electric -7- NC: 2023:KHC:22709 MFA No. 5003 of 2012 burning and it is occurred out of and in the course of employment.
10. Ex.P1 is the FIR, Ex.P2 is the complaint and Ex.P3 is the charge sheet. These police records go to show that the wife of deceased and the said Obaiah who is also working as lineman under respondent No.3 - BESCOM developed illicit relationship and the same is objected by deceased H L Prakash. Therefore, the said Obaiah and the wife of deceased have hatched conspiracy to eliminate the deceased H L Prakash. As such, the said Obaiah has taken the deceased H L Prakash to nearby forest area in the guise of repair work in electric line which has passed through in the midst of forest and made the deceased H L Prakash to correct fault in the electric line and due to which the electrocution has occurred as per the plan of Obaiah. In this way, the deceased H L Prakash was murdered. Accordingly, this is the complaint lodged before the police resulting in filing of charge sheet against the wife of deceased and the said Obaiah. The Sessions -8- NC: 2023:KHC:22709 MFA No. 5003 of 2012 Court, Davangere in S.C.No.120/2005 has convicted Obaiah and acquitted the wife of deceased H L Prakash. The said Obaiah was got acquitted in Crl.A.No.951/2006 by this Court. Therefore, ultimately it is not proved that the death of deceased H L Prakash is a homicidal death and thus, the said Obaiah was acquitted. Henceforth, the case of prosecution is that the deceased H L Prakash was murdered is not proved. Also, the finding given by the Sessions Court that the death of deceased H L Prakash is a homicidal death is set aside by this Court in the aforesaid criminal appeal. Therefore, when the homicidal death of deceased H L Prakash is not proved and the accusation made by the prosecution in this regard is disproved in the said criminal appeal, therefore, what is cause of death is to be looked into.
11. Ex.P6 is the post mortem report which depicts that the deceased H L Prakash died due to electrocution. Even before the Sessions Court, the cause of death is proved as due to electric burning but it is proved that it is -9- NC: 2023:KHC:22709 MFA No. 5003 of 2012 homicidal death. To prove that the death of deceased H L Prakash is homicidal death, the prosecution has to place evidence before the Court. At the most, the manner of death is proved i.e. the death of deceased H L Prakash is due to electrocution. Therefore, upon considering the entire evidence on record on all its preponderance of probabilities, the death of deceased H L Prakash is due to electrocution.
12. Ex.D6 is the inspection report of the Chief Electric Inspector wherein it is stated that the death of deceased H L Prakash is due to electrocution. Hence, on all its preponderance of probability, it is proved that the death of deceased H L Prakash is due to electrocution.
13. Learned counsel for respondent No.3-BESCOM submitted that on 13.04.2005, the deceased H L Prakash has not attended to work and therefore, there is no question of assigning job of any repair work in electric line and if the deceased H L Prakash was to be allotted work somewhere else but not the work on the area in which
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NC: 2023:KHC:22709 MFA No. 5003 of 2012 dead body found on the instructions of respondent, the death of deceased H L Prakash cannot be said that it is arisen out of and in the course of employment.
14. No doubt in the attendance register produced before the learned Commissioner which is at Ex.D5 shows that on 13.04.2005, the deceased H L Prakash was absent. But the fact remains that the deceased H L Prakash died in between the dates i.e. 12.4.2005 and 13.4.2005. The complaint lodged before the police and other records go to show that in the predawn of 13.04.2005, the deceased H L Prakash died. Therefore, the deceased H L Prakash died somewhere at the point of time between the dates i.e. 12.04.2005 and 13.04.2005. Obviously, there cannot be a presence of deceased H L Prakash on 13.04.2005 so as to mark his attendance. But the fact remains that the deceased H L Prakash was working as line man on contract basis under respondent No.3-BESCOM. The said Obaiah is another co-worker working as a lineman has taken the deceased H L Prakash along with him for electric repair work in the line situated in forest area from where the
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NC: 2023:KHC:22709 MFA No. 5003 of 2012 dead body of deceased was found. These facts of death of deceased on the said place and on the date and time as stated above and the cause of death are not disputed as discussed above. The only submission made by learned counsel for respondent is that on 13.4.2005, the deceased H L Prakash did not come to the office and he was absent, thus, the respondents or any of the officials of respondents have not instructed the deceased H L Prakash to carryout electrical repair work. Therefore, it is submitted that the death of deceased H L Prakash even though might have been due to electrocution but the deceased H L Prakash was not instructed by the respondents. Hence, submitted it cannot be said that the death of deceased H L Prakash is out of and in the course of employment. This argument is not having force for the reason that just because there is no evidence that the respondents have instructed the deceased H L Prakash to carryout electric repair work, it does not mean that the deceased has not carried out electrical repair work in the electric lines. Wherever there is urgency in attending to electrical repair work in electric
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NC: 2023:KHC:22709 MFA No. 5003 of 2012 pole or even receiving telephonic message to attend to repair work or may be upon the oral instructions the same may be carried out. Under these circumstances, it cannot be accepted that the deceased has to first attend the office and then by taking instructions from his officers, he has to attend to his job. But the fact remains that the deceased died due to electrocution while attending the repair works in electric line.
14. Since the deceased died on 12.04.2005 or might have died in predawn of 13.4.2005, then obviously there would not be a chance to mark his attendance in the attendance register on 13.04.2005. But the fact remains that the death of deceased H L Prakash is due to electrocution as discussed above. It is not proved that the death of deceased is a homicidal death or not. If the said Obaiah is convicted, then, the death of deceased also due to electrocution but it is preplan murder. But the said Obaiah is acquitted by this Court in the said criminal appeal and the homicidal death of deceased is not proved.
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NC: 2023:KHC:22709 MFA No. 5003 of 2012 Then remains only conclusion to be arrived at with regard to cause of death of deceased. Either deceased voluntarily might have gone to repair work in electric line or he was taken by Obaiah, it is proved that the deceased while carrying out repair work in electric line and due to electrocution, the deceased died. Therefore, when it is proved that the deceased was working as line man on contract basis under respondents, then there exists relationship of employer and employee between the respondents and deceased respectively. Further, the cause of death is proved where the deceased died due to electrocution. The place of electrocution and death of deceased is on public place in the forest area where the electric lines are passed through. Therefore, on all these circumstances, it is proved that the death of deceased arose ' out of and in the course of employment.' Hence, the claim petition filed by the claimant is maintainable. In this regard, the learned Commissioner has not appreciated the records correctly and in true and correct perspective manner. Consequently, the impugned judgment and
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NC: 2023:KHC:22709 MFA No. 5003 of 2012 award passed by the Tribunal is liable to be set aside. As such, the claimant is entitled for compensation under Employees' Compensation Act.
15. The deceased was working as lineman on contract basis and he was paid honorarium as per Ex.P10 i.e. certificate. It is very difficult for any person to live his basic livelihood with such a low salary of Rs.1,928/- p.m. as the prevailing living condition is very expensive. As per Section 4 of the Employee's Compensation Act, the maximum wage is to be taken as Rs.4,000/- per month as it is ceiling limit to take monthly wage of the employee. The deceased was aged 37 years and the relevant factor is 192.14. Therefore, the 'loss of dependency' is hereby determined as -
4,000x50%x192.14 = Rs.3,84,280/-
Accordingly, the claimants are entitled to compensation of Rs.3,84,280/- and the appeal is liable to be allowed.
16. Accordingly, I proceed to pass the following:
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NC: 2023:KHC:22709
MFA No. 5003 of 2012
ORDER
i. The appeal is allowed.
ii. The judgment and award dated 22.02.2012 passed in
KAD/KNP/CR.No.68/2007 by the learned Labour
Commissioner for workmen, Davangere is hereby set aside and the claimants are entitled to compensation of Rs.3,84,280/- with interest @ 12% p.a., from the date of accident till its realization. iii. The appellants/claimants are not entitled for the interest for the delayed period of 30 days in filing the appeal.
iv. Costs made easy. v. Registry is directed to return the Trial Court Records
to the Tribunal, along with certified copy of the order forthwith without any delay.
vi. Draw award accordingly.
Sd/-
JUDGE
SSD