Karnataka High Court
Sri Mulchand Kothari vs C M Sukanya on 27 November, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:48736
MFA No. 4422 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 4422 OF 2011 (WC)
BETWEEN:
SRI MULCHAND KOTHARI
MAJOR
THE PROPRIETOR
KOTHARI TIMBER
NEAR CHECK POST
B H ROAD
KADUR POST
CHIKMAGALUR DISTRICT - 577 101
...APPELLANT
(BY SRI. S B MUKKANNAPPA & ASSTS., ADVOCATE)
AND:
1. C M SUKANYA
D/O LATE C S MAHESHWARAPPA
AGED ABOUT 21 YEARS
2. C M SAVITHA
Digitally signed by
RAMYA D
D/O LATE C S MAHESHWARAPPA
Location: HIGH
COURT OF
AGED ABOUT 19 YEARS
KARNATAKA
3. C M HEMANTH KUMAR
S/O LATE C S MAHESHWARAPPA
AGED ABOUT 18 YEARS
ALL ARE R/AT CHANNAPURA VILLAGE
SARASWATHIPURA POST
KADRU TALUK
CHIKMAGALUR DISTRICT - 577 101
...RESPONDENTS
(BY SMT. RUPA B. DEVARAJU, LEAREND COUNSEL IS
APPOINTED AS AMICUS CURIEA FOR R-1 TO R3;
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NC: 2024:KHC:48736
MFA No. 4422 of 2011
NOTICE TO R-1 IS HELD SUFFICIENT V.O.D 19.07.2021;
NOTICE TO R-2 IS HELD SUFFICIENT V.O.D 01.03.2021;
NOTICE SERVED TO R-3 AND UNREPRESENTED)
THIS MFA IS FILED U/S 30(1) OF W.C.ACT AGAINST THE
JUDGMENT & DATED 16.03.2011 PASSED IN WCA/FC-06/2007
ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER
FOR WORKMEN'S COMPENSATION, SUB DIVISION-2,
CHICKMAGALUR, AWARDING A COMPENSATION OF
Rs.1,57,322/-.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
This appeal is filed under Section 30(1) of the Workmen's Compensation Act by the appellant-employer challenging the judgment & award dated 16.03.2011 passed in WCA/FC-06/07 by the Commissioner for Workmen's Compensation.
2. It is the case of the claimants that they are wife and children of the deceased employee - C.S. Maheshwarappa. That the deceased was working as a Timber Writer under the employment of appellant since 14 years and on 03.01.2002 at about 5.00 p.m. when the deceased was in the course of employment and taking account of timber logs in the timber yard of the appellant, at that time accidentally timber log fell on the head of the deceased, due to which the deceased sustained grievous injuries on the head and immediately taken to -3- NC: 2024:KHC:48736 MFA No. 4422 of 2011 Nanjappa hospital, Shivamogga, where he succumbed to the injuries on 12.01.2002. Therefore, the claimants have filed the claim petition before the Commissioner for Workmen's Compensation on the ground that the deceased died out of and in the course of employment while working under the appellant.
3. Learned Commissioner has granted compensation of Rs.1,57,322/- along with interest at the rate of 12% per annum from 3.2.2002 till realization. The learned Commissioner has given a finding that the deceased was working as an employee under the appellant as a Timber Writer and out of and in the course of employment, the deceased died and accordingly awarded the compensation of Rs.1,57,322/-.
4. Being aggrieved, the appellant - employer filed the present appeal raising various grounds.
5. Learned counsel for the appellant - employer reiterating the grounds urged in the memorandum of appeal contended that the deceased was suffering from various diseases and left the job prior to two months of his death. Infact, the deceased died due to epilepsy, but not due to the injuries sustained in the course of employment. Learned -4- NC: 2024:KHC:48736 MFA No. 4422 of 2011 Commissioner has committed an error in recording a finding that the deceased died during the course of employment. On these grounds, learned counsel prays to set aside the impugned judgment & award passed by the learned Commissioner for Workmen's Compensation.
6. The respondents - claimants though served notice, remained absent. The wife of the deceased died during the pendency of the proceedings before the Commissioner for Workmen's Compensation. The present respondents are children of the deceased. Therefore, they are entitled to free legal aid as per Section 13 of the Legal Services Authority Act. Accordingly, Kum. Rupa B. Devaraju, learned advocate is appointed as learned counsel for the respondents/claimants and also as an amicus curiae to assist the Court.
7. Learned amicus curiae submitted that the deceased was working as a Timber Writer under the employment of appellant since 14 years and on 03.01.2002 when he was taking account of the timber logs at the timber yard of the appellant, suddenly timber log fell on the head deceased, due to which the deceased sustained grievous injuries and -5- NC: 2024:KHC:48736 MFA No. 4422 of 2011 subsequently died in the hospital. She further contended that based on the oral and documentary evidence on record, the Commissioner rightly recorded a finding that the deceased died during the course of employment and awarded compensation to the claimants and the same does not call for interference.
8. Upon considering the evidence on record and submission of both the learned counsels appearing for the parties, the points that would arise for my consideration:
i. Whether, under the facts and circumstances involved in the case, the respondents - claimants proved that the deceased was working as Timber Writer under the employment of appellant - employer and due to falling of wooden size block on the head of the deceased, the deceased died thus, the death of the deceased is out of and in the course of employment?
ii. Whether, the compensation awarded by the learned Commissioner is correct and justified?
9. It is the case of the claimants that the deceased was working as Timber Writer under the employment of appellant - employer. On 03.01.2001 the deceased was taking account of the timber logs in the business premises of the appellant - employer at that time one timber log suddenly fell -6- NC: 2024:KHC:48736 MFA No. 4422 of 2011 on the head of the deceased and deceased sustained grievous injuries to the head, though he was admitted to the hospital but did not recover and succumbed to the injuries on 12.01.2002. Therefore, it is the case of claimants that the deceased died out of and in the course of employment as above stated.
10. Learned Commissioner has framed issues regarding whether the deceased was an employee and working under the employment of appellant - employer and died out of and in the course of employment. Learned Commissioner after appreciating the evidence on record, came to the conclusion that the deceased died out of and in the course of employment and accordingly granted compensation by appreciating the oral and documentary evidence placed by both the parties.
11. Ex.P-1 is the medical records issued by the Nanjappa Hospital, Shivamogga; Ex.P-2 is the letter issued for transportation of the dead body of the deceased; Ex.P-3 is the death certificate; Ex.P-4 is the objection submitted by the appellant - employer to the application filed by the respondents
- claimants denying the claim of the claimants, but the -7- NC: 2024:KHC:48736 MFA No. 4422 of 2011 witnesses are examined as RW-1 to RW-5 and in the cross- examination had stated that the deceased was working under the employment of appellant - employer from 01.06.2001 to 11.12.2001 for six months and eleven days, but the learned Commissioner has found that there are many inconsistencies in the statement before the Court. Hence, except the fact that the deceased was working in the Timber yard, therefore, contentions are found to be false one.
12. Further, Ex.P-9 is the document which proves that the deceased had worked as Timber Writer under the employment of appellant - employer from 15.03.1988 to 12.01.2002 and it is proved by the certificate issued by the Assistant Labour Commissioner that the deceased had worked continuously for 14 years under the employment of the appellant. Therefore, from this evidence, it is proved that the deceased was working as employee under the employment of appellant as Timber Writer in the timber yard business place of the appellant.
13. It is contention taken by the appellant that the deceased was suffering from epilepsy and paralysis diseases -8- NC: 2024:KHC:48736 MFA No. 4422 of 2011 due to the said impact the deceased died out of the injuries sustained by the deceased. The Doctor of the Nanjappa Hospital, Shivamogga is examined as RW-3 and has stated that there was old history of paralysis therefore, the deceased died due to the paralysis on 12.01.2002. But the Doctor has stated that he has not given treatment for paralysis disease in the year 1996, but there is no cogent evidence by the claimants and it is proved that the deceased was suffering from paralysis and epilepsy diseases. If the deceased was suffering from paralysis and that is the only reason assessed, on the assumption that the strength of left hand and leg of the deceased was decreased, but it is proved that the deceased was working under the employment of the appellant in the timber yard and if at all, there is weakness in the left hand and leg of the deceased, how could he work under the employment of appellant is not forthcoming by the appellant.
14. Here, the evidence of Doctor is found be surmises conjuncture when the appellant has taken contention that in the year 1996, the deceased had suffered from paralysis and epilepsy diseases, but for which there is evidence of Ex.P-9, which proves that from 15.03.1988 till 12.01.2002, the -9- NC: 2024:KHC:48736 MFA No. 4422 of 2011 deceased had worked in the timber yard of the appellant. The accident occurred on 03.01.2002, and on 12.01.2002 the deceased died in the hospital. Therefore, if at all the deceased had undergone weakness to the left hand and leg, then there could not be chances to work under the employment of appellant as a Timber Writer, but it is proved that the deceased had worked as Timber Writer till 03.01.2002, but there is no evidence that in the year 1996 the deceased was suffering from paralysis for which there is no evidence from the appellant, but it is only the false defence taken by the respondents just to deny compensation. Further, Ex.P-9 is the medical records of Nanjappa Hospital, Shivamogga, from which it is proved that the deceased died due to clotting of blood in the head.
15. It is the case of the claimants that the timber log had fallen on the head of the deceased therefore, there was clotting of blood in the head of the deceased, due to which the deceased died. Hence, upon considering all its preponderance of probabilities, the deceased died out of and in the course of employment as above discussed. In this regard, appreciation of evidence made by the Commissioner for Workmen's Compensation is not found to be perverse. Therefore, the
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NC: 2024:KHC:48736 MFA No. 4422 of 2011 Commissioner has rightly come to the conclusion that the deceased had worked as Timber Writer under the employment of the appellant and died out of and in the course of employment. Accordingly, I answer substantial question of law No.1 in the Affirmative.
16. The deceased was aged 47 years at the time of accident therefore, the relevant factor applicable is 163.07 and the Commissioner has taken wages at Rs.4,500/- p.m. Accordingly, assessed the compensation of Rs.1,53,322/- under the head 'loss of dependency,' which is found to be correct and legal one. Accordingly, I answer substantial question of law No.2 in the Affirmative. Therefore, the appeal is found to be devoid of merits. Hence, it is liable to be dismissed.
17. Kum. Rupa B. Devaraju, learned amicus curiae has assisted the Court very well enabling the Court to come to the right conclusion. Therefore, the Court has appreciated the services rendered by the learned amicus curiae and she is also appointed as standing counsel for the respondents/claimants.
18. Hence, I proceed to pass the following:
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NC: 2024:KHC:48736 MFA No. 4422 of 2011 ORDER i. The Miscellaneous First Appeal is dismissed. ii. The impugned judgment and award dated 16.3.2011 passed in WCA/FC-06/07 by the Commissioner for Workmen's Compensation is hereby confirmed.
iii. No order as to costs.
iv. The Secretary, High Court Legal Services
Committee, Bengaluru is directed to pay
professional fees to learned amicus curiae, Kumari. Rupa B. Devaraju, as per rules.
SD/-
(HANCHATE SANJEEVKUMAR) JUDGE GSS: Para Nos.1 to 7 SRA: Para Nos.8 to end.