Bangalore District Court
Narayanaswamy.K vs Rajan Vigil Secutiry And Allied Service on 1 August, 2024
KABC020252762022
IN THE COURT OF XXI ADDL. SMALL CAUSE JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE.
(SCCH-23)
DATED THIS THE 1st DAY OF AUGUST - 2024
PRESENT: Sri. Aalok. A.N
B.B.A. LL.B,
XXI ADDL. SCJ & ACJM
MEMBER - MACT, BENGALURU.
ECA. No.101/2022
Petitioners : 1) Narayanaswamy. K,
S/o Kuvappa,
Aged about 50 years,
2) Padmamma,
W/o Narayanaswamy,
Aged about 44 years,
Both are residing at:
No.60, 1st main,
Krishnappa Poultry Farm,
Siddapura, Whitefield,
Bengaluru North,
Bengaluru - 560 056.
(By Smt. S. Roopa, Advocate)
v/s
Respondents : 1) M/s Rajan Vigil Security & Allied
Service,
P.M. Basavarajan (CEO),
S/o Late Mahadevaiah,
Aged about 67 years,
No.214, Mahalakshmi Krupa,
SCCH-23 2 ECA. No.101/2022
Karumariyan Temple Street,
Whitefield, Bengaluru - 560 066.
2) Ramamurthy,
S/o Venkatesh,
Aged about 42 years,
Supervisor, Laughing Water Association,
Ramagondanahalli, Whitefield,
Bengaluru - 560066.
(By Sri. A. Anand Babu, Advocate)
JUDGMENT
This petition is filed under Section 22 of Employees Compensation Act seeking compensation together with interest thereon at the rate of 18% p.a., from the date of accident till the date of realization.
2. Brief case of the petitioner in the nutshell:
It is the case of the petitioners that, on 08.01.2021 at about 2.00 p.m. the deceased Manjunath was doing house keeping work i.e., cleaning and cutting the gross work at Laughing Waters Association at Ramagondanahalli, Whitefield road, Bengluru belonging to the 2nd respondent under the instruction of the 1st respondent. Further it is submitted that the 2nd Respondent - Ramamurthy called the deceased Manjunath and told him to climb Coconut tree to pluck the tender coconut. The deceased Manjunath told him that he was not an expert in climbing the tree, but the 2nd respondent forcibly and negligently without giving any safety belt and helmet to the deceased told him to climb the tree and accordingly the deceased without any other option climbed the SCCH-23 3 ECA. No.101/2022 tree and while plucking the tender coconut he fell down from the tree and sustained grievous injuries. After the incident immediately he was taken to Columbia Asia Hospital, Bengaluru. Even after the best efforts made by the doctors, he could not survive and he breathed his last in the hospital. It is further submitted that the accident had happened when the Manjunath was under the employment of respondent No.2 and there is an employer and employee relationship between the deceased and respondent No.1 & 2 and the deceased died due to the negligence of both the respondents as they have not followed the safety precautions and failed to provide safety belt and helmet. Due to the death of the deceased Manjunath they are finding very difficult to eke out their livelihood as he was the only bread earner of their family. It is specifically submitted that the deceased was aged 26 years and was doing House Keeping work and getting salary of more than Rs.20,000/- per month and due to the sudden demise of the deceased the family of the deceased are suffered great grief and hence prayed to allow the petition and directed respondents to pay compensation. Hence prayed to award compensation.
3. After service of notice, respondent No.1 and 2 spurred in rush to the Court by filing common written statement rather objections to the main petition contending that the petition itself is not maintainable either law or on facts. The respondents have admitted that the deceased Manjunath N is the son of the petitioners. They have denied that the deceased SCCH-23 4 ECA. No.101/2022 died in an accidental fall while discharging his duty i.e., when he was plucking the tender coconut at the 2 nd respondent's place. Further they have admitted that the deceased Manjunath was employed with the 1st respondent as a House Keeper since 5 years. Further they have submitted that the deceased Manjunath was working under the respondent No.1 since 01.10.2014 and he was getting monthly salary of Rs.12,465/-. The deceased Manjunath was assigned road/drainage cleaning, grass cutting work; coconut tree climbing job does not come under the purview of the scope of house keeping jobs. Further they have contended that on 08.10.2021 during the lunch hours i.e., between 1.00 p.m. to 2.00 p.m., the deceased without the permission and knowledge of the respondents has climbed the coconut tree and fell down from there and died. These respondents never demanded him to climb the tree and hence the negligence of these respondents does not arise at all. Further denied all the allegation made in the petition. Hence prayed to dismiss the petition.
4. On the basis of the above pleadings the following issues were framed :
ISSUES
1. Whether petitioners prove that as on date of alleged incident the deceased was working as a House keeper under respondent No.1 ?
2. Whether petitioners prove that deceased succumbed to the injuries sustained during the course of employment ?SCCH-23 5 ECA. No.101/2022
3. Whether the petitioners are entitled for compensation ? If so, what is the quantum and from whom ?
4. What order or award ?
5. Petitioner No.2 examined herself as PW.1. Ex's.P1 to 10 were marked on behalf of the petitioners. In order to prove the defence, on behalf of the the respondent No.1 its CEO one P.M. Basavarajan got examined himself as RW.1 and got marked Ex.R.1 & 3 documents. The respondent No.2 got himself examined as RW.2, but he did not choose to mark any documents.
6. Oral arguments were addressed on both sides. Perused the entire materials placed on record. My answers to the above issues are as follows :-
Issue No.1 : In the Affirmative Issue No.2 : In the Affirmative Issue No.3 : Partly in the Affirmative Issue No.4 : As per final order for the following :
REASONS
7. ISSUE NO.1 & 2 : Since these issues are interlinked with each other, and they form part of the same transaction they are taken up together for common discussion to avoid the repetition of facts. Before dwelling into analyzing the disputed SCCH-23 6 ECA. No.101/2022 facts in issue it is relevant to have the birds eye of the case of petitioner in a nutshell.
8. The case of the petitioners lies in a narrow compass as to the claim seeking relief under Sec.22 of ECA Act on the death of one Manjunath during the course of employment. It is case of the petitioners that, Manjunath was working under the 1 st respondent as House Keeper who was discharging his duty at 2nd respondent's place. It is specifically contended that, on 2.00 p.m. when the deceased was doing his house keeping work at respondent No.2's place, at that time, the respondent No.2 has instructed the deceased to pluck tender coconut from tree in the premises of respondent.No.2. Though the said Manjunath had denied to do the same, but the 2 nd respondent forcibly without providing any safety measures has made the deceased to climb the coconut tree. But to the ill fate of the deceased he fell down from the tree and sustained grievous injuries which results in his death. It is contended that that respondent No.1 and 2 are liable to pay the compensation as the death is during the course of employment. Hence, prayed to allow the petition.
9. In support of case of petitioner No.2 stepped into the witness box and filed her affidavit-in-lieu of oral examination-
in-chief as PW1 and got marked Ex.P1 to Ex.P.10. In order to falsify the case of the petitioners and to substantiate the defense of the respondent no.1 & 2, their counsel had cross- examined PW1 at length.
SCCH-23 7 ECA. No.101/202210. Per contra, repelling to the contentions urged by the petitioners, the respondent No.1 & 2 have attacked the case of the petitioners on various prisms known to fact and law. In order to sabotage the case of the petitioners, the respondent No.1 ad 2 have taken up specific plea that climbing the coconut tree does not come under the ambit and sphere of house keeping jobs and respondents never demanded the deceased to climb the coconut tree. It is also specifically urged that the deceased without knowledge and permission of the respondents climbed the tree and fell down from the tree and died and there is no negligence of them and hence prayed to dismiss the petition.
11. In support of these contentions, on behalf of the the respondent No.1 its CEO one P.M. Basavarajan got examined himself as RW.1 and got marked Ex.R.1 & 3 documents. The respondent No.2 got himself examined as RW.2, but he did not choose to mark any documents. In order to demolish the defence of the respondent No.1 & 2 and to substantiate the case of the petitioners, the petitioners' counsel has cross examined the RW.1and 2 at length.
12. Before dwelling into analyzing the disputed facts in issue it is relevant to have conceptual aspects pertaining to the ECA :
The Act aims to provide financial compensation to employees in case they meet with an unfortunate accident while performing their duties. The intent of the Act is to provide quick and cheaper disposal of disputes relating to the SCCH-23 8 ECA. No.101/2022 compensation which is not possible in comparison in case of proceedings of civil law. The Act also helps the dependants to get relieved from the hardship, rising from accident.
Employers are under the obligation to provide financial compensation as per the Workmen Compensation Act 1923 in the following circumstances:
An accident or injury occurs at the workplace while carrying out a task. If the applicant provides proof that the injury or accident that has occurred at the workplace is aggravating his/her medical condition. In case a worker becomes disabled or dies while on duty.
The main goal of the Workmen Compensation Act is to give employees who suffer from illnesses, impairments, or fatal accidents while on the job monetary compensation. The affected worker's medical bills, rehabilitation fees, and financial support for them and their family in the event of death are all covered by this compensation.
Employers are responsible for paying benefits to their workers regardless of who was at blame for the accident or injury. According to the Act, the employee is entitled to compensation even if the employer is not at fault, creating a "no-fault" system. One of the key objectives is to establish a no- fault compensation system. This means that employees do not have to show that their employer was at fault or negligent to get compensation under the Act. Workers are entitled to compensation if the illness or injury is related to their employment.
Employers are also responsible for making sure that safety standards and regulations are followed in the workplace. If an accident happens because there were insufficient safety precautions taken, failing to maintain a safe working environment may result in additional responsibilities.
13. On marshaling of facts, dissection of oral and documentary proof on record and after hearing erudite counsel appearing for combating parties, this court opines that this SCCH-23 9 ECA. No.101/2022 issue is pregmented with inner legal and factual intricacies such as :
1) Whether the deceased was working as House Keeper under respondent No.1?
2) Whether the death of the deceased is during the course of employment?
3) Whether the decision of the criminal court in CC No.8875/2021 binds this court and it has any effect?
14. Now let me unfurl each of the contentions urged by the combating parties and view the same in the beacon of light of settled principles of law. In ECA cases the real litmus test which the petitioners have to establish is whether the death is during the course of employment. It is the case of the petitioners that, the deceased was employed with the 1 st respondent as House Keeper since 5 years and he was doing house keeping work in Laughing Waters Association, Ramagondanahalli, Whitefield road, Bengaluru which belongs to 2nd respondent under the instruction of 1st respondent. But whereas the respondents in unequivocal terms has categorically admitted that the deceased was working as a house keeper under respondent No.1. The admission in the pleadings has to be placed in a higher pedestal than that of the evidentiary admissions. As per Sec.58 of Indian Evidence Act, admitted facts need not to be proved. Furthermore at this juncture to rely on decision reported AIR 1971 SC 474 between Nagindas vs. SCCH-23 10 ECA. No.101/2022 Dalpathram Icharam. As per the above said decision, judicial admission i.e., admission in the pleadings has to be given a higher pedestrial than that of evidentiary admission. Reverting back to the factual matrix, in the instant case on hand the deceased was employed with the 1st respondent and this factum is categorically admitted during the course of written statement. When such being the case, there is no mist of doubt in the mind of this court. Added more it is also unequivocally admitted by RW.1 during the course of cross-examination that, deceased was employed under him and the working timings is from 8.00 a.m. to 5.00 p.m. This admission of RW.1 is also reaffirmed by RW.2 as hereunder:
"It is true to suggest that in the working place, the deceased has fallen from the tree".
Added more RW.2 was also categorically admitted that deceased was working with respondent No.1. All these admissions of RW.1 and 2 coupled with admission during the course of written statement categorically reveals that the deceased had breathed his last during the course of employment and deceased was working as House Keeper under Respondent No.1.
15. The next seminal question to be considered is with regard to the specific contentions urged by the respondents that the deceased was not entrusted with coconut tree climbing job and it does not come under the ambit and sphere of House SCCH-23 11 ECA. No.101/2022 Keeping jobs. When this being the specific contention urged by the respondent, the onus of proof under Sec.102 of Evidence Act the burden shifts on respondents to prove that climbing trees does not come under scope of house keeping job. It is relevant to note that, as per the contents of all the police papers the incident has happened at 2.00 p.m. As per the admissions of RW.1 the lunch timings will be from 1.00 to 2.00 p.m. It is the specific allegation of the petitioners that, the deceased was forced to climb tree by respondent No.2 without providing him any safety measures. It is clearly emanating from the materials placed on record that the deceased was not provided with any safety measures to climb the coconut tree. Hypothetically for the sake of appreciation of evidence, if the deceased was provided with safety measures before climbing the coconut tree then his life would have been saved. The deceased breathed his last only for the reason that he is not provided with safety measures. As discussed earlier the deceased has breathed his last during the course of employment in the premises of respondent No.2, when the deceased is working for respondent No.1. It is not at all the case of the respondents that, the deceased had breathed his last out of employment. It is specific contention of the respondents that, the climbing of coconut trees does not come under the purview of house keeping jobs. It is forthcoming from the cross-examination of RW.1 that, there was an agreement between respondent No.1 on the one side and respondent No.2 on the other side with regard to the sending of workers to work in the premises of respondent No.2.
SCCH-23 12 ECA. No.101/2022But for the reasons best known to the respondents the said agreement does not seen the light of the day yet. According to the version of RW.1 the climbing of tree does not come under the purview of house keeping jobs and it is not in the agreement. When such being the case, agreement plays an important role in tracing the genesis. But the said agreement was not produced by either of the respondents for the reasons best known to them. It is also germane from the cross- examination of RW.1 that, the agreement ingrains with a specific clause to the safety measures of the employees by the respondent No.2. But in order to prove above specific contentions the said agreement is not at all placed on record. When such being the case, mere self serving and self proclaimed statement of respondents is not tenable in the eye of the law. The respondents are making hectic efforts to build mansion in air.
16. The next seminal question to be considered is with regard to the implication of judgment of acquittal in CC No.8875/2021 in this case. Much was vociferously urged by the respondent counsel contending that, respondents herein were acquitted in CC.No.8875/2021 by Addl. Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru by judgment dated 12.02.2024. On close perusal of the above said judgment it reveals that, the accused therein who are the respondents herein were alleged with an offence punishable under Sec.304A of IPC. As the eyewitnesses have turned hostile in that case SCCH-23 13 ECA. No.101/2022 they were acquitted. It is a hackneyed principles of law that, the judgment of criminal case does not have any bearing ECA Cases. When such being the case, the judgment of CC does not comes to the rescue of respondents in proving their defence.
17. The next plank of analysis is with regard to the contents of ordersheet dated 05.04.2024. Though this discussion would not have an bearing on the result of this case, but having regard to the contents of order sheet dated 05.04.2024 this court intends to discuss this fact. On 05.04.2024 the respondent No.1 herein came up before the court and submitted the letter of grievances with respect to this case and he has made as many as 5 grievances in that letter and said letter is also appended with the copies of the E-mail. When the lis is pending before the court and when the parties are appeared through their counsel and lead evidence, then writing a letter to court is unknown to law. This practice has to be deprecated when procedures are bound to the parties. If party has anything to submit to the court there is a procedures contemplated under law. The order sheet dated 26.03.2024 discloses that the respondent No.1 and 2 have already cross- examined by the petitioner counsel. When the parties already subjected to the litmus test of cross-examination again writing a letter to the court is totally unknown to law. It is just an attempt made to tap up the admissions made by RW1 during the course of cross-examination.
SCCH-23 14 ECA. No.101/202218. Furthermore mere letter that too without having any documentary evidence which are inadmissible in evidence does not come to the rescue of the respondent No.1 to prove their case. It is needless to mention that, the cases are decided based on documentary and oral evidence. Everyone who knocks the doors of justice comes with the say that he will tell truth before the court. It is for the court to dig the truth in the beacon of the light of oral and documentary proof. This court will not ponder much on this aspect. This observations are made with specific intention that on 05.04.2024 had taken letter into record, as such this court is forced to make these observations.
19. Viewed from any angle this court does not find any reason to lean in favour of the respondents. The respondents have failed to prove their specific defence that the deceased was not entrusted of climbing coconut tree. On the other hand, the petitioners have clearly demonstrated that the deceased was working as House Keeper under respondent No.1 and he breathed his last during the course of employment. On assessing entire evidence in the light of oral and documentary evidence, the preponderance of probabilities tilts in favour of the petitioners. Hence this Court answers issue No.1 and 2 'In the Affirmative'.
20. ISSUE NO.3: This issues revolves round the sphere and ambit as to the quantum of compensation. The petitioners claim that, Petitioner No.1 is the father and petitioner No.2 is the mother of the deceased. To prove the same, petitioner No.2 SCCH-23 15 ECA. No.101/2022 filed affidavit in lieu of her chief-examination and deposed about the above relationship. The Aadhaar card and ration marked at Ex's.P.8 to 10 and contents of the police papers do fortify the said fact. It is pertinent to note that this relationship of the petitioners with the deceased has not been disputed by the respondents. Since the evidence led by the petitioners is satisfactory and also taking into consideration the fact that there are no rival claimants, this Tribunal hold that the petitioners are the legal representatives of the deceased. Therefore, petitioners are the legal heir and dependents of deceased.
21. Further the petitioners have got exhibited the Aadhar card of the deceased. The Aadhar card of the deceased which is marked as Ex.P8 wherein his date of birth is reflected as 30.03.1994. The date of incident is 08.01.2021. This indicates that he was aged 27 years on the date of incident.
22. The PW1 has deposed that prior to the incident the deceased was working as a House Keeper under the respondent No.1 & 2 and earning Rs.20,000/- p.m. However no documents have been produced to establish his income. The petitioners did not made any endevour to produce the bank statement of the deceased or any such other documents. It is positively urged by the respondent No.1 and 2 that the deceased was paid with a salary of Rs.12,465/-. In order to substantiate the above said fact there is no absolutely no string of evidence is produced before the court. When such being the case, the version of SCCH-23 16 ECA. No.101/2022 respondent No.1 cannot be trusted as a gospel truth. Hence reliance is placed on the Gazette Notification dated 03.01.2020 issued by the Ministry of Labour and Employment which reads as under :
S.O. 71(E).-In exercise of the powers conferred by sub-section (1B) of section 4 of the Employee's Compensation Act, 1923 (8 of 1923) and in supersession of the notification of the Ministry of Labour and Employment issued vide number S.O. 1258(E), dated 31st May, 2010 ; published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), dated 31st May, 2010, 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, namely:-
"Fifteen thousand rupees"
Accordingly the income of deceased is taken as Rs.15,000/- per month. As per Section 4 of Employee's Compensation Act, the compensation payable to the legal representatives of the deceased employee shall be an amount equal to 50% of the monthly wages of the said employee multiplied by the relevant factor or an amount of Rs.1,20,000/-, whichever is more. 50% of Rs.15,000/- works out to Rs.7,500/-. Relevant factor is 213.57. Hence, compensation payable to the petitioners would be Rs.7,500 x 213.57 = Rs.16,01,775/- which is rounded off to Rs.16,02,000/-. Further SCCH-23 17 ECA. No.101/2022 the petitioners are entitled for a sum of Rs.16,500/- towards funeral expenses of the deceased.
23. The calculation table stands as follows:
1 Compensation for the : 16,02,000-00 death of the deceased 2 Funeral expenses of the : 16,500-00 deceased Total 16,18,500-00
24. INTEREST & LIABILITY : Relying upon the ratio laid down by the Hon'ble Apex Court in the decision reported in AIR 2014 SUPREME COURT 1393 (Saberabibi Yakubbhai Saikh vs. National insurance Co Ltd., and others), this court hold that the petitioner is entitled for interest at the rate of 12% p.a., from the date of incident i.e., 08.01.2021 till the date of realization.
25. It could be borne out from the petition averments and also from the evidence of RW1 and RW2 that deceased was working with the respondent No.1 in the premises of 2 nd respondent. When such being the case, the respondents are jointly and severally liable to pay the aforesaid award amount to the petitioners together with interest @ 12% p.a., from the date of the incident till realization of the entire amount. Hence this issue is answered as 'Partly in the Affirmative'.
26. ISSUE NO.4: In view of the discussion made supra, this Tribunal proceeds to pass the following :
SCCH-23 18 ECA. No.101/2022ORDER The petition filed u/s.22 of Employees Compensation Act, 1923 is hereby partly allowed with costs in the following terms :
The petitioners are entitled for compensation of Rs.16,18,500/- with interest at the rate of 12% p.a., from the date of incident till its realization.
Respondents are directed to deposit the aforesaid award amount together with interest within two months from the date of this order.
On deposit of the award amount together with interest, the petitioners are entitled for the compensation amount by way of apportionment as follows :
Petitioner No.1 - 50%
Petitioner No.2 - 50%
Out of the share amount of Petitioner No.1
and 2 a sum equal to 25% shall be deposited in their name in any Nationalized or Scheduled Bank of her choice for a period of 3 years and the remaining 75% shall be released to them through E-payment on proper identification and verification. However the said petitioners are at liberty to SCCH-23 19 ECA. No.101/2022 withdraw the periodical interest accrued on their deposit amount from time to time.
Advocate fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Stenographer directly on computer and printout taken by her, then corrected and pronounced by me in the open court on this the 1st day of August - 2024) (Aalok. A.N) XXI Addl. Small Causes Judge & ACJM, Court of Small causes, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER/S :
PW.1 : Smt.Padmamma
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
PETITIONER/S :
Ex.P.1 FIR
Ex.P.2 Complaint
Ex.P.3 MLC Intimation
Ex.P.4 Spot Mahazar
Ex.P.5 Inquest Panchanama
Ex.P.6 PM Report
Ex.P.7 Charge Sheet
Ex.P.8 Aadhar Card
Ex.P.9 Ration Card
SCCH-23 20 ECA. No.101/2022
Ex.P.10 Notarized copy of the Aadhaar card of the
petitioner No.2
LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENT/S :
RW.1 : Sri. P.M. Basavarajan
RW.2 : Sri. Ramamurthy
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
RESPONDENT/S :
Ex.R1 Certified copy of judgment in CC 8875/2021
Ex.R2 Certified copy of the entire order sheet in CC
8875/2021
Ex.R.3 Certified copy of evidence of the witnesses
(Aalok. A.N)
XXI Addl. Small Causes Judge & ACJM,
Court of Small causes, Bengaluru.