Bangalore District Court
Sri.R.Srinivas vs Sri.Eshwarappa.B.M on 5 February, 2022
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL
Court of Small Causes, Bengaluru,
DATED THIS THE 05th DAY OF FEBRUARY 2022
PRESENT: SRI.SANTOSH SIDDAPPA PALLEDH
B.A., LL.B (Spl)
VII Addl. Judge and ACMM,
Court of Small Causes,
Member, MACT3, Bengaluru.
ECA No.131/2019
Petitioners : 01. Sri.R.Srinivas,
S/o late Ramappa,
Hindu, aged 57 years,
02. Smt.Reddamma,
W/o R.Srinivas,
Hindu, aged 49 years,
03. Sri.C.S.Venkatesh Prasad,
S/o R.Srinivas,
Hindu, aged 23 years,
All are residents of
Srinivasapura Taluk,
Rayalapdau Village & Hobli,
Kolar District.
Now R/at No.110,
Old Madiwala,
V.P. Road,
Bangalore - 68.
(By Sri.Chandrashekaraiah.S.B,
Advocate)
(SCCH3) 2 ECA 131/19
Vs
Respondents : 01. Sri.Eshwarappa.B.M,
S/o Bhimappa,
Hindu, Major,
R/at No.760, Parvathi Nagar,
4th Main Road,
Medhalli,
Virgonagar,
Bangalore - 560 049.
(Exparte)
02. The Branch Manager,
National Insurance Co. Ltd.,
VII 982, II Floor,
80 Feet Peripheral Road,
Koramangala,
Bangalore - 560 034.
(By Sri.Suneel S. Narayan, Advocate)
*******
JUDGMENT
This petition is brought U/Sec 22 of the Employees Compensation Act for the compensation to the death of one Sri.Ramesh Babu who died in the accident caused on 01072017 during the course of his employment with respondent No.1.
02. The brief facts are as under: It is the case of the petitioners that the son of petitioner Nos.1 and 2 and brother of petitioner No.3 (SCCH3) 3 ECA 131/19 by name Ramesh Babu, was employed under respondent No.1 as Driver of Car bearing reg. No. KA01AG0074 and on 01012017 at about 1.20 a.m. while said Ramesh Babu was driving the said Car towards Kolar via NH75 Bengaluru - Kolar Road, reached near HP Petrol Bunk, he lost control and dashed against left side road divider. As a result the inmates of the car suffered grievous injuries and Ramesh Babu suffered grievous injuries on his head and died at the spot. Thereafter the post mortem was conducted at Government hospital, Hosakote and petitioners have performed his last rituals by incurring more than Rs.1,50,00000 towards funeral and other incidental charges.
03. According to the petitioners, the deceased was hale and healthy prior to accident and was working as Driver and getting wages of Rs.15,00000 p.m. from his employer and was also getting such other monthly perks. Now petitioners have lost their earning source and hence claimed compensation of Rs.18,40,00000 (Eighteen lakhs forty thousand only) against the respondents.
04. In response to the notice issued, the respondent No.1 failed to appear and hence was placed exparte. The respondent No.2 appeared through Sri.SSN Advocate and has filed written statement (SCCH3) 4 ECA 131/19 contending that the petition is not maintainable. It is further contended that the deceased has not died during the course of employment with respondent No.1 and the Car of the respondent is not involved in the accident. The age, avocation, income and expenses details furnished by the petitioners are all denied as false and hence sought to dismiss the petition.
05. Based on the aforesaid pleadings, the following Issues have been framed: ISSUES
1. Whether the petitioners prove that they are the LRs/dependants of deceased Sri.Ramesh Babu S/o R.Srinivas?
2. Whether the petitioners prove that deceased Sri.Ramesh Babu S/o R.Srinivas was the employee under 1st respondent?
3. Whether the petitioners prove that deceased Sri.Ramesh Babu S/o R.Srinivas died on 01072017 during the course of his employment under 1st respondent?
4. Whether the petitioners are entitled for compensation? If so, how much and from whom?
5. What Order or Award?
(SCCH3) 5 ECA 131/1906. In order to prove the case, petitioner No.1 has given evidence of himself as P.W.1 and he has produced Ex.P.1 to Ex.P.25 documents. On the other hand respondent No.2 examined its Company Official as R.W.1 and through them Ex.R.1 and Ex.R.2 documents got marked.
07. Heard the arguments from both side.
08. My findings to the above Issues are as under:
Issue No.1 Partly the Affirmative
Issue No.2 In the Affirmative
Issue No.3 In the Negative
Issue No.4 Partly in the Affirmative
Issue No.5 As per final order
for the following:
REASONS
09. Issue No.1: As per Sec.2(1)(d) of Employee compensation act the Dependant means, it specifies that, a widow, a minor legitimate son, a unmarried daughter, or a widowed mother as first class of dependants and the person wholly dependant on the earnings of the workman, a son or daughter who attained age of 18 years and infirm so and on. In this (SCCH3) 6 ECA 131/19 case the petitioner No.3 being major brother cannot be considered as dependant and it is only petitioner Nos.1 and 2 who can be considered as dependants, Hence the documents produced such as Aadhaar cards, Voter ID card and Ration card at Ex.P.14, Ex.P.15 and Ex.P.22 to Ex.P.25 establishes the relation pleaded and there is no such serious dispute about it. As such in my opinion the petitioners are successful in proving this Issue partially and hence I answered Issue No.1 partly in the affirmative.
10. Issue No.2: In this case the petitioners claimed that deceased was employee under respondent No.1 working as Driver for the Car bearing reg. No. KA01AG0074. To prove the same, the petitioner No.1 has given his evidence as P.W.1 and has reiterated petition averments filed by way of affidavit. He has produced documents at Ex.P.1 to Ex.P.13, Ex.P.16 to Ex.P.21 such as FIR, Complaint, spot Mahazar, spot Sketch, Police intimation, IMV report, Charge sheet, Post mortem report, Inquest report, Statement of Shivaraj, 133 Notice, Reply to 133 Notice, Certified copy of Order sheet in CC 8250/2017, PAN card, VII standard marks card, SSLC marks card, Convocation certificate, MA certificate and NCC certificate of deceased Ramesh Babu.
(SCCH3) 7 ECA 131/1911. From the crossexamination of P.W.1 it can be noticed that there is no such serious dispute as to the employment of the deceased with respondent No.1 as on the date of accident as pleaded by the petitioners. It is noticeable in this case that though the notice was served to the employer i.e., respondent No.1, he has failed to appear and is placed exparte. However, the documents produced by the petitioners from Ex.P.1, Ex.P.2, Ex.P.7, Ex.P.9, Ex.P.10 and Ex.P.12 establishes the fact that deceased Ramesh Babu was a driver under the respondent No.1 who is the owner of Car bearing reg. No.KA01AG0074. Ex.P.12 is the Reply given by the owner of the Car i.e., respondent No.1 of this case to the Notice U/Sec 133 of M.V. Act, wherein he has expressly admitted that the deceased was engaged as Driver for the Car 15 days prior to accident.
12. Though the respondent No.2 has examined its Company Official and given counter evidence as R.W.1 and produced Authorization letter and copy of Policy at Ex.R.1 and Ex.R.2, but they have not given any material to discard the fact that deceased was employee under respondent No.1 on the date of accident. So, considering these facts and the facts putforth, it is clear that the petitioners are (SCCH3) 8 ECA 131/19 successful in proving this Issue No.2 and hence I answered the same in the Affirmative.
13. Issue No.3: The Insurance Company has mainly defended on the point that deceased Ramesh Babu though employee of respondent No.1, but he has not died during the course of employment on 01072017 the alleged date of accident. On this point they have given counter evidence of their official and placed reliance on Judgment reported in (1996) 6 SCC 1.
14. In counter the petitioners counsel has contended that deceased has taken the permission of the owner for using the vehicle to go to his native place and it covers under the definition of during the course of employment and arising out of the employment. In this regard has placed reliance on the Judgments reported in 2005 ACJ 66, ILR 2004 KAR 1077, SC Civil Appeal No.(s). 1836/2020, SC Civil Appeal No.956/2009 and (arising out of SLP (C) No.30379/2014) between Daya Kishan Joshi and another Vs Dynamech Systems Pvt. Ltd.,.
15. I have gone through the evidence led and the Judgments relied by both sides. As held on Issue No.2 that there is material to consider the fact that deceased was employee under respondent No.1 as on (SCCH3) 9 ECA 131/19 the date of accident. However, it is to be noticed that there are some contradictory statements found. Particularly, the Ex.P.2 Complaint which is given by one of the injured in this accident who was present along with the deceased in the Car of respondent No.1 at the time of accident. He has stated that they have planned to go to the village and they took some alcohol and later deceased came along with the Car and when they were traveling met with accident. The statement of this witness never discloses that the Car being hired by them to reach their village. The statement of owner i.e., respondent No.1 at Ex.P.12 in Reply to the Notice U/Sec 133 of M.V. Act shows that he has stated that on that day he went to his native and the deceased had called him asking permission to go to his village by using the Car as he was not getting any bus, since it is late hours. As such he has given permission and later came to know that the Car met with accident. So, these statements never say that there was any employment entrusted by the employer to the deceased on the date of accident. All these statements when read together, clearly show that the deceased has used the vehicle for his personal purpose to reach his village. On this point the counsel for petitioners contended that the travel to his village from the place of work includes the employment and it covers the (SCCH3) 10 ECA 131/19 definition under during the course of employment. It is to be noticed that the respondent No.1 has clearly stated that he was using his Car by attaching to UBER earlier and he was giving it on hire whenever some person asks. But nowhere in this case it is elicited that it was given for hire purpose and deceased took the vehicle as a driver for hire. So, there is no material to consider that the accident arose out of and in the course of employment entrusted by the respondent No.1. Mere taking permission of the owner to travel does not amount to any employment entrusted by the employer.
16. The Judgment relied by counsel for petitioners in the case of Daya Kishan Joshi Vs Dynemech systems Pvt.Ltd of Hon'ble Supreme Court wherein at para 6 has discussed as "6. The words 'arising out of' and 'in the course of employment' are in fact two different phrases and have been understood as such. If the accident had occurred on account of a risk which is an incident of employment, the claim shall succeed unless, of course, the workman had exposed himself to an added peril by his own imprudent act. The phrase 'in the course of employment' suggests that the injury must be caused during the currency of employment, whereas the (SCCH3) 11 ECA 131/19 expression 'out of employment' conveys the idea that there must be a causal connection between the employment and the injury caused to the workman as a result of the accident".
17. So, the petitioners must prove that there is casual connection between the death and employment. In the said case the Hon'ble Supreme Court was deciding the case where employee met with accident while on his way to employment entrusted. But in this case no employment was entrusted by employer and deceased had obtained permission to use the vehicle of employer for his personal use to go to his village. So the facts being different the dictum is not helpful to petitioners. Even it is not a case that deceased was going back to his home after the employment entrusted is finished. So the said contention is also not proved by petitioners to apply this Judgment as per para 14 of the said Judgment.
18. The next Judgment relied by petitioners is New India Assurance Co vs Annappa Laxman Karamoshi and others of Hon'ble High Court of Karnataka and it is contended that the employee while returning to home went to temple and met with accident and in that case also it is considered as arising out and in the course of employment. It is to be Noticed that it is true that the return journey from (SCCH3) 12 ECA 131/19 employment is considered as during the course of employment, but in this case the facts are different. There was no employment entrusted to say that while returning met with accident. Hence in my opinion this decision is also not helpful to petitioners.
19. The next Judgment relied is in the case of Poonam Devi Vs Oriental Insurance Co., of Hon'ble Supreme Court of India where in Employee who went to fetch water from canal, slipped into canal and died and the Hon'ble Apex Court considered it as during the course of Employment. It is true that in the said case it is considered as during the course of employment, but the facts can be distinguished as in the said case deceased employee was driving the vehicle from Ambal to Meerut on the work entrusted and in the middle when to went to canal died. But in the case on hand the employer has not entrusted any work so as to consider it as arising out of and in the course of employment. Hence the said Judgment cannot be applied to the case on hand. Even the judgment relied in the case of Mallikarjun.G Hiremath vs Branch Manager Oriental Insurance Co., is on the same line wherein the employer entrusted the work and employee died during the course of employment, but in the case on hand the employer has not entrusted any work so as to consider it as arising out of and in the (SCCH3) 13 ECA 131/19 court of employment. Hence the said Judgment cannot be applied to the case on hand.
20. The respondent counsel has relied on Judgment reported in (1996) 6 SCC 1 between Regional Director ESI vs Francis D'costa and another wherein the Hon'ble Supreme Court has held that the accident should have its origin in the employment. It is held as "That the first respondent has suffered a personal injury is not in dispute. The only dispute is whether the injury will amount to "employment injury" with in the meaning of Section 2(8), so as to enable the respondent to claim benefit under the Act. The definition given to "employment injury" in subsection (8) of Section 2 envisages a personal injury to an employee caused by an accident or an occupational disease "arising out of and in the course of his employment", Therefore, the employee, in the order to succeed in this case, will have to prove that the injury that he had suffered arose out of and was in the course of his employment. Both the condition will have to be fulfilled before he could claim any benefit under the Act. It does not appear that the injury suffered by the employee in the instant case arose in any way out of his employment. The injury was sustained while the employee was on his way to (SCCH3) 14 ECA 131/19 the factory where he was employed. the accident took place one kilometer away from the place of employment. Unless it can be said that his employment began as soon as he set out for the factory from his home, it cannot be said that the injury was caused by an accident "arising out of ...his employment". A road accident may happen any where at any time. But such accident cannot be said to have arisen out of employment. unless it can be shown that the employee was doing something incidental to his employment".
21. So in this case also the petitioners failed to prove that the death of Ramesh Babu is incidental to or arising out of and in the course of Employment entrusted by employer. The complaint and other statement establishes that deceased has sought permission to use vehicle and not entrusted with work at the time of accident. Hence in my opinion the Judgments relied by petitioners' counsel are not helpful to them, as they are distinct from the facts of this case. As such the petitioners failed to prove this Issue No.3 and hence the same is answered in the Negative.
22. Issue No.4: It is noticed that there is no denial by the respondent No.1 that deceased was employer and he permitted to take the vehicle on the (SCCH3) 15 ECA 131/19 date of accident. So, the facts shows that there is something which is hided by both sides and the facts are manipulated. The inmates of the Car are all friends and there was implication that the other inmates have consumed alcohol and there is no material to show that deceased had consumed alcohol. However, the respondent No.1 admitted that deceased was employee and considering the admission, it is incumbent that compensation has to be awarded, but the Insurance Company has to be exonerated, as the petitioners failed to prove the death arose in the course of employment and to meet with the contract terms and conditions for making the Insurance Company liable.
23. The respondent No.1 has admitted that deceased was paid Rs.15,00000 salary per month, but there is no material to consider the same and the accident date is 01072017, on that day the law stipulated that maximum income can be taken is Rs.8,00000 p.m., as such the wage of the deceased is considered at Rs.8,00000 p.m.
24. To prove the age the petitioners have produced notarized copies of Aadhaar card, Voter ID card, PAN card, VII standard marks card and SSLC marks card from Ex.P.14 to Ex.P.18, which shows his date of birth as 31071987. The date of accident is 01072017. So, as on the date of accident the age of (SCCH3) 16 ECA 131/19 the deceased would be 29 years. Therefore, the same is considered for calculating the compensation. As per schedule 4 of the Employees Compensation Act, the proper factor applicable for the age of 29 years is "209.92".
25. In view of section 4 of Employee Compensation act, an amount equal to 50% of the monthly wages of the deceased multiplied by the relevant factor to be considered. So, 50% of the deceased monthly wage comes to Rs.4,00000. So, considering the same, the petitioner Nos.1 and 2 are entitled for loss of dependency as under: Rs.4,000 x 209.92 = Rs.8,39,68000 (Eight lakhs thirty nine thousand six hundred and eighty only).
26. Petitioner Nos.1 and 2 are entitled for Rs.5,00000 together (Five thousand only) towards funeral expenses.
27. Thus, in total the petitioners are entitled for compensation of Rs.8,44,68000 (Eight lakhs forty four thousand six hundred and eighty only).
28. So far as awarding interest and date from which the interest has to be awarded, it is necessary to refer the recent decision of Hon'ble Supreme Court reported in 2020(4) SCC 594 between K.Shivaraman and others Vs Sathish Kumar and another, the (SCCH3) 17 ECA 131/19 interest 12% p.a. has to be paid from the date of accident and not from any other date as claimed by the Insurance Company. In view of the ratio laid down in the above decision, I hold that the petitioners are entitled for interest at the rate of 12% from the date of incident i.e., from 01072017.
29. Regarding liability: As held on Issue No.3 that the petitioners failed to prove that death arose out of and in the course of employment, the Insurance Company cannot be made liable and it is the employer who has to make good the compensation to the petitioners in this case. With regard to apportionment, it is noticed that the petitioner Nos.1 and 2 being parents are entitled for 50% each of the compensation amount awarded. As such Issue No.4 is answered partly in the Affirmative.
30. Issue No.5: In view of my finding on Issue Nos.1 to 4 as above, I proceed to pass the following:
ORDER The petition filed by the petitioners U/Sec 22 of Employees Compensation Act, 1923 is partly allowed, with costs, against respondent No.1.(SCCH3) 18 ECA 131/19
The petition against respondent No.2 - Insurance Company is dismissed.
Petitioners are entitled for compensation of Rs.8,44,68000 (Eight lakhs forty four thousand six hundred and eighty only) together with interest at the rate of 12% p.a. from the date of incident i.e., from 01072017 till its realization.
Respondent No.1 is liable to pay the compensation to the petitioners and shall deposit the same within two months from the date of this order to the Tribunal's account directly through NEFT or RTGS as per the directions of Hon'ble High Court of Karnataka vide General Circular No.2/2019.
On deposit of the compensation amount with interest, the petitioner Nos.1 and 2 being parents are entitled for 50% each of compensation as awarded.
Out of the share amount of petitioner Nos.1 and 2 with accrued interest, 40% each of the amount shall be deposited in their names in any nationalized or schedule bank of their choice for a period of three years and the remaining 60% each amount shall be released to them through Epayment on proper identification without any further proceedings. However, they are at liberty to withdraw the periodical interest accrued on their deposit amount from time to time.(SCCH3) 19 ECA 131/19
However before drawing the award, Office is directed to obtain the Bank account details with IFSC code, along with copy of front page of Passbook with photograph of petitioners, Pan card and Aadhaar card copies as per directions in General Circular No 2/2019 and then proceed to draw Award.
Advocate fee is fixed at Rs.1,00000.
Draw award accordingly.
(Dictated to the Stenographer, transcribed by him, then corrected and pronounced by me in open court, on this the 05 th day of February 2022).
(SANTOSH SIDDAPPA PALLEDH) VII Addl. Judge and ACMM, Bengaluru.
ANNEXURE List of witnesses examined for the petitioners:
P.W.1 R.Srinivas
List of documents marked on behalf of the
petitioners:
Ex.P.1 Copy of FIR
Ex.P.2 Copy of Complaint
Ex.P.3 Copy of spot Mahazar
Ex.P.4 Copy of spot Sketch
Ex.P.5 Copy of Police intimation
(SCCH3) 20 ECA 131/19
Ex.P.6 Copy of IMV report
Ex.P.7 Copy of Charge sheet
Ex.P.8 Post mortem report
Ex.P.9 Inquest report
Ex.P.10 Statement of Shivaraj
Ex.P.11 133 Notice
Ex.P.12 Reply to 133 Notice
Ex.P.13 Certified copy of Order sheet in CC 8250/2017 Ex.P.14 Notarized copy of Aadhaar card of deceased Ramesh Babu Ex.P.15 Notarized copy of Voter ID card of deceased Ramesh Babu Ex.P.16 Notarized copy of PAN card of deceased Ramesh Babu Ex.P.17 Notarized copy of VII standard marks card of deceased Ramesh Babu Ex.P.18 Notarized copy of SSLC marks card of deceased Ramesh Babu Ex.P.19 Notarized copy of Convocation certificate of deceased Ramesh Babu Ex.P.20 Notarized copy of MA certificate of deceased Ramesh Babu Ex.P.21 Notarized copy of NCC certificate of deceased Ramesh Babu Ex.P.22 Notarized copy of Ration card Ex.P.23 to Notarized copies of Aadhaar cards of Ex.P.25 petitioner Nos.1 to 3 Xerox copies of RC card, Driving licence and policy copy produced (SCCH3) 21 ECA 131/19 List of witnesses examined for the Respondents:
R.W.1 Himendra Kartanik Simha.M.R
List of documents marked on behalf of the
Respondents:
Ex.R.1 Authorization letter
Ex.R.2 Copy of Policy
(SANTOSH SIDDAPPA PALLEDH)
VII Addl. Judge and ACMM,
Bengaluru.