Divisional Manager, National Insurance Co. Ltd., Haveri vs Smt. Gangavva

Mrs. Rathnakala, J.—Though the appeal is listed for admission, with consent of the learned counsel on both sides, the same is heard for final disposal.

The Respondents 1 to 3 herein who are the wife and children and dependent family of the deceased Basanagouda Patil, filed a claim petition u/. 22 of the Workmen�s Compensation Act, (hereinafter referred to as �the Act�, for short). Their case was that on 29-8-2004, the deceased was working as Hamali in the Tractor bearing registration KA-27/T-3268 & T-3269 owned by the respondent No. 4 herein. Due to rash and negligent driving of the said vehicle by its driver, the vehicle turtled and due to the impact, the wheel ran over deceased, consequently, he died at the spot. It is their case that the deceased was earning Rs. 150/-plus Rs. 20/- batta per day. Hence, they filed claim petition, seeking compensation.

Before the Commissioner, the respondent-insurer had contested the claim petition. The 4th respondent-owner of the offending vehicle, though appeared through Advocate, did not choose to file his statement of objection, however, he filed his affidavit evidence admitting that the deceased was his employee. The Commissioner, on appreciation of the oral and documentary evidence adduced by the parties, assessed the income of the deceased at Rs. 1750/- per month and awarded compensation of Rs. 1,73,897/- with interest at the rate of 12% per annum payable 30 days after the date of order.

Shri. Rajesh B. Rajnal, the learned counsel for the appellant-Insurer submits that the claimants have not adduced any evidence to substantiate the relationship of employer-employee between the deceased and respondent No. 4 herein. The owner of the vehicle, though appeared through his counsel, has failed to participate in the further proceedings by filing statement of objections. There is no acceptable evidence to allow the claim of the respondents-claimants. The owner of the vehicle contested another claim petition filed by his son namely, Tavereppa Chandrappa Lamani who sustained injuries in the very same accident but did not make clear his stand in the present case by filing objection statement and wherefore, the relationship of employer-employee is not proved. Therefore, the appellant-insurer is not liable to pay the compensation and prays for setting aside of the impugned award.

On the contrary, Shri. B.M. Patil, learned counsel for the claimants-respondents 1 to 3 submits that since the deceased was working as Hamali in the offending vehicle owned by respondent No. 4, it is not proper to expect any documentary evidence in that regard and hence, the Commissioner, being the fact finding authority, has rightly appreciated the evidence placed before him in proper perspective and arrived at right conclusion while awarding compensation. Further, he submits that in view of the judgment of the Apex Court in the case of Oriental Insurance Co. Ltd. v. Siby George and others (2012 ACJ 2126) : (AIR 2012 SC 3144)), the claimants are entitled for interest with effect from 30 days after the date of accident, which is overlooked by the Commissioner. Further, he submits that the Commissioner should have assessed the income of the deceased at Rs. 4000/- per month, as per the Explanation-I of Section 4 of �the Act�, while computing the compensation and this Court, in exercise of its power under Order 41, Rule 33 , is empowered to enhance the compensation even at the appeal stage and prays for enhancement of compensation.

It is indisputable at this stage that the claimants being the wife and children of the deceased are wholly dependent on the deceased Basanagouda Patil who died in the accident, in the course of his employment, as Hamah, involving Tractor bearing registration No. KA-27/T-3268 & T-3269 owned by respondent No. 4 herein. The Insurance policy covering the risk of the owner/employer was correct. Though the 4th respondent, the employer of the deceased did not file his statement of objections/written statement to the claim petition, indeed he filed his affidavit evidence categorically admitting the fact that the deceased was his employee at time of accident. Having regard to the nature of employment of the deceased, it is not desirable to expect the documentary proof in this regard. The Commissioner, being the primary fact finding authority, on proper appreciation of the evidence available on record, has rightly held that the deceased was an employee under respondent No. 4 herein and assessed the compensation payable to the claimants, hence, this Court cannot find fault with the said conclusion of the Commissioner. No substantial question of law arises for consideration in this appeal. The deceased was aged 65 years on the date of accident. Having regard to his age, date of accident and nature of job, I hold that Rs. 3,500/- assessed by the Commissioner as his monthly wage, needs no disturbance. In the fight of the judgment of the Apex Court in the case of Oriental Insurance Co. Ltd. v. Siby George and others (2012 ACJ 2126) : (AIR 2012 SC 3144)), the claimants-respondents-1 to 3 herein are entitled to receive the interest from 30 days after accident. To that extent, the impugned award is liable to be modified.

In this view of the matter, the appeal is disposed of. While rejecting the prayer of the appellant, in modification of the impugned Order dated 18-2-2009 passed by the Labour Officer and the Commissioner of Workmen�s Compensation, Haveri in WCA No. 18/2007, it is ordered that the claimants-respondents 1 to 3 are entitled for interest at the rate of 12% per annum payable from 30 days after the date of accident instead of 30 days from the date of Order passed by the Commissioner. The appellant-insurer is directed to deposit the amount including the interest amount payable to the claimants within four weeks from the date of receipt of the certified copy of the order before the concerned Commissioner for Workmen�s Compensation.

In view of the disposal of main appeal at the stage of admission, Miscellaneous Civil No. 107096/2009 for stay does not survive for consideration.

Officer is directed to transmit the records to the Commissioner forthwith. Order accordingly.