Manjunath vs Kajamoddin

Mr. B. Manohar, J.—Since the common order passed by the Labour Officer and Commissioner for Workmen''s Compensation has been challenged in these two appeals, both these appeals are clubbed together and disposed of by this common judgment.

The appellants in these two appeals are the claimants being not satisfied with the quantum of compensation awarded in judgment and order dated 28.05.2009 in WC (NF) Nos. 106/2008 ana 105/2008 respectively passed by the Labour Officer and Commissioner for Workmen''s Compensation, Gadag (hereinafter referred to as ''the WCC'' for short) have filed these two appeals seeking enhancement of compensation.

The appellants in these two appeals has filed the claim petition contending that they were working as Hamalies in the lorry bearing registration No. KA.-27/2646 belonging to the first respondent. On 04.09.2008, as per the instructions of the owner of the lorry proceeded towards Tyagarti village for the purpose of loading the bricks. Due to the rash and negligent driving of the said lorry, the vehicle met with an accident and turned turtle. In view of that the claimants working in the said lorry sustained grievous injuries. Immediately after the accident they were shifted to the Government Hospital, wherein they took treatment as inpatients for a long period. They have spent huge money for their treatment. In view of the injuries sustained, they cannot work as Hamalies, which they were doing prior to the accident. The owner of the vehicle was paying them salary of Rs. 3,500/- per month and batta of Rs. 50/- per day. The accident occurred during the course and out of employment. Hence, the owner as well as the insurer has to compensate the claimants.

In response to the notice issued by the WCC, the owner of the vehicle filed, the written statement admitting that the injured were working as Hamalies in the lorry belonging to him and they had sustained injuries during the course and out of employment. Since the vehicle is covered by the insurance policy, the insurer is liable to compensate the claimants and sought for dismissal of the appeals as against the owner of the vehicle.

The second respondent Insurance Company filed the written statement denying the relationship of master and servant between the claimants and the owner of the vehicle. Further, no documents are produced to show that the owner of the vehicle was paying them salary of Rs. 3,500/- per month and sought for dismissal of the claim petition.

On the basis of pleadings of the parties, the WCC framed necessary issues. The claimants got examined themselves as PW1 and PW2 and got marked the documents as Exs.P1 to P19. The Doctor, who was treated the claimants was examined as PW5. On behalf of the respondents none of the witnesses were examined. However, the insurance policy was marked as Ex.R3.

The WCC after appreciating the oral and documentary evidence let in by the parties and taking into consideration the IMV report, spot panchanama, charge sheet and other relevant records held that the claimants have sustained injuries during the course and out of employment. Hence, they are entitled for compensation. With regard to the quantum of compensation is concerned, though the claimants claimed that owner of the vehicle was paying them salary of Rs. 3,500/- per month and batta of Rs. 50/- per day, no document has been produced to establish the same. Hence, the WCC taking into consideration all these aspects, taken the income of the claimants as Rs. 3,000/- per month taking into consideration 60% thereof, considering the loss of earning capacity as assessed by the Doctor, awarded the compensation of Rs. 1,49,433/- in respect of claimant in WCA (NF) No. 105/2008 and a sum of Rs. 1,37,088/- in respect of the claimant in WCA (NF) No. 106/2008 and also ordered interest at the rate of 12% p.a. from one month after the date of passing of the order. Since the vehicle is covered by the insurance policy and as per the Rule 100 of Karnataka Motor Vehicles Rules, 1989 five hamalies working in a lorry are statutorily covered by the insurance policy, the liability was fastened on the Insurance Company to compensate the claimants. The claimants being not satisfied with the quantum of compensation awarded by the WCC, filed these appeals.

Sri. M.H. Patil, learned counsel appearing for the appellants contended that the quantum of compensation awarded by the WCC taking into consideration the income as Rs. 3,000/- per month is on the lower side, as per the notification issued under the Minimum Wages Act For loading/unloading of bricks to lorry (per 1,000 bricks), the minimum wages fixed is Rs. 87.10 per day and in addition to that the daily allowances. Hence, the income of Rs. 100/- per day and Rs. 3,000/- per month taken by the WCC is contrary to law.

On the other hand, Sri. M.K. Soudagar and Sri. N.R. Kuppelur, learned counsel appearing for the Insurance Company in both the appeals argued in support of the judgment and order passed by the WCC and contended that except oral assertion, no document has been produced before the WCC to show that the owner of the vehicle was paying salary to the claimants at Rs. 3,500/- per month and Rs. 50/- as batta. In the absence of necessary documents, WCC has taken the income of the claimants at Rs. 3,000/- per month, which is in accordance with law and sought for dismissal of the appeals.

Having heard the learned counsel appearing for the parties and perused the judgment and order passed by the WCC, the only issue that arise for consideration in these appeals is as under

"Whether the quantum of compensation awarded by the WCC is in accordance with law?"

The occurrence of the accident, injuries sustained by the claimants during the course and out of employment are not in dispute. The contention of the appellant in both the appeals is that the income of Rs. 3,000/- per month taken by the WCC while awarding the compensation is on the lower side. The State Government under the Minimum Wages Act has issued notification fixing the minimum wages to the employees of Bricks Industries as well as the transport employees. As per the notification issued by the State Government, the WCC ought to have taken the income of the claimants as Rs. 3,500/- per month. The WCC without reference to the notification issued under Minimum Wages Act, taken the income of the claimants as Rs. 3,000/- per month, which is contrary to law. Under the Minimum Wages Act, the WCC has to take note of the minimum wages being paid to the employees working in the transport vehicles i.e., Hamalies working under the lorry to assess the compensation. Hence, I am of the opinion that taking into consideration the income of the claimants as Rs. 3,500/- per month, taking 60% thereof and applying the relevant factor taking into consideration the age, loss of earning capacity assessed by the qualified Medical Practitioner as required under Section 4(1)(c)(ii) of the Act, the appellant in MFA No. 24680/2010 is entitled for the compensation of Rs. 1,74,339/- and the appellant in MFA No. 24681/2010 is entitled for the compensation of Rs. 1,59,936/-. As per the judgment of the Hon''ble Supreme Court in the case of Oriental Insurance Co. Ltd. v. Siby George and Others reported in 2012 ACJ 2126, the claimants are entitled for the interest at the rate of 12 % p.a. from one month after the date of accident. In the instant case, the WCC has awarded interest at the rate of 12% p.a. from one month after the date of passing of the judgment and order, which is contrary to the law laid down by the Hon''ble Supreme Court. Hence, the appellant/claimant in both the appeals are entitled to the interest at the rate of 12% p.a. from one month after the date of accident. Accordingly, I pass the following:

ORDER

(i) The appeals are allowed in part.

(ii) The judgment and order dated 28.05.2009 in ''WC (NF) Nos. 105/2008 and 106/2008 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Gadag is modified.

(iii) The appellant/claimant in MFA No. 24680/2010 is entitled for the compensation of Rs. 1,74,339/- and the appellant/claimant in MFA No. 24681/2010 is entitled for the compensation of Rs. 1,59,936/- with interest at the rate of 12% p.a. from one month after the date of accident. However, as per the orders dated 08.06.2015 in MFA No. 24680/2010 and 06.10.2016 in MFA No. 24681/2010, the appellants/claimants are not entitled to interest for the delayed period of 470 days in filing the appeals.

(iv)The Insurance Company is directed to deposit the enhanced compensation.