Noorjan vs S.H. Saifulla s/o H.S. Anwar Sab

B. Manohar, J.—Appellants are the claimants, being not satisfied with the quantum of compensation awarded in the judgment and order dated 18-4-2011 made in WCA/CR-231/2007 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Davanagere (hereinafter referred to as ''the WCC'', for short) filed this appeal seeking enhancement of compensation.

Appellants 1 to 4 herein filed a claim petition contending that the husband of the first claimant, father of claimants 2 to 4, deceased Abdul Razad was working as a cleaner in a lorry bearing Registration No. DA-08/A-999 belonging to the first respondent herein. On 2-6-2007, as per the instructions of the owner of the said lorry, after loading the parcel at Bangalore and proceeding towards Davanagere on NH-4, near Kallambella Police Station, while the cleaner of the lorry was checking the tyre, lorry moved reverse side and dashed against the cleaner, due to that, he sustained grievous injuries all over the body. Immediately after the accident, he was shifted to the Government Hospital, Nelamangala. However, he died during the course of treatment. In the claim petition it was contended that at the time of death, the deceased was getting salary of Rs.4,000/- p.m. and Rs.50/- per day as batta. At the time of accident, he was about 35 years. The accident occurred during the course and out of employment. Hence, the claimants are entitled for compensation.

In response to the notice issued by the WCC, the owner of he vehicle entered appearance and filed written statement admitting that the deceased Abdul Razak was working as a cleaner in the lorry belonging to him. On 2-6-2007, he died due to the accident occurred during the course and out of employment. As on the date of accident, the insurance policy was in force. Hence, the insurance company is liable to compensate the claimants.

The insurance company filed the written statement denying the entire averments made in the claim petition and also contended that no document has been produced to show that the deceased was a workman within the meaning of Section 2(1)(n) of the Employees- Compensation Act and that owner of the lorry was paying him salary of Rs.4,000/- p.m. and hence sought for dismissal of the claim petition as against the insurance company.

The WCC, after appreciating the oral and documentary evidence let in by the parties and taking into consideration IMV report, spot mahazar and copy of the complaint held that the claimant died during the course and out of employment in the accident occurred on 2-6-2007, the claimants are dependants of the deceased and hence they are entitled for compensation. With regard to quantum of compensation is concerned, the WCC taking the income of the deceased as Rs.3,000/- p.m., taking 50% thereof, applying the relevant factor of 197.06 having regard to the age of the deceased as 34 years, awarded a sum of Rs. 2,95,590/- with interest at the rate of 12% p.a. from one month after passing of the judgment and order. Being not satisfied with the quantum of compensation awarded by the WCC, and also interest awarded from one month of passing of the judgment and order, the claimants have preferred this appeal.

Sri. Mahesh R. Uppin, learned counsel appearing for the appellants contended that the judgment and order passed by the WCC taking the income of the deceased as Rs.3,000/- p.m., is contrary to the law. The owner of the lorry himself had admitted in the written statement filed by him that he was paying Rs.4,000/- p.m., as salary to the deceased and the insurance company has also not disputed the said fact. Further, as per the judgment of the Hon''ble Supreme Court in Oriental Insurance Co. Ltd., v. Siby George and others, reported in (2012) 12 SCC 540 : (AIR 2012 SC 3144), the claimants are entitled to interest at the rate of 12% p.a., from one month after the accident. Hence, the judgment and order passed by the WCC cannot be sustained and sought for modification of the judgment and order.

On the other hand, Sri. A.N. Krishnaswamy, learned counsel appearing for Respondent No.2 argued in support of the judgment and order passed by the WCC and contended that no document has been produced to show that the owner of the lorry was paying the deceased, salary of Rs. 4,000/- p.m. In the absence of necessary documents, the WCC has taken the reasonable income of Rs.3,000/- p.m. Hence sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel appearing for the parties. Perused the judgment and order, oral and documentary evidence adduced by the parties.

The substantial question of law that arises for consideration in this appeal is with regard to quantum of compensation is concerned.

The records produced by the parties clearly disclose that while Abdul Razak was working as a cleaner in the lorry belonging to the first respondent, he died during the course and out of employment in the accident occurred on 2-6-2007. The owner of the vehicle filed written statement admitting that the offending lorry is an inter-district Transport lorry and he was paying the deceased salary of Rs.4,000/- p.m. The accident occurred in the year 2007. The cleaners working in the transport lorry were getting salary of Rs.4,000/- p.m., during the relevant period. Some of the cleaners were also getting batta per day for the inter-district movements of the goods. In the instant case, though the claimants claimed that the deceased was getting salary of Rs.4,000/- p.m., and batta of Rs.50/- per day and that the owner of the lorry had admitted that he was paying salary of Rs.4,000/- p.m., the WCC ought to have reckoned the monthly income of the deceased as Rs.4,000/- while awarding compensation and taking Rs.3,000/- as monthly income is contrary to law. The WCC has not assigned any reason for same. Hence, taking the monthly income of the deceased as Rs. 4,000/- taking 50% thereof, and applying the relevant factor 197.06, the claimants are entitled for compensation of Rs.3,94,120/- as against Rs.2,94,590/- awarded by the WCC. Further, as per the judgment of Hon''ble Supreme Court in Siby George''s case (AIR 2012 SC 3144) (supra), the claimants are entitled to interest at the rate of 12% p.a. from one month after the accident. Accordingly, I pass the following:

ORDER

The appeal is allowed in part. The judgment and order dated 18-4-2011 made in WCA/CR-231/2007 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Davanagere is modified. The claimants are entitled to compensation of Rs.3,94,120/- with interest at the rate of 12% p.a. from one month after the accident.

Apportionment of the compensation amount as per the orders of the WCC.