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Judgment
B. Manohar
The appellant/New India Assurance Co. Ltd. being aggrieved by the judgment and order dated 27.7.2009 passed in WCA/BNG-3/FC/CR.70/2007 on the file of the Labour Officer and Commissioner for Workmen''s Compensation - III, Bangalore, (hereinafter referred to as ''WCC'') has filed this appeal. The facts of the case are as under:
Respondents No. 1 and 2 are the wife and son of the deceased Muniyappa respectively. They filed the claim petition before the WCC seeking compensation contending that the deceased was working as a coolie in a tractor trailer bearing Regn. No. KA-42-B-120 and 121. He was aged about 35 years and was only the bread earner On 6.7.2005, on the instructions of the owner of the tractor trailer, while the deceased was travelling as a coolie in the said vehicle belonging to respondent No. 1 in the claim petition and met with an accident and died on the spot due to rash and negligent driving of the driver of the tractor trailer. They have contended that the owner of the tractor trailer was paying salary of Rs. 3,750/- p.m. to the deceased. Therefore, they sought for compensation.
Pursuant to the notice issued by the WCC, though the owner of the vehicle was served with notice, he remained unrepresented. Respondent No. 2/insurer filed the objections denying the averments made in the claim petition and the relationship between the deceased as well as the owner of the vehicle and salary of Rs. 3,750/- p.m. drawn by the deceased. Further it was alleged that the driver of the tractor trailer did not have valid driving license as on the date of accident. Respondent No. 2/ insurer sought for dismissal of the claim petition.
The WCC on the basis of the pleadings of the parties framed the necessary issues, The claimant in order to prove their case examined the 1st claimant herself as PW1 and got marked the documents as Exs.P1 to PS. In the evidence, PW1 deposed that the deceased was only the earning member of their family and was getting monthly salary of Rs. 3,730/-, She further deposed that the deceased died during the course of employment The tractor trailer is fully covered by insurance and the insurer is liable to pay compensation. The documents such as FIR, spot mahazar and spot sketch have been marked as Exs.P1 to P3 respectively. The inquest and postmortem reports have been marked as Exs.P4 and P5 respectively. The claimants have also produced the ration card to show that they are the legal representatives of the deceased and the same has been marked as Ex.P8. Notice issued to the owner and insurer has been marked as Ex.P7. The owner of the vehicle was remained exparte before the WCC. PW1 has been cross-examined by the insurer. Nothing contrary has been elicited in the cross-examination. On behalf of the insurer, nobody has been examined.
On the basis of the oral and documentary evidence adduced by the parties, the WCC taking into consideration the age of the deceased as 34 years end his monthly salary of Rs. 4,000/- p.m. and applying the relevant factor, awarded compensation of Rs. 3,94,120/- Being aggrieved by the judgment and order passed by the WCC, the insurer has filed this appeal mainly contending that the compensation awarded by the WCC is contrary to law. Though the claimants claimed that the deceased was getting a monthly salary of Rs. 3,750/-, the WCC taking the income of the deceased as Rs. 4,000/- p.m. awarded the compensation, which is also contrary to law. Further it is contended that the deceased was sitting in front of the tractor trailer in violation of the conditions of the policy. Hence, the claimants are not entitled for compensation.
On the other hand, Sri Shripadshastri, the learned Advocate appearing for respondents No. 1 and 2/claimants contended that no such contention has been taken by the insurer before the WCC. The only objection taken was regarding the salary of the deceased. Hence, it is not open to the insurer to contend that the deceased had violated the conditions of the policy. Hence he sought for dismissal of the appeal.
I have carefully considered the arguments addressed by the learned counsel for the parties and perused the oral and documentary evidence let in by both the parties. It is not in dispute that due to the accident occurred on 6.7.2005, the deceased Muniyappa, who was working as coolie in the tractor trailer, died on the spot. The postmortem report clearly discloses that the deceased was aged about 25 years. Though the claimants contended that the deceased was getting a monthly salary of Pa.3,750/-, no document has been produced in this regard, Though the owner of the vehicle was served with notice, he remained unrepresented. He has not supported the case of the claimants. However, the WCC taking into consideration the income of the deceased as Rs. 4,000/- p.m. and applying the relevant factor has awarded the compensation, which is contrary to law. The claimants themselves stated that the deceased was getting a monthly salary of Rs. 3,750/-. No document has been produced to show that the deceased was getting a Monthly salary of Rs. 3,750/-. In the absence of the same, the income of the deceased would be taken as 50% and applying the appropriate relevant factor, the claimants are entitled for compensation of RS. 2,95,590/-. The compensation of Rs. 3,94,120/- awarded by the WCC is contrary to law and the same is liable to be modified. Accordingly'', I pass the following:
ORDER
The appeal is allowed in part.
The compensation of Rs. 3,94,120/- awarded by the WCC is modified. The claimants are entitled for compensation of Rs. 2,95,590/- instead of Rs. 3,94,120/-. Further the claimants are also entitled for interest at 7.5% from the date of filing of the petition till the date of passing of the order and also the interest at 12% p.a. from the date of after one month of passing of the award.
The amount in deposit before this Court be transferred to the WCC. If there is any excess amount after calculation of the interest, the same be refunded to the insurer.