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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
N.L.PUNYAMURTHY S/O N.K.LINGEGOWDA - Appellant
Vs.
SMT. MEENAKSHAMMA W/O SWAMEGOWDA - Respondent
M.F.A.NO.5322/2011 (WC)
C/W.
M.F.A.NO.3254/2011 (WC)
Decided On : 02-08-2021
Workmen's Compensation Act, 1923 - Section 3(1) - Motor Vehicles Act, 1988 - Section 147(1) - Workmen's Compensation Act, 1953 - Section 3(1) and 30 – Death - Accident Claim - Compensation - Claim of claimant before Workmen's Commissioner is that on, her husband, while proceeding to work of respondent No.1 in Coffee Plantation, fell down in wet land which belongs to insured and died on account of said incident - It is also her claim that he was earning per day and he was working with respondent No.1 from last 15 years and on account of death of her husband, she has lost an earning member of her family - Hence, she is entitled for compensation - whether Commissioner has committed an error in directing insured to pay amount of fixing the interest at 7.5% from.
Finding of the Court :
Judgment of Workmen Commissioner, it is not in dispute that Commissioner assessed compensation amount of and awarded interest at 7.5% from after one month of incident and directed insured to pay amount of and Insurance Company to pay amount of within 30 days - It is also observed that, if amount is not deposited within 30 days, said amount carries interest at 7.5%. - Insured has only relied upon attendance register which is marked as Ex.R2. Under circumstances, contention of insured that Workmen Commissioner has committed an error in taking income of deceased at per month cannot be accepted
Result : Appeals dismissed
JUDGMENT :
The appeals in M.F.A.Nos.5322/2011 and 3254/2011 are filed by the first and second respondent, who are the insured and the Insurance Company respectively, challenging the judgment and award passed by the Labour Officer and Commissioner for Workmen’s compensation, Sub-Division-2, at Chickmagalur (‘the Workmen’s Commissioner’ for short) dated 28.10.2010 vide No.WCA/FC/40/2007, questioning the apportionment and the liability.
The parties are referred to as per their rankings before the Workmen’s Commissioner to avoid confusion and for the convenience of the Court.
2. The factual matrix of the case is that the claimant is the wife of the deceased Swamy Gowda, who was working for the first respondent as an Agricultural Labour/Coolie. The policy was taken by the insured with respondent No.2-Insurance Company. The claim of the claimant before the Workmen’s Commissioner is that on 12.07.2006, her husband, while proceeding to the work of respondent No.1 in Coffee Plantation, fell down in the wet land which belongs to the insured and died on account of the said incident. It is also her claim that he was earning Rs.150/-per day and he was working with respondent No.1 from the last 15 years and on account of death of her husband, she has lost an earning member of her family. Hence, she is entitled for the compensation.
3. The insured appeared and filed the objections statement contending that the incident was taken place in the early morning and not during the course of the employment or arising out of the employment. He was paying wages of Rs.70/-per day to the deceased and not Rs.150/-as claimed by the claimant. It is contended that the policy was taken from respondent No.2 and the said policy was in existence at the time of the accident. Hence, in case of any liability, the same is payable by respondent No.2.
4. The Insurance Company also appeared and filed the objections statement contending that the death of a worker is not during the course of employment or arising out of the said employment. In the claim petition, it is contended that on account of heavy rain and mud, he slipped and fell down from the ridge of the wet land and died. The statement made by R.W.1 clearly establishes that there was neither any incident nor accidental injury during the course of and arising out of the employment. Hence, the death of Swamy Gowda is no way connected with his employment. Under these circumstances, the Insurance Company is not liable to pay any compensation.
5. Without prejudice to the said contention, it is also contended that the policy was in force and the same is subject to the terms and conditions of the insurance policy. In terms and conditions of the insurance policy, the Insurance Company is not liable to pay interest or penalty that may be levied in the case on hand and the same are specifically excluded under the policy. However, admitted that the policy obtained by respondent No.1 is a Workers’ Compensation policy and payment of premium was collected in respect of 23 permanent workers and 25 casual workers and the total wages per annum is Rs.8,60,000/-. If the award of compensation is based on wages, actually earned by the deceased, which are more than wages shown as payable for the purpose of insurance, the liability of the Insurance Company is only to the extent of premium received by it and for the amount exceeding, to be borne by employer himself as held by this Court in the case of The Oriental Insurance Company Limited, Bengaluru v. Gangavva and Another reported in 1998 (6) KAR LJ 433.
6. The Insurance Company denied all other averments with regard to his income and also the age. Based on the pleadings, the Workmen’s Commissioner has framed the issues. The claimant, in order to substantiate her claim, examined herself as P.W.1 and got marked the documents at Exs.P1 and P2. On the other hand, respondent No.1-insured also examined himself as R.W.1 and got marked the document at Ex.R2. The Insurance Company also examined o
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