IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 21ST DAY OF JANUARY, 2011 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR M.F.A.No.512/2008 (WC) BETWEEN: 1. Smt. Savita W/o Rajendra Shahapure Aged about 35 years, 0cc: Household Work R/o Shiraguppi, Tq: Athani, Dist: Belgaum. 2. Kumari: Bharati D/o Rajendra Shahapure, Aged about 15 years, 0cc: Student, R/o Shiraguppi, Tq: Athani, Dist: Belgaum. 3. Kumari Bhakti D/o Rajendra Shahapure, Aged about 13 Years, Occ:Student. R/o Shiraguppi, Tq: Athani, Dist: Belgaum. 4. Smt. Anantmati, W/o Narasappa Shahapure, Aged about 66 Years, Occ:Household work, R/o Shiraguppi, Tq: Athani, Dist: Belgaum. -2- 5. Sri. Narasappa Tatoba Shahapure, Aged about 71 Years, 0cc: Agriculture R/o Shiraguppi, Tq: Athani, Dist: Belgaum. (Petitioners in the Court below Appellants before this Hon’ble High Court.) (Appellants No.2 and 3 are minors represented by mother Appellant No.1) .Appellants (By Sri.Jagadish Patil, Advocate) AND: 1. Sri. Siddappa S/o Halappa Managuli, Aged Major, 0cc: Business, R/o Nagarmunoli, Tq: Chokadi, Dist: Belgaum. 2. The Divisional Manager, United India Insurance Co, Ltd, Maruti Galli Belgaum, Dist: Belgaum. Respondents (By Sri.Sharnappa S. Koliwad, Advocate for R2) Notice to Ri dispensed with. v.o.d 07.04.20 10) MFA filed under Section 30(1) of WC Act against the order dated 09.04.2007 passed in case No. KAA.PA.KAA/SR 23/2007 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, sub-division-i, Belgaum. —.,— (\pp This fiff3n coming on for admission, this day, the Court made the following: ‘J JUDGMENT The claimants are in appeal questioning the correctness and legality of the Order and Award passed in WCA SR.No.23/2007, dated 9/4/2007 and seeking for enhancement of compensation by contending that the substantial question of law raised in the appeal memorandum would arise for consideration. 2. The deceased Mr. Rajendra Narasappa Shahapur was returning to his village by driving a tractor bearing No.KA 23/5735 with Trailer No. KA-23/T-5736/5737. After unloading the sugar cane at Arag Sugar Factory, and while so returning, the said tractor-trailers got capsized on account of which said Rajendra is said to have sustained grievous injury and succumbed at the spot. On account of death of said Rajendra, his wife and children filed a claim petition along with the father and mother of deceased seeking compensation. Commissioner on registering the petition had issued notices to the respondents and both the -4- respondents have filed statement of objections. The first respondent has admitted that deceased was working as a driver and injuries sustained by the deceased was in the course of his employment and it is also admitted that he died on account of the injuries sustained in the accident that occurred in the course of employment. The second respondent insurer has filed, objections denying the averments made in claim petition in toto. Commissioner on appreciation of pleadings and evidence on record has awarded a total compensation of Rs,2,93,530/- with interest at the rate of 12% payable after one month from the date of the award. It is this order and award, which is questioned in the present appeal. 3. Though, there was no representation when the matter was taken up for admission, in the midst Mr. Jagadish Patil has appeared and reiterated contentions raised in the appeal memorandum and further contends that Commissioner erred in construing income of the deceased by applying minimum wages and the income ought to have been taken at Rs.4,500/-p.m. Sri. Jagadish Patil would elaborate his submission by contending that the Commissioner erred in not ordering any payment towards funeral expenses as required under the Act and as such he seeks for payment of compensation of Rs.2,500/-. 4. Per contra Mr. Sharnappa S.Koliwad would defend the order and award passed by the Commissioner and would contend that in the absence of any cogent evidence placed by the claimant to establish the income of the deceased the Commissioner has applied the wages paid under the minimum wages Act and by taking into consideration, the relevant circular prevalent as on the date of accident and has accordingly, assessed the compensation which according to him, does not call for any interference. Accordingly, he seeks for dismissal of the appeal. 5. Having heard the learned advocates appearing for the parties, this court is of the considered view that following substantial questions of law would arise for consideration: i) Whether the Commissioner was justified in assessing the income of the deceased at Rs.2,890/-?. ii) Whether Commissioner erred in not awarding compensation of Rs.2,500/- as required under Sub Section 4 of Section 4 of W,C. Act 1923 towards funeral expenses? -6- 6. The accident in question, issuance of policy and death of Mr. Rajendra are not in dispute. Hence, these aspects are not delved upon in the course of this order. The only issue that arise for consideration is whether Commissioner was correct in holding the income of the deceased at Rs.2,819.50/-p.m. as against the claim put forward by the legal heirs of the deceased that deceased was earning Rs.4,500/- p.m. The wife of the deceased has entered witness box and categorically contended that deceased was getting a salary of Rs.4,500/-p.m. from 1st respondent. However, the employer has filed statement of objection and denied this fact. As to what actual salary / wages that was paid by him to the deceased Rajendra is not stated by him. Neither claimant nor the insurer have ventured to examine the owner or employer as their witnesses. In the absence of any positive evidence being available before the Commissioner he chose to arrive at the income of the deceased by applying minimum wages that was fixed by the Karnataka Government by notification No.SAKAKA 34 LMW 98 dated 12/6/2002. The accident in question has occurred on 15/7/2006 that is after a period of 4 years from the issuance of notification. It is also to be noticed that deceased was the only -7- bread earner in the family and there are about 5 dependants who were depending on the income of the deceased, namely, aged parents wife and two daughters. A person earning about Rs.2,400/- was able to manage a family of 5 persons to be accepted is too remote. Hence, this Court is of the considered view that Commissioner committed a serious error in applying the minimum wages as was prevalent in 2002 as the salary to be taken into consideration for the purpose of computation of compensation payable to legal heirs in respect of death that occurred in the year 2006. Thus, said finding cannot be sustained and deserves to be reversed. In view of this, income of the deceased construed at Rs.2,890.50/- is to be revised and taking into consideration number of dependants, date of accident and the nature of avocation of the deceased being that of driver of tractor-trailer, this Court is of the considered view that reasonable income that the Commissioner could have taken into consideration for the purpose of awarding compensation under Act would have been Rs.3,500/-. Accordingly, question No.1 is answered in negative i.e., in favour of the claimants/appellants and against insurer. Hence, the said finding of the Commissioner requires to be modified and by -8- adopting income of the deceased at Rs.3,500/- compensation awarded by the Commissioner is re-computed as under: 50% of Rs.3,500 = Rs.1,750/ Rs.1,750/- x 181.37 Rs.3,17,397.50/- Thus in substitution to what has been awarded by the Commissioner a sum of Rs.3, 17,397.50/- is awarded in this appeal. 7. Re: Question No.2 A reading of the provision of Sub-Section (4) would make it explicitly clear that an employee sustaining injuries in the course of employment and dies would give right to the eldest surviving dependant of the deceased workman, to seek compensation towards expenditure of the funeral of such workman. The Commissioner in the instant case having held that the deceased Rajendra expired on account of the injuries sustained which was in the Course of employment has erred in not noticing this statutory provision and awarding compensation as such question No.2 formulated herein above is to be answered in favour of the claimants-appellants and a sum of Rs.2,500/- is awarded, -9- towards, funeral expenses as contemplated under Section 4(4) of W.C. Act 1923. 6. In view of the above discussion, following order is passed: - ORDER a) Appeal is allowed in part by answering the substantial questions of law formulated herein in favour of claimants part and compensation of Rs.3, 19,897.50/- is awarded to the appellants in substitution to the order and award passed by the Commissioner in WCA/SR 23/2007 dated 9/4/2007 which also includes Rs.2,500/- towards funeral expenses. b) The interest as awarded by the Commissioner is not disturbed. Ordered accordingly, c) Registry to draw the award accordingly. No order as to costs. Sc T7Tr’r Vmb