1 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE14H DAY OF DECEMBER, 2020 BEFORE THE HON’BLE MR.JUSTICE HANCHATE SANJEEVKUMAR M.F.A. NO.31457/2012 C/W MFA CROB NO.1524/2013 (WC) IN MFA NO.31457/2012: BETWEEN: THE MANAGING DIRECTOR MURUDESHWAR CERAMICS LIMITED KRISHNAPUR, HUBLI - 580 024 … APPELLANT (BY SRI AMEET KUMAR DESHPANDE, ADVOCATE) AND:
1. SMT. KHATIJA BELLARY W/O HUSSAIN SAB AGED ABOUT54YEARS SIRIWAR VILLAGE, MANVI TALUK RAICHUR DISTRICT2 THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD., RAICHUR … RESPONDENTS (SRI BASAVARAJ R. MATH ADV., FOR R1; SMT. SANGEETA BHADRASHETTY ADV., FOR R2) THIS MFA IS FILED UNDER SECTION301) OF THE EMPLOYEES COMPENSATION ACT, PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT
DATED0706.2012 PASSED IN FILE2NO.KAR/WC/CR-61/2010 BY THE COMMISSIONER FOR WORKMEN'S COMPENSATION, RAICHUR DISTRICT, RAICHUR. IN MFA CROB NO.1524/2013: BETWEEN: THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD., RAICHUR NOW REPRESENTED BY THE DIVISIONAL MANAGER THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, BILGUNDI COMPLEX STATION ROAD, GULBARGA - 585 102 … CROSS OBJECTOR (BY SMT. SANGEETA BHADRASHETTY, ADVOCATE) AND:
1. SMT. KHATIJA BELLARY W/O HUSSAIN SAB AGED ABOUT56YEARS SIRIWAR VILLAGE, MANVI TALUK RAICHUR DISTRICT - 584129 2. THE MANAGING DIRECTOR MURUDESHWAR CERAMICS LIMITED KRISHNAPUR, HUBLI - 580 024 … RESPONDENTS (SRI BASAVARAJ R. MATH, ADV. FOR R1; SRI AMEET KUMAR DESHPANDE, ADVOCATE FOR R2) THIS MFA CROB IS FILED UNDER SECTION301) OF THE WORKMEN'S COMPENSATION ACT, PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE ORDER
DATED0706.2012 PASSED IN CASE NO.LOR/WC/CR-61/2010 BY THE COMMISSIONER FOR WORKMEN'S COMPENSATION, RAICHUR DISTRICT, RAICHUR WITH COSTS. THESE APPEAL AND CROSS OBJECTION COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
3. JUDGMENT
MFA No.31457/2012 is filed by the employer-factory under Section 30(1) of the Workmen's Compensation Act, challenging the judgment dated 07.06.2012 passed in KAR/WC/CR-61/2010 by the Commissioner for Workmen's Compensation, Raichur (hereinafter referred to as ‘the Commissioner), so far as fastening liability of Rs.1,20,973/- with interest at 12% p.a. after one month from the date of accident till realisation.
2. MFA Crob No.1524/2013 is filed by the insurance company challenging the very same judgment so far as liability fastened on it and also the quantum of compensation.
3. Brief facts of the case are that, the deceased- workman was working under the employment of the appellant in MFA No.31457/2012 - factory as a labourer by performing the work as Coal Crusher Machine Operator with wages of Rs.4,000/- per month and the appellant-factory had entered into a contract of insurance with the cross objector - National Insurance Co. Ltd. as insurance policy naming it as workmen's compensation (general). When this being the fact, when the deceased was working in the said factory as a labourer on 14.12.2007 and one supervisor was 4 supervising the work by giving instruction, at that time at 10.30 a.m., the coal crusher machine was stopped. Therefore, for carrying out of repair work of the said machine, the deceased climbed up and repaired the machine and in the process of alighting from the said machine, the supervisor had suddenly switched on the machine by pressing button and immediately the deceased was thrown out from the machine and sustained injuries to the legs, thighs and waist and also sustained complete disablement to his both legs and unable to walk. Even he was operated, but he was constrained to walk through walker and also suffered haemalic paraplegia to have renal failure and anemia and then on 30.09.2009 he succumbed to the said injuries. Therefore, the mother of the deceased has filed a claim petition before the Commissioner, claiming compensation on account of sustaining injuries by the deceased while he was working on the machine under the employment and due to the said injuries he succumbed to the injuries on 30.09.2009.
4. The learned Commissioner after receiving the evidence on record and appreciating the same has awarded a total compensation of Rs.3,95,910/-, but this amount of compensation was bifurcated into two numbers making liable both the insurance 5 company and the employer-factory to pay the compensation. Learned Commissioner has put burden on the National Insurance Company to pay a lumpsum compensation of Rs.2,74,937/- and has put burden on the employer-factory to pay compensation of remaining amount of Rs.1,20,973/- with full interest after 30 days from the date of accident. The Tribunal has not put burden on the insurance company to pay interest on the said apportioned amount, but it has put burden on the employer-factory to pay the entire interest. Thus, had exonerated the insurance company from paying interest on it.
5. Learned counsel for the appellant in MFA No.31457/2012 - factory submitted that the death of the deceased is not arising out of and in the course of employment and there is no nexus between the injuries caused and death of the deceased since there is one year and nine months gap between the date of accident and date of death. Therefore submitted that the death of the deceased cannot be construed as arising out of and in the course of employment. Further submitted that putting burden on the employer-factory to pay compensation of Rs.1,20,973/- with entire interest at the rate of 12% p.a. after one month from the date of accident is not correct. Therefore submitted that on these two 6 counts, the appeal filed by the employer-factory is liable to be allowed. Hence, prays to allow the appeal and put the entire burden of compensation on the insurance company.
6. On the other hand, learned counsel for the cross objector - insurance company submitted that either the injury or the death of the deceased is not arising out of and in the course of employment. Further submitted that there is no nexus between the accident and death of the deceased. Further submitted that the age of the deceased considered by the Commissioner as 23 years is not correct. Further submitted that the entire amount is to be paid by the employer-factory, but not by the insurance company. Therefore, prays to allow the cross objection and put the entire burden on the employer-factory. The following substantial question of law arise for consideration: i. Whether on the facts and circumstances involved in the case, the injury sustained by the deceased workman and death occurred subsequently can be construed as arising out of and in the course of employment and having nexus between the injuries sustained and death occurred?. ii. Whether on the facts and circumstances involved in the case order of the learned Commissioner putting burden 7 entirely on the employer – factory of payment of statutory interest on the compensation amount exonerating the insurance company for making of payment of statutory interest on the compensation amount is justifiable?.
7. It is not a disputed fact that the deceased was working as a labourer to operate coal crusher machine in the factory of the employer. The employer i.e., appellant-factory had stated in its written statement that the deceased was working under the factory as a coolie/unskilled helper and he was being paid a salary of Rs.2,500/- per month. Further the employer-factory admitted in its written statement that on 14.12.2007 while working in the said factory the deceased met with accident and fell down and therefore the accident has happened during the course of the employment and out of the employment with the employer-factory. Further it is admitted by the employer-factory that admittedly after the accident in the factory, the deceased was shifted to Dr. Kalamdani Hospital, Hubli for treatment and therein the employer has paid some amount towards medical expenses and hospitalisation charges. Therefore, it is proved that the deceased was working under the employment of appellant-factory as a coolie/helper and upon perusing the complaint filed by the deceased when he was alive, the 8 deceased had sustained injuries while carrying out repair of coal crusher machine. Therefore, upon these admitted facts the case is needed to be considered.
8. In the present case, the accident in the factory was occurred on 14.12.2007 and the deceased died on 30.09.2009. In the meantime when the deceased was alive, he had lodged a complaint before the police on 24.09.2008. It is worthwhile to consider the wound certificate issued by the doctor as per Ex.P4, which shows that the deceased had suffered spinal shock, there was abnormal mobility at left ankle, there was visceral injury to abdomen, there was loss of sensation below L2 level. The X-ray shows that there is burst fracture of L2 with compression on Conus, fracture of Medial Malleolus left and Retro-peritoneal Haematoma. It is stated that the deceased was admitted to the hospital with a history of fall from height on 14.12.2007 as he was brought by Murudeshwara Ceramic's Ltd. employees. Further, the medical history of the deceased shows that he was operated on 14.12.2008 at 5.30 p.m. with Decompresion & Harrington Rod & Clamp fixation for L2 fracture under G.A. Further he was operated on 15.12.2008 and also on 27.12.2008 and further once again he was operated on 08.04.2008. This wound certificate reveals that 9 even after surgery, treatment, he was confined to bed, hence suffered paraplegia. Accordingly, the doctor has given wound certificate.
9. Ex.P6 is the discharge summary of the Raichur Institute of Medical Sciences Teaching Hospital, Raichur. The photograph produced at Ex.P9 proves that the deceased was under paraplegia state and confined to bed.
10. The Doctor-PW.2 has given his evidence that the deceased was under paraplegia since two years before he was admitted to the RIMS Hospital, Raichur. It is the evidence of PW.2- doctor that on examination, the deceased was not responding to verbal commands and no stimulai, anamia was present associated with hypotension, initially fluid was given to improve the hypotension state, following with dopamine infusion was started along with antibiotics, bronchdilators, steriods. Further it is the evidence of PW.2-doctor that in spite of all measures, the condition of the deceased did not improve and he died due to the accidental injuries on 30.09.2009 and accordingly he has issued discharge summary as per Ex.P6. During the cross-examination, nothing worthwhile is revealed so as to disbelieve the evidence of the doctor. 10
11. Therefore, from the medical evidences borne out as discussed above, the deceased has suffered loss of L2 vertibra resulting into loss of his both lower limbs leading to paraplegia condition. Even after providing medical treatment to the deceased and thereafter without improvement of his health condition in the said condition of paraplegia, the deceased died on 30.09.2009. Therefore, I am unable to accept the submissions made by the learned counsels that the death of the deceased does not have nexus with the date of accident. From the discussion it is proved unequivocally that, the death of the deceased is due to accidental injuries as described above. Therefore, there is ample proof that the death of the deceased is having nexus to the accidental injuries as discussed above. Accordingly, it is held that that the deceased died due to the accidental injuries which was occurred in the course of employment under the employer-factory. Therefore, just because there is time gap of one year and nine months between the date of injuries occurred in the accident and date of death, it cannot be said that the death is not due to employment injuries. But, the medical evidences discussed above clearly prove that the deceased has sustained fracture of L2 vertebra and other injuries and lost both lower limbs and then confined to bead due to 11 paraplegia condition and then out of the said injuries he succumbed to the injuries. Therefore, the death of the deceased is proved to be arising out of and in the course of employment.
12. Considering all the aspects, the learned Commissioner has assessed the compensation by holding the monthly income of the deceased at Rs.3,600/- and considering the age of the deceased as 23 years and by applying the relevant factor of 219.95. Accordingly, has awarded a compensation of Rs.3,95,.910/- 13. Then, the learned Commissioner has divided the amount of compensation to be payable by the employer-factory and the National Insurance Company to the extent of Rs.1,20,973/- and Rs.2,74,937/- respectively, but putting entire burden of payment of interest on the employer-factory after one month from the date of accident and not putting burden of interest on the National Insurance Company. Thus, the Commissioner had directed the insurance company to pay the lump sum amount of Rs.2,74,937/- only without interest.
14. Learned Commissioner has bifurcated this amount because of the reason that the appellant- employer had admitted that the employer-factory was giving monthly salary of Rs.2,500/- 12 to the deceased and therefore it is held that the National Insurance Company is liable to pay the compensation by considering the monthly wages at Rs.2,500/- only and for the remaining wages in difference, the employer-factory is liable to pay the compensation. Accordingly, in this way, the Commissioner has bifurcated the amount of compensation to be payable by both the employer- factory and insurance company.
15. Ex.R1 is the insurance policy. The employer-factory has taken insurance policy of Workmens Compensation (General) covering 171 workmen and total assured sum is Rs.51,30,000/-. Therefore, the Commissioner has considered that the insurance company is liable to pay the compensation only to the tune of Rs.2,500/- per month and for the remaining amount of wages of Rs.1,100/-, the employer-factory is liable. The learned Commissioner has taken the notional monthly income at Rs.3,600/- and in this way has bifurcated the payment of compensation between the employer-factory and the insurance company.
16. The age of the deceased was 23 years old as on the date of accident. In Ex.P6 - discharge summary, the age of the deceased 13 is stated as 23 years old. In the FIR-Ex.P1, the age of the deceased is mentioned as 22 years. Therefore, the learned Commissioner has considered the age of the deceased as 23 years and applied the relevant factor as 219.95 and considered the monthly wage of Rs.3,600/- and granted compensation of Rs.3,95,910/-. Exhibit-R1 is the insurance policy of Workmen Compensation (General) covering 171 workmen for a total assured sum is Rs.51,30,000/-. and it is the policy purchased by the employer-factory, which is for each employee considering the wage as Rs.2,500/- per month and accordingly this Exhibit-R1 insurance policy will show covering the risk of the workmen. The employer factory in its statement has also stated that the wage of the deceased is Rs.2,500/-per month. Therefore, the insurance company is liable to pay the compensation in respect of the deceased - workman on calculating the monthly income at Rs.2,500/- per month. Accordingly, determined the compensation and apportioned in between the insurance company and employer-factory which is correct and need no interference by this court. Exhibit-R1 is the insurance policy of Workmen Compensation (General) covering 171, calculating the wage of the workmen as Rs.2,500/- per month. Therefore, the insurance company is liable to pay the compensation of Rs.2,74,937/-, as 14 determined by the Commissioner, which is found to be correct. As per Section-4 of the Workmen Compensation Act, the maximum ceiling amount of wage amount is Rs.4,000/- per month. In this case, considering the year of the accident which is occurred in 2007 and the prevailing living expenses in the year 2007, the monthly income taken by the learned Commissioner at Rs.3,600/- per month is correct. Therefore, lump-sump of compensation determined by the learned Commissioner payable by the employer factory and insurance company is correct, justified and legal. But putting the burden entirely on the employer factory along with 12% per annum, and exonerating the insurance company from payment of interest is not correct. Both the insurance company and the employer factory are liable to pay the compensation, according to their respective share determined herein. Therefore, when it is held that both employer factory and insurance company are liable to pay the compensation and accordingly, the interest accrued thereon at 12% per annum, after 30 days from the date of the accident shall be borne by both the employer factory and insurance company. Therefore, in this regard, the order passed by the Workmen Compensation Commissioner is liable to be modified. Therefore, it is held that the insurance company shall pay 15 compensation along with at 12% per annum after 30 days from the date of the accident on Rs.2,74,937/- till realization and the employer factory shall pay a sum of Rs.1,20,973/- along with interest at the rate of 12% per annum after 30 days from the date of the accident till realisation. Therefore, to this effect the order passed by the Commissioner is liable to be modified.
17. The learned Commissioner by the placing judgment of this court in MFA17062002, dated 15.10.2003 in the case of UNITED INDIA INSURANCE COMPANY LIMITED vs. SMT.NAGARATHNA AND OTHERS, it was held that the insurance company is not liable to pay the interest. Thus, put the burden entirely on the employer / factory for payment of interest. In the judgment cited above, the facts are different from the present case. As in the above cited judgment there was a stipulation as per the contract of insurance that the insurance company was not liable to pay the interest and penalty on the compensation if any awarded by the Commissioner for payment of compensation under the Workmen Compensation Act. There was a stipulation in the above said contract of insurance to comply with certain provisions of Employees Compensation Act. But in the present case, there is no such stipulation. Exhibit-R1 is the insurance policy. Therefore, 16 payment of interest is statutory compliance. If there is stipulation of waiving of payment of interest in the contract of insurance, between the insurer and insured, then the insurance company need not pay interest. If the amount of compensation is determined, then it is a statutory liability to pay interest at 12% per annum from 30 days from the date of the accident till the date of realization, on the compensation determined according to liability. Therefore, the above cited judgment is not applicable to the present case because of difference in factual matrix.
18. In view of the aforesaid discussion, I pass the following: ORDER
i) MFA No.31457/2012 filed by the appellant-factory is allowed in part. ii) MFA Crob No.1524/2013 filed by the appellant - insurance company is dismissed. iii) The impugned judgment dated 07.06.2012 passed in case NO.LOR/WC/CR-61/2010 by the Commissioner For Workmen's Compensation, Raichur District, Raichur is hereby modified. 17 iv) The insurance company shall pay compensation along with at 12% per annum after 30 days from the date of the accident on Rs.2,74,937/- till realization and the employer factory shall pay a sum of Rs.1,20,973/- along with interest at the rate of 12% per annum after 30 days from the date of the accident till realization. v) The other terms and conditions as observed by the judgment and award dated order dated 07.06.2012 passed in case NO.LOR/WC/CR-61/2010 by the Commissioner For Workmen's Compensation, Raichur District, Raichur are upheld and shall remain in tact. vi) No order as to costs. vii) Draw award accordingly. viii) The amount in deposit shall be transmitted to the Tribunal forthwith, along with the records and a certified copy of the judgment. Sd/- JUDGE LG/JJ