THE DIVISIONAL MANAGER, v. SMT. SHANKRAVVA W/O. SHARANAPPA

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negligent manner and lost control over it. As a result, it turned turtle near Palavanahali gate NH-4. In said accident, Sharanappa died on spot.

3. Claiming compensation for loss of dependency, his wife Smt.Shankravva and daughter Kum.Prathiba filed application under provisions of Workmen's Compensation Act, 1923, (for short 'W.C. Act').

4. On service of summons, employer filed objections admitting that workman was employed as cleaner of lorry and paid Rs.500/- per day as bhata, and was on duty at time of accident. Insurer filed objections, denying claim petition averments. It was alleged that driver of lorry did not possess valid and effective driving licence as on date of accident. Further relationship of employer and employee and even occurrence of accident were denied. Insurer also contended that workman was unauthorised passenger in lorry and sought for dismissal of claim petition.

5. Based on pleadings, Commissioner framed following issues:

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"1. Whether petitioners prove that, Sharanappa S/o Balutagi @ hungundi died in a road traffic accident occurred on 01.12.2014 at about 02.30 PM in NH-04 near to Palavvanahally gate due to negligence of driver of lorry bearing its no.KA-37-7935?

2. Whether respondent no. 3 prove that, deceased Sharanappa was not working as a cleaner in said offending lorry under respondent no. 2 vehicle involved in accident?

3. Whether petitioners entitle for compensation and if so from whom and to what extent?"

4. What order or award?"

6. In support of claim, applicant no. 1 was examined as PW.1 and Exhibits P.1 to P.13 were marked. In rebuttal, no evidence led by respondents.

7. On consideration, Commissioner / Tribunal answered issue no.1 in affirmative, holding that applicants established relation of employer and employee. Issue no.2 was answered partly in negative against respondent no. 1 to 3. Issue no.3 was answered in affirmative by determining

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compensation of Rs.7,50,000/- with 8% of interest from date of accident till realisation.

8. Aggrieved by said award, insurer filed appeal.

9. Sri S.V. Yaji, learned counsel for insurer submitted that tribunal without appreciating material fact and records has fastened liability against insurance company. It was further submitted that neither claimants nor employer produced any material such as master roll, attendance book etc., to substantiate relationship. Hence, deceased was travelling as unauthorised passenger in goods vehicle. It was further submitted that neither employer nor driver produced driving licence to drive transport vehicle. Therefore, violation of policy condition was established.

10. It was further submitted that, respondent failed to produce any endorsement or receipt to substantiate that said vehicle was carrying goods or occurrence of accident during course of employment. Referring to judgment of Hon'ble Supreme Court in case of Surekha v/s National Insurance Co. Ltd., reported in (2017) 15 SCC 579, he submitted that

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contrary to above decision, Commissioner erred in considering bhata as wages. On above grounds, sought for allowing appeal.

11. On other hand, Sri A.B. Patil, learned counsel for applicants and Sri P.G. Mogali learned counsel submitted that employer admitted existence of relationship of employer and employee and payment of bhata as wages, which justified findings of Commissioner. Therefore, there was no merit in insurer's appeal and sought for its dismissal.

12. Heard learned counsel, perused impugned award and record.

13. From above submissions, substantial questions of law that arise for consideration herein are:

1. Whether finding of Commissioner regarding relationship between employer and employee is contrary to evidence ?

2. Whether Commissioner erred in considering bhata as wages and therefore awarded excessive compensation?

Substantial question of law no.1:

14. In order to establish employment relationship, PW.1 in her examination, stated that her husband was employed as

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cleaner in his lorry by employer by paying Rs.500/- per day. Even employer admitted that deceased was on duty as cleaner at time of accident on payment of bhata. Despite cross- examining PW-1, insurer failed to elicit any admissions to disprove her assertions. Hence, Commissioner was justified in its finding regarding employment. Hence, substantial question of law no.1 is answered in negative.

Substantial question of law no.2:

15. Insofar as monthly income, though claimants have not produced any document, they have specifically pleaded about daily bhata of Rs.500/-, which was admitted by employer in his objections. Referring to same, Commissioner determined monthly wages as Rs.7,500/-. Though same is sought to be assailed on ground that bhata cannot be considered as part of wages, accident occurred on 01.12.2014. As on date of accident, monthly income that could be considered as wages, as per Explanation II to Section 4 (1) of WC Act, would be as notified by Central Government.

16. It would be relevant to state that Central Government by issuing Notification dated 31.05.2010 notified 'Rs.8,000/-' as wages for purposes of WC Act. But in instant

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case, Commissioner was considered monthly income of deceased at Rs.7,500/- which is lesser than notified income.

17. Apart from above, it is also seen that while passing impugned award, Commissioner awarded interest at rate of 8% p.a. from date of filing of claim petition till date of impugned order, which would be contrary to Section 4A (3) (a) of W.C. Act, which mandates it to be at 12% p.a. from one month after date of incident, [Oriental Insurance Co., Ltd., Vs. Siby George reported in (2012) 12 SCC 540].

18. In view of above, I do not find any scope for interference. Even substantial question of law no.2 also does not arise for consideration. Hence, I pass following:

O R D E R

i. Appeal filed by insurer is dismissed.

ii. Amount in deposit is ordered to be released in favour of workman.

Sd/-

JUDGE

MKM