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Judgment
A.S. Pachhapure, J.—Though these matters are listed today for admission, with the consent of learned counsel for both the parties, it is taken up for final disposal.
While insurer has challenged the compensation granted to respondent No. 1 for the death of her husband Mallikarjun in the course of his employment, the other appeal is filed by the parents of the deceased seeking distribution of compensation.
The facts relevant for the purpose of these appeals are as under:
Mallikarjun (the deceased) was employed as a driver of the lorry bearing registration No. KA 38/2312 and on 15.7.2008 due to his rash and negligent driving the vehicle capsized by the side of the road near Sannur cross. In the said accident Mallikarjun sustained severe injuries and died on the spot. His wife Renuka submitted an application for compensation before the Commissioner in WCA/CR-614/2008 impleading the parents of the deceased as respondents 3 and 4 who are the parents in the connected appeal. During the course of enquiry she was examined as PW 1 and in her evidence Exs. P1 to P10 were marked. On behalf of the insurer RW 1 was examined and Exs. R1 and R5 were marked.
The Commissioner after hearing the counsel and on appreciation of the evidence on record assessed his income at Rs. 4,707/- and adopting relevant factor 192.14 granted a sum of Rs. 4,52,298/- with interest at 12% per annum. No compensation was distributed to the parents of the deceased. The insurer dissatisfied by grant of compensation has preferred MFA No. 30904/2013, whereas, the parents of the deceased have filed MFA No. 30347/2013.
The following substantial questions of law raised for consideration;
i. Whether in the facts and circumstances of the case the Commissioner was justified in granting compensation holding that Mallikarjun died in the course of his employment due to the injuries sustained in the motor vehicle accident?
ii. Whether the parents of the deceased are entitled to any share in the compensation? If so, to what extent?
Learned counsel for the insurer submits that the deceased was not the driver of the vehicle and that there is a false implication of the vehicle in question though the vehicle has not met with an accident and she also submit that double claim petition was made before the Commissioner claiming compensation. Thirdly she submits that as the accident occurred due to the negligence of the deceased himself, a claim for compensation cannot be made under the provisions of Motor Vehicles Act. On these grounds she has sought for setting aside the impugned judgment and award.
On, the other hand learned counsel for the respondent No. 1 submits that the Commissioner has passed a just award on the basis of the material placed on record, whereas, the counsel for the parents in the connected appeal submits that no compensation has been distributed and though the parents are the dependents on the income of the deceased, he submits that the Commissioner has committed an error in not granting any compensation to the parents.
As could be seen From the FIR at Ex. P1 crime No. 83/2008 came to be filed on 15.3.2008 for the offences punishable under Sections 279, 337, 338 and 304A IPC on the basis of the complaint filed by one Mallinath. He was also in the vehicle on the date of the accident and he filed a complaint alleging rash and negligent driving of the tipper lorry bearing registration No. KA 38/2312 on 15.7.2008 at 12.30 p.m. and the vehicle having been capsized due to the rash and negligent act of Mallikarjun.
Ex. P2 is the copy of the charge sheet, wherein in column No. 11, the vehicle number is mentioned as KA 38/2312, in respect of crime No. 83/2008 registered on 15.7.2008. In column No. 18 it appears that vehicle number has been wrongly mentioned as KA-32/2312. Relying upon this mistake in column No. 18, it is the contention of the counsel that the vehicle is falsely implicated. In view of the fact that in column No. 11, where the description of the property is to be mentioned, the vehicle number is mentioned as KA-38/2312 and therefore the wrong mention of the vehicle number as KA-32/2312 in column No. 18 could not make much difference. It is just a mistake committed/by oversight and therefore that itself is insufficient to prove false implication. That apart Ex. P4 is the spot mahazar. The vehicle was seized under mahazar Ex. P4 and the recital reveals that vehicle number is KA-38/2312. Ex. P6 is the motor vehicle inspectors report and it refers to the inspection made by the motor vehicle inspector in respect of vehicle No. KA-38/2312. So these materials placed on record would clearly indicate that there was an accident due to the rash and negligent driving of the tipper bearing No. KA-38/2312 and therefore it cannot be said that there was a false involvement of the vehicle to make a false claim of compensation before the Commissioner.
So far as the second contention is concerned though two claim petitions were filed, learned counsel for the appellant in the connected matter has filed a memo, wherein the application filed by them in WC case No. 159/08 before the Commissioner, Bijapur, has been dismissed before disposal of the claim petition. In view of production of this document, it cannot be said that, there are two claim petitions in respect of the incident in question. Thirdly it is contended that accident was due to the negligence of the deceased and therefore his legal representatives cannot make a claim as deceased himself as a tort feasor.
But referring to Section 3(1)(b) of the Workmen''s Compensation Act, though it is contended that there was negligence on the part of the deceased and the dependants cannot make a claim, this provision applies only to those cases where the injury does not result into death or permanent disablement. Therefore, the contention raised cannot be relied upon. That apart in Suresh Vs. Vasantha Shetty and Another The High Court of Kerala considered the provisions of Section 147, 163-A and 166 of the Motor Vehicles Act it was in the context of a claim petition under the motor vehicles Act, it was held that there cannot be claim for compensation if the victim is tort feasor. The said principle does not apply to the claim petition under the Workmen''s Compensation Act.
Lastly so far as the distribution of the compensation is concerned, the applicant is wife of the deceased, whereas, respondents 3 and 4 before the Commissioner and appellants in the connected matter are the parents. Taking into consideration their relationship with the deceased and as they were also dependent on the income of the deceased, it would be just and proper to grant a sum of Rs. 50,000/- to each of the parents out of the compensation awarded with interest on the said sum. Hence, both the points are answered in affirmative.
Consequently, MFA No. 30904/2013 of the insurer is dismissed. MFA No. 30347/2013 is allowed in-part.
From the compensation awarded by the Commissioner, appellants 1 and 2 in MFA No. 30347/2013 shall be entitled to Rs. 50,000/- each with interest at 12% per annum from the amount of compensation payable in pursuance of the award of the Commissioner.
Smt. Sangeetha Bhadrashetty, Advocate is permitted to file Vakalath in the main matter within 15 days from today.
Parties are at liberty to withdraw the compensation in deposit.