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Judgment
B. Manohar, J.—The appellant-Insurance Company being aggrieved by the award dated 31-5-2005 made in WCA/CR/3/2003 passed by the Commissioner for Workmen''s Compensation. Bangalore, preferred this appeal.
The facts of the case are:
The legal representatives of the deceased Mahadev filed a claim petition claiming compensation due to the death of their son in a motor accident that occurred on 12-12-2002. The claimants in their claim petition have contended that the deceased Mahadev was working as a coolie for loading and unloading of the materials in the lorry bearing Registration No. KA-12/367 under the first respondent. The said lorry was belonging to the first respondent, which was insured with the second respondent. The deceased was aged about 20 years at the time of accident and getting a salary of Rs. 175/ - per day.
On 12-12-2002, at about 1.30 a.m. while the deceased was traveling in the lorry in question, near Yadaul Cross between Doddaballapur and Nelamangala road, the said lorry turtle down, due to which, the deceased died. A case was registered in Nelamangala Police Station in Crime No. 884/2002. The claimants have contended that due to the death of Mahadev, they have lost their bread earner and sought for compensation.
In pursuance to the notice issued by the Commissioner for Workmen''s Compensation, the owner of the vehicle filed written statement contending that the deceased was working under him and he was paying a salary of Rs. 150/ - per day and Rs. 20/ - as batta and the accident has occurred during the course of employment under him. He also contended that since the said vehicle is covered by the insurance policy, the second respondent is liable to pay compensation to the claimant. Hence, he sought for dismissal of the claim petition as against him.
The second respondent filed written statement denying the averments made in the claim petition and also denying the relationship of the applicant with the deceased and the employment of the deceased with the first respondent as a coolie and sought for dismissal of the claim petition.
The Commissioner for Workmen''s Compensation has framed the following issues:
Whether the applicants proves that they are the only dependents to the deceased Mahadev?
Whether the applicant proves that the deceased Mahadev was a workman under the Act?
Whether the applicant proves that the deceased met with an accident and subsequently died out. of and in the course of employment under Respondent No. 1?
Whether the applicant proves that, what was the wages of the deceased, and how old he was at the time of accident?
To what amount of compensation and other relief, the applicants are entitled to?
How and in what manner the respondents are liable to pay the compensation and other relief to the dependents? and
To what order?
In order to prove their case, the first claimant examined himself as P.W.1 and got marked the documents as Ex.P.1 to Ex.P.7. The owner of the vehicle examined himself as R.W.1, however, the Insurer has not examined any witnesses.
On the basis of the pleadings of the parties, the Commissioner held that the claimants are the dependents of the deceased and entitled for the compensation and also held that the deceased was a workman under the first respondent and he died in a motor accident during the course of employment.
Based on the complaint lodged before the Nelamangala Police. It is seen that the deceased died in the accident during the course of employment. Since the deceased was aged about 20 years as on the date of accident and he was getting a salary of Rs. 150/ - and Rs. 20/ - per day towards food allowances, restricting the salary of the deceased to Rs. 4,000/ - and taking 50% of the wages u/s 4(1a) of the Workmen''s Compensation Act by applying the relevant factor as 224.00, the Commissioner has awarded compensation of Rs. 4,48,200/ -.
The appellant being aggrieved by the award passed by the Commissioner for Workmen''s Compensation filed this appeal.
Sri. Suryanarayana Rao, learned Advocate appearing for the appellant contended that the compensation awarded by the Commissioner for Workmen''s Compensation is too exorbitant, However he admitted the liability of the Insurer to pay compensation. He also contended that no document has been produced before the Commissioner to show that the deceased was getting a salary of Rs. 150/ - per day and Rs. 20/ - towards batta. He further contended that the 4th respondent is the owner of the vehicle and without notice to him, the same has been transferred to the third respondent. The interest at the rate of 12% p.a. awarded by the Commissioner is contrary to the Judgment of the Supreme Court reported in AIR 2009 SCW 3717 in the case of The Oriental Insurance Company Ltd. v. Mohd. Nasir and Ors. Hence, the Insurer is not liable to pay any compensation and sought for allowing the appeal.
On the other hand, Sri. K.N. Jagadish, learned Advocate appearing for Respondents 1 and 2 contended that the Commissioner after considering the entire evidence available on record and also taking into consideration the age of the deceased and income earned by him, has awarded compensation in accordance with the Workmen''s Compensation Act and sought for dismissal of the appeal.
We have carefully gone through the arguments addressed by the learned Counsel for the parties; perused the judgment and award passed by the Commissioner and also perused the oral and documentary evidence available on record.
The son of the claimants died on 12-12-2002 in a motor accident and the deceased was working as a coolie under the first respondent. The first respondent in his evidence has admitted that the deceased was working under him and he died during the course of employment and he also admitted that he was paying a salary of Rs. 150/ - per day and Rs. 20/ - as batta to the deceased. When the owner of the vehicle himself admitted that the deceased is an employee under him. it is not. for the Insurance Company to dispute the same. Moreover the Insurance Company has not examined any independent witnesses to show that the deceased was not a workman of the first respondent. The allegation of the Insurance Company that the vehicle has been transferred without the knowledge of the Insurer cannot be accepted, since the Insurance Company has not stepped into the witness box and nothing has been said regarding the terms and conditions, which have been contravened. in the absence of the same, the contentions of the Insurer cannot be accepted and the Commissioner for Workmen''s Compensation after considering the evidence available on record has passed the award in accordance with law and the same is not liable to be interfered with by this Court. However, we noticed that awarding of interest at the rate of 12% from 14.12.2002 till the respondent-Insurer deposit the amount, which is on the higher side and the same is contrary to the Judgment of the Apex Court in the case of The Oriental Insurance Company v. Mohd Nasir and Ors. reported in AIR 2009 SCW 3717.
In view of the above, the appeal is allowed in part. So far as the rate of interest is concerned. We direct the Insurance Company to pay the interest at 7.5% from the date of filing the claim petition till the date of award passed by the Commissioner and at the rate of 12% from the date of the award till the date of deposit.
The amount in deposit before this Court, if any. is ordered to be sent to the Commissioner for Workmen''s Compensation, Bangalore.