CMA/1742/2003 of Bhanath Singh Vs K. Srinivas Rao on 30 December 2010

JUDGMENT:

Since both these appeals arise out of the same accident andthe owner and insurance company-opposite parties in both the mattersare one and the same, they are being disposed of by this commonjudgment.

2. Not satisfied with the quantum of compensation awarded inW.C.Nos.66 of 2002 and 65 of 2002 by the Commissioner ofWorkmen’s compensation, Nizamabad, the present appeals are filedby the applicants-claimants, who are the legal representatives of thedeceased in both cases.

3. Heard.

4. The claim petitions were filed by the applicants under Section22 of the Workmen Compensation Act, 1923, claiming compensationof Rs.5.00 lakhs each contending that the deceased in both the caseswere working as labourers on paddy Harvester bearing No.PB 58A2503 under the control of opposite party No.1 on a salary ofRs.5000/- per month. On 11.04.2001 when the deceased and someothers during the course of employment under O.P.1 on instructionsstopped their harvester near Chintapally Road at Muthyampet villageshivar, Adilabad district and were preparing food for themselves, oneAPSRTC Bus bearing No.AP 10Z 5326 coming from Adilabad sidedashed against the Harvester machine, due to which the deceased inboth the O.Ps. died on the spot and others received injuries. A case inCr.No.44 of 2001 was registered under Sections 304-A and 337 of IPCby the Dandepalli police for the accident. The applicants, as legalrepresentatives of the deceased filed W.C.Cases contending that the deceased were aged 22 and 18 years respectively by the date ofaccident.

5. Opposite parties 1 and 2 filed their respective countersdenying the claim petitions.

6. On the basis of the pleadings, the following issues wereframed in both the cases:

1. Whether the deceased worker is a workman within thedefinition of the Act and whether he died during thecourse of employment under Opposite Party No.1?definition of the Act and whether he died during thecourse of employment under Opposite Party No.1?

2. If so, what was the monthly wages drawn by the deceasedworkman?workman?

3. What was the age of the deceased workman at the time ofhis death?his death?

4. Whether the Applicant is entitled to Compensation? If so, towhat extent?what extent?

7. On behalf of the applicants, in W.C.No.66 of 2002, theApplicant No.1 was examined as A.W.1 and marked Exs.A1 to A6. InW.C.No.65 of 2002, Applicant No.1 was examined as A.W.1 andExs.A1 to A6 were marked. On behalf of the Opposite Party No.2, D.Padma Rao, Senior Assistant of the New India Assurance Co.Ltd.,Nizamabad was examined as R.W.1 and Copy of insurance policywas marked as Ex.B1 in both the cases. On the basis of the materialon record, the court below granted compensation of Rs.1,99,233/- inW.C.No.66 of 2002 and Rs.2,03,742/- in W.C.No.65 of 2002 holdingthat the deceased were earning Rs.1800/- per month. Aggrieved bythe above quantum of compensation and not granting interest, thepresent appeals are filed.

8. The contention of the learned counsel for the appellantsappearing in both the appeals is that the deceased were being paidsalary of Rs.5,000/- per month and the minimum salary that has to be taken into consideration was Rs.4,000/- per month and the Courtbelow has erroneously calculated the income of the deceased atRs.1800/- per month and granted lesser compensation. As such, theappellants are entitled to the total compensation claimed and they arealso entitled for interest.

9. The contention of the learned counsel for the oppositeparties is that there is no authentic evidence by way of documents toshow the income of the deceased in both the cases, that the admissionof the owner of the vehicle and certificate issued on his behalf cannotbe relied upon as he has nothing to loose, he would definitely certifyfor higher amount and that no appeal is maintainable with regard to notgranting of interest.

10. Now, the point for consideration is whether the applicantsare entitled for higher compensation and whether they are entitled forinterest also?

11. With regard to the question of compensation, the income ofthe deceased was taken at Rs.1800/- per month, which comes toRs.60/- a day. Even in 2001 also, for a skilled worker working onharvester, perhaps cannot be taken at Rs.60/- a day, it can be takenminimum at Rs.100/- a day and I am inclined to take the same. Inwhich event, in W.C.No.66 of 2002, i.e., C.M.A.No.1742 of 2003, theclaimants are entitled for compensation of Rs.3,32,055/- and inW.C.No.65 of 2002, i.e. C.M.A.No.2041 of 2003, the applicants areentitled for Rs.3,39,570/-. Accordingly, in both the C.M.As.compensation is enhanced from Rs.1,99,233/- to 3,32,055/- andRs.2,03,742/- to Rs.3,39,570/- respectively.

12. With regard to the question of liability of interest, learnedcounsel appearing for the respondents contends that no appeal is maintainable under Section 30(A)(A) of the Workmen CompensationAct against not awarding interest. An appeal is maintainable onlyagainst awarding interest, that may be, the rate of interest etc. Thereappears to be no authorities on this question. But when once anappeal is maintainable against granting certain rate of interest, it has tobe interpreted that against not granting interest also, the appeal ismaintainable. Accordingly, I hold that the appeal is maintainable. Therate of interest shall be at 7.5% per annum from the date of petition tillthe date of award and thereafter, at 12% per annum till the date ofdeposit. In case, the amount is already deposited, the interest shallwork out in the above manner for the amount not yet been deposited.

13. Both the C.M.As. are accordingly partly allowed. No costs.

30[th] December 2010,Rns

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P. SWAROOP REDDY, J.