B. Manohar, J.@mdashThe National Insurance Company Limited being aggrieved by the award dated 21-4-2006 passed in WCA/CR- 4/2005 by the Commissioner for Workmen''s Compensation, Tumkur, preferred this appeal.
2. The brief facts of the case are as follows:
The first respondent-claimant filed a claim petition before the Commissioner for Workmen''s Compensation interalia contending that his son Arun Kumar was working as a driver in a Tempo bearing registration No. KA-16/7268 belonging to the second respondent herein. On 1-10-2004 while he was proceeding towards Jnanabharathi Outer ring road near Ganesh Complex at about 6.30 p.m., a goods lorry bearing registration No. AP-03/P-9979 came from the opposite direction and dashed against the tempo. Due to the heavy impact, the son of the claimant Arun Kumar died on the spot while discharging his duty as a driver of the said Tempo.
3. The claimant has contended that the deceased Arun Kumar was getting a salary of Rs. 6,000/ - p.m. and Rs. 30/ - as batta per day and he is the only bread earner in the family. He was aged about 24 years as on the date of the accident and sought for compensation.
4. Pursuant to the notice issued by the Commissioner for Workmen''s Compensation, the owner of the vehicle remained unrepresented. The appellant who is the second respondent before the Commissioner filed written statement denying the averments made in the claim petition and contended that it is for the claimant to prove that during the course of employment his son died on 1-10-2004 and denied the averment regarding the salary drawn by the deceased and also contended that as on the date of the accident, the deceased driver did not possess a valid Driving License. Hence, the appellant is not liable to pay any compensation and sought for dismissal of the claim petition.
5. On the basis of the pleadings of the parties, the Commissioner for Workmen''s Compensation framed necessary issues.
6. In order to prove the ease, the claimant got himself examined as P.W.I and got marked the documents as Ex.P.1 to Ex. P.7. On behalf of the Insurance Company, Sri. M.K. Nataraj, Assistant Administrative Officer has been examined as D.W1. and got marked the Insurance Policy as Ex.R.1.
7. The P.W.1 -claimant, contended that his son was working as a driver under the first respondent before Commissioner for Workmen''s Compensation, getting a salary of Rs. 6,000/ - p.m. and Rs. 30/ - as batta per day and therefore, the claimant is the dependant of the deceased and he is entitled for compensation. The first claimant was cross-examined by the Insurer and denied some suggestions made to him by the Insurer. D.W.1 in his deposition contended that though the said vehicle was insured, the Policy has been given to one K.P. Kalappa who is the R.C. owner. Hence the Insurer is not liable to pay any compensation to the claimants.
8. On the basis of the pleadings of the parties, the Commissioner for Workmen''s Compensation held that the claimant is the legal representative of the decreased and he is entitled to receive compensation. The Commissioner has further held that the son of the claimant died during the course of employment and also held that the deceased was getting a salary of Rs. 4,000/ - p.m. and he was aged about 24 years on the date of the accident. Taking into consideration 50% of the salary i.e. Rs. 2,000/ - and by applying relevant factor 218.47. the Commissioner has awarded compensation of Rs. 4,36,940/ - with interest at the rate of 12% p.a. from the date of filing of the claim petition.
9. The Insurer being aggrieved by the award passed by the Commissioner for Workmen''s Compensation has preferred this appeal.
10. Sri. A.M. Venkatesh, learned Counsel appearing for the appellant-Insurer contended that the compensation awarded by the Commissioner for Workmen''s Compensation is excessive. The Tempo bearing registration No. KA-16/7268 was insured by the appellant. However, the R.C. owner is one K.P. Kalappa. The deceased was working under one Shivakumar Hence, the Insurance Company is not liable to pay compensation and sought for setting aside the award passed by the Commissioner for Workmen''s Compensation. Further the learned Counsel for the appellant contended that the Commissioner for Workmen''s Compensation has awarded interest at the rate of 12% p.a. from the date of filing of the claim petition. Learned Counsel contended that the interest awarded is too excessive, in view of the judgment of the Supreme Court reported in AIR 2009 SCW 3717 in the case of Oriental Insurance Company Ltd. v. Mohd. Nasir and Ors. and also contended that the same is contrary to law.
11. Sri. B.M. Kenchegowda, learned Counsel appearing for the first respondent contended that the Commissioner taking into consideration the salary drawn by the deceased, that the claimant is depending upon the deceased and age of the deceased as 24 years, awarded just and fair compensation. It is also contended that the deceased was possessing the valid Driving License as or. the date of accident and the appellant has not disputed the said contention by producing necessary documents and sought for dismissal of the appeal.
12. We have carefully gone through the arguments addressed by the learned Counsel for the parties and perused the award passed by the Commissioner for Workmen''s Compensation and oral and documentary evidence of the parties.
13. It is not in dispute that the deceased Arun Kumar was driving a Tempo bearing registration No. KA-18/7268 and he died in the accident, during the course of his employment. The said Tempo was covered by the Insurance. The claimant is the dependant of the deceased and he is entitled to receive the compensation. The contention of the appellant is that as on the date of accident, the deceased did not possess the valid Driving License and the registered owner of the vehicle is K.P. Kalappa, hence the appellant is not liable to pay compensation to the claimant due to the death of Arun Kumar. The appellant in order to prove his contention has not produced any material before the Commissioner for Workmen''s Compensation even in the cross-examination also, nothing is elicited from the dependents of the deceased. Hence, it is not open for the Insurer-appellant to contend that the deceased did not. possess the valid Driving License as on the date of the accident.
14. It is the contention of the claimant that the deceased had a valid Driving License as on the date of the accident, in order to disprove his case, the Insurer could have called for records from the RTO Office. But, nothing has been done by the appellant to prove their stand. Further, the claimant has contended that the deceased was getting a salary of Rs. 6.000/ - p.m., but the said statement was also not controverted by the Insurer. However, the owner of the vehicle remained ex parte.
15. In our opinion, usually, the salary of a driver will be more than Rs. 4,000/ - p.m. As provided u/s 4(1a) of the Workmen''s Compensation Act, taking 50% of the salary of the deceased, the Commissioner for Workmen''s Compensation has awarded compensation of Rs. 4,36,940/ -. We do not find any irregularity in the award passed by the Commissioner for Workmen''s Compensation. Hence, We uphold the compensation awarded by the Commissioner.
16. However, the Commissioner has awarded interest at the rate of 12% p.a. from the date of filing of the claim petition. The Hon''ble Supreme Court in the decision cited supra has clearly held that the claimant is entitled for interest at the rate of 7.5% p.m. from the date of claim petition till the date of passing of the award and 12% p.a. from the date of award till the date of deposit. In that view of the matter, We modify the interest portion and pass the following:
ORDER
The appeal filed by the appellant is allowed in part. The compensation awarded by the Commissioner for Workmen''s Compensation in favour of the claimant is upheld. However, the interest awarded by the Commissioner at 12% p.a. is modified and the claimant is entitled to interest at the rate of 7.5% p.a. from the date of filing of the claim petition till the date of award and 12% p.a. from the date of passing of the award till the date of deposit.
