- 1 - NC: 2025:KHC-D:6277 MFA No. 103535 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 103535 OF 2018 (WC) BETWEEN: 1. FERZAN W/O. SAHEBALAL HOSAMANI, AGE 25 YEARS, OCC: HOUSEHOLD WORK, R/O. SECTOR NO.20, NAVANAGAR, BAGALKOT, DIST:BAGALKOT-587101. 2. MAHAMMED S/O. SAHEBALAL HOSAMANI, AGE 7 YEARS, OCC: STUDENT, MINOR REPRESENTED BY HIS NEXT FRIEND NATURAL MOTHER APPELLANT NO.1. 3. HUSAINABI W/O. GUDUSAB HOSAMANI, AGE 62 YEARS, OCC: HOUSEHOLD WORK, R/O. SECTOR NO.20, NAVANAGAR, BAGALKOT, DIST: BAGALKOT-587101. 4. GUDUSAB S/O. ALLISAB HOSAMANI, AGE 68 YEARS, OCC NIL, R/O. SECTOR NO.20, NAVANAGAR, BAGALKOT, DIST: BAGALKOT-587101. - APPELLANTS (BY SRI. S. C. HIREMATH, ADVOCATE) AND: 1. HAZIALI S/O. BANDAGISAB MULLA, OPP: VRL OFFICE, GANESH NAGAR, VIJAYPUR, PIN-586101. 2. ICICI LOMBARD MOTOR INSURANCE CO. LTD., GOKUL ROAD, HUBBALLI. - RESPONDENTS (BY SRI. B. S. SANGATI, ADVOCATE FOR R1; SRI. MADHUKESHWAR A. DESHPANDE, ADVOCATE FOR R2) Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:6277 MFA No. 103535 of 2018 THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC. 30(1) OF WORKMEN’S COMPENSATION ACT, 1923, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 25.05.2018 PASSED BY THE MEMBER, M.A.C.T NO. III, BAGALKOT IN ECA NO.40/2014, ALONG WITH THE INTEREST IN THE INTEREST OF JUSTICE & ETC. THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is filed by the appellants-claimants challenging the judgment and award passed in E.C.A. No. 40/2014 dated 25.05.2018 by the Member, MACT No. III, Bagalkot (for short, ‘the Commissioner’) for enhancement of the compensation amount awarded by the Commissioner. 2. Though this appeal is listed for admission, with the consent of both parties, the appeal is taken up for final disposal. 3. This appeal is admitted to consider the substantial question of law as under: - 3 - NC: 2025:KHC-D:6277 MFA No. 103535 of 2018 “Whether the Commissioner has erred in taking 40% of the income while calculating the income of the deceased employee?” 4. Brief facts of the case are that one Sahebalal Hosamani son of Gudusab (deceased), driver of the offending lorry bearing Reg. No. KA-28-B-0821 while discharging his duty on 14.01.2012, met with an accident as a result of which, he sustained grievous injuries and succumbed to the injuries at the spot. He was aged about 30 years, an employee of respondent No.1 and drawing salary of Rs.9,000/- per month along with batta. Claimants are his wife, son and parents. They were depending on the earning of the deceased. With these reasons the claimants prayed to award compensation of Rs.12 lakhs. 5. Respondent No.1-owner of the offending vehicle admitted relationship of employer and employee, he also admitted that he was the driver of the lorry and drawing salary of Rs.6,000/- per month. The said vehicle was - 4 - NC: 2025:KHC-D:6277 MFA No. 103535 of 2018 insured with respondent No.2 and hence respondent No.2 is liable to pay the compensation. 6. Respondent No.2-insurer in its written statement denied the contents of the claim petition and stated that its liability is restricted to terms and conditions of the policy of insurance and holding of valid and effective driving licence by the driver of the offending vehicle. 7. On the basis of the rival contentions of the parties, the Tribunal framed necessary issues. Claimants examined one witness as PW1 and got marked seven documents. Respondents got marked one document. After hearing both the parties the Commissioner has taken the income of the deceased as Rs.6,000/- per month, deducted 40% of the income, multiplied by the appropriate multiplier and assessed the compensation. 8. The learned counsel for the appellants submits that the Commissioner ought to have taken 50% of the salary for consideration of the compensation instead of 60% as - 5 - NC: 2025:KHC-D:6277 MFA No. 103535 of 2018 per Rule 4(1)(a) of the Employees’ Compensation Act, 1923. Therefore the Tribunal has erred in taking the salary only to an extent of 40% for assessment of compensation which needs to be corrected. The submission of appellant is merit consideration. As per Sec. 4(a) of Workmen’s Compensation Act 50% of salary income shall be considered, which shall be multiplied by the relevant factors to assess the compensation. Accordingly, the compensation under the head of loss of dependency will be Rs.3,000/- x 205.95 = Rs.6,17,850/-. 9. The learned counsel for the appellants further submits that income of the deceased ought to have taken as Rs.9,000/- per month. However, the Commissioner has taken it at Rs.6,000/- per month, which needs to be rectified. The accident had taken place during the year 2012. Looking to the Minimum Wages Act the Tribunal has considered the same. Moreover it is a question of fact and cannot be re-considered while dealing with an appeal - 6 - NC: 2025:KHC-D:6277 MFA No. 103535 of 2018 filed u/S 30 of the E.C. Act. Therefore, the said contention is not accepted. 10. Learned counsel for respondent No.2-insurer submits that the petition was filed in the year 2018 and was dismissed for non prosecution. Thereafter during the year 2021 it was restored on the application of the claimant. Therefore from the date of filing the appeal till the date of restoration whatever interest the respondent No.2 is liable to pay, shall be waived. 11. This Court while restoring the appeal has not passed any such orders. Moreover the deceased has left behind his young wife, minor daughter and aged parents. Considering the facts and circumstances, it is not a fit case to deny interest as prayed for. Therefore the said submission is not accepted. 12. For the aforesaid discussion, the impugned order passed by the Commissioner needs to be modified. Accordingly, the following order is passed. - 7 - NC: 2025:KHC-D:6277 MFA No. 103535 of 2018 ORDER Appeal is allowed in part. The impugned judgment and award passed in E.C.A. No. 40/2014 dated 25.05.2018 by the Member, MACT No. III, Bagalkot, is modified holding that the claimants are entitled for compensation of Rs.6,17,850/- as against Rs.4,94,300/- awarded by the Commissioner with interest at the rate of 12% p.a. after 30 days from the date of accident till realization of entire compensation amount. Remaining part of the award of the Commissioner is not disturbed. Send a copy of this judgment to the Tribunal. Sd/- (UMESH M ADIGA) JUDGE bvv /ct-an List No.: 1 Sl No.: 45