IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL NO.7590/2016(WC) BETWEEN:
BOMMANNA, S/O BADAKAPPA, AGED ABOUT 46 YEARS, COOLIE WORK, R/O HIREHALLI, CHALLAKERE TQ CHITRADURGA DISTRICT - 577 222.
...APPELLANT (BY SRI SPOORTHY HEGDE, ADVOCATE) AND:
1 . UNITED INDIA INSU.CO.LTD. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICER, M.M.K.COMPLEX, P.B.NO. 37, 2ND FLOOR, AKKAMAHADEVI ROAD, P.J.EXTENSION, DAVANAGERE - 57701.
2 . G. A. THIAPPESWAMY S/O AJJANNA, AGED ABOUT 43 YEARS, R.C.OWNER OF TRACTOR-TRAILOR NO. KA-16-TA-284-285 R/O HIREHALLI VILLAGE, CHALLAKERE TQ, CHITRADURGA DISTRICT - 577 222.
…RESPONDENTS (BY SRI RAVISH BENNI, ADVOCATE FOR R1; VIDE ORDER DATED 16.8.2017 NOTICE TO R2 IS DISPENSED WITH) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD DATED 4.6.2016 PASSED IN ECA No.45/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE & EMPLOYEES COMPENSATION COMMISSIONER, CHALLAKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND FURTHER SEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING UP FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING.
J U D G M E N T The appellant – claimant filed the present Miscellaneous First Appeal for enhancement of compensation against the Judgment & Award dated 4.6.2016 made in ECA No.45/2014 on the file of the Commissioner for Employee’s Compensation, Challakere/ Tribunal awarding total compensation of Rs.40,416/- with interest at 9% per annum after one month from the date of the accident till its realization.
2. It is the case of the appellant – claimant that he was working as loader and un-loader in the Tractor-Trailer bearing No.KA-16-TA-284-285 under the present 2nd respondent and the present 2nd respondent used to pay monthly wages of Rs.4,000/- and daily batta of Rs.100/- to the claimant. As per the instructions of respondent – owner, on 25.12.2009 the claimant and other coolies while proceeding to Hirehally village in the capacity of loader and un-loader in the said Tractor-Trailer, at about 12 p.m., near L & T crusher road of Challakere, the driver of the said Tractor-Trailer drove it in a rash and negligent manner with high speed and toppled down the said vehicle on the left side of the road and caused the accident. In the accident, the claimant and other coolies sustained grievous injuries. Immediately, the claimant was shifted to District Government hospital, Chitradurga, where he has taken treatment as an in-patient for about one month and spent an amount of Rs.50,000/- towards medical expenses and thereafter he has taken follow up treatment as out-patient from other orthopedic surgeons. In view of the accident, the claimant sustained fracture of superior rami of pelivis and Illio pubic eminence, and he is unable to walk, sit, stand and to lift things and unable to bend the body properly. Both the respondents (owner and Insurance Company) are liable to pay the compensation.
3. The present 2nd respondent filed objections denying the averments made in the claim petition and sought for dismissal of the claim petition.
4. The present 1st respondent – insurance company filed objections denying the averments made in the claim petition and contended that the present 2nd respondent – owner has breached the terms and conditions of the policy.
He also denied the age and salary of the claimant and sought for dismissal of the claim petition.
5. Based on the aforesaid pleadings, the Commissioner for Employee’s Compensation/Tribunal framed the following issues:
1. CfðzÁgÀgÀÄ PÁ«ÄðPÀ £ÀµÀ× ¥ÀjºÁgÀ PÁAiÉÄÝAiÀÄ PÀ®A 2(1) (J£ï) ¥æÀPÁgÀ PÁ«ÄðPÀ£ÁVzÀÝ£ÉAzÀÄ ¸Á©Ã§Ä ¥Àr¸ÀĪÀgÉÃ?
2. CfðzÁgÀgÀÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ ªÁºÀ£ÀzÀ°è PÉ®¸ÀªÀ£ÀÄß ¤ªÀð»¸ÀÄwÛzÁÝUÀ GzÉÆåÃUÀ¢AzÀ ªÀÄvÀÄÛ GzÉÆåÃUÀzÀ ¸ÀªÀÄAiÀÄzÀ°è ¸ÀA¨sÀ«¹zÀ C¥ÀWÁvÀzÀ°è UÁAiÀÄUÉÆAqÀÄ JµÀÄÖ C¸ÀªÀÄxÀðvÉ GAmÁVgÀÄvÀÛzÉAzÀÄ ¸Á©Ã§Ä ¥Àr¸ÀĪÀgÉÃ?
3. CfðzÁgÀgÀÄ 1£Éà ¥æÀwªÁ¢¬ÄAzÀ ªÀiÁ¹PÀ JµÀÄÖ ªÉÃvÀ£ÀªÀ£ÀÄß ºÁUÀÆ JµÀÄÖ ¢£À¨sÀvÉåAiÀÄ£ÀÄß ¥ÀqÉAiÀÄÄwÛzÀÝgÉAzÀÄ ºÁUÀÆ C¥ÀWÁvÀzÀ ªÉÃ¼É JµÀÄÖ ªÀµÀð ªÀAiÀĸÁìVvÉÛAzÀÄ ¸Á©Ã§Ä ¥Àr¸ÀĪÀgÉÃ?
4. CfðzÁgÀgÀÄ CªÀjUÉ C¥ÀWÁvÀ¢AzÀ GAmÁVgÀĪÀ zÀÄrªÉÄ ¸ÁªÀÄxÀåð £ÀµÀÖPÉÌ JµÀÄÖ ¥ÀjºÁgÀªÀ£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀðgÀÄ ºÁUÀÆ G¨sÀAiÀÄ ¥æÀwªÁ¢UÀ¼À ¥ÉÊQ AiÀiÁªÀ ¥æÀwªÁ¢¬ÄAzÀ ¥ÀjºÁgÀ ºÁUÀÆ §rØAiÀÄ£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀðjgÀÄvÁÛgÉ?
5. F §UÉÎ DzÉñÀªÉãÀÄ?
6. In order to establish his case, the claimant examined himself as PW.1 and Dr. Ambarish as PW.2 and marked the documents Ex.P1 to P13. The respondents examined two witnesses and got marked Ex.R1 – insurance policy.
7. The Commissioner for Employee’s Compensation/ Tribunal considering the entire material on record, both oral and documentary evidence, recorded a finding that the clamant has proved that he is the workman under the respondent – Sri G.A. Thiappeswamy and the accident occurred arising out of and during the course of his employment and the claimant also proved the wages paid and entitled to compensation. Accordingly, the Tribunal by the impugned Judgment & Award proceeded to award total compensation of Rs.40,416/- with interest at the rate of 9% after one month from the date of accident. Hence, the present Miscellaneous First Appeal is filed by the appellant – claimant for enhancement of compensation.
8. The respondents – Insurance company and the owner have not filed any appeal against the impugned Judgment & Award passed by the Tribunal.
9. This Court while admitting the appeal on 19.6.2019, has framed the following substantial questions of law:
i) Whether the Commissioner for Employees’ Compensation/Tribunal is justified in awarding compensation of Rs.40,416/- with interest at 9% per annum in view of the provisions of Section 4A(3)(a) of the Employee’s Compensation Act, 1923 ?
ii) Whether the Commissioner for Employee’s Compensation/Tribunal is justified in taking monthly wages of the claimant at Rs.4,000/- which is against the material on record?
10. I have heard the learned counsel for the parties to the lis.
11. Sri Spoorthy Hegde, learned counsel for the appellant - claimant contended that admittedly the accident occurred on 25.12.2009 and the Tribunal proceeded to award interest at the rate of 9% on the compensation amount instead of 12%. It is contrary to the provisions of Section 4A(3)(a) of the Employee’s Compensation Act, 1923 (‘the Act’ for short). He further contended that the doctor who examined the claimant has stated on oath that for a particular limb, the claimant has suffered 34% disability and if it is compared to the whole body, it will reduce by 5 to 10 %. But, the Tribunal has computed the compensation taking the disability at 11%. Therefore, he sought to allow the Miscellaneous First Appeal by enhancing the compensation awarded by the Tribunal.
12. Sri Ravish Benni, learned counsel for the respondent – Insurance company sought to justify the impugned Judgment & Award passed by the Tribunal and contended that in the absence of any material produced, the Tribunal taking into consideration the evidence adduced by the doctor – PW.2 and other aspects, has rightly assessed the loss of earning capacity at 11% and also rightly awarded 9% interest on the compensation amount and therefore sought to dismiss the appeal.
13. Having heard the learned counsel for the parties, it is an undisputed fact that the appellant - claimant was working as loader and unloader in the Tractor-Trailer bearing Regn. No.KA-16-TA-284-285 under the present 2nd respondent. The occurrence of the accident is not in dispute. The same is evidenced by the material documents – Ex.P1 to Ex.P13. The relationship between the present respondent No.2 and appellant – claimant as employer and employee is also not in dispute.
14. It is also not in dispute that the Tribunal while awarding compensation has proceeded to award interest at 9% per annum. The same is contrary to the provisions of Section 4A(3)(a) of the Act. Therefore, the appellant – claimant is entitled to interest at 12% per annum, after one month from the date of accident.
15. The claimant examined the doctor as PW.2, who has stated on oath that for a particular limb, the claimant has suffered 34% disability and if it is compared to the whole body, it will reduce by 5 to 10%. Taking into consideration the material evidence of PW.2 – doctor and in view of the provisions of section 4(1)(c)(ii) of the Act, this Court is of the opinion that loss of earning capacity has to be assessed at 15% in the interest of justice.
16. The appellant – claimant was getting monthly wages of Rs.4,000/-. The same is not disputed by either of the parties. As per the provisions of Section 4(1)(b) of the Act, 60% of the monthly wages has to be taken for assessment of compensation in an injury case. The relevant factor applicable to age of the claimant is 153.09.
17. Taking into consideration the above aspects, the appellant – claimant is entitled for compensation of Rs.55,512/- {Rs.4,000/- x 60% x 15% x 153.09}.
18. For the reasons stated above, the 1st substantial question of law raised in the present appeal has to be answered in the negative holding that the Tribunal is not justified in awarding interest at the rate of 9% on the compensation amount and the appellant – claimant is entitled to interest at the rate of 12% as contemplated under the provisions of Section 4A(3)(a) of the Act. The 2nd substantial question of law is answered in the affirmative holding that the Tribunal is justified in taking the monthly wages at 4,000/-.
In view of the aforesaid reasons, the Miscellaneous First Appeal is allowed in part. The impugned Judgment & Award passed by the Commissioner for Employee’s Compensation/Tribunal is modified and the appellant – claimant is entitled to total compensation of Rs.55,112/- (Rupees fifty-five thousand one hundred and twelve only) with interest at 12% per annum after one month from the date of the accident.
Ordered accordingly.
Sd/- JUDGE Gss/-