IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA MISCELLANEOUS FIRST APPEAL NO.1875/2017 (WC) BETWEEN:
ABDUL MALIK S/O. MOHAMMED HUSSAIN AGED ABOUT 35 YEARS, R/O. MEL SHIROOR KUNDAPURA TALUK PIN CODE – 576 228 (BY SRI SANDESH SHETTY T., ADV.) AND:
1. MOHAMMED IBRAHIM S/O. MOHAMMED SULAIMAN AGED ABOUT 53 YEARS R/O. BUSTASN E. KAUSAR NEAR TANZEEM SIDDIQUE STREET BATKAL TALUK – 581 320 2. THE NEW INDIA ASSURANCE CO LTD BRANCH OFFICE PUSHPA BUILDING KUNDAPURA – 576 201 REP. BY ITS MANAGER ... APPELLANT (BY SRI K. P. THRIMURTHY, ADV. FOR SRI R. RAJAGOPALAN, ADV. FOR R2 R1 IS SERVED BUT UNREPRESENTED) ... RESPONDENTS THIS MFA IS FILED UNDER SECTION U/S.30(1) OF THE EMPLOYEES’ COMPENSATION ACT, 1923, AGAINST THE JUDGMENT AND AWARD DT.23.08.2016 PASSED IN ECA NO.7/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION ETC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the matter is listed for admission, with the consent of learned counsel for both parties, it is taken up for final disposal.
2. The appellant – claimant has filed the present miscellaneous first appeal against the judgment and award dated 23.08.2016 made in ECA.No.7/2014 on the file of the Senior Civil Judge, Kundapura, (hereinafter referred to as ‘the Tribunal’ for brevity) awarding total compensation of Rs.85,130/- with interest at 12% per annum one month from the date of accident till realisation.
3. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.
4. It is the case of the appellant – claimant that on 25.12.2008, at about 12 hours, when he was driving a Autorickshaw bearing registration No.KA-30-5488 during the course of his employment as driver under respondent No.1, when he reached near Vaibhav Lodge, NH-17, Bhatkal, said Autorickshaw met with an accident. Due to the said impact, the claimant sustained grievous injuries. Immediately, he was shifted to Government Hospital, Bhatkal. Later on, he was shifted to Chinmayi Hospital, Kundapura and thereafter, he was shifted to City Hospital, Mangalore for better treatment. He was admitted as inpatient and surgery has been conducted. He has spent Rs.1,50,000/- towards medical expenses. The accident has arisen out of and during the course of employment under respondent No.1. He was earning Rs.5,000/- per month and Rs.50/- as Batta per day. Therefore, he contended that the respondent Nos.1 and 2 are the owner and insurer respectively, and are liable to pay the compensation jointly and severally. Hence, he sought for compensation by filing the claim petition.
5. In response to the notice, respondent No.1 remained absent and he was placed exparte. Later on, when the case was transferred, respondent No.1 – the owner of the Autorickshaw has appeared, but not filed any written statement.
6. Respondent No.2 – insurance company appeared and filed written statement denied the averments made in the claim petition and contended that, there is no employer and employee relationship between the claimant and respondent No.1. It has also denied the accident and injuries sustained by the claimant in the accident arising out of and during the course of employment under respondent No.1. It is further contended that there is no liability on respondent No.1 to pay the compensation under the provisions of the Act. It is also contended that the claimant has filed police complaint on 12.02.2009 by giving some false information and there is delay of 48 days in filing the said complaint. It also denied the age, avocation and monthly wages of the claimant. Hence, sought for dismissal of the claim petition.
7. Based on the pleadings, the Tribunal framed the following issues:
“1. Whether the petitioner proves that he was an employee under Workmen’s Compensation Act?
2. Whether the petitioner proves that petitioner sustained injuries during the course of employment under 1st respondent as a driver in Auto Rickshaw bearing Reg.No.KA-30-5488 in the alleged accident?
3. Whether the petitioner proves that how much salary he is getting per month from respondent No.1 and what is the age of the petitioner on the date of the accident?
4. Whether the petitioner proves that he has suffered loss of future earning capacity due to the accidental injuries?
5. What Order or Award?
8. In order to establish the case, the claimant examined himself as PW.1, the doctor who treated him as PW.2 and employer of the claimant as PWs.2 and 3 respectively and marked documents as Exs.P.1 to P.11.
On the other side, the insurance company neither examined any witness nor marked any documents.
9. The Tribunal after considering both oral and documentary evidence on record has recorded the finding that the claimant has proved that the road traffic accident has occurred on 25.12.2008, arising out and during the course of his employment under respondent No.1 sustained injuries and thus, the claimant is entitled for compensation. Accordingly, the tribunal by the impugned judgment and award dated 23.08.2016 awarded total compensation of Rs.85,130/- with 12% interest per annum one month from the date of the accident till realisation. Being aggrieved by the same, the claimant – appellant has filed the present appeal for enhancement of compensation.
10. The Insurance Company has not filed any appeal against the impugned judgment and award passed by the tribunal.
11. I have heard the learned counsel for the parties to the lis.
12. Sri Sandesh Shetty T., learned counsel for the appellant – claimant contended that in view of the accident the claimant has sustained lacerated wound of 5 cms. In size below left clavicle, fracture of left clavicle, fracture of scapula and fracture of left ribs and other serious injuries. The doctor who examined PW.1 – the claimant has stated on oath that the claimant has suffered 10% disability to the left chest, 18% to the left hand and 18% to the whole body. The tribunal has assessed only 18% disability to the whole body which is contrary to the provisions of Section 4(1)(c)(ii) of the Act and also the evidence of the doctor – PW.2 and proceeded to award compensation. Hence, he sought to allow the appeal filed by the claimant by enhancing the compensation as prayed for.
13. Per contra, Sri K.P.Thrimurthy, learned counsel for respondent No.2 - insurer sought to justify the impugned judgment and award and contended that as per the oral and documentary evidence produced before the tribunal, the disability taken by the tribunal at 18% to the whole body is just and proper and do not call for interference under Section 30 of the Act. Hence, he sought to dismiss the appeal.
14. This Court while admitting the appeal framed the following substantial question for its consideration:
“1. Whether the Tribunal is justified in taking the disability of the claimant at 18% in view of categorical evidence of PW.2 – doctor and in view of the provisions of Section 4(1)(c)(ii) of the Employees’ Compensation Act, 1923?”
15. Having heard the learned counsel for the parties, it is undisputed fact that the claimant who was working under respondent No.1 as driver of the Auto Rickshaw bearing registration No.KA-30-5488 sustained following injuries in the accident that occurred on 25.12.2008 at about 12.00 hours, arising out of and during the course of employment under the respondent No.1:
a. Lacerated wound of 5 cms. X 1 cm. over the chin, graze wound of 5 x 5 cms. In size below left clavicle, b. Fracture of left clavicle, c. Fracture of scapula d. Fracture of left ribs.
The accident which occurred on 25.12.2008 is evidenced from the material documents - Exs.P.2 to P.11. It is the specific case of the claimant – PW.1 that he was earning monthly wages of Rs.5,000/- p.m. and Rs.50/- as batta. Due to the accident, he cannot walk and he perform the work as he was doing before the accident. He has suffered permanent disability due to fractures sustained by him.
16. PW.2, the doctor who treated the claimant has stated on oath that the claimant suffered 10% disability to left chest permanently and has issued disability certificate to that effect and has also stated that the claimant has suffered fractures and due to which he is suffering 18% disability to the whole body. The evidence of the doctor is not been disputed, no cross-examination is made to that effect and no contrary evidence is produced to discard the same. Ex.P.6 is the disability certificate issued by the doctor. Taking into consideration that the claimant suffered four fractures, 10% disability to the left chest and 18% to the left hand and the age 35 years as on the date of the accident, the tribunal ought to have taken the disability at 25% to the whole body as per the provisions of Section 4(1)(c)(ii) of the Act instead of 18%. Therefore, if Rs.4,000/- is taken as monthly wages and 60% is considered out of Rs.4,000/- the net wages comes to Rs.2,400/- and relevant factor is 197.06, the compensation towards disability comes to Rs.1,18,236/- as against Rs.85,130/- awarded by the tribunal.
17. For the reasons stated above, the substantial question of law framed in the present appeal has to be answered in the negative, holding that the tribunal is not justified in taking the disability only at 18% as stated supra but is entitled for 25% disability. Accordingly, the judgment and award passed by the tribunal in ECA.No.7/2014 dated 23.08.2016 passed by the Senior Civil Judge, Kundapura, is modified and the claimant is entitled for the compensation is as under:
Compensation as per Section 4(1)(b) Rs.1,18,236/- (Rs.2,400/- x 197.06 x 25%) The claimant is entitled to Rs.1,18,236/- as against Rs.85,129/- awarded by the Tribunal, with interest at the rate of 12% per annum after one month from the date of accident till realization excluding the interest for the delayed period caused in filing the present appeal.
18. The enhanced compensation shall be disbursed to the claimant in terms of the judgment and award passed by the tribunal forthwith.
Sd/- JUDGE nvj