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.4264/2016(WC) BETWEEN:
ABDUL RASHEED @ SHAIK ABDUL RASHEED, AGED ABOUT 42 YEARS, S/O AMEER JAN R/A SHAREIF STREET CHIKKAMAGALURU-577 101 ...APPELLANT (BY SRI SATISH R. GIRJI, ADVOCATE) AND:
1 . M. SHOUKATH ALI MAJOR, S/O LATE C.A. MOHAMMED HUSSAIN, R.C.OWNER OF LORRY No. KA-18-7884, R/AT 3RD CROSS, PENSION MOHALLA, CHIKKAMAGALURU-577 101 2 . THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LTD., THOGARIHANKAL CIRCLE, K M ROAD, CHIKKAMAGALURU-577 101 (POLICEY NO.070500/31/07/01/00024245) …RESPONDENTS (BY SMT. H.C. LOKESHWARI, ADVOCATE FOR SRI A. RAVISHANKAR, ADVOCATE FOR R2; R1 SERVED AND UNREPRESENTED) …..
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF WORKMEN COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED 4.2.2016 PASSED IN ECA No.93/2014 ON THE FILE OF THE PRINCIPAL SENIOR JUDGE, CJM, CHIKKAMAGALURU, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND FURTHER SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant filed the present Miscellaneous First Appeal, against the judgment and award dated 04.02.2016 made in E.C.A.No.93/2014 passed by the Commissioner for Workmen’s Compensation/Prl. Senior Civil Judge and CJM, Chikkamagaluru, awarding total compensation of `2,68,464/- with interest at 12% per annum after expiry of 30 days of the accident till the date of payment.
2. It is the case of the claimant that, he was working under the first respondent as driver and sustained injuries in the accident that occurred on 07.06.2006, arising out of during the course of employment and he was shifted to Government Hospital, Chikkamagaluru, wherein, he took treatment as inpatient. He was earning wages of `6,000/- per month. Therefore, he filed the claim petition.
3. The owner was placed ex-parte before the Tribunal. The insurance company filed objections and denied the age, wage and relationship of employer and employee. However, admitted that the insurance policy was in force as on the date of the accident. He denied the liability and contended that it can be determined as per the terms of the policy and therefore, sought for dismissal of the claim petition.
4. Based on the aforesaid contentions, the Tribunal framed the following issues:
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5. In order to prove his case, the claimant examined himself as P.W.1, one Dr. Venkatesh as P.W.2 and got marked ten documents as Exs.P.1 to P.13. The respondent No.2 did not chose to lead evidence, but marked the insurance policy as Ex.R.1, with consent.
6. The Tribunal, considering both oral and documentary evidence on record, recorded a finding that the claimant has proved that he was working under the first respondent and the accident occurred arising out of and during the course of employment, and further proved that he was earning monthly wages of `5,000/-. Accordingly, awarded total compensation of `2,68,464/- with interest at 12% per annum. Hence, the present Miscellaneous First Appeal is filed by the claimant for enhancement of compensation.
7. The Insurance Company has not filed any appeal against the impugned judgment and award.
8. This Court, while admitting the appeal on 11.09.2019, framed the following substantial question of law:
“Whether the Tribunal is justified in assessing the disability of the claimant at 56% when the P.W.2-Doctor stated on oath that the claimant is suffering from disability at 56.98%, in view of the provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act, 1923?”
9. Sri Satish R. Girji, learned counsel for the appellant, reiterating the grounds urged in the memorandum of Miscellaneous First Appeal, contended that when P.W.2-Doctor stated on oath that the claimant had suffered disability at 56.98%, proceeded to take the disability/loss of earning capacity at 56%, contrary to the provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act, 1923. Therefore, he sought to allow the Miscellaneous First Appeal.
10. Per contra, Smt.H.C.Lokeshwari, learned counsel for Sri A.Ravishankar, learned counsel for respondent No.2 sought to justify the impugned judgment and award and contended that the disability certificate- Ex.P.11 issued by the doctor-P.W.2 clearly depicts that the claimant has suffered permanent disability at 55% to 56%. Therefore, the Tribunal is justified in taking the disability at 56% and therefore, sought to dismiss the Miscellaneous First Appeal.
11. Having heard the learned counsel for the parties, the relationship of employer and employee is not in dispute and the accident occurred arising out of and during the course of the employment. The only dispute is with regard to loss of earning capacity of the claimant. According to the claimant-P.W.1, he has suffered permanent disability at 56.98% and in support of his contention, he has examined the doctor as P.W.2 who has stated on oath that the claimant has suffered disability at 56.98%. According to the 2nd respondent- insurer, the Tribunal is justified in taking the disability at 56%, since the disability certificate marked as Ex.P.11 depicts permanent disability of the claimant at 55 to 56%.
12. The provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act, 1923, reads as under:
“Where permanent partial disablement result from the injury, in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.”
13. A careful reading of the said provision makes it clear that, ‘where permanent partial disablement results from the injury, in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.
14. In view of the above, when a qualified medical practitioner examined as P.W.2 has stated on oath that the claimant has suffered 56.98% disability, the same has to be considered, in view of the aforesaid mandatory provision. However, there is no dispute with regard to age and monthly wages of the claimant.
15. For the reasons stated above, the substantial question of law framed for consideration has to be answered in the negative holding that the Tribunal is not justified in assessing the loss of earning capacity/disability at 56%, ignoring the evidence of P.W.2 and the provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act.
16. Thus, taking the monthly wages of the claimant at `5,000/-, as per Section 4(1)(b) of the Employee’s Compensation Act, 1923, taking 60% of the said income and applying the relevant factor159.80, the compensation would be `4,79,400/- (`3,000x159.80) Since the doctor has assessed the permanent disability at 56.98%, the claimant is entitled to compensation of `2,73,162/-(`4,79,400x56.98%) as against `2,68,464/- awarded by the Tribunal.
17. For the reasons stated above, the Miscellaneous First Appeal is allowed in part. The impugned judgment and award is modified awarding total compensation of `2,73,162/- with interest at 12% per annum after one month from the date of the accident.
Sd/- JUDGE kcm