IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL MFA No.10559/2010 (MV) C/W MFA No.10558/2010 (MV) In MFA No.10559/2010 (MV) BETWEEN:
Bajaj Allianz General Insurance Co. Ltd., No.105A/107A, Cears Plaza, 136, Residency Road, Bangalore-25, Now situated at Bajaj Allianz General Insurance Co. Ltd., No.31, Ground Floor, TBR Tower, I Cross, New Mission Road, Adjacent to Jain College & Bangalore Stock Exchange, Bangalore-560 027.
(By Sri A.N.Krishna Swamy, Advocate) AND:
1. Raja S/o Pichhamuthu Now aged about 33 years R/o Negali Priyankanagara K.R.Puram, Bangalore.
…Appellant 2. G.D.Nagavasudha D/o G.S.Deepak, Major, Owner of Lorry R/o No.21, Venkateshwara Naidu Road, Tusker Town, Bangalore-560 051.
(By Sri Suresh M. Latur, Advocate for R1; Sri Venkatesha C., Advocate for Sri S. Chennaraya Reddy, Advocate for R2) …Respondents This MFA is filed under Section 30(1) of Workmen’s Compensation Act against the judgment dated 18.08.2010 passed in CWC/NFC/CR-46/2007 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Sub-Division-3, Bangalore, awarding a compensation of Rs.1,49,745/-.
In MFA No.10558/2010 (MV) BETWEEN:
Bajaj Allianz General Insurance Co. Ltd., No.105A/107A, Cears Plaza, 136, Residency Road, Bangalore-25, Now situated at Bajaj Allianz General Insurance Co. Ltd., No.31, Ground Floor, TBR Tower, I Cross, New Mission Road, Adjacent to Jain College & Bangalore Stock Exchange, Bangalore-560 027.
(By Sri A.N.Krishna Swamy, Advocate) …Appellant AND:
1. Alappan S/o Setu Now aged about 33 years Coolie, R/o C/o R. Mathiyazhagan S/o Raja Manickam Mariamma Koil Street, Arumpattu Post, Ulundurpet Tq., Vallipuram District Tamilnadu State.
2. G.D.Nagavasudha D/o G.S.Deepak, Major, Owner of Lorry R/o No.21, Venkateshwara Naidu Road, Tusker Town, Bangalore-560 051.
(By Sri Suresh M. Latur, Advocate for R1; Sri Venkatesha C., Advocate for Sri S. Chennaraya Reddy, Advocate for R2) …Respondents This MFA is filed under Section 30(1) of Workmen’s Compensation Act against the judgment dated 18.08.2010 passed in CWC/NFC/CR-42/2007 on the file of the Labour Officer and Commissioner for Workmen’s Compensation, Sub-Division-3, Bangalore, awarding a compensation of Rs.1,83,708/-.
These MFAs coming on for further hearing this day, the Court delivered the following:-
JUDGMENT The appellant-insurer being aggrieved by the common order passed by Workmen’s Compensation Commissioner, Sub-Division-3, Bengaluru, in CWC/NFC/CR-46 and 42/2007 dated 18.08.2010 is before this Court.
2. By order dated 18.8.2010 the Commissioner of Workmen’s Compensation has awarded an amount of Rs.1,49,745/- in NFC/CR No.46/2007 and an amount of Rs.1,83,708/- in NFC/CR.42/2007. The relationship and other consideration in the case is not in dispute. It is also not in dispute that both the claimants were working as a coolie on 1.9.2007 in a Canter vehicle and it met with an accident and in the said accident they have suffered with injuries.
3. The only point which has been raised for consideration of this Court by the learned counsel for the appellant-insurer is that the order of the Workmen’s Compensation Commissioner is a stereo type order and by transgressing or breaking the medical evidence took his own view and taken the disability to the whole body at 30% and 50% respectively though the doctor came to be examined and assessed the disability to the whole body at 8% and 11% respectively. He further submitted that the Commissioner while answering issue Nos.1 and 2 has committed a serious glaring error and has passed the impugned order. On these grounds he prayed to allow the appeals and to set aside the impugned orders.
4. Per contra, the learned counsel for the respondents/claimants vehemently argued and contended that claimant in MFA No.10559/2010 has suffered with lacerated wound over left parietal region, abrasion over right cheek, lacerated wound over left, and claimant in MFA No.10558/2019 has suffered abrasion over left forearm, abrasion over left knee joint and tenderness over left knee joint and the doctor after assessing the disability though has given the disability at 8% and 11%, further in his evidence he has deposed that the claimants are unable to do the coolie work or any other work. Keeping in view the said fact and as the claimants were present before the Court, by looking into the physical condition of the claimants, the Court below took the disability at the rate of 30% and 50% respectively and has awarded reasonable compensation. It is his further contention that the Workmen’s Compensation Commissioner having regard to the evidence led before him has given a finding on the nature of injury and percentage of disability. It is a pure question of fact and this Court cannot interfere with the said order. If it is a question of law, then under such circumstances the present appeals are maintainable, otherwise in view of the law laid down are liable to be dismissed. In order to substantiate his argument he has relied upon the decision in the case of Golla Rajanna and others Vs. Divisional Manager, United India Insurance Co. Ltd and another reported in 2017 ACJ 1.
It is his further submission that the interest which has been awarded is on the lower side. Actually, the interest ought to have been awarded at the rate of 12%. That fact has also not been kept into view while passing the impugned award. In that light, he prays to dismiss the appeals.
5. The learned counsel for the respondent No.2-owner of the vehicle by substantiating the arguments of the learned counsel for the respondents-claimants prays to dismiss the appeals.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the lower court records.
7. The substantial question of law which arises for consideration of this Court is;
“Whether the loss of earning capacity assessed to the extent of 30% & 50% by the Commissioner while awarding the compensation is justifiable?’ 8. I have carefully and cautiously gone through the evidence of the claimants and the doctor who came to be examined in both the cases as PW2. In the evidence of the claimant/PW1-Raja in MFA No.10559/2010 and Alappan in MFA No.10558/2019 it is alleged that because of accidental injuries they are suffering from severe pain and swelling in the left hand, they cannot do any work with the left hand and they cannot hold or lift any thing from the left hand and they cannot fold left hand easily. The power of left hand is reduced, they cannot hold with left hand easily and the movement of the left hand is restricted and facing difficulty in doing domestic work such as bathing, wearing clothes etc., and hence they became disabled.
9. The doctor who came to be examined as PW2 in his evidence has narrated about the injuries and other aspects and after referring to various guidelines has opined that the claimant in MFA No.10559/2010 is having disability of 24% of left upper limb and 8% to the whole body. In MFA No.10558/2010 the doctor has assessed the disability of 33% of left upper limb and 11% to the whole body and he has deposed that with these disabilities claimants cannot work as coolie in lorry and cannot do any other manual work. In that light, the Tribunal by taking 30% loss of earning capacity and after applying the relevant factor 207.98 has awarded compensation of Rs.1,49,745/- in MFA No.10559/2010 and by taking disability of 50% and relevant factor 153.09 has awarded compensation of Rs.1,83,708/- in MFA No.10558/2010. When the doctor himself has calculated the total disability or whole body disability of the claimants to the extent of 8% and 11%, then under such circumstances, the tribunal ought not to have assessed the disability at 30% and 50% and awarded the compensation. That itself clearly goes to show that by transgressing or breaking the medical evidence and without any basis the Tribunal has awarded the compensation on the higher side. Though this Court took into consideration the fact that the left hand of the claimants is not properly used and some deficiencies are there, keeping in view the fact that the said evidence has not properly brought before the Tribunal while assessing the disability with other material, this Court is of the opinion that the doctor has assessed the disability of 8% and 11% to the whole body. If 12% and 15% disability is taken and if the compensation is re-assessed, then it is going to meet the ends of justice. In that light by taking the income at the rate of Rs.4,000/- per month and 60% of the same is Rs.2,400x153.09x15% it comes to Rs.55,112.4 in MFA No.10558/2010.
10. In MFA No.10559/2010 also the doctor has assessed the disability to the extent of 8%, but the Tribunal without considering the evidence by taking 30% and by applying the factor of 207.98 has awarded the compensation of Rs.1,49,745/-. As discussed above, the Tribunal without any basis and without considering the evidence of the doctor, has erroneously passed the impugned order. In that light and in the light of the evidence led by the claimant that he is not in a position to work properly, for disability instead of 8% it has been taken as 12% and by applying the factor of 207.98 by taking the income at the rate of Rs.4,000/- per month and 60% of the same comes to Rs.2,400/- and after multiplying the same the claimant is entitled to compensation of Rs.59,898/- (2400x207.98x12%).
11. I have carefully and cautiously gone through the order of the Tribunal. The Tribunal has awarded interest at the rate of 7%, that appears to be not correct. The interest ought to have been awarded at the rate of 12% per annum from one month from the date of accident to till the date of deposit.
12. In that light, the learned counsel for the appellant submitted that he has already deposited the entire compensation amount before this Court and he further submitted that the said amount has been kept in deposit. In that light, the Registry is directed to calculate the interest at the rate of 12% one month from the date of the accident till the date of deposit and thereafter on the said amount whatever the interest which has been calculated proportionately is ordered to be disbursed to the claimants on proper identification and acknowledgement.
The Registry is also directed to refund the remaining amount in deposit to the appellant-insurer on proper identification and acknowledgement.
The appeals are allowed in part and award of the Commissioner is modified as indicated above.
Sd/- JUDGE *AP/-