IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA M.F.A.No.859/2016 (WC) BETWEEN:
BORAIAH @ B.BORAIAH, S/O VEERA NAIKA @ BORAIAH, AGED ABOUT 27 YEARS, R/O VODHYANAGAR, CHITRADURGA, CHITRADURGA TQ & DISTRICT-577 501. … APPELLANT (BY SRI M.G. KANTHARAJAPPA, ADVOCATE) AND:
1. H.R.SURESH S/O LATE H.K. REVANASIDDAPPA AGE MAJOR, OWNER OF LORRY BEARING NO.KA-16/A-5377. R/O NO.7, TARALABALU NAGAR, TAMATAKAL ROAD, CHITRADURGA TQ & DIST. CHITRADURGA – 577 501.
2. THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO, LTD., DIVISIONAL OFFICE, ENKAY COMPLEX, KESHAVAPUR, HUBLI – 580 020.
… RESPONDENTS (BY SRI H.S.LINGARAJU, ADVOCATE FOR R-2, R-1 SERVED AND UNREPRESENTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) IF WORKMEN COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED:3.7.2015 PASSED IN ECA NO.223/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL CFEC-III, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The present appeal is filed by the claimant against the judgment and award dated 03.07.2015 passed by the Commissioner for Workmen’s Compensation/Senior Civil Judge, Chitradurga, in ECA No.223/2014 awarding total compensation of Rs.96,900/- along with interest at 9% per annum from the date of petition till the date of deposit.
2. The claimant filed the claim petition claiming compensation mainly on the ground that he was working as Hamali (loader and un-loader) under respondent No.1, who was the owner of lorry bearing registration No.KA- 16/A-5377 and he was earning monthly wages of Rs.3,000/- along with bata of Rs.50/- per day and that on instructions of respondent No.1, owner of the lorry, on 23.06.2008, he being Hamali along with the cleaner were moving in the said lorry after loading empty bags from Bengaluru in order to reach Chitradurga and when the said lorry was proceeding on Nandihalli bridge at about 5.00 p.m., the driver of the lorry drove the same in a rash and negligent manner and toppled down the same on the left side of the road. As a result, the claimant and the cleaner sustained grievous injuries. The claimant suffered fracture of lower end of radius and left calcanium and other injuries all over his body. Immediately, he was shifted to PHC, Kyathasandra for first aid treatment and thereafter to Major Hospital, Davanagere and he was inpatient for 10 days. The X-ray confirmed the fractures and treated the same by applying POP. In spite of better treatment by Orthopaedic surgeon, the claimant suffered permanent disability. Due to impact of the accidental injuries, claimant is having permanent disability and is unable to attend to his avocation as hamali as prior to the accident.
3. The accident occurred due to rash and negligent act of the driver of the lorry during the course of employment under respondent No.1. Respondent No.1 is the owner and respondent No.2 is the insurer. Both are liable to pay compensation. Respondent No.1 owner of the vehicle was placed exparte. Respondent No.2 filed objections denying the averments made in the claim petition and contending that the 1st respondent – owner of the vehicle has violated the terms and conditions of the insurance policy and that the claimant has not at all suffered any disability due to accident and therefore, the compensation claimed is exorbitant and that the liability, if any, on the insurance company is subject to terms and conditions of insurance policy. The monthly wages as claimed by the claimant was also denied and sought for dismissal of the claim petition.
4. Based on the aforesaid rival contentions, the Tribunal framed following issues:
(i) Whether the petitioner prove that he has sustained injuries in the R.T.A. occurred on 23.06.2008 at about 5.00 p.m. near Nandhihalli bridge, during the course of his employment under respondent No.1 while working as hamali of lorry bearing registration No.KA-16/A-5377?
(ii) Whether the petitioner is entitled for compensation, if so, how much and from whom?
(iii) What order or award?
5. In support of his case, claimant examined himself as P.W.1 and the Doctor as P.W.3 and produced Exs.P1 to P7. The respondent – Insurance Company has not led any evidence.
6. The Tribunal, considering both oral and documentary evidence, recorded a finding that the claimant proved that he has sustained grievous injuries as stated in the wound certificate in the road traffic accident occurred on 23.06.2018 during the course of his employment as hamali under 1st respondent. Accordingly, the Tribunal by the impugned judgment and award awarded Rs.96,900/- as compensation along with interest at 9% p.a. from the date of petition till realization.
Hence, the present appeal is filed by the claimant seeking enhancement.
7. The Insurance Company has not filed any appeal against the judgment and award passed by the Tribunal.
8. This Court while admitting the appeal framed the following substantial questions of law:
i) Whether the Commissioner for Workmen’s Compensation/Tribunal is justified in taking the monthly wages of the claimant at Rs.3,000/- when the accident has occurred on 23.06.2008 in view of the provisions of Section 4(1) Explanation (II) of Workmen’s Compensation Act, 1923?
ii) Whether the Commissioner for Workmen’s Compensation/Tribunal is justified in awarding interest on the compensation amount at 9% in view of the provisions of Section 4A(3)(a) of the Workmen’s Compensation Act, 1923?
9. I have heard Sri M.G.Kantharajappa, learned counsel for the appellant and Sri H.S.Lingaraju, learned counsel for the respondent – Insurance Company and perused the records.
10. Learned counsel for the appellant mainly contended that the claimant was working as hamali under respondent No.1 and respondent No.1 was paying Rs.3,000/- as monthly wages along with bata of Rs.50/- per day, but the Tribunal has taken the monthly wages at Rs.3,000/- ignoring the provisions of Section 4(1) Explanation (II) of Workmen Compensation Act, wherein Rs.4,000/- is specified as monthly wages. He would further contend that though admittedly accident has occurred on 23.06.2008, the Tribunal erred in awarding interest at 9% p.a. on the compensation amount ignoring the provisions of Section 4A(3)(a) of the Workmen’s Compensation Act. Therefore, he sought for allowing the appeal.
11. Per contra, learned counsel for respondent No.2 – Insurance Company sought to justify the impugned judgment and award contending that the claimant has not produced any material document to prove that he was earning Rs.4,000/- as on the date of accident. In the absence of any material document, the Tribunal is justified in taking the monthly wages at Rs.3,000/- and also justified in awarding the interest on compensation. Therefore, he sought for dismissal of the appeal.
12. Having heard the learned counsel for the parties, it is not disputed that that the claimant was working as hamali under respondent No.1 in the lorry bearing registration No.KA- 16/A-5377 and the accident occurred arising out of and during the course of employment on 23.06.2008 on account of rash and negligent driving of the lorry. The same is evident from the material documents Exs.P1 to P7. It is the specific case of the claimant that he was earning Rs.3,000/- along with batta of Rs.50/-. Except denial, the insurance company has not produced any contra evidence or any contra material. Admittedly, the accident occurred on 23.06.2008. In view of the provisions of Section 4(1) Explanation II of the Workmen Compensation Act, 1923, the Tribunal ought to have taken wages of the claimant at `4,000/- instead of `3,000/-. It is also not in dispute that while awarding compensation, the Tribunal proceeded to award 9% interest instead of 12%, ignoring the provisions of Section 4A(3)(a) of the Workmen’s Compensation Act, 1923, wherein the said provision stipulates 12% interest on the award amount. In the absence of any contra evidence or contra material produced by the Insurance Company, the monthly wages of the claimant can be taken as `4,000/-.
13. If we take the monthly wages of the claimant at `4,000/-, taking 60% of the said monthly wages, in view of Section 4(1)(b) of the Workmen’s Compensation Act, 1923, applying the relevant factor 215.28, since the claimant is aged 26 years, claimant is entitled to compensation of `5,16,672/- (`2,400/-x215.28). Since the doctor examined as P.W.3 has stated on oath that the loss of earning capacity is 25%, the claimant is entitled to 25% of `5,16,672. Accordingly, `1,29,168/- would be the compensation.
14. In view of the above, the substantial question of law has to be held in the negative holding that the Tribunal is not justified in taking monthly wages of the claimant at `3,000/- and not justified in awarding interest at 9% on the award amount.
15. In view of the aforesaid reasons, Miscellaneous First Appeal filed by the claimant is allowed in part. The impugned judgment and award is modified awarding total compensation of `1,29,168/- with interest at 12% per annum, after one month from the date of the accident.
Ordered accordingly.
Sd/- JUDGE PKS kcm