IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A. NO.6317/2010 (MVC) BETWEEN;
Divisional Manager, United India Insurance Co. Ltd., Divisional Office, # 34/3, M.M.K. Complex, Akkamahadevi Road, P.J. Extension, Davanagere-577 002. ... Appellant (By Sri. A.N. Krishna Swamy, Adv.) AND:
1. Nagaraj, S/o Gadrappa, Age: Major, R/of Siddapura, Chitraduring Taluk, Davanagere District.
2. Santhosh, S/o Kubendrappa, Major, Owner of Autorickshaw, R/of Near Kalikamba Temple, Kelagote, Chitradurga Town. ... Respondents (By Sri. Harish for B.M. Siddappa, advs. for R1, R2 Notice dispensed with v/o Dated 28.04.2016) This MFA is filed u/s 30(1) of WC Act against the judgment dated 06.05.2010 passed in WCA/NF/CR- 160/2008 on the file of the Labour Officer and Commissioner for Workmen Compensation, Chitradurga District, Chitradurga awarding a compensation of Rs.1,10,208/-
This appeal coming on for Admission, this day, the Court delivered the following:-
J U D G M E N T The insurer of offending vehicle has preferred this appeal, seeking reduction of compensation awarded by the Tribunal.
2. I have heard Sri. A.N. Krishna Swamy, learned counsel appearing for the appellant/insurer and Sri. Harish for B.M. Siddappa, learned counsel appearing for respondent No.1/claimant. Notice to respondent No.2 was dispensed with. Perused the judgment and award passed by the Commissioner for Workmen’s compensation.
3. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 27.05.2008 due to rash and negligent driving of an Autorickshaw bearing registration No.KA-16/A-5063 by its driver and liability of the insurer of the said Autorickshaw, the substantial questions of law arise for consideration in the appeal are:
1) “Whether the compensation awarded by the Commissioner for Workmen’s compensation is just and reasonable or does it call for reduction?”
2) Whether interest at 6% p.a awarded by the Commissioner is just and reasonable or does it call for modification?
4. Sri. A.N. Krishna Swamy learned counsel appearing for appellant/insurer submits claimant had sustained simple injury of medial malleolus to his left leg and fracture of Cyalcanium. The Doctor has not stated disability regarding loss of earning capacity of the claimant. He further submits that claimant who was working as an Autorickshaw driver prior to the accident, neither has surrendered his license nor he got it cancelled. Therefore Commissioner was not justified in awarding Rs.1,10,208/- towards loss of earning by taking loss of earning capacity at 25%.
5. Sri. Harish for B.M. Siddappa learned counsel appearing for claimant submits, claimant after sustaining injuries in the accident is not in a position to continue his job as an Autorickshaw driver and he has suffered 100% loss of earning capacity. Therefore he submits the compensation awarded by the Commissioner towards loss of earning by taking the disability at 25% is just and proper. There is no scope for reduction and he prays for dismissal of the appeal.
6. In the accident, claimant had sustained fracture of medial malleolus to his left leg and fracture of Cyalcanium. He was treated with POP as in-patient from 29.05.2008 to 11.06.2008 and continued the treatment as out-patient for another 15 days. Dr. Ambreeshan an ENT specialist has stated that claimant is suffering a lot and has stated before the Commissioner that claimant cannot climb steps and sit by folding legs and cannot walk and do his routine work and cannot do work as he was doing prior to the accident. He has stated claimant is suffering disability of 40% towards limb. The doctor has not stated as to the functional disability. However the Commissioner who had an opportunity to see the condition of the claimant and considering the evidence of the Doctor has taken the functional disability at 25%.
7. The claimant has not adduced evidence to show that after sustaining injuries in the accident, he surrendered his license or got the license cancelled. The claimant admittedly was working as an Autorickshaw driver and after sustaining injury it may be difficult for him to do his driving work as he was doing earlier to the accident. Therefore in the absence of evidence of Doctor regarding functional disability, justice would be met, if loss of earning is worked out by taking the functional disability at 20% as against 25% considered by the Commissioner. The claimant is aged about 29 years and relevant factor applicable to his age group is 209.92 and 60% of the income of the claimant taken by the Commissioner is also just and proper. Hence the loss of earning capacity of the claimant is assessed at Rs.88,166/- (3500 x 60/100 x 209.92 x 20/100) and it is awarded as against Rs.1,10,208/- awarded by the Commissioner. Interest awarded by the Commissioner at 7% p.a. is contrary to the judgment of the Supreme Court. The claimant is entitled for interest at 12% p.a from one month after the accident till the date of disposal. Questions of law are answered accordingly.
8. Accordingly appeal is allowed in part and judgment dated 06.05.2010 passed in WCA/NF/CR- 160/2008 passed by Labour Officer and Commissioner for Workmen’s Compensation, Chitradurga stands modified. The claimant is entitled for compensation of Rs.88,166/- with interest at 12% p.a from one month after the accident till the date of its realization.
9. The amount deposited by the insurance Company before this Court is ordered to be transmitted to the jurisdictional Senior Civil Judge Court, Chitradurga. The Senior Civil Judge, Chitradurga after releasing the amount payable to the claimant as per the award passed by in the above appeal is directed to refund the balance amount if any to the insurer/appellant.
In view of disposal of the appeal, the IA does not survive for consideration and the same stands rejected.
SD/- JUDGE LL