IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.743 OF 2010 [WC] BETWEEN:
G.R. KIRAN S/O. RAJAPPA., AGED ABOUT 32 YEARS, T.T.N.KA 16/930/T373, DRIVER, CHIKKABENNUR, CHITRADURGA TALUK, AND DISTRICT. ... APPELLANT (BY SRI. HARISH. N.R., FOR SRI. B.M. SIDDAPPA, ADVOCATES) AND 1. M.T. SHIVANANDA, S/O. MOOLE THIMMANNA AGED ABOUT 57 YEARS, OWNER OF TRACTOR-TRAILER BEARING NO.KA-16/930-T-373 RESIDING AT GOLLARAHATTI, CHIKKABENNUR POST CHITRADURGA TALUK, AND DISTRICT.
2. THE BRANCH MANAGER, THE NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, LAKSHMI BAZAAR, CHITRADURGA. ... RESPONDENTS [R-1 NOTICE DISPENSED WITH VIDE COURT ORDER DATED 12.07.2013, BY SRI. A.M. VENKATESH, ADV. FOR R-2] THIS MFA FILED UNDER SECTION 30(1) OF W.C. ACT AGAINST THE JUDGMENT AND AWARD DATED:01.09.2009 PASSED IN KAA CHI/KANAPA/N.F/CR-378/2004 ON THE FILE OF THE LABOUR OFFICER AND COMMISSIONER FOR WORKMEN'S COMPENSATION, CHITRADURGA DISTRICT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT The appellant in the present appeal is seeking enhancement of compensation awarded by the Commissioner for Workmen’s Compensation, Chitradurga District in case No.KA A CHI/KANAPA/NF/CR-378/2004, dated 01.09.2009, wherein a sum of Rs.1,51,373/- was awarded as compensation for the injuries sustained by the appellant.
2. I have heard the learned counsel for the petitioner and the learned counsel for Respondent No.2/Insurance Company.
3. The case of the appellant is that he was working as a driver under Respondent No.1 in a Tractor-trailer bearing Registration No.KA-16/930-T-
373 and he was drawing a salary of Rs.4,500/- per month and a daily batta of Rs.30/-. He was hale and healthy prior to the accident. On 05.11.2003, at about 2.30 p.m., when he had gone to load onion, the said Tractor met with an accident at Chikkagondanahalli Village, Chitradurga Taluk, on account of which, he sustained severe injuries to his waist, right hand and fracture of clavicle bone. He was admitted to the Government Hospital at Hiriyur and took treatment as an inpatient and took further treatment under one Dr. Venkatashiva Reddy. However, on account of the accident, he suffered permanent disability and not able to drive the vehicle.
4. To the aforesaid petition, the respondents filed their objections and contested the matter. Before the Commissioner, the claimant got examined himself as PW-1 and examined the Dr. Venkatashiva Reddy as PW-2. On behalf of Respondent No.2, an officer of the Insurance Company was examined as RW-1.
5. The Commissioner, after considering the material on record, held that the claimant has suffered disability and taking Rs.3,500/- as the monthly income and considering the age of the claimant as 31 years, and taking 205.95 as the appropriate factor and taking 60% of the salary which comes to Rs.2,100/- and considering the disability at 35%, awarded a total sum of Rs.1,51,373/- and held that the 2nd respondent- Insurance Company is liable to pay the compensation.
6. It is the contention of the learned counsel appearing for the appellant that the Commissioner was not justified in not considering the batta earned by the appellant and also not proper in assessing the income, wherein the claimant was earning a sum of Rs.4,500/- per month. He would further contend that the percentage of disability taken at 35% is on the lower side in view of the fact that the doctor has assessed the disability to the whole body at 65% and the working disability at 50%. Hence, he seeks to enhance the compensation awarded by the tribunal.
7. Per contra, Sri. A.M. Venkatesh, learned counsel appearing for the Respondent No.2/Insurance Company vehemently contended that the claimant has failed to examine the doctor who treated him. Even though the application filed under Section 11 of W.C. Act read with Section 151 of Code of Civil Procedure, seeking direction to refer the claimant to a Government Doctor for proper assessment of the disability was rejected by the Commissioner, however, the fact remains that the Insurance Company has disputed the percentage of disability assessed by the Doctor who has not treated the claimant. He further submits that the Doctor who treated the claimant in the first instance has not been examined and therefore the Commissioner was right in taking 35% disability as the working disability and submits that the impugned order does not call for any interference.
8. This Court while admitting the appeal, framed the following substantial question of law:
“Whether the Commissioner of Workmen Compensation erred in computing the functional disability at 35% as against 50% as assessed by the Doctor?”
9. It is the case of the claimant that he was working as a driver under Respondent No.1, in a Tractor and Trailer bearing Registration No.KA-16/930- T-373 and he was earning a monthly salary of Rs.4,500/- and also daily batta of Rs.30/-. The said Tractor and Trailer met with an accident on 05.11.2003 and in the said accident, the appellant sustained injuries. It is not disputed that the appellant was the driver of the said Tractor-Trailer and he was an employee under Respondent No.1 and he sustained injuries in the course of such employment.
10. It is an undisputed fact that the Respondent No.2 is the Insurer of the Tractor-trailer. In view of the substantial question of law framed by this Court, the only question which is required to be considered is as to whether the Commissioner was right in taking 35% as the functional disability as against 50% assessed by the doctor.
11. To prove the disability, the Doctor is examined as PW-2. He has deposed that he had examined the injured/claimant on 27.01.2005 and issued the disability certificate which is marked at Ex.P-10. He has further deposed that initially the claimant was admitted on 18.11.2003 as an in-patient at Unity Health Complex, Chitradurga and on account of the accident, the claimant has suffered injury to his left leg, left ankle, left forearm, 5th metatarsal bone of the left leg, the fractures of lateral malleolus of the left ankle, fracture of left radius with fracture tip of ulna.
12. The doctor has deposed that the claimant namely Sri. Kiran was admitted on 18.11.2003 at Unity Hospital, Chitradurga and he took treatment. He had suffered fracture of Ramibone and clavicle bone. He has further deposed that he examined him on 26.01.2005 in his private hospital and took x-ray and disability certificate was issued. He has also deposed that the claimant had suffered 40% disability to his waist and 20% to the shoulder, in total he suffered 60% disability and the loss of earning capacity is 50%. In the cross-examination, he has admitted that he has not given any treatment to the claimant and that he has not produced any records with regard to the treatment taken by the claimant. He has admitted that the fracture sustained by the claimant was common. He has denied the suggestion that the functional disability will be 1/4th of the total disability sustained by the claimant. However, he says that it may be reduced.
13. It is the contention of the learned counsel appearing for the 2nd respondent that the claimant can drive the tractor and it is not held that he is unable to drive the tractor and therefore, there is no disability as pleaded by the claimant.
14. Taking into consideration the evidence of the doctor wherein he has stated that the total disability sustained by the claimant is 60% and functional disability is to the extent of 50%, I am of the view that the functional disability taken by the Commissioner at 35% may be enhanced by another 10% considering the nature of injuries and the loss of earning capacity can be assessed at 45%. The substantial question of law raised by this Court is answered accordingly. In that view of the matter, the appellant is entitled for a sum of Rs.1,94,622.75 (Rs.2,100x205.95x45/100) as against Rs.1,51,373/- awarded by the Commissioner.
15. The enhanced compensation shall carry interest at 12% per annum from one month from the date of accident.
16. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and order dated 01.09.2009 passed by the Commissioner for Workmen’s Compensation, Chitradurga District in case No.KA A CHI/KANAPA/NF/CR-378/2004 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.1,94,622.75 as against Rs.1,51,373/- awarded by the Commissioner for Workman Compensation with 12% interest per annum from one month from the date of accident.
The Respondent No.1 is hereby directed to pay the balance amount within a period of four weeks from the date of the receipt of the copy of this Order.
snc Sd/- JUDGE