IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA M.F.A. NO.2165 OF 2016 (WC) BETWEEN:
GANGARAM S/O LATE SHIVAJIRAO AGED ABOUT 54 YEARS RESIDENT OF OORUKERE VILLAGE KASABA HOBLI TUMAKURU TALUK-572 101 ... APPELLANT (BY SRI. SPOORTHY HEGDE N., ADVOCATE) AND:
1. M/S ORIENTAL INS. CO. LTD., BY ITS BRANCH OFFICE 1ST FLOOR, TGMA BUILDING J C ROAD TUMAKURU-572 101.
2. SRI. T S SURESHA S/O LATE S.M. SHIVASHANKAR AGED ABOUT 52 YEARS RESIDENT OF 3RD CROSS 2ND MAIN, S S PURAM TUMAKURU-572 101. ... RESPONDENTS (BY SRI. C R RAVI SHANKAR, ADVOCATE FOR R1) VIDE COURT ORDER DATED 5.4.2019, NOTICE TO R2 IS DISPENSED WITH) THIS MFA IS FILED U/S.30(1) OF THE EMPLOYEES COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 15.07.2015 PASSED ON ECA NO.44/14 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & MACT-10, TUMKUR, ALLOWING THE PETITION FILED U/S.10 OF THE WORKMEN'S COMPENSATION ACT.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant/claimant has filed the present Miscellaneous First Appeal for enhancement against the judgment and award dated 15.07.2015 made in E.C.A.No.44/2014 on the file of Principal Senior Civil Judge and MACT-X, Tumkur awarding total compensation of Rs.1,59,850/- with 6% interest from the date of the petition till realization.
2. It is the case of the claimant that he was working as a driver of the lorry bearing registration No.KA- 06-B-5796 under the first respondent on monthly wages of Rs.4,000/- and Rs.100/- per day as bata. The claimant was engaged by the first respondent to deliver the tomato vegetable at Ahamadabad, Gujarath State. On 19.09.2009 at about 1.15 p.m., when he was proceeding in the said lorry of the first respondent as a driver from Surath to reach Ahamadabad on N.H.8, when he reached Panoli, near Oscar Hotel, the driver of another lorry bearing Registration No.GJ-16-U-7416 colluded with his lorry and thereby caused accident. By virtue of the accident, the claimant sustained injuries to all over body. He was immediately shifted in an ambulance to Rahul Hospital and Civil Hospital, Bharuch for treatment and later the claimant was treated as an inpatient for a period of two months for fracture of right femur. Further, it has been asserted that he has undergone surgery and spent more than Rs.75,000/-. In spite of the same, he has become disabled and unable to carry out the said avocation. He would further contended that the accident has occurred arising out of and during the course of employment. Hence, the 1st respondent being the owner of the lorry and 2nd respondent being the insurer of the lorry are liable to pay the compensation.
3. In response to the notice issued, 1st respondent remained absent and placed ex-parte. 2nd respondent appeared through its counsel and filed its written statement admitting that 2nd respondent has insured the vehicle in question but denied the monthly earnings of the claimant and asserted that the accident has taken place due to the negligence of the claimant and he has also denied that the said accident occurred during the course of discharging his duty and sought for dismissal of the claim petition.
4. Based on the aforesaid pleadings, the Commissioner of Workmen’s Compensation (hereinafter referred to as ‘Tribunal’) framed the following issues:
“1.Whether the petitioner proves that he is an employee under first respondent?
2. Whether the petitioner proves that he had sustained injury in an accident that occurred on 19.09.2009 when he was discharging his duty as a driver of first respondent lorry bearing Reg.No.KA-06-B-5796?
3. Whether the petitioner proves his earning capacity?
4. Whether the petitioner proves his age and salary at the time accident?
5. Whether the petitioner is entitled for the compensation along with interest and who is liable to pay the compensation?
6. What order or award?”
5. In order to establish the case, the claimant has examined himself as PW-1 and doctor was examined as PW-2 and got marked documents as Exs.P1 to P10. No oral and documentary evidence was adduced on behalf of Insurance Company.
6. The Tribunal after considering the oral and documentary evidence on record has recorded a finding that the claimant is an employee under first respondent and he sustained injuries in a road traffic accident that occurred on 19.09.2009 when he was discharging his duty as a driver of first respondent lorry in question and also held that the accident is arising out of and during the course of employment and claimant/petitioner has proved his earning capacity, age and monthly wages. Accordingly, the Tribunal by the impugned judgment and award has awarded a compensation of Rs.1,59,840/- along with interest @ 6% p.a. from the date of petition till its realization. Aggrieved by the same, the present appeal is filed by the claimant seeking further enhancement.
7. The Insurance Company has not filed any appeal against the impugned judgment and award.
8. This Court while admitting the appeal has framed the following issues:
“1. Whether the Commissioner of Workmen’s Compensation/Tribunal is justified in awarding 6% interest in view of Section 4A(3)(a) of the Employee’s Compensation Act, 1923?
2. Whether the Commissioner of Workmen’s Compensation/Tribunal is justified in taking the disability of the claimant at 25% in view of provisions of Section 4(1)(c)(ii) of the Employees Compensation Act, 1923?”
9. I have heard the learned counsel for the parties and perused the material evidence on record carefully.
10. Learned Counsel for the appellant contended that the Tribunal erred in awarding interest @ 6% p.a. which is against the provisions of Section 4A(3)(a) of the Employee’s Compensation Act, 1923 (hereinafter referred to as ‘Act’). He further contended that even though the doctor-PW-2 has assessed the disability of the claimant’s right lower limb at 50%, the Tribunal has taken the disability at 25% only which is against the provisions of Section 4(1)(c)(ii) of the Act. Therefore, he sought to allow the appeal.
11. Per contra, learned Counsel for the Insurance Company sought to justify the impugned judgment and award passed by the Tribunal and contended that the doctor has not stated in his evidence the percentage of disability to the whole body; only he has stated the disability of right lower limb at 50%. He further contended that very doctor-PW-2 has stated in his evidence that the fracture is united. Hence, the Tribunal has rightly taken the disability at 25% while assessing the loss of earning capacity. He further contended that since the accident is of the year 2009, the Tribunal is justified in awarding interest @ 6% p.a. and sought for dismissal of the appeal.
12. Having heard the learned counsel for the parties, it is undisputed fact that the claimant has sustained fracture of femur right lower 1/3rd and implants have been fixed. According to the claimant, the accident is arising out of and during the course of employment under the 1st respondent. The same is evidenced from the material evidence on record i.e., Exs.P1 to P4. It is the specific case of the claimant that the doctor who has been examined as PW-2 has assessed the disability of right lower limb as 50%. Whereas in Schedule No.1(2) for amputation of below knee with stump, the loss of earning capacity is assessed at 50%. Considering the same, the Tribunal ought to have assessed the disability at 40% while calculating the loss of earning capacity in view of the provisions of Section 4(1)(c)(ii) of the Act.
13. The Tribunal while awarding compensation has proceeded to award 6% interest per annum which is against the provisions of Section 4A(3)(a) of the Act.
14. For the reasons stated supra, the substantial questions of law framed in the present appeal are to be answered in the negative holding that the Tribunal is not justified in taking the disability of the claimant as 25% and it should have taken the disability at 40% and in view of the peculiar facts and circumstances of the present case, claimant is entitled for 12% interest.
15. If we take the monthly wages of the claimant at Rs.4,000/-, in view of the provision of Section 4(1)(b) of the Act, 60% has to be considered as disability, it comes to Rs.2,400/- p.m. Taking into consideration the age of the claimant, the relevant multipliable factor would be 153.09. The amount of compensation under the Act would comes to Rs.1,46,966.40/- (Rs.4,000/- x 60% = Rs.2400 x 153.09 x 40/100) and the claimant is entitled for 12% interest.
16. Accordingly, the appeal filed by the appellant/claimant is allowed in part. The impugned judgment and award dated 15.07.2015 made in E.C.A.No.44/2014 on the file of Principal Senior Civil Judge and MACT-X, Tumkur is hereby modified and the claimant is entitled for compensation of Rs.1,46,966.40/- along with 12% interest per annum after one month from the date of accident till realization, instead of Rs.1,59,840/- along with 6% interest awarded by the Tribunal.
17. The Insurance Company is liable to pay the compensation with 12% interest after one month from the date of accident till realization after deducting the compensation if already paid.
Ordered accordingly.
Prs* Sd/- JUDGE