IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA M.F.A. No.4359/2018 C/W M.F.A.No.9004/2017(WC) IN MFA No.4359/2018: BETWEEN:
H R KUMARAPPA S/O RAMAPPA AGED ABOUT 36 YEARS OWNER OF CRUISER VEHICLE BEARING REGN. No.KA:18/7574 R/O HIREKANAVANGALA VILLAGE JAVOOR POST, TARIKERE TALUK CHIKKAMANGALURU DISTRICT.
(BY SRI H B RUDRESH, ADVOCATE) AND:
1. R KUMAR @ R KUMARAPPA AGED ABOUT 27 YEARS DRIVER, R/O. HALIYUR KASABA HOBLI, TARIKERE TALUK CHIKKAMANGALURU DISTRICT.
2. THE MANAGER NEW INDIA ASSURANCE CO. LTD., PANDURANGA COMPLEX ..APPELLANT KOLLAPURADAMMA TEMPLE STREET CHIKKAMAGALURU.
INSURER OF CRUISER VEHICLE BEARING REGN. No.KA:18/7574 (POLICEY No.6706043190100200652 VALID FROM 15.12.2009 TO 14.12.2010).
..RESPONDENTS (BY SRI R GOPAL, ADVOCATE FOR R-1 SRI ASHOK N PATIL, ADVOCATE FOR R-2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF THE WORKMEN’S COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED:13.09.2017, PASSED IN ECA.NO.31/2014, ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, AWARDING COMPENSATION OF Rs.1,49,668/- WITH INTEREST AT THE RATE OF 12% PER ANNUAM FROM 25.01.2010 TILL THE DATE OF DEPOSIT.
IN MFA No.9004/2017: BETWEEN:
R KUMAR @ R KUMARAPPA AGED ABOUT 29 YEARS DRIVER, R/O HALIYUR KASABA-HOBLI, TARIKERE TALUK CHIKKAMANGALURU DISTRICT PIN CODE – 577 228.
..APPELLANT (BY SRI R GOPAL, ADVOCATE) AND:
1. H R KUMARAPPA S/O RAMAPPA AGED ABOUT 38 YEARS OWNER OF CRUISER VEHICLE BEARING No.KA:18/7574 R/O HIREKANAVANGALA VILLAGE JAVOOR POST, TARIKERE TALUK CHIKKAMAGALURU DISTRICT PIN CODE – 577 228.
2. THE MANAGER, NEW INDIA INSURANCE CO., LIMITED PANDURANGA COMPLEX KOLLAPURADAMMA TEMPLE STREET CHIKKAMAGALURU, INSURER OF CRUISER VEHICLE BEARING No.KA:18/7574.
POLICY No.6706043190100200652 VALID FROM 15.12.2009 TO 14.12.2010.
..RESPONDENTS (BY SRI H B RUDRESH, ADVOCATE FOR R-1 SRI ASHOK N PATIL, ADVOCATE FOR R-2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF EMPLOYEE’S COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED:13.09.2017 PASSED IN ECA No.31/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These two appeals are filed by owner and claimant against the Judgment and award dated 13.09.2017 made in ECA No.31/2014 on the file of Commissioner, Workmen’s Compensation/Senior Civil Judge and Principal JMFC, Tarikere awarding compensation of Rs.1,49,668/- with interest @ 12% p.a. after one month from the date of accident i.e., from 25.01.2010 till the date of deposit.
2. Claimant filed ECA No.31/2014 claiming compensation of Rs.6,00,000/- with interest @ 18% p.a. under the provisions of Section 22 of Workmen’s Compensation Act, 1923 mainly contending that he was driver of Cruiser vehicle bearing registration No.KA-18/7574 under first respondent and as per instructions of first respondent on 24.12.2009 he took the vehicle for trip by taking school teachers and children. When the vehicle reached from Shivamogga side towards Sagar and going on the left side of NH- 206 road, near Gilalagundi Village at about 12.10 PM a tipper lorry came in high speed in a rash and negligent manner from Sagar side and dashed to his vehicle due to which three students died and others injured including claimant. He was shifted to Mc.Gann Hospital, Shivamogga for treatment. After first aid he was taken to Kasturba Hospital, Manipal where he took treatment as inpatient. He sustained fracture shaft of right humerus-Type I open, fracture body of right scapula, haemothrax right, pneumothorax left and fracture of 2, 3 and 4 ribs right and other grievous injuries. He has spent Rs.1,00,000/- towards medical expenses, treatment charges, conveyance and attendant charges. The jurisdictional police registered a criminal case. He further contended he was a skilled driver and getting monthly wages of Rs.6,000/- and daily Batta Rs.100/- and after the accident he cannot do the work as driver as he was doing earlier. His marriage prospects also remote.
3. In response to the notice issued, first respondent did not file objections, but second respondent filed objections and admitted that it has issued motor vehicle insurance policy in respect of tempo trax bearing No.KA-18/7574 belonging to respondent No.1 and the policy was valid and in force as on the date of accident. Second respondent denied that claimant was an employee under first respondent and also denied the accident, age and income of claimant. Further contended that insurance company is not liable to pay compensation and sought for dismissal of the claim petition.
4. Based on the aforesaid pleadings Commissioner for Workmen’s Compensation framed following issues:
“1. CfðzÁgÀgÁzÀ ²æà Dgï.PÀĪÀiÁgïgÀªÀgÀÄ PÁ«ÄðPÀ £ÀµÀÖ ¥ÀjºÁgÀ PÁAiÉÄÝAiÀÄr PÁ«ÄðPÀgÁVzÀÝgÉA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
2. CfðzÁgÀgÀÄ Dgï.PÀĪÀiÁgïgÀªÀgÀÄ ¥ÀæwªÁ¢AiÀĪÀgÀ°è PÉ®¸À ¤ªÀð»¸ÀÄwÛzÀÄÝ, ¢£ÁAPÀ: 24.12.2009 gÀAzÀÄ GzÉÆåÃUÀ¢AzÀ ªÀÄvÀÄÛ GzÉÆåÃUÀzÀ ¸ÀªÀÄAiÀÄzÀ°è ¸ÀA¨sÀ«¹zÀ C¥ÀWÁvÀzÀ°è UÁAiÀÄUÉÆArzÁÝgÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
3. CfðzÁgÀgÀÄ Dgï.PÀĪÀiÁgïgÀªÀgÀÄ ¥ÀæwªÁ¢AiÀĪÀjAzÀ ªÀiÁ¹PÀ ªÉÃvÀ£À gÀÆ.6,000/- ªÀÄvÀÄÛ ¢£À¨sÀvÉå gÀÆ.100/-
¥ÀqÉAiÀÄÄwÛzÀÝgÉAzÀÆ, C¥ÀWÁvÀzÀ ªÉÃ¼É CªÀjUÉ 25 ªÀµÀð ªÀAiÀĸÁìVvÉÛAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
4. CfðzÁgÀgÀÄ AiÀiÁªÀ ªÉÆvÀÛzÀ ¥ÀjºÁgÀPÉÌ CºÀðgÁVgÀÄvÁÛgÉAzÀÆ ºÁUÀÆ CzÀ£ÀÄß AiÀiÁªÀ ¥ÀæwªÁ¢¬ÄAzÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÁVgÀÄvÁÛgÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
5. F §UÉÎ DzÉñÀªÉãÀÄ?”
5. In order to establish the case of the claimant, he has examined himself as PW-1 and marked Exhibits P-
1 to P-13. Second respondent has examined C.S.Prakasha as RW-1 marked Exhibits R-1 and 2.
6. Commissioner considering the entire material on record has recorded a finding that claimant has proved he was `workman’ and earning under first respondent and accident occurred during the course of employment on 24.12.2009 and also proved that he was earning monthly wages of Rs.6,000/- and Batta Rs.100/- and aged about 25 years as on the date of accident and accordingly Tribunal by impugned Judgment and award dated 13.09.2017 allowed the petition in part and awarded compensation of Rs.1,49,668/- with interest @ 12% p.a. from 25.01.2010 till the date of deposit. Further held the owner-first respondent liable to pay interest @ 12% p.a. on the compensation amount and directed respondent No.2 –insurance company to deposit compensation amount of Rs.1,49,668/- within three months.
7. Hence, the present appeal is filed by the owner in MFA No.4359/2018 against the order directing him to pay interest @ 12% p.a. on compensation amount.
8. MFA No.9004/2017 is by claimant for enhancement of compensation awarded by the Tribunal. The insurance company has not filed any appeal against the impugned Judgment and award passed by the Tribunal.
9. I have heard the learned counsel for the parties to the lis.
10. Sri H.B.Rudresh, learned counsel for the owner of Cruiser vehicle in MFA No.4359/2018 contended that the Tribunal erred in awarding interest @ 12% p.a. and holding that the owner of the vehicle is liable to pay interest when the policy was in force as on the date of the accident. He further contended that as per Ex.R-1- insurance policy, insurer is liable to pay interest and not the owner. He would further contend that there was no fault of the appellant’s vehicle in question to pay interest and compensation would not arise. The second respondent is liable to pay compensation with interest to the claimant. Therefore he sought to allow the appeal.
11. Sri Gopal, learned counsel for appellant in MFA No.9004/2017 contended vehemently that the Tribunal has erred in taking monthly wages of claimant at Rs.5,000/- thereby awarded compensation of Rs.1,49,668/- which is on the lower side ignoring both material and oral evidence on record. He would further contend that the Commissioner, Workmen’s compensation has not awarded any future medical expenses, attendant and nourishment charges and compensation on other heads as regards is on the lower side. He further contended that the Commissioner is not justified in directing to deposit 50% of the compensation amount out of Rs.1,49,668/-. Therefore he sought to allow the appeal.
12. Per contra, Sri Ahsok N Patil, learned counsel for respondent 2 sought to justify the impugned Judgment and award except directing the owner to pay interest at 12% p.a.
13. This court while admitting the appeals framed following substantial question of law:
In MFA No.4359/2018 filed by the owner:
“Whether the Commissioner for Workmen’s compensation is justified in fastening the liability to pay interest on the compensation amount on the owner when Ex.P-1 also covers interest that has to be paid by the insurance company?”
In MFA No.9004/2017 filed by the claimant:
“Whether the Commissioner for Workmen’s Compensation is justified in awarding total compensation of Rs.1,49,668/- by taking monthly wages of the claimant at Rs.5,000/-?”
14. Having heard learned counsel for the parties, it is undisputed fact that in view of the accident that occurred on 24.12.2009 the claimant has sustained following fractures:
Fracture shaft of right humerus-Type I open, fracture body of right scapula, haemothrax right, pneumothorax left and fracture of 2, 3 and 4 ribs right.
15. It is specific case of the claimant, that he was skilled driver under first respondent and he was earning Rs.6,000/- monthly wages and daily Batta Rs.100/-. It is also not in dispute that the accident occurred arising out of and during the course of employment as is evidenced from the material documents Ex.P-1, 5 and 6. It is the specific case of the owner of the vehicle that the vehicle in question was insured with the second respondent and the policy was in force as on the date of accident. Same has been admitted by second respondent-insurance company in their objections. The Tribunal considering the entire material on record has taken into consideration the accident that occurred on 24.12.2009 and has come to conclusion that the claimant was earning Rs.5,000/- monthly wages and accordingly taking into consideration age of the claimant and the relevant factor as contemplated under Section 4(1)(b) of the Employee’s Compensation Act awarded compensation as under:
5,000x60%x216.91x23%= Rs.1,46,668/-
16. As on the date of the accident though under the provisions of Section 4(1)(b) Explanation II of the Workmen’s Compensation Act the legislature has fixed wages of Rs.4,000/-, Tribunal has taken Rs.5,000/- admittedly insurance company has not challenged the said finding recorded by the Tribunal. Therefore the Tribunal is justified in taking monthly wages at Rs.5,000/- and awarded compensation. It is specific contention of the learned counsel for the owner in MFA No.4359/2018 that as per Ex.R-1 package policy insurance company is liable to pay compensation including interest and not the owner of the vehicle. Said fact has not been disputed by learned counsel for insurance company who stated fairly that as per Ex.R-
1 insurance company has to pay interest and not the owner.
17. Though Sri Gopal, learned counsel for claimant has contended that Tribunal has not awarded medical expenses as claimant has spent more than Rs.1,00,000/-. Admittedly under the provisions of Section 4(2A) of the Employee’s Compensation Act the employer shall reimburse actual medical expenses for treatment spent by employee during course of employment. Same came to be inserted by Act No.45/2009 dated 18.01.2010. Admittedly accident occurred on 24.12.2009 prior to amendment and under the old Act there is no such provision to pay medical expenses. In the absence of the same Tribunal is justified in not awarding any compensation towards medical expenses.
18. For the reasons stated above, the substantial question of law framed in MFA No.4359/2018 is answered in the negative holding that the Commissioner Workmen’s Compensation is not justified in fastening liability to pay interest on the owner-first respondent in view of the package policy as per Ex.R-1. In view of the aforesaid reasons the substantial question of law framed in MFA No.9004/2017 in case of claimant has to be answered in the affirmative holding that the Tribunal is justified in taking monthly wages of Rs.5,000/- and awarding compensation. Same is in accordance with law.
19. For the reasons stated above, appeal filed by the owner in MFA No.4359/2018 is allowed in part. Judgment and award dated 13.09.2017 passed in ECA No.31/2014 by the Tribunal directing first respondent to pay interest @ 12% p.a. on the compensation amount is modified and second respondent –insurance company has to pay compensation of Rs.1,49,668/- with interest @ 12% p.a. after one month from the date of the accident. Accordingly appeal filed by claimant in MFA No.9004/2017 is dismissed as claimant has not made out any case to interfere with the impugned Judgment and award in exercise of power under Section 30(1) of the Workmen’s Compensation Act.
Ordered accordingly.
Sd/- JUDGE SBN