IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA M.F.A.No.5480/2016 (WC) BETWEEN:
Hasan S/o. Isbu Beary Aged 33 years R/o Near A.B Baliga Hospital, Doddanna Gudde Udupi Taluk-576 102 ... Appellant (By Sri Sandesh Shetty T., Advocate) AND:
1. Jamal Major S/o. Ibrahim R/o. Chakrathirtha Gujjadi Village, Doddanna Gudde Udupi Taluk – 576 102.
2. The Oriental Insurance Co. Ltd., Vishnu Prakash II Floor, Court Road Udupi-576 101. … Respondents (By Sri H.S.Lingaraj, Advocate for R2; R1 is served but unrepresented) This MFA is filed under Section 30(1) of the Workmen’s Compensation Act, 1923, against the judgment and decree dated 05.03.2016 passed in ECA No.01/2014 on the file of the Senior Civil Judge, Kundapura, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Admission this day, the Court delivered the following:
JUDGMENT The present appeal is filed by the appellant for enhancement of compensation against the judgment and award dated 05.03.2016 made in E.C.A.No.01/2014 on the file of the Senior Civil Judge at Kundapura, awarding the compensation of Rs.57,420/- with interest at 12% p.a. prior to one month from the date of accident i.e, 16.02.2008 till the date of realization.
2. It is the case of the claimant that on 16.03.2008 at about 5.30 a.m., during the course of his employment under the 1st respondent, the claimant was traveling as a cleaner cum loader and unloader in 407 Tempo bearing Reg. No.KA- 20A-5836 driven by its driver, when the said tempo reached near Sangama, N.H.17, Kundapura Taluk, met with an accident, due to the said accident the appellant sustained grievous injuries. Immediately, after the accident, the appellant was shifted to Adarsha hospital, Udupi and taken treatment as an inpatient and his fractural injuries were treated and put under plaster cast and he spent Rs.20,000/- towards medical expenses.
3. It is further case that he was an employee under the 1st respondent who used to pay Rs.4,000/- as monthly wages and Rs.20/- per day as batta. Due to grievous injuries, he has suffered permanent loss, therefore, respondent Nos.1 and 2 jointly and severally liable to pay compensation to the claimant. Inspite of service of summons, respondent No.1 has not appeared before the Court and respondent No.2 has appeared before the Court through its counsel and filed objections and denied the plaint averments contending that the claim is not maintainable under law, there is no Employer-Employee relationship between the appellant and respondent No.1 and denied the accident and injuries sustained by the claimant. Further contended that the accident is occurred due to negligence on part of the claimant only. Hence, sought for dismissal of the claim petition.
4. The Tribunal from the basis of the aforesaid pleadings framed the following issues at paragraph-7 of the claim petition which reads as under:-
“1. Whether the petitioner proves that he was an employee under Workmen’s Compensation Act?
2. Whether the petitioner proves that petitioner sustained injuries during the course of employment under 1st respondent as a driver in 407 Tempo bearing Reg.No.KA-20A-5836 in the alleged accident?
3. Whether the petitioner proves that how much salary he is getting per month from respondent No.1 and what is the age of the petitioner on the date of the accident?
4. Whether the petitioner proves that he has suffered future earning capacity due to the accidental injuries?
5. Whether the petitioner is entitled for compensation as prayed?
6. What Order or Award?”
5. The claimant was examined as PW-1, Doctor as PW-2 and documents marked as Exs.P.1 to 10, respondent No.2-Insurance company neither adduced evidence or produced any material documents on record.
6. The Tribunal considering the entire material on record has recorded findings that the claimant has proved that he was an employee working under 1st respondent, accident occurred arising out of and during the course of the employment and he has also proved the monthly wages as stated by him. Accordingly, the Tribunal by judgment and award dated 05.03.2016 has awarded a total compensation of Rs.57,420/- with interest of 12% p.a. prior to one month from the date of accident i.e., 16.02.2008 till the date realization. Hence, the present appeal is filed for enhancement of compensation.
7. I have heard the learned counsel for the parties to the lis.
8. Sri Sandesh Shetty T., learned counsel for the appellant vehemently contended that the impugned judgment and award passed by the Tribunal granting compensation of only Rs.57,420/- with interest of 12% p.a. is on lower side and requires further enhancement. He further contended that the Doctor-PW.2 who stated on oath that the claimant sustained 16% disability, but the Tribunal proceeded to take only 12% which is against the provisions of sub-section (1)(c)(ii) of Section 4 of the Employee’s Compensation Act, 1923 (the ‘Act’ for short). Therefore, he sought to allow the appeal.
9. Sri H.S.Lingaraj, learned counsel for the respondent No.2 sought to justify the impugned judgment and award and contended that in the absence of any fracture, the assessment made by the Doctor is contrary to the material on record and the Tribunal has justified in taking 12% disability and he would point out that compensation of Rs.57,420/- with interest of 12% p.a. would be after one month and not prior to one month from the date of accident till date of realization. Therefore, sought to dismiss the appeal.
10. Having heard learned counsel for the parties, it is an undisputed fact that the claimant sustained abrasion in 1” size over right fronto temporal region, abrasion 1” x 1” size over right orbit on temporal side and colles at right radius on account of the accident occurred on 16.03.2008 arising out of and during the course of the employment as per the evidence found by the material documents Exs.P1 to P4. The accident is not in dispute and the findings recorded by the Tribunal that the accident occurred due to the harsh and negligence driving of the driver of the tempo bearing Reg. No.KA-20A- 5836 is not challenged by the Insurance Company. It is also not in dispute that the claimant examined by PW2 who stated on oath that the claimant sustained disability of 16%, the Tribunal proceeded to take the percentage of disability as 12% which is contrary to the provisions of sub-section (1)(c)(ii) of Section 4 of the Employee’s Compensation Act, 1923, which reads as under:-
“sub-section (1)(c)(ii) of Section 4- in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.”
11. In view of the aforesaid provisions, it is made clear that the PW2 who is qualified doctor as stated on oath that the claimant sustained 16% disability, therefore, the Tribunal has not justified in taking 12% disability which is as against the provisions of the said Act, as the sufferings is 16%. Therefore, the impugned order to that extent is required for modification.
12. After hearing the arguments of both the counsel and for the reasons stated above, this Court admittedly framed the following substantial questions of law arising out in the present appeal, has to be answered in negative holding:-
Whether the Tribunal is justified in taking 12% disability, where as PW.2-Doctor, who is stated on oath that the claimant’s suffering disability is 16%, in view of provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act, 1923, in the facts and circumstances of the present case ?
13. The Tribunal is not justified in taking percentage of disability at 12% instead of 16% as stated by Doctor-PW2. Admittedly, the accident occurred on 16.03.2008, in view of the provisions of sub-section (1)(b) of Section 4, the Central Government issued Notification specifying the monthly wages of Rs.4,000/- p.m. as on that date of the accident.
14. Taking into consideration the percentage of the disability and age of the appellant as 34 years, the appellant is entitled for enhanced compensation of Rs.76,569/- instead of Rs.57,420/- with interest at 12% p.a. after one month from the date of the accident.
15. In view of the aforesaid facts, the Miscellaneous First Appeal filed by the claimant is allowed in part; impugned judgment and award dated 05.03.2016 made in E.C.A.No.01/2014 is modified. The claimant is entitled for enhanced compensation of Rs.76,569/- (Rupees Seventy Six Thousand Five Hundred and Sixty Nine only) i.e., Rs.19,149/- with interest at 12% p.a. after one month from the date of accident till the date of realization.
Ordered accordingly.
Sd/- JUDGE KPS