IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT BETWEEN:
HEMANNA M.F.A.No.7289/2015 (WC) S/O POTLA THIPPAIAH @ THIPPAIAH AGED 29 YEARS R/O AJJANAGUDI ROAD SRI GIRI NILAY, CHALLAKERE TOWN CHITRADURGA DIST.-577522.
(BY SRI.SOORTHY HEGDE N, ADV.) AND:
1. M/S. ORIENTAL INS.CO.LTD., BY ITS BRANCH MANAGER SHARADA COMPLEX OPP.KSRTC BUS STAND CHITRADURGA- 577501.
2. S.P. ZUBER S/O SYED PEER SAB MAJOR OWNER OF TANKER LORRY BEARING NO.KA-16/A-4154 R/O BEHIND KEB GANDHI NAGARA CHALLAKERE TOWN-577522.
...APPELLANT …RESPONDENTS (BY SRI.H.C. VRUSHABHENDRAIAH, ADV. FOR R1 R2- NOTICE D/W V/O DT:21.10.2016) THIS M.F.A. FILED UNDER SECTION 30(1) OF THE EMPLOYEE’S COMPENSATION ACT, AGAINST THE JUDGMENT AND AWARD DATED 16.01.2015 PASSED IN E.C.A. NO.24/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, CHALLAKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant is in appeal, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded by the Senior Civil Judge and Additional MACT, Challakere (hereinafter referred to as 'the Court below’ for short) in ECA No.24/2014 under the judgment and award dated 16.01.2015.
2. The claim petition was filed under Section 22 of the Workmen Compensation Act, claiming compensation for the injuries sustained by the claimant during the course and out of employment with the first respondent/employer. On 01.06.2007, while the claimant, who was working as cleaner with the first respondent was proceeding in a Tanker Lorry bearing registration No.KA-16/A-4154, driver of the Tanker suddenly applied break to avoid the accident, due to which, the claimant, sitting in the cabin besides the window fell down from the Tanker lorry and sustained injuries. Immediately he was taken to the Government Hospital at Hiriyur where he took treatment as inpatient. The claimant states that he was earning a sum of Rs.5,000/- per month as salary and Rs.50/- per day as bata working as a cleaner in the lorry belonging to the first respondent/employer.
3. On issuance of notice, the second respondent/ insurer appeared and filed its objection denying the claim petition averments. The insurer also denied the age, salary and bata received by the claimant. The insurer further denied the injuries sustained in the alleged accident during the course and out of employment with respondent No.1. Further, it is stated that the claimant was traveling in the lorry as an unauthorized passenger. Hence, the first respondent violated the terms and conditions of the policy. It is also stated that the amount of compensation claimed is excessive and abnormal.
4. Based on the pleadings of the parties, the trial Court framed the following issues for its consideration:
(i) Whether the petitioner proves that he has sustained injuries in the alleged accident that was occurred on 01/06/2007 at about 9.30 a.m. on NH-4 road, near Sundaramurthy Hotel cross of Hiriyur, due to rash and negligent driving of the driver of Tanker lorry bearing registration No.KA-16/A-4154 of respondent No.1 while he was discharging the duty as a cleaner under respondent No.1?
(ii) Whether the petitioner is entitled for compensation? If so, how much? From whom?
(iii) What order?
5. The claimant got examined himself as P.W.1 and also examined the doctor as P.W.2 apart from marking the documents as Ex.P1 to Ex.P6. However, no evidence was let in on behalf of the insurer.
6. The trial Court, assessing the material on record allowed the claim petition partly and awarded compensation of Rs.30,000/- with interest at the rate of 6% p.a., from the date of petition till realization from the second respondent. The claimant, not being satisfied with the quantum of compensation awarded by the trial Court, is before this court in this appeal praying for enhancement of compensation.
7. Upon hearing the learned counsel for the parties, the following substantial questions of law would arise for consideration in this appeal:
(i) Whether the court below failed to assess the permanent total disablement and loss of earning capacity permanently caused to claimant due to the accidental injuries, as required under Section 4(1)(c)(ii) of the Act?
(ii) Whether the court below failed to award interest at the rate of 12% p.a. as required under Section 4A(iii)(a) of the Act?
8. Heard the learned counsel for the parties on the above substantial questions of law.
9. Learned counsel for the appellant would submit that the claimant was working as a cleaner in the lorry belonging to the first respondent. The claimant has established the employer and employee relationship between the claimant and first respondent. The claimant has examined the doctor as P.W.2 who stated that the claimant suffers from 40% permanent disability and suffered loss of earning capacity to an extent of 30%. The claimant has sustained injuries such as tenderness over right wrist, tenderness over left ankle, tenderness over lateral spine region, fracture of 5th lumber vertebra and distal phalanx thumb. The claimant has placed on record Ex.P4/wound certificate and Ex.P6/disability certificate. Therefore, the Court below, based on the evidence of P.W.2, Ex.P4 and Ex.P6 ought to have assessed the whole body disability and consequently the loss of earning capacity to award compensation under Section 4(1)(c)(ii) of the Act. Learned counsel further submits that the Court below has failed to assess the income of the claimant. The claimant was earning Rs.5,000/- p.m. as salary and Rs.50/- per day as bata which would be more than Rs.6,500/- p.m. The Court below ought to have taken Rs.4,000/- as minimum wage as notified. Therefore, he prays for allowing the appeal.
10. Per contra, learned counsel for the respondent/ insurer would submit that the claimant has not placed on record any substantial material to assess the whole body disability and consequently the loss of earning capacity. He submits that the doctor who was examined, is not the treated doctor and his evidence would indicate that he has not treated the claimant in the year 2010. Hence, his evidence cannot be taken into consideration for determining whole body disability as well as loss of earning capacity. Thus, prays for dismissal of the appeal.
11. The accident occurred on 01.06.2007 involving the Tanker lorry bearing registration No.KA-16/A-4154 and the accidental injuries sustained by the claimant is not in dispute in this appeal. The claimant is before this Court, not being satisfied with the quantum of compensation awarded by the court below. The trial Court failed to assess the whole body disability and consequently loss of earning capacity of the claimant in view of the injuries sustained by him during the course and out of employment.
Section 4(1)(c)(ii) of the Act reads as follows:
(ii) 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.
The above provision provides for assessment of disablement and loss of earning capacity caused due to the injuries, when the injuries sustained are not specified under Schedule-I. In the instant case, the injuries sustained by the claimant are not specified injuries under Schedule-I. Ex.P4/wound certificate indicates tenderness over left ankle, tenderness over right wrist, lateral spine region and fracture of 5th lumber vertebra and fracture of distal phalanx thumb. Ex.P6/disability certificate indicates that the claimant sustained permanent disability to an extent of 40%.
12. The Full Bench of this Court in a case reported in ILR 2004 KAR 193 in the case of SHIVALINGA SHIVANAGOWDA PATIL AND OTHERS v/s ERAPPA BASAPPA BHAVIHALA AND OTHERS at paragraph 15 has held as follows:
“……..If one of the parties were to contend that the assessment made by the qualified medical practitioner is not correct, it is in view of the aforesaid provisions Commissioner is bound to frame an issue to that effect and, on the basis of the evidence adduced for and against the said issue, is bound to pronounce his decision. It is not open to him to say that as he is bound by the assessment of loss of earning capacity made by the qualified medical practitioner he will not go into the correctness or otherwise of such assessment. Under the scheme of the Act, the Commissioner is discharging a judicial function in so far as settlement of disputes are concerned. That is why the law declares that he shall be a Civil Court for the purpose of settling the disputes and the Civil Court’s jurisdiction is ousted. Issues are to be framed, judgment has to be rendered answering each issue raised in the case. Therefore, it is clear that the assessment made by a qualified medical practitioner is only in the nature of an expert evidence given to aid the Commissioner to determine the amount of compensation payable which the Commissioner is bound to take note of. As stated, if the correctness or validity of the said assessment is disputed by either of the parties, he is bound to pronounce his decision on the same which includes not agreeing with the assessment made by the qualified medical practitioner if the evidence on record otherwise supports such a contention or for any good reason.”
13. A reading of the above portion of the judgment would indicate that the Court below could assess the loss of earning capacity with the assistance of the assessment made by the qualified medical practitioner. If the assessment made by the qualified medical practitioner is disputed by one of the parties, the Commissioner is competent to sit in judgment over the assessment of the qualified medical practitioner and pronounce upon the same, which includes to disregard the assessment of the medical practitioner disputed by the parties. In the instant case, the insurer even though disputed the assessment of disability, has neither placed any other material on record nor assessment of disability or earning capacity of the claimant by another qualified medical practitioner. Looking to the evidence of P.W.2/doctor, Ex.P4/wound certificate and Ex.P6/disability certificate, I am of the view that 30% loss of earning capacity as assessed by the doctor/P.W.2 is to be accepted. Thus, earning capacity of the claimant is assessed at 30%.
14. The Court below has failed to assess the income of the claimant. The claimant has proved the employer and employee relationship between him and the first respondent/owner of the lorry bearing registration No.KA-16/A-4154. The claimant states that he was receiving monthly salary of Rs.5,000/- and bata as Rs.50/- per day, which would come to Rs.6,500/-
p.m. However, he has not placed on record any material to substantiate the same. The minimum wages as on the date of accident was Rs.4,000/- p.m., as notified, which could be taken for computation of compensation in the present case. The claimant was aged 28 years as on the date of accident and relevant factor to be adopted is 211.79. Thus, the claimant would be entitled for the following compensation:
4,000 x 60% x 211.79 x 30/100 = Rs.1,52,488/-
15. The Court below has awarded interest at the rate of 6% p.a., from the date of petition till realization, which is wholly erroneous and perverse. Section 4A of the Act provides for awarding interest at the rate of 12% p.a., from 30 days after the accident till realization. Accordingly, the claimant would be entitled for interest at the rate of 12% p.a., from 30 days after the accident till its realization.
16. Accordingly, the appeal is allowed in part. The judgment and award dated 16.01.2015 in ECA No.24/2014 by the Senior Civil Judge and Additional MACT, Challakere is hereby modified and the claimant would be entitled for compensation of Rs.1,52,488/- with interest at the rate of 12% p.a., from 30 days after the accident till realization, as against Rs.30,000/- awarded by the Court below. Thereby the claimant would be entitled for enhanced compensation of Rs.1,22,488/-.
Sd/-
JUDGE mpk/-* CT:bms