IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL NO.456/2017 (WC) C/W MISCELLANEOUS FIRST APPEAL NO.7222/2016 (WC) IN MFA No.456/2017 BETWEEN:
ICICI LOMBARD MOTOR INSURANCE LOMBARD HOUSE, NO.414, VEERSAVARKAR MARG, NEAR SIDDIVINAYAKA TEMPLE, PRABHADEVI, MUMBAI-400025.
NOW AT ICICI LOMARD GIC LTD., # 121, THE ESTATE BUILDING, 9TH FLOOR, DICKENSON ROAD, BANGALORE-42.
(BY SRI PRADEEP B., ADVOCATE) AND:
1 . VIJAYKUMAR, S/O SEETARAMA SHETY, NOW AGED ABOUT 31 YEARS, MASTHIKERE NEMPU, KARKUNJE VILLAGE AND POST, KUNDAPURA-576201.
...APPELLANT 2 . SEETHARAM SHETY N S/O SURESH SHETY, MAJOR R/AT NO.7-8TH CROSS, OPP:JOSHI NARSING HOME, SHIRSI MAIN ROAD, CHAMARAJPETE, BANGALORE-560018.
(BY SRI NAGARAJA HEGDE, ADVOCATE FOR R1; R2 IS SERVED BUT UNREPRESENTED) **** …RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF WORKMEN COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED 4.7.2016 PASSED IN ECA No.37/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA AWARDING COMPENSATION OF RS.6,98,544/- WITH INTEREST AT 12% P.A. ONE MONTH FROM THE DATE OF ACCIDENT TILL DATE OF REALIZATION.
IN MFA No.7222/2016 BETWEEN:
SRI VIJAY KUMAR, C/O SEETHARAMA SHETY, AGED ABOUT 31 YEARS, R/AT MASTHIKERE NEMPU, KARKUNJE VILLAGE AND POST, KUNDAPURA TALUK-576201, UDUPI DISTRICT.
(BY SRI NAGARAJA HEGDE, ADVOCATE) ...APPELLANT AND:
1. SRI SEETHARAM SHETY, S/O SURESH SHETY, AGE: MAJOR R/AT NO.7-8TH CROSS, OPP:JOSHI NURSING HOME, SHIRSI MAIN ROAD, CHAMARAJPETE, BENGALURU.
2. ICICI LOMBARD GENERAL INSURANCE CO. LTD., LOMBARD HOUSE, NO.414, VEER SAVARKAR MARG, NEAR SIDDHI VINAYAKA TEMPLE, PRABHADEVI, MUMBAI-400025.
…RESPONDENTS (BY SRI PRADEEP B., ADVOCATE FOR R2; R1 IS SERVED BUT UNREPRESENTED) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 30(1) OF WORKMEN COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED 4.7.2016 PASSED IN ECA No.37/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS COMING UP FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING.
J U D G M E N T These two Miscellaneous First Appeals are filed against the common Judgment & Award dated 4.7.2016 made in ECA No.37/2014 on the file of the Commissioner for Employee’s Compensation/Tribunal awarding total compensation of Rs.6,98,544/- with interest at 12% per annum after one month from the date of the accident. MFA No.7222/2016 is filed by the claimant for enhancement of compensation, whereas MFA No.456/2017 is filed by the Insurance Company for reduction of compensation amount awarded by the Tribunal.
2. Parties are referred to as per their ranking before the Tribunal.
3. It is the case of the claimant that on 25.3.2012 at about 10.00 a.m. during the course of his employment under the 1st respondent, he was driving the Maruti van bearing Regn. No.KA-01-MD-3064 belonging to the 1st respondent and when the said Maruti van reached near Hyundai show room, Kudluget, Elevated flyover, Bengaluru city, said Maruti van met with an accident, due to the said impact, he sustained grievous injuries. Immediately, he was shifted to Blossom hospital, Bengaluru, wherein he was admitted as an in-patient and has spent Rs.5,00,000/- towards medical expenses. When the claimant was working as driver of the 1st respondent in the Maruti van stated supra, the 1st respondent used to pay Rs.9,000/- monthly wages and Rs.50/- daily batta. The 1st respondent is the owner of the vehicle and the 2nd respondent is the insurer and both are liable to pay the compensation.
4. The 1st respondent upon service of notice, not appeared before the Tribunal and he was placed exparte. The 2nd respondent filed objections before the Tribunal and contended that the very claim petition filed for compensation is not maintainable and there is no relationship of employer and employee between the 1st respondent and the claimant. The 2nd respondent - Insurance company has denied that the claimant sustained injuries during the course of his employment under the 1st respondent. The 2nd respondent further contended that the offending vehicle is insured with it and governed by the terms and conditions mentioned in the policy. He also denied the age and avocation of the claimant and sought for dismissal of the claim petition.
5. Based on the aforesaid pleadings, the Tribunal framed the following Issues:
1. Whether the petitioner proves that he was employee under the respondent No.1 ?
2. Whether the petitioner proves that he has sustained injuries during the course of employment under the 1st respondent as a driver in Maruti van bearing Reg.No.KA-01-MD-3064, the accident alleged to have taken place on 25.3.2012 at about 10.00 a.m. while petitioner was working as the driver in the said Maruthi Omni car ?
3. Whether the petitioner proves his income and age as contended in the petition ?
4. Whether the petitioner is entitled for interest @ 12.5% p.a. from the date of accident till the payment ?
5. Whether the petitioner is entitled for compensation as prayed ?
6. What Order or Award ?
6. In order to prove its case, the claimant examined himself as PW.1 and the owner as PW.2 and the doctor as PW.3 and got marked Ex.P1 to Ex.P13. The respondents not marked any documents nor examined any witness.
7. The Commissioner for Employee’s Compensation/ Tribunal considering the entire material on record, recorded a finding that the claimant proved that he is the employee under the 1st respondent and he has sustained injuries during the course of his employment under the 1st respondent as a driver in the Maruti van bearing Regn. No.KA-01-MD-3064 on 25.3.2012 and proved his income in part and accordingly awarded total compensation of Rs.6,98,544/- with interest at 12% per annum after one month from the date of the accident. Hence, MFA No.7222/2016 is filed by the claimant for enhancement of compensation and MFA No.456/2017 is filed by the Insurance Company for reduction of the compensation.
8. The substantial questions of law that would arise for consideration in these appeals are as under:
“Substantial question of law in MFA No.456/2017:
Whether the Commissioner for Employee’s Compensation/Tribunal is justified in taking the disability of the claimant at 70% when PW.3 – doctor has assessed the disability to the left lower limb at 63%, in view of the provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act ?
Substantial question of law in MFA No.7222/2016:
Whether the Commissioner for Employee’s Compensation/Tribunal is justified in not awarding any compensation towards medical expenses, ignoring the medical evidence produced by the claimant as per Ex.P13 to show that he has incurred Rs.2,26,000/- towards medical expenses, in view of the provisions of Section 4(2A) of the Employee’s Compensation Act ?”
9. I have heard the learned Counsel for the parties to the lis.
10. Sri Nagaraja Hegde, learned counsel for the appellant – Insurance Company contended that PW.3 – Doctor has stated on oath that the claimant has sustained 63% disability to the left lower limb. But, the Tribunal proceeded to take the disability at 70%, which is contrary to the provisions of Section 4(1)(c)(ii) of the Employee’s Compensation Act (‘the Act’ for short). Therefore, he sought to allow the appeal filed by the Insurance Company and to dismiss the appeal filed by the claimant.
11. Per contra, Sri B. Pradeep, learned counsel for the appellant – claimant contended that taking into consideration the injuries sustained by the claimant, the Tribunal was justified in taking the disability at 70%. He would further contend that the Tribunal has not awarded any compensation towards the medical expenses and it has ignored the medical documents produced as per Ex.P13, which is contrary to the provisions of Section 4(2A) of the Act. Therefore, he sought for enhancement of compensation awarded by the Tribunal.
12. Having heard the learned counsel for the parties, it is not in dispute that the claimant was working as driver under the 1st respondent and met with accident and thereby sustained grievous injures. The Wound Certificate – Ex.P12 shows that the claimant sustained crush injuries over left lower limb below knee, abrasions over left wrist, right thigh, right knee joint and x-ray shows compound fracture of left tibia associated with fibula, dislocation of knee joint. The accident occurred arising out and during the course of employment of the claimant under the 1st respondent. The same is evidenced from the material documents Ex.P1 to Ex.P4. It is the specific case of the claimant that due to the injuries, he was admitted to Blossom hospital, Bengaluru as an in-patient and underwent several surgeries and has spent Rs.5,00,000/- towards medical expenses. In order to prove his case, the claimant has produced medical bills as per Ex.P13 for a sum of Rs.2,26,000/-. The same has not been considered by the Tribunal and not granted any compensation towards medical expenses, which is contrary to the provisions of Section 4(2A) of the Act. Therefore, the claimant is entitled to compensation of Rs.2,26,000/- towards medical expenses, in view of the provisions of Section 4(2A) of the Act.
13. It is also not in dispute that the accident occurred on 25.3.2012 after the amendment came into force and the Tribunal rightly taken Rs.8,000/- as monthly wages of the claimant and taken 60% of wages as contemplated under the provisions of Section 4(1)(b) of the Act while computing compensation.
14. It is also not in dispute that the doctor – PW.3 has stated on oath that the claimant has sustained 63% disability to the left lower limb. But the Tribunal has proceeded to take loss of earning capacity of the claimant at 70%, which is contrary to the provisions of Section 4(1)(c)(ii) of the Act. Accordingly issue raised in the appeal of the insurance company has to be answered in negative holding that the tribunal is not justified in taking the disability of the claimant at 70%. Therefore, loss of earning capacity has to be taken at 63% while computing the compensation. Accordingly, the claimant is entitled to compensation of Rs.6,28,931/- (Rs.8,000 x 60% x 207.98 x 63%) in addition to Rs.2,26,000/- awarded towards medical expenses. In all, the claimant is entitled to total compensation of Rs.8,54,931/- with interest at 12% per annum after one month from the date of the accident.
15. For the reasons stated above, the substantial question of law framed in MFA No.456/2017 filed by the Insurance company is answered in the negative holding that the Tribunal is not justified in taking the disability of the claimant at 70% when PW.3 – doctor has assessed the disability to the left lower limb at 63%, in view of the provisions of Section 4(1)(c)(ii) of the Act. Accordingly, the compensation has to be computed taking the loss of earning capacity at 63%. Further, the substantial question of law framed in the appeal filed by the claimant in MFA No.7222/2016 is answered in the negative holding that the Tribunal is not justified in not awarding any compensation towards the medical expenses, ignoring the medical bills produced as per Ex.P13, in view of the provisions of Section 4(2A) of the Act.
16. In view of the above, the appeals filed by both the Insurance Company as well as the claimant are allowed in part. The appellant – claimant in MFA No.7222/2016 is entitled to total compensation of Rs.Rs.8,54,931/- (Rupees eight lakhs fifty-four thousand nine hundred and thirty-one only) with interest at 12% per annum after one month from the date of the accident.
The deposit, if any made by the insurance company shall be transmitted to the concerned Tribunal Ordered accordingly.
Sd/- JUDGE Gss/-