IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA M.F.A.NO.9020/2018 (WC) BETWEEN:
Murthy Naika, S/o Tavari Naika, Aged about 54 years, R/at Somla Naikana Thanda, Sira Taluk, Tumkur District – 572 137. … Appellant (By Sri Shantharaj K., Advocate) AND:
1. K. Ranganatha, S/o Muddarangappa, Aged Major, R/at Kariyala, Hiriyur Taluk, Chitradurga District – 572 143.
2. Reliance Gen. Ins. Co. Ltd., By its Manager, No.182, 1st Floor, Maganur Commercial Complex, B.D. Road, Chitradurga – 577 601. … Respondents (By Sri D. Vijaya Kumar, Advocate for R-2;
Notice to R-1 is dispensed with v/o dtd:11.02.2019) This MFA is filed under Section 30(1) of Employees Compensation Act, against the judgment and award dated 18.01.2018, passed in ECA No.34/2014, on the file of the Senior Civil Judge and JMFC, and MACT, Sira, 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 claimant has filed the present appeal for enhancement of compensation against the judgment and award dated 18.01.2018 made in E.C.A.No.34/2014 on the file of the Senior Civil Judge and Addl. MACT, Sira, thereby awarding total compensation of Rs.76,545/- along with interest at 9% per annum from the date of filing of the above petition till realistaion.
2. The case of the claimant that he was working as a coolie under the 1st respondent in his Tractor and Trailer bearing registration No.KA.16.TA.3334-3335 which was insured with 2nd respondent. On 02.01.2013 in the night, when the claimant was transporting manure to the land of the 1st respondent in the said Tractor and Trailer in Kilaradahalli Cross, the driver of the said Tractor and Trailer drove the same in a rash and negligent manner in violation of the traffic rules and the claimant who was sitting in the Tractor and Trailer fell down and sustained bleeding injuries and immediately he was shifted to Government Hospital, Sira and after the advice of the duty doctor he was shifted to Government Hospital, Tumkur, where he was admitted as an inpatient for two months and spent Rs.50,000/- towards medicine and other incidental charges.
3. It is the further case of the claimant that he was hale and healthy and he was aged about 50 years as on the date of accident and he was working as a coolie under the 1st respondent, who was paying monthly wages of Rs.6,000/- and Rs.50/- per day as Bata. The accident occurred arising out of and during the course of his employment under the 1st respondent. The 1st respondent being the owner of the vehicle and 2nd respondent being the insurer of the vehicle are jointly and severally liable to pay the compensation.
4. In response to the notice issued, the 1st respondent filed objections denying all the averments and contended that he was paying monthly wages of Rs.3,000/- and he denied dependency of claimant’s family from his earnings and further contended that the Tractor and Trailer was insured with 2nd respondent and the policy was in force and if the claimant is entitled for any compensation, the same is liable to be paid by the 2nd respondent and hence, he sought to dismiss the claim petition.
5. The 2nd respondent – Insurance company filed written statement denying the averments made in the claim petition and contended that claim petition is not maintainable. It is further contended that the claimant was not working as a coolie and he was not earning monthly wages of Rs.6,000/- per month and bata of Rs.50/- per day and also contended that the driver of the 1st respondent was not holding any effective driving license to drive the said vehicle thereby the 1st respondent breached the terms and conditions of the policy. Therefore, sought for dismissal of the claim petition.
6. Based on the aforesaid pleadings, the Commissioner for Workmen’s Compensation / Tribunal framed the following issues:
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3. ºÁVzÀÝ°è vÀ£ÀUÉ GAmÁzÀ zÀÄrªÉÄAiÀÄ ±ÀQÛAiÀÄ £ÀµÀÖzÀ ±ÉÃPÀqÁ ¥ÀæªÀiÁt JµÀÄÖ JA§ÄzÀ£ÀÄß CfðzÁgÀgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
4. C¥ÀWÁvÀ ¢£ÀzÀAzÀÄ vÀ£Àß ‘ªÀAiÀĸÀÄì’ ªÀÄvÀÄÛ vÀ£ÀUÉ zÉÆgÉAiÀÄÄwÛzÀÝ ‘¸ÀA§¼À’ JµÀÄÖ JA§ÄzÀ£ÀÄß CfðzÁgÀgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
5. ºÁVzÀÝ°è CfðzÁgÀgÀÄ AiÀiÁªÀ jÃwAiÀÄ°è ¥ÀjºÁgÀ zÀAqÀ ªÀÄvÀÄÛ §rØAiÀÄ£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀðgÀÄ? F ºÀtªÀ£ÀÄß G¨sÀAiÀÄ ¥ÀæwªÁ¢UÀ¼ÀÄ AiÀiÁªÀ jÃwAiÀÄ°è ¥ÁªÀw¸À®Ä ¨ÁzsÀågÀÄ?
6. F §UÉÎ DzÉñÀ K£ÀÄ?
7. In order to establish his case, the claimant examined himself as P.W.1 and further examined the doctor as P.W.2 and marked the documents as Exs. P1 to P.7. On the other hand, the official of the 2nd respondent examined as R.W.1 and one witness as R.W.2 and got marked two documents as Exs. R.1 to R.2.
8. The Tribunal considering both oral and documentary evidence on record, recorded a finding that the claimed proved that he was employee under the 1st respondent and accident occurred arising out of and during the course of employment on 02.01.2013 and further recorded a finding that the claimant has sustained 10% disability to the whole body. Accordingly, the Tribunal proceeded to pass the impugned award by taking monthly wages of the claimant as Rs.5,000/-. Hence, the present appeal is filed by the claimant for enhancement. The Insurance Company has not filed by appeal.
9. I have heard the learned counsel for the parties to the lis.
10. Sri. Shantharaj. K., learned counsel for the appellant – claimant contended that the Tribunal erred in taking 10% disability, when the doctor who was examined as P.W.2 categorically stated on oath that the claimant has sustained permanent disability of 45% and 15% to the whole body. He further contended that the Tribunal erred in taking the monthly wages at Rs.5,000/-. Since the accident occurred on 02.01.2013, the Tribunal ought to have taken the monthly wages at Rs.8,000/- per month in view of the provisions of Section 4(1B) of the Employees’ Compensation Act, 1923 (hereinafter referred to as ‘the Act’ for short) whereby the Central Government by its Notification dated 31.05.2010 has specified the wages at Rs.8,000/-. He further contended that the Tribunal while awarding compensation has proceeded to award only 9% interest instead of 12% as contemplated under Section 4A(3)(a) of the Act. Therefore, he sought to allow the appeal.
11. Per contra, Sri. D. Vijayakumar, learned counsel for the Insurance Company has justified the impugned judgment and award passed by the Tribunal. He pointed out that as per Section 4(1)(b) of the Act, the Tribunal is entitled to calculate 60% of the monthly wages of the injured and not 100%. Therefore, he submits that the same has to be clarified. He further contended that in the absence of any proof of income, the Tribunal has rightly justified in taking monthly wages at Rs.5,000/- and interest at 9% on the compensation amount. Therefore, he sought to dismiss the appeal.
12. This Court while admitting the appeal has framed the following issues:
a) Whether the Tribunal is justified in taking monthly wages of the claimant at Rs.5,000/-, when the accident occurred on 02.01.2013 in view of the provisions of Section 4(1B) of the Employees’ Compensation Act, 1923 whereby the Central Government by its Notification dated 31.05.2010 has specified the wages at Rs.8,000/-?
b) Whether the Tribunal is justified in taking the disability at 10% contrary to Section 4(1)(c)(ii) of the Act, when the Doctor has stated on oath that the claimant has suffered 15% permanent disability to whole body?
c) Whether the Tribunal is justified in awarding 9% interest on the compensation in view of the provisions of Section 4A(3)(a) of the Act?
13. Having heard the learned counsel for the parties, it is an undisputed fact that the claimant was working as coolie under the 1st respondent and he sustained grievous injuries in the accident that occurred on 02.01.2013 arising out of and during the course of employment on account of the rash and negligence on the part of the driver of the Tractor and Trailer. The same is evidenced as per Exs. P.1 to P.7. The claimant who was examined as P.W.1 has stated on oath that the 1st respondent under whom he was working as a coolie used to pay him RS.6,000/- monthly wages and Rs.50/- as Bata per day.
14. The employment under the 1st respondent is not in dispute. The 1st respondent who filed objections before the Tribunal has not disputed the said fact but, he has stated that he was paying monthly wages of Rs.3,000/- to the claimant. It is also not in dispute that as on the date of accident, policy was in force.
15. The doctor, who was examined as P.W.2 has stated on oath, that the claimant took treatment at General Hospital, Sira, with history of RTA for bone and soft tissue injuries and fractures. As per Exs.P5 to P7 medical records, the claimant has sustained fracture of right humerus, surgical neck of humerus and fracture of Scapula glenoid cavity right with malunion deformity. The Doctor has further stated that the claimant has sustained permanent disability of 45% and 15% to the whole body, but, nothing has been elicited from the mouth of P.W.2-Doctor about functional disability. Hence, the Tribunal has proceeded to take the permanent functional disability at 10% ignoring the provisions of Section 4(1)(c)(ii) of the Act, which reads as under:
“(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”
16. In view of the aforesaid provision, the Tribunal ought to have taken the loss of earning capacity as assessed by the qualified medical practitioner, who has stated on oath that claimant has sustained permanent disability of 45% and 15% to the whole body. Therefore, the findings recorded by the Tribunal as regards functional disability cannot be sustained.
17. Admittedly, the accident has occurred on 02.01.2013. As per the amended provisions of Section 4(1B) of the Act, the Central Government by its Notification dated 31.05.2010 has specified the monthly wages at Rs.8,000/-. Hence, the Tribunal was not justified in taking Rs.5,000/- as monthly wages of the claimant.
18. The material on record clearly depicts that the Tribunal has proceeded to award compensation of Rs.76,545/- with interest at 9% per annum against the provisions of Section 4A(3)(a) of the Act. Therefore, the claimant is entitled to interest at 12% per annum after one month from the date of accident till the date of payment.
19. For the reasons stated above, the substantial questions of law have to be answered in negative holding that the Tribunal is not justified in taking the monthly wages at Rs.5,000/- while deducting 10% of disability and awarding 9% interest. The income of the deceased has to be taken as Rs.8,000/- per month and 60% on the same has to be considered in view of the provisions of Section 4(1)(b) of the Act. Taking into consideration the age of the claimant, relevant factor for 50 years would be 153.09. Accordingly, the claimant is entitled to compensation as per the following:
(60% on Rs.8,000/- = 4800) Rs.4800/- x 153.09 x 15/100 = Rs.1,10,225/-.
20. For the reasons stated above, the appeal filed by the claimant is allowed in part. The judgment and award passed by the Tribunal dated 18.01.2018 in E.C.A.No.34/2014 is hereby modified. The claimant is entitled to total compensation of Rs.1,10,225/- along with interest at 12% per annum after one month from the date of accident till the date of payment. The enhanced compensation shall be released to the claimant forthwith.
Sd/- JUDGE VP