IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A. NO.6088/2010 (MVC) BETWEEN;
M/s National Insurance Co. Ltd., Divisional Office, Davanagere, Now rep. by its Regional Office, No.144, Shubharam Complex, M.G. Road, Bengaluru-560 001.
Rep. by its Administrative Officer.
... Appellant (By Sri. A.M. Venkatesh, Adv.) AND:
1. Sri. Anwar Basha, S/o Mohammed Hayath, Aged about 29 years, R/of Machhanoor, Bilachodu Hobli, Jagalur Taluk, Davanagere District.
2. Sri. Sheik Ahamed, S/o Saabjaan Saab, Owner of Lorry bearing No.KA-19/B-2772, R/of Chitradurga.
... Respondents (By Sri. Mahesh. R. Uppin, Adv. for R1;
R2 - Notice dispensed with v/o Dated 27.11.2014) This MFA is filed u/s 30(1) of WC Act against the judgment dated 29.01.2010 passed in WCA/Cr.
District, Davanagere, awarding a compensation of Rs.1,53,770/- with interest at 12% p.a.
This appeal coming on for Admission, this day, the Court delivered the following:-
J U D G M E N T The insurer of offending vehicle has preferred this appeal seeking reduction of compensation awarded by the Tribunal.
2. Heard Sri. A.M. Venkatesh, learned counsel appearing for the appellant/insurer and Sri. Mahesh. R. Uppin, learned counsel appearing for respondent No.1/claimant. Notice to respondent No.2 was dispensed with. Perused the judgment and award passed by the Commissioner for workmen compensation.
3. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 07.11.2006 during the course of employment due to rash and negligent driving of a lorry bearing registration No.KA-19/B-2772 by its driver and liability of the insurer of the said lorry, the only point that arises for my consideration in the appeal is:
“Whether compensation of Rs.1,53,770/- with interest at 12% per annum awarded by the Commissioner for workmen compensation is just and reasonable or does it call for reduction?”
4. As per the wound certificate at Ex.P5, the claimant had sustained the following injuries:-
a) Fracture of the right scapula b) Greater toberocity of right humerus with multiple lacerated wounds.
c) Head injuries as per X-ray.
5. The injuries sustained and treatment underwent by the claimant were also evident from Ex.P7 discharge card, Ex.P11 reference card, Ex.P12 OPD card, Ex.P13 disability certificate and Ex.P14 X-ray and corroborated by the oral evidence of claimant and doctor who were examined as PW1 and PW2 respectively.
6. PW2, Doctor Ganthemadhukar working as ENT senior specialist at C.G. Hospital, Davanagere has stated that he examined the claimant on 23.11.2007 for evaluation of disability which caused an interference in the functioning of muscles, bones and joints. After clinical examination of the claimant and after going through the medical records and X-ray report, he was of the opinion that claimant has got permanent physical disability of 45% to 50%.
7. The learned counsel appearing for the insurer submits that PW2 Doctor has only stated that claimant has got permanent disability of 45-50%, but has not stated as to functional disability and loss of earning capacity of the claimant on account of injuries sustained by him in the accident and therefore the Tribunal was not justified in working out loss of earning by taking the disability at 30%.
8. The claimant was working as a lorry driver and his income assessed by the Commissioner, Workmen’s compensation at Rs.4,000/- p.m is as per the provisions of Workmen’s Compensation Act.
9. The learned counsel appearing for the claimant submits that the Commissioner considering the nature of injuries sustained by the claimant and disability stated by the doctor has rightly taken 30% as loss of earning capacity and awarded Rs.1,53,770/- towards loss of earning and it is just and proper and there is no scope for reduction.
10. Whether injuries sustained by the claimant affects his loss of earning capacity or not depends upon the nature of work which the injured was doing earlier to the accident. The claimant had sustained fracture of scapular. PW2 Doctor has stated claimant has got permanent disability of 45-50% and has not stated as to the percentage of disability caused to particularly limb and to the whole body. Further he has not stated anything about the functional disability and loss of earning capacity of the claimant on account of injuries sustained by him in the accident. The nature of injuries sustained by the claimant and disability stated by the Doctor may not affect the earning of a person who does table work. In the instant case, claimant is a driver and therefore it cannot be said that it would not affect his earning capacity. In the facts and circumstances of the case, justice would be met if loss of earning of the claimant is worked out by taking the functional disability at 25% as against 30% taken by the Commissioner. Relevant factor applicable to the age group of the claimant, who was aged about 27 years at the time of accident is 213.57. Therefore, loss of earning would work out to Rs.2,400 x 25/100 x 213.57 = 1,28,142/- and it is awarded.
11. The claimant is entitled for the said amount with interest at 12% p.a from one month after the accident till date of deposit.
12. Accordingly appeal is allowed. Judgment and award dated 29.01.2010 passed in WCA/Cr. No.3428/2006 by Labour Officer and Commissioner for Workmen’s Compensation, Davanagere stands modified. The claimant is entitled for a compensation of Rs.1,28,142/- as against Rs.1,53,770/- awarded by the Commissioner with interest at 12% p.a from one month after the accident till the date of deposit.
13. The insurer shall deposit the award amount within two months from the date of receipt of copy of this order after deducting the amount if any already deposited. The amount if any deposited by the Insurance company before this Court is ordered to be transmitted to the Senior Civil Judge, Davanagere. Out of the compensation Rs.1,28,142/-, 70% of the amount with proportionate interest shall be invested in the fixed deposit in the name of the claimant in any Nationalized bank/ Scheduled Bank/Post Office for a period of two years with a right of option for him to withdraw interest periodically. Remaining 30% amount with proportionate interest is ordered to be released in favour of the claimant immediately after the deposit. The Court while releasing 30% of the amount with proportionate interest shall also issue the fixed deposit slip, so as to enable the claimant to withdraw the deposit amount on its maturity without approaching the Tribunal once again and the Bank is also directed to release the fixed deposit amount on maturity without insisting for any further order from the Tribunal.
14. The Court after releasing the amount to the claimant as per the award in the above appeal shall refund the balance amount if any to the insurer.
No order as to costs.
SD/- JUDGE LL